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e983893312043295c0c3eb93c56ea9cecc0074da4f67f7bed8f3575cfc67aa0a

[2008] EWCA Crim 3004

EWCA_Crim_3004

2008-11-19

crown_court

Neutral Citation Number: [2008] EWCA Crim 3004 No: 200804249/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 19 November 2008 B e f o r e : LORD JUSTICE DAVIS DAME HEATHER STEEL DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTOPHER OSBOURNE - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street Lon

Neutral Citation Number: [2008] EWCA Crim 3004 No: 200804249/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 19 November 2008 B e f o r e : LORD JUSTICE DAVIS DAME HEATHER STEEL DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v CHRISTOPHER OSBOURNE - - - - - - - - - - - - - - - - - - - - - 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 Wrottesley appeared on behalf of the Applicant Mr B Outhwaite appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. Dame Heather Steel: We grant leave to the applicant to appeal his sentence. On 14 December 2007 in the Rotherham Magistrates' Court the appellant, Christopher Osbourne, who is 38 years of age, pleaded guilty to an offence contrary to section 1(2) of the Fraud Act 2006 . The offence was of making a false representation to make a gain for himself or another or cause loss to another or expose another to risk. For that offence he was sentenced to a community order with an unpaid work requirement of 180 hours. 2. On 22 April 2008 he appeared before the Rotherham Magistrates' Court for breaching that community order by failing to comply with the requirements without reasonable excuse. He had failed to attend on 12 and 19 January 2008. He told the probation officer that he had sustained a back injury, falling off a ladder, and that he was unfit to work. On 22 April the Magistrates' Court revoked the community order and the applicant was resentenced to 12 weeks' imprisonment, suspended for 12 months, with a six month supervision order and 180 hours unpaid work requirement. At that hearing in the Magistrates' Court, and before he was sentenced, he produced a sick note, apparently confirming the back injury and his inability to work. 3. On 13 June 2008 in the Sheffield Crown Court he pleaded guilty to an offence of doing acts tending and intended to pervert the course of public justice. On 21 July 2008 he was resentenced to a period of three months' imprisonment for the offence of fraud with a consecutive sentence of two years' imprisonment for the offence of perverting the courses of justice. That made a total sentence of two years and three months. 4. This matter has been referred to this court by the registrar, together with the application for leave to appeal sentence. 5. The documentation, in particular the Form NG which was produced for this court, indicated that the three month sentence which was imposed was imposed for breach of the suspended sentence, and we were invited by the Registrar to consider whether the judge may have erred in passing that sentence of three months for the breach of the suspended sentence, when the offence of perverting the course of justice pre-dated the imposition of the suspended sentence, so that there was no breach. It is clear from the sentencing remarks of the judge and the transcript of the conversation that took place on 21 July 2008 that the learned judge was aware of this. He then purported to revoke the original order and resentence the appellant for the original offence of fraud. That sentence was not passed in respect of any perceived breach of suspended sentence. 6. Briefly the facts of the two offences are these. On 24 September 2007 the applicant falsely represented that he was his own step-son, John Hadfield, with the intention of acquiring a £2,000 loan in order to fund a family holiday. He surrendered himself to the police and made full and frank admissions in interview. That offence resulted in the community order which he breached. 7. At the hearing in the Magistrates' Court on 22 April he handed up the photocopy, to which we have referred, of a sick note from a Dr Kadir, dated 23 September 2007. That note confirmed that he had a back injury and could not work. Enquires were made and the note was found to be false. The doctor was contacted. He said he had not written a note for the appellant since 23 August 2006, although he had given the appellant's step-daughter a sick note in December 2007. The appellant was arrested. In interview he admitted that he had tippexed out the relevant parts of the sick note which did not cover the relevant date and substituted false information about the back injury. He had left the doctor's signature on the note and photocopied it. He shredded the original because the obvious amendments invalidated it. He denied using his step-daughter's sick note. 8. Before sentence the learned judge had the benefit of a letter from the appellant, a pre-sentence report dated 16 July 2008 from Claire Tweddle, and the antecedents of the appellant disclosed a number of previous court appearances for offences of dishonesty, but none for some years. 9. Having heard the mitigation, the judge then proceeded to sentence the appellant. He said during the course of the sentencing remarks: "You are entitled to full credit for your plea in respect of both of the matters and that is what you will receive, but your position is aggravated because you have a history of deceiving people, using your skills to obtain by deception and steal from your employers. On this occasion you planned to deceive the probation service and also the sentencing court by altering a medical note, photocopying it and then destroying the original. That strikes at the very heart of the system. There are many people the subject of these orders who genuinely are unfit to work. You probably knew that and decided to take advantage of it. You have to not only be punished but the sentence has to be imposed to deter other people from doing what you did." The judge then purported to revoke the original order and to substitute a sentence of three months' imprisonment for fraud and for the offence of perverting the course of justice he imposed a sentence of two years' imprisonment consecutive. 10. Miss Wrottesley in her written grounds of application submits that in passing the sentence the learned judge was right to indicate there was a need to impose a punishment with both a punitive and a deterrent element. She went on to write. "... it is not contested that the learned judge could impose a consecutive sentence." She went on to say that in all the circumstances the sentence was manifestly excessive. 11. In relation to the perverting the course of justice offence she writes that: "The act of presenting the fraudulent medical certificate to the court did not achieve the aim of ensuring that the appellant received a substantively lenient sentence. Although he did not receive a sentence of immediate imprisonment [in the Magistrates' Court], [he] did receive a suspended sentence of imprisonment which was coupled with onerous community requirements." 12. We are invited this morning to consider two matters. In relation to the three month sentence, which was passed for the original offence for which the community sentence was imposed and which had been revoked by the magistrates on 22 April, both counsel before us this morning are now in agreement that the learned judge had no power to revoke that order. It had already been revoked and a suspended sentence imposed. On behalf of the Crown Mr Outhwaite submits, and we accept, that the learned judge fell into error when he revoked that already revoked original order. There can be in this case no resentence. He had no power to make any order in relation to the original offence which led to the community sentence which was breached. 13. We have been most helpfully referred this morning to Archbold at paragraph 5-334F in which consideration is given to Schedule 12 paragraph 8 of the Criminal Justice Act 2003 . That deals with offences which are committed in breach of a suspended sentence. We are satisfied on the submissions that we have heard this morning that the suspended sentence order cannot, and could not, by this judge have been revoked. That suspended sentence will, therefore, perhaps surprisingly, continue to run for the 12-month period of suspension which will expire in April 2009. The sentence of three months' imprisonment must therefore be quashed. 14. We then go on to consider the appropriate sentence for the offence of perverting the course of justice to which the appellant pleaded guilty. It is submitted on his behalf that that sentence of two years' imprisonment is manifestly excessive. The reasons are the appellant's plea, the nature of the offence and his personal circumstances, in that at the time of sentence he was in full-time employment, he had accommodation and he had renewed his relationship with his partner, and, although, she submits this morning, he had an antecedent record which disclosed previous offences of dishonesty, they had been committed some time ago and it was perhaps not necessary to consider that criminal record as aggravating the circumstances of the present offence. 15. We accept that the offence in relation to the sick note was a serious offence for which custody was inevitable. We have to consider, however, whether the sentence of two years may be considered to be manifestly excessive. 16. We have been referred this morning to the case of R v Paul Bailey [2006] 2 Cr App R(S) 306 which was a case of a more serious nature than the present. We have to consider the criminality in the circumstances, of the manufacture and presentation of the false sick note to both the probation service and to the Magistrates' Court on 22 April this year. 17. We have come to the conclusion that that sentence of two years is manifestly excessive. Taking into account all the circumstances of the offence, including its seriousness, custody is inevitable. The sentence is not wrong in principle. However, we are satisfied that two years was too long. What we propose to do is to allow this appeal to the extent that we quash the sentence of three months, which was imposed for the original offence, and which was a sentence which was outside the judge's power in this case. For the offence of perverting the course of justice we quash the sentence of two years and for that we substitute a sentence of 18 months' imprisonment. The total sentence now is 18 months.

2008_11_19-1724.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/3004/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/3004

f730ca7855ae469d75d9ad88da72339cc375eaa76b0484f93b58d87c26c9e928

[2006] EWCA Crim 820

EWCA_Crim_820

2006-04-12

supreme_court

Neutral Citation Number: [2006] EWCA Crim 820 Case Nos: 200500602 C3 200501485 C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WORCESTER CROWN COURT Mr Justice Pitchers Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 April 2006 Before : LORD JUSTICE RICHARDS MR JUSTICE PENRY-DAVEY and HER HONOUR JUDGE GODDARD QC (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent -

Neutral Citation Number: [2006] EWCA Crim 820 Case Nos: 200500602 C3 200501485 C3 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WORCESTER CROWN COURT Mr Justice Pitchers Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 April 2006 Before : LORD JUSTICE RICHARDS MR JUSTICE PENRY-DAVEY and HER HONOUR JUDGE GODDARD QC (sitting as a Judge of the Court of Appeal (Criminal Division)) - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - v - Angela Alison Gay Ian Anthony Gay Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Mansfield QC and Andrew Scott (instructed by William Bache Solicitors) for the Appellants William Davis QC and Andrew Lockhart (instructed by the Crown Prosecution Service ) for the Respondent Hearing dates: 21-23 March 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Richards : 1. On 13 January 2005 at Worcester Crown Court, following a trial before Pitchers J and a jury, Angela and Ian Gay were convicted of the manslaughter of Christian Blewitt, a young boy who had been placed with them with a view to adoption (count 2 on the indictment). They were each sentenced to 5 years’ imprisonment. They were acquitted of the murder of Christian (count 1). No verdict was entered in respect of an alternative count of cruelty to a person under 16 (count 3). 2. They subsequently sought leave to appeal against conviction on three grounds. Ground 1 relates to the issue of joint enterprise; ground 2 is based on fresh evidence from a medical expert as to the cause of Christian’s death; and ground 3 relates to the judge’s directions to the jury concerning the burden of proof. The single judge refused leave on grounds 1 and 3, which come before us by way of renewed applications. The single judge referred the application for leave on ground 2 to the full court, which is how that ground now comes before us. 3. For reasons explained below, we have decided to refuse the renewed applications for leave on grounds 1 and 3 but to grant leave on ground 2 and to deal with the substantive appeals on that ground. We will therefore refer to Mr and Mrs Gay as appellants. 4. The position in relation to ground 2 was complicated by the existence of further applications on behalf of the appellants to be allowed to instruct three additional medical experts and for the adjournment of the leave application pending receipt of reports from those additional experts. We decided not to rule on those applications as a threshold issue but to hear the existing expert evidence de bene esse , together with full argument from counsel, before reaching any concluded view on the matter. In the event, because of our decision to grant leave and the conclusion we have reached on the substantive appeals, as set out below, the applications in respect of additional experts fall away. The background facts 5. Christian Blewitt was born on 8 June 1999. During the first ten months of his life he was admitted to hospital on four occasions. Such was the concern about the quality of the parenting he was receiving that he was removed from his mother and placed with foster parents in June 2000. His two younger siblings were removed from hospital at birth and also placed with the foster parents. An attempt to rehabilitate Christian with his mother proved a failure and he was returned to his foster parents. In summer 2002 the foster parents were informed that the children were to be put up for adoption. 6. The appellants had married in 1990. Mr Gay was an electrical engineer and Mrs Gay became an actuary. They were unable to have children and eventually considered adopting a child. Mrs Gay contacted social services in January 2002. In June 2002 an adoption social worker, Mrs Gillian Jones, assessed them with a view to placing Christian and his two siblings. She thought the appellants suitable but arranged for them to spend time with an experienced foster carer, Mrs Capper, so as to gain some experience of caring for young children. There was some dispute at trial about what happened at the sessions with Mrs Capper. It suffices to note that only Mr Gay attended the sessions, though both applicants had been expected to attend, and that Mrs Capper left a message for the social worker expressing concerns about the appellants’ ability to cope. Mrs Jones spoke to Mr Gay about Mrs Capper’s concerns but came to the conclusion that there was no real cause for concern. She obtained permission for the appellants to visit the nursery attended by her own child in order for them to gain experience of small children. Mr Gay attended on five or six occasions and was praised by nursery staff. 7. As matters progressed, the appellants met Ms Melrose Gray, the social worker responsible for Christian. They also looked after another infant for three and a half weeks, and moved to a new address where they adapted the house to make it suitable for any children they might adopt. Mrs Jones raised the question of Mrs Gay taking time off work following adoption of Christian because of his past history of hospitalisation and neglect. Mr Gay assured her that he and his wife would be together. They indicated in documentation that Mrs Gay planned to take adoption leave for a number of months. 8. The appellants were approved by the adoption panel on 9 September and were approved specifically to adopt Christian and his siblings on 20 September. They had an initial meeting with the children on 22 October at the foster carers’ home. On 29 October the first unaccompanied visit took place at the appellants’ house. 9. The children moved in with the appellants on 1 November. The appellants looked after the children together and arrangements were made for social services to visit on a regular basis. On 2 November Mr Gay telephoned Mrs Jones to the effect that the children had settled in well. During a visit by Mrs Jones and Ms Gray on 6 November, Christian became upset but Mrs Gay was able to reassure them and it was noted that Christian was calling her “mummy”. 10. Two days later, on 8 November, Mr Gay telephoned Mrs Jones to say that they were very worried. Mr Gay said in evidence that Christian’s behaviour on 6 and 8 November had been odd and he would not communicate despite encouragement. He also that Christian’s sleeping behaviour during this period was odd. Mrs Gay said that Christian had panicked during the visit of 6 November but calmed down after being comforted, but that on 7 and 8 November his manner had become very withdrawn. When Mrs Jones went to see the appellants following the telephone call, they told her that they were not sure that Christian was the child they had in mind and that he presented difficulties: they had expected him to be able to talk better and to recognise colours and letters. 11. Mrs Jones spoke firmly to the appellants and made clear that there was no prospect of the children being split up. She left the appellants with a video. Mr Gay telephoned the following day, 9 November, to say they had viewed the video and felt they had not given Christian the chance he deserved. Mr Gay also said in evidence that on 9 November Christian behaved like a different person and communicated perfectly normally. 12. Mrs Jones made a further visit on 11 November. Mrs Gay had in fact just returned to work, but Mrs Jones was not informed of it. She learned of it only on a further visit on 27 November, when Mr Gay told her and, according to her, said that he was cross about it. His own evidence was that he might have given the impression that he was furious about his wife’s return to work, but it was not true: he had been trying to appease Mrs Jones by appearing to agree with her. He said that they had wanted to give the impression to social services that they would both remain at home as long as was required. Mrs Gay denied deliberately misleading social services about her return to work. She said that she worked short days and there were no problems in the first week: the children accepted that she was not there and the atmosphere was relaxed. 13. Mrs Jones reported back to social services that Mrs Gay had returned to work. They formed the view that this was not acceptable, as it went against everything that had been told to the adoption panel. When Mrs Jones next visited the appellants, on 5 December, she told Mr Gay that she would have to discuss his wife’s return to work because it was contrary to the agreement. The events leading to Christian’s death supervened before that discussion could take place. 14. In the course of his police interviews, Mr Gay said that they had told Mrs Jones at the meeting on 5 December that they found Christian’s behaviour to be odd. He believed that Christian had a problem with attention seeking when Mrs Gay returned home in the evening. Christian refused to do anything for her and became introverted. This behaviour continued until bed-time and was very upsetting for her. 15. Mr Gay said that there had been a number of incidents on Saturday 7 December involving Christian and Mrs Gay. Christian struck her on the head with his chin, causing her to leave the room in distress. She did not feel that he had done it on purpose but was upset because she had wanted to cuddle him and felt rejected. Mr Gay did not see the second incident, when Christian bit his wife’s hand on the web of the thumb, but was told about it by his wife. He asked Christian to apologise, but Christian would not do so and kept turning his head away. Apart from this there was nothing wrong with Christian’s behaviour, so he felt able to go to his boat. 16. Mrs Gay’s account was that Christian had been withdrawn on 7 December. She asked him for a hug. He came slowly and when she picked him up, he jerked his body so that his head came into contact with her mouth. On another occasion she tried to hug him, but he objected and his knee or foot came into contact with her ribs. There had been an earlier occasion when the boys had got over-excited and Christian had nipped her hand. She thought she had said something about it to her husband and may have told him not to tell Mrs Jones in case Mrs Jones wanted to bring the placement to an end. Mrs Gay agreed that she was a bit upset about the bite. Apart from that there was nothing wrong about Christian’s behaviour; otherwise her husband would not have gone to the boat. While her husband was out, Christian stayed with her in the kitchen. He seemed a bit grizzly, so she put him upstairs with his brother. When Mr Gay returned, they spent the afternoon with the children. Christian played with his food, which was unusual, and he only ate a fraction of it. 17. Mr and Mrs Gay gave virtually identical accounts of events on Sunday 8 December, though the account given by Mrs Gay was in some respects more detailed. She said that she got up at 8.30 or 9.00 am, showered and spent two or three minutes with the boys. Christian seemed a bit quiet. He did not drink his tea and kept spilling it, but insisted that he did not require help with it. He did not finish his drink. Nor did he eat much of his cereal for breakfast, which was unusual. At about 11.30 am he started to ask for drinks. He came to her begging for water, which was unusual, and followed her to the sink. He guzzled water from a tumbler she filled for him, to the extent that he spilled some of it. He asked for another drink and she filled the tumbler a second time. She could not understand why he wanted water and she gave him some Ribena from a jug in the fridge. After this he asked again for water and she gave him some more. She crouched down to support him while he drank. He had four drinks in total. He asked for a fifth but she said no because it would make him poorly. He went to the family room. He then wet himself, so she took him upstairs to the bathroom to clean him, while Mr Gay cleaned up downstairs and brought some clean clothing for Christian. Christian asked for a shower so that he could wash his hair. Normally he had a phobia about the shower. 18. They had lunch between 1.00 and 1.30 pm. Christian was suddenly sick: it was mostly liquid. He was put to bed. Later Mr Gay brought him down to the family room and they reheated his food. He did not eat his meal, but put his hands in the gravy and smeared his face. They left him alone in the kitchen to see if he would eat the meal if he were on his own. After five or ten minutes they looked in and it appeared that he had thrown his meal on the floor. Nothing like this had happened before. Mr Gay described Christian as looking up and smiling and laughing at him, which he attributed to Christian being cheeky. Mrs Gay said when she saw Christian, he was in his chair with his head slightly down. Mr Gay stood Christian on the floor and wiped him, then suggested he be removed from the situation and picked him up and took him upstairs. They put him in his baby sister’s cot. Mrs Gay asked Christian why he had done it. He tried to speak but words would not come out. He was in a sitting position when Mr and Mrs Gay returned downstairs. 19. At about 3.15 pm Mrs Gay went upstairs to check on Christian. She found him lying on his back diagonally, with his head almost in the corner of the cot. His eyes were half open as if rolled up. She picked him up. He was totally floppy. She shouted to her husband, and when he came she asked him to get some milk. Nothing happened when she put the milk to Christian’s lips. Mr Gay shone a torch into Christian’s eyes but got little reaction. He told his wife they had to get Christian to hospital. He drove Christian to Russells Hall Hospital, arriving within 20 minutes. 20. From the time of his admission to hospital Christian did not recover consciousness. The nature of his condition, the tests carried out on him and the efforts to treat him are considered below. He was transferred to Birmingham Children’s Hospital during the evening of 8 December. Over the next three days his condition deteriorated, and at 3.28 pm on 12 December he was declared dead. 21. The appellants had been arrested on 11 December, the day before Christian died. They were interviewed at length and were subsequently charged with his murder. The trial 22. The focus of the evidence at trial was on medical issues. Multiple areas of medical expertise were covered and a large number of experts gave evidence. There were, however, three areas of particular importance: i) There was evidence of trauma to Christian’s head. The post mortem revealed 11 sub-scalp bruises which appeared to be recent. There were areas of subdural haemorrhaging and bruising, and the brain was grossly swollen. There were also retinal haemorrhages. ii) Christian had severe hypernatraemia, i.e. an exceptionally high concentration of sodium in his blood. That is the area central to the present appeal. iii) There was an area of infarction (in effect, death of the muscle) in the left ventricle of the heart, which had probably occurred while Christian was in hospital. It was the kind of injury that might be caused by a heart attack in an adult, but was most unusual in a young child. There was also some older infarction of a capillary muscle elsewhere in the heart. 23. The issues revolved around the first and second of those areas, the causation of them, and their relationship to the third. 24. The charge of murder (count 1) was based on the trauma to the head, the essential questions being whether it had been a substantial cause of death, whether it had been caused by an unlawful act or unlawful acts of the appellants (shaking or banging) and, if so, whether such act or acts had been carried out with the intention requisite for murder. 25. The charge of manslaughter (count 2) was put on alternative bases. The first was that the death was caused by trauma to the head resulting from the unlawful act or acts of the appellants, but carried out without the intention requisite for murder. The second was that the death was caused by the high sodium concentration in Christian’s blood, which in turn had been caused by the unlawful administration of salt by the appellants: the evidence was that Christian would have had to ingest 30-40 grams of salt, or at least 4½ teaspoonfuls, to account for such a high level of sodium. Although the charge was left to the jury on that dual basis, the reality by the end of the trial was that the manslaughter charge depended on the salt issue. As the judge expressed it in summing up: “it is the head injury that founds murder and salt manslaughter” (104B). 26. In relation to both counts (count 1 and count 2) the prosecution case was put on the basis of joint enterprise. The prosecution could not say which of the appellants was the principal and which was the secondary party in relation to any of the unlawful acts alleged. At the close of the prosecution case, a submission of no case to answer was made on the ground, inter alia , that there was insufficient evidence to enable a jury to conclude that the appellants were parties to a joint enterprise. The judge rejected that submission. As part of the first ground of appeal, it is submitted that he was wrong to do so. 27. In his summing up the judge reminded the jury at some length of the medical evidence, but concluded with a helpful summary, whilst stressing that it was “inevitably an over-simplification”. What he said in relation to salt is merely the start of what we will need to consider. What he said in relation to the head trauma, however, provides a sufficient overview of the position at trial. The judge said this (145-147): “[L]et us just look at the summary of where we are with the two major areas, ingestion of salt and head trauma. Salt first. There is no doubt Christian undoubtedly came into hospital with a grossly raised sodium concentration in his blood, you may think. All possible known causes have been excluded except acute ingestion of salt earlier that day. Therefore, all the doctors, except Dr Chambers [the relevant defence expert], say that that is what caused it. Dr Chambers says he can think of no other cause, but he is not persuaded of acute ingestion because of what is agreed to be an extraordinary feature, which is the plateauing of the excretion of sodium on the 9th, even though his kidneys were functioning properly. Professor Haycock [one of the prosecution experts] gives the possible explanation for that as being the heart damage. Dr Chambers says there is nothing in the literature to support that, even though it is possible. To be sure of ingestion of salt, what you must be sure of is that Dr Chambers is wrong. It is not a matter of counting head[s], as counsel has rightly said – all the other doctors are clear – but you must be sure that he is wrong before you can be sure that there has been a grossly excessive ingestion of salt. Of course, on this issue we then have the important factual issue, namely how did he get [it] into his system? The head trauma. This is very much not one man against the rest, you may think. There is a group of doctors, called by the prosecution, who say that the combination of the sub-scalp bruises as markers and the swelling which Dr Jaspan says he sees in the CT scan, and the pattern of the bruising, convinces them that this was trauma – shaking, violent handling, striking of the head or a combination. But there is another group – Dr Anslow, Dr Squires, Professor Forrest, and to a lesser extent some of the paediatricians who acknowledge this as a possibility – who attack this theory both in a negative and a positive way. They say that these are not impact injuries and that shaking of a three and half year old to death is not only unknown in the literature but physically inconceivable (to use Dr Anslow’s expression). That is the negative attack. Their positive attack is on the basis that there is reasonable cause for the bleeding in the brain present, namely hypernatraemia, which does appear in the literature even though the evidence may be weak. You heard a careful and full analysis of the medical evidence by Mr Smith on behalf of both defendants – he was actually speaking on behalf of Mr Gay. He did not put it quite as bluntly as this, but I think it necessary to do so so that you face up to the issue you are confronted with. You know that to convict of murder you must be sure that the head trauma was a substantial cause of the death, and hence before you convict of murder you must be sure, must you not, that that second group of doctors (Anslow, Squires, Forrest and the like) are wrong, because unless you can exclude that as a possible cause of the head injury, that is to say the hypernatraemia, and their opposition to the proposition that this could be shaking or impact, then unless you have excluded their views you cannot be sure that the other view is right, and unless you can be sure that the other view is right then you cannot answer that first question on the form in the way I indicated you had to before you could convict of murder.” 28. As regards the salt issue, the question left open by the judge in that passage was “how did he get it into his system?” The appellants denied that they had given salt to Christian. The prosecution invited the jury to infer from all the circumstances that Christian could not have taken such a large amount of salt accidentally and that it must have been deliberately administered to him. The suggestion was that it was done as a punishment. Commonsense and experience, together with the experience of the experts and the absence of any such case in the literature, were said to support the view that a child would not voluntarily take such a large amount of salt. The prosecution pointed to the evidence that the appellants were not coping well that week, and particularly that weekend. They also relied on the appellants’ own statements that Christian himself did not have access to such a large amount of salt within the house. 29. It is evident from the jury’s verdicts that they did not accept the prosecution’s case on count 2 in respect of trauma to the head but did accept the case on count 2 in respect of hypernatraemia caused by unlawful administration of salt (or “salt poisoning”, as it has been described in some of the evidence and submissions before us). The grounds of appeal 30. With that introduction we turn to consider the grounds of appeal. 31. Mr Mansfield QC, for the appellants, indicated that grounds 1 and 3 were not freestanding grounds in the sense of providing a basis for an appeal in the absence of the fresh evidence under ground 2. It seems to us, however, that they do fall to be considered separately and that the most convenient course is to examine them before moving on to ground 2. As we have already mentioned, the single judge felt able to dispose of them while at the same time referring ground 2 to the full court. Ground 1: joint enterprise 32. Ground 1 addresses the issue of joint enterprise. It is submitted that, even if salt was administered unlawfully to Christian, there was no evidence to show that the applicants were parties to a joint enterprise to administer it. Although neither of them left the house during the relevant period, there was no evidence that they remained together with Christian throughout that period; on the contrary, there was clear evidence that there were times when they were apart. This should have led to the judge accepting the submission of no case to answer at the close of the prosecution case. Further, the argument is said to be even stronger in the light of the evidence called by the defence and the jury’s verdicts on count 1. It is submitted that the argument that there was no evidence capable of establishing joint enterprise is stronger in this case than in any previous reported case involving two parents jointly accused of the murder or manslaughter of a child. 33. In his ruling rejecting the submission of no case to answer, the judge referred to relevant authorities from which he extracted a number of principles. Since it is not contended that he misdirected himself, we do not set out those principles. The judge said, correctly, that the whole of the picture must be examined. He then identified a number of features of the evidence, on the basis of which he concluded that the evidence as a whole was sufficient to enable a jury properly to conclude that there was a joint enterprise: “There was no history of abuse of Christian in the weeks leading up to his death, but there was a history of poor coping by the defendants with the difficulties which he presented. During the application for adoption they had insisted upon perfection in the child. Not long after he had come to live with them, Mr Gay, with the knowledge of Mrs Gay, telephoned Social Services indicating that because he wasn’t doing as well as they had hoped they might not wish him to stay with them. A picture of events leading up to the final day, as set out in their interviews, shows a pattern of increasing pressure on both of them caused by Christian, from whom, on the face of their interviews, they appear to have had unreasonable expectations and to whom they attributed adult motivation. Secondly, on the Saturday and Sunday both defendants were together with each other and Christian almost the entire time. During this time they found his behaviour towards Mrs Gay particularly distressing and needing firm, even very firm, correction. Thirdly, each admits that they were angry with Christian during this time. Fourthly, during the vital period both for any forced ingestion of salt, which would be roughly between 10.00 in the morning to 2.00 in the afternoon, and the trauma to the head, probably no more than 15 minutes during the afternoon, they were together with each other and Christian, save for periods of a matter of seconds. Their care of Christian during this time was joint, in that they were acting together in dealing with him and the various problems that he was presenting. Fifthly, during the longer period, in the presence of both of them, he was playing with his food, culminating in throwing it to the floor, after which Mr Gay saw and told Mrs Gay of his smiling about having caused the mess and this appears to have distressed them. Sixthly, during the course of the police investigation they admit agreeing not to disclose what they plainly regarded as potentially damaging facts. In the case of Mr Gay the fact that Christian had bitten Mrs Gay, and in Mrs Gay’s case the fact that they had put him in his cot.” 34. In our judgment those matters provided an entirely adequate basis for the judge’s rejection of the submission of no case to answer on this issue. Nor do we accept that anything material was added on this issue by the defence evidence or by the jury’s verdicts on count 1, so as to affect the safety of the convictions on count 2 so far as this aspect of the case is concerned. 35. The judge did observe in his ruling that a proper direction would be needed on the issue of joint enterprise. No complaint is made of the direction he gave in his summing up, save as regards one specific point. That point concerns the prosecution’s reliance on the lie about placing Christian in the cot rather than on his bed (see the sixth of the points mentioned in the judge’s reasons quoted above). It was asserted by the prosecution that the reason for the lie was what had occurred in the cot, namely, as was alleged, an assault with intent to cause grievous bodily harm. The appellants submit that that related only to count 1 and cannot logically support an assertion of joint enterprise in relation to count 2. It is said that the judge erred in failing to give the jury a direction to that effect. It is also said that the judge should have directed the jury in terms of R v Strudwick and Merry (1999) 99 Cr App R 326 that lies could not make good any deficiencies in the evidence of joint enterprise. 36. As to the specific point concerning the lie about the placing of Christian in the cot, we are satisfied that the matter was adequately dealt with by the judge when he told the jury (158C): “This has got nothing to do with salt; we are here dealing with something that the prosecution say is relevant to head trauma.” 37. In so far as the appellants seek to make any more general point, we are satisfied from our consideration of the summing up as a whole that there was no risk of the jury relying on lies otherwise than as additional support for the prosecution case on count 2, including the case as to joint enterprise. 38. Those are the reasons for our decision to refuse the renewed application for leave to appeal on ground 1. Ground 3: burden of proof 39. It is not in dispute that the judge gave the jury clear and correct general directions on the burden of proof. The appellants contend, however, that there are two passages in his summing up in which he inadvertently misstated the position or gave a misleading impression. 40. In spelling out how the jury should approach disputes between the expert witnesses, the judge said this: “Firstly, the burden of proof remains on the prosecution throughout. Inevitably, you have heard the evidence of the experts on each side weighed against each other. That is really the only way you can argue about the different things that they say, but that should not lead you into the mistake of thinking that that means that the defence have to prove that their approach is right. It is not simply a matter of weighing and seeing who just tips over the balance of being the better expert evidence, the prosecution must make you sure that the interpretation of the medical evidence for which they contend is correct …. What though if, after all the proper testing of the evidence, you are unable to say that the prosecution’s version is right …? Again, simply applying the ordinary rule of law that the prosecution have the job of making you sure that their evidence is correct, then they would have failed to prove their case on that particular issue. Looked at the other way round, the prosecution must prove that the defence contention is wrong ” (24F-26E, italics added). 41. Much later, in the summary of the medical evidence which we have already quoted at paragraph 27 above, the judge said this in relation to the evidence of the defence expert, Dr Chambers, on the salt issue: “To be sure of ingestion of salt, what you must be sure of is that Dr Chambers is wrong . It is not a matter of counting head[s] … but you must be sure that he is wrong before you can be sure that there has been a grossly excessive ingestion of salt ” (146D-E, italics added). 42. Mr Mansfield submitted that the italicised passages were erroneous. It was not enough for the jury to be sure that Dr Chambers was wrong. They had to be sure that the prosecution experts were right, which did not follow automatically from a finding that Dr Chambers was wrong. The difference was of real importance in this case, where there was an issue as to whether the prosecution had excluded all possible causes of the excessive sodium concentration other than the ingestion of salt – an issue the importance of which is underlined by the fresh evidence under ground 2. 43. In our judgment there is no substance to those submissions. When looked at as a whole, the judge’s directions on the burden of proof can have left the jury in no doubt whatsoever that they had to be sure of the prosecution case before they could convict. There was no disguised shifting of the burden to the defence. 44. As a narrower point, the submissions would fail even if attention were confined to what the judge said about the jury having to be sure that Dr Chambers was wrong. It was Dr Chambers’s evidence that, although he could not identify an alternative mechanism, “he could not be sure that Christian was given an excess of salt from outside his body” (see the judge’s summing up at 128B, which fairly reflects the transcript of the evidence). It follows that in order to be sure that Dr Chambers was wrong the jury had to be sure that the prosecution were right on the issue of ingestion of salt. 45. Those are the reasons for our decision to refuse the renewed application for leave to appeal on ground 3. Ground 2: introduction to the issues 46. That clears the way for the true focus of this appeal: ground 2 and the linked application for the court to receive fresh evidence. The issues raised are of considerable scientific complexity, but we think it unnecessary and unhelpful to go into the level of detail canvassed in the expert reports placed before the court. We propose to concentrate on the broader features of the debate. 47. We have already referred in general terms to the fact that, on his admission to hospital on 8 December 2002, Christian was suffering from hypernatraemia, an abnormally high concentration of sodium in his blood. His blood (or plasma) sodium on admission to the Russells Hall Hospital was at the dangerously high level of 184 millimoles per litre (“mmol/l”). A normal level is in the region of 140 mmol/l. He was given an intravenous saline solution (which, on the face of it, may seem odd, but is explained by the need to bring down the level of sodium gradually in order to reduce the risk of damage to the cells). By the time of his transfer to the Birmingham Children’s Hospital in the evening of 8 December the level was down to 173 mmol/l. Although the regime adopted at that hospital was expected to continue to bring the level down, it remained at or above 170 mmol/l for the next 24 hours, i.e. throughout 9 December. This was the “plateauing effect” to which reference is made in the expert evidence considered below. On 10-11 December the level did fall further but did not get below 157 mmol/l, still much higher than normal. 48. The issue at trial was what had caused this high sodium concentration and in particular whether the prosecution had proved its case that it was caused by the ingestion of salt. When introducing the medical evidence in his summing up, the judge explained the position as follows (104-105): “There is no doubt at all – nobody disputes – that Christian had an exceptionally high level of concentration of sodium in his blood when he was admitted to Russells Hall Hospital. The timing of the various tests and the fluid and so on were examined and, subject to what Dr Chambers said .., there is no doubt that he had a high level of sodium in his blood on admission. Two of the possible causes of such a high level of sodium have been ruled out: (1) severe dehydration, (2) known pre-existing metabolic disorders or other diseases. Very sophisticated testing was done … to rule out all known existing disorders which might have caused that high level of salt. Therefore, all of the doctors save for Dr Chambers conclude that having ruled out all other known causes the cause of his high level of salt must have been ingestion of a large quantity of salt during the day of his admission. All the doctors, Dr Chambers as well, agree that if he did ingest the salt it must have been acute – that is to say immediately before the events we are concerned with – and not chronic (that is to say bit by bit) over days. That acute ingestion must have been in the range of two to six hours before his collapse, which we know to be something like 3.15.” 49. Among the prosecution experts, of particular significance for present purposes was Professor Haycock, a professor of paediatrics and honorary consultant paediatrician and paediatric nephrologist. It was his opinion that Christian’s hypernatraemia was due to ingestion of salt, and it was he who calculated (or recalculated, making a substantial upward revision of his initial calculations) that it would have needed 30-40 grams of salt taken orally to raise Christian’s plasma sodium concentration to the level it was on admission to hospital. 50. Professor Haycock also said that there was every reason to suppose that the kidneys were normal. In those circumstances, and having regard to the regime applied in hospital, Christian’s body would have been expected to excrete the excess sodium, and the sodium level would have been expected to fall back to a normal level. Yet the sodium readings showed that the level did not fall as expected (in particular, there occurred the plateauing effect mentioned above), and a further set of readings for the “fractional excretion of sodium” showed likewise that the excess sodium was not being excreted. Professor Haycock thought that the most likely explanation for this was severe cardiac dysfunction. It was in this way that he sought to explain the known details of Christian’s condition. 51. The importance of Professor Haycock’s evidence is indicated by the fact that he is the one prosecution expert singled out in the judge’s overview of the medical evidence on the issue of salt which we have quoted in paragraph 27 above. 52. The defence expert on this issue was Dr Chambers, a consultant paediatrician and renal physician, to whose evidence the judge directed repeated attention in the various passages that we have quoted. Dr Chambers was unhappy about Professor Haycock’s explanation that the failure of the body to continue to excrete the excess sodium was due to cardiac dysfunction. He accepted that “it could conceivably have been an explanation” and said that cardiac physiology was not his field, yet he did not think that the heart dysfunction could have brought in such compensatory mechanisms as to override the impulse of the body to excrete a sodium load, and he referred in this connection to the fact that Christian’s circulation was not badly compromised. He could not explain the plateauing effect and why the excess sodium did not continue to be excreted. Whilst unable to think of other causes of the hypernatraemia, he was not sure it was due to the ingestion of salt. He said that medicine cannot always provide all the answers. 53. What the appellants seek to do by the fresh evidence now tendered is, in effect, to provide a possible alternative explanation for the hypernatraemia. The evidence comes from Dr Walters, a retired specialist consultant in chemical pathology with particular experience of fluid and electrolyte disturbances. There are two linked aspects to his evidence. First, he rejects the view that the hypernatraemia was caused by ingestion of salt. Secondly, he puts forward an alternative medical hypothesis which was not considered at the trial and which he says is capable of explaining the pattern of events without any unlawful conduct on the part of the appellants. 54. Mr Mansfield’s case, put simply, is that if the jury had been faced with the competing expert views which are now before this court on the issue of hypernatraemia, it is possible that they would have reached different verdicts on count 2, just as the competing expert views on the issue of trauma to the head may have led to the acquittals on count 1. 55. In order to decide whether to receive the evidence of Dr Walters under section 23 of the Criminal Appeal Act 1968 , we heard that evidence de bene esse . In rebuttal, the Crown called Professor Haycock, whose evidence we likewise heard de bene esse . Both witnesses had submitted detailed written reports (in exchanges that continued up to the time of the hearing before us), but they also dealt with the main features of their evidence in oral testimony. We turn to consider their evidence. The evidence of Dr Walters 56. Dr Walters said he was sure that Christian’s hypernatraemia was not the result of salt poisoning. There were a number of reasons for that view. 57. First, there was the failure to excrete the load of salt allegedly taken. Provided the regulatory systems are working normally, the body rejects excess sodium. Christian would have had to ingest an enormous amount of salt for his plasma sodium concentration to be so high. That should have led to a high rate of excretion of sodium. There was a high rate initially, but it tailed off and was back at a more normal rate after about 12 hours. It should have continued at the higher rate for at least 48 hours after admission. 58. At trial, Professor Haycock had suggested heart failure as a possible explanation for the body’s retention of excess sodium. Dr Walters rejected that view. He accepted that there was damage to Christian’s heart and that this was an extremely unusual finding in a young child, but he did not consider that it could account for the retention of the excess sodium. He explained that a feature of severe heart failure (but not, he said, of mild heart failure) is the release of a hormone called aldosterone which promotes the reabsorption of sodium in the kidneys and thus the retention of sodium within the body. But he did not consider that this mechanism could have occurred in Christian’s case: i) An echocardiogram carried out by Dr Dhillon at about 3.00 pm on 9 December showed that the left ventricular function was mildly impaired, but in Dr Walters’s view the changes overall were not such as would give rise to severe heart failure. ii) This was borne out by Dr Dhillon’s findings on clinical examination. In heart failure there is a falling cardiac output which stimulates the sympathetic nervous system and, in turn, causes widespread constriction of small blood vessels, with the result that the skin becomes pale and cold; and when the skin is pressed and the blood is squeezed out of the skin capillaries, the colour returns very slowly. But Dr Dhillon described Christian as being pink and warm, with good capillary return. Most important of all, Dr Dhillon recorded the arterial pulses as “full”, which is an indication of a good cardiac output. Dr Dhillon brought all his clinical observations together with the description of Christian’s circulation as “hyperdynamic”, which means there was increased blood flow, not decreased blood flow. iii) Thus, Christian had severe heart disease, but not heart failure, and his condition was not such as could stimulate the enormous output of aldosterone that would be necessary to override the body’s desire to get rid of excess sodium. iv) Further, the measurement of aldosterone itself was close to the middle of the normal range, rather than at the high level one would expect in a case of heart failure. 59. Dr Walters’s reliance on the aldosterone measurement went further than the point that it would have been expected to be high if there had been heart failure. His view was that if there had been a massive load of ingested salt still in the body, then the level of aldosterone would have been expected to be low: he referred to cases where aldosterone had been shown to be suppressed to very low levels indeed in the case of patients undergoing experiments in the course of which they were given massive salt loads. The fact that the level was normal (at a time when, in Dr Walters’s view, the impact of the infusion of saline solution would have effectively worn off) was one of the matters that he took into account in rejecting the explanation of salt poisoning and arriving at an alternative explanation. 60. Another principal reason why Dr Walters rejected salt poisoning was the failure to bring the sodium level down to the normal range. It is usually easy to bring the sodium down to normal in such a case by giving the patient enough water. Two mechanisms then operate. First, the excretion of sodium in the urine is enhanced: there is a limit to the extent to which the kidneys can concentrate the sodium in the urine, and to get the maximum rate of excretion one has to ensure that enough urine is formed to carry the sodium out in its maximum concentration. Secondly, water is also retained through the action of what is called the anti-diuretic hormone (“ADH”): the effect is to dilute the concentration of sodium in the extracellular fluid, with the result that water moves back into the cells themselves. The fluid balance charts show that towards the end Christian was being given only very dilute solutions of salt, and he passed large volumes of urine, but without a correspondingly high concentration of sodium. At some stage during his admission he retained a lot of water, with some sodium, but still the sodium concentration did not fall below about 160 mmol/l. 61. This leads to the alternative hypothesis put forward by Dr Walters. The fact that the sodium concentration did not come down below about 160 mmol/l suggested to him a fault in the body’s mechanism for maintaining the concentration of sodium in the body. The sodium concentration is regulated by a part of the brain called the hypothalamus, which achieves this by changing not the amount of sodium but the amount of water in the body. Specialist cells in the hypothalamus, known as osmoreceptors or collectively as the osmostat, trigger the release of ADH, which in turn, as mentioned above, causes water to be retained in the body through its action on the kidney tubules. Thus, if the plasma sodium concentration rises, ADH is released so that a small volume of concentrated urine is formed, the amount of water retained in the body is increased and the sodium concentration is thereby brought down. If the sodium concentration falls, the release of ADH is inhibited so that a large volume of dilute urine is passed, the amount of water retained in the body is reduced and the sodium concentration is thereby brought up. 62. Another group of osmoreceptors in the hypothalamus regulates the thirst mechanism. There is some dispute as to whether this is a separate osmostat or part of the same osmostat, but nothing turns on that. We will refer for convenience to a single osmostat. A high sodium concentration results in the sensation of thirst, which leads to drinking. In concert with the increased action of ADH on the kidney tubules, this enables lost water to be replaced. 63. The normal sodium concentration, as explained above, is in the region of 140 mmol/l, and the secretion of ADH to regulate the body water content normally takes place by reference to that level. This is sometimes referred to as the osmostat setting. 64. There are cases, however, in which the osmostat setting is known to be disturbed. Most of the reported cases involve physical damage to the hypothalamus, e.g. as a result of surgery. There is no evidence that Christian fell into that category. There are other, less common, cases in which no identifiable cause has been found: the description “idiopathic” is given to such cases. Most of those other cases involve the downward resetting of the osmostat, so that the patient has a persistently low sodium concentration. The upward resetting of the osmostat, resulting in a high sodium concentration, is much rarer. There are, however, two documented cases of it: a 1985 paper by Gill, Baylis and Burn, A case of ‘essential’ hypernatraemia due to resetting of the osmostat , and a 1987 paper by Thompson, Freeman, Record and Baylis, Hypernatraemia due to a reset omsostat for vasopressin release and thirst, complicated by nephrogenic diabetes insipidus . Both concerned adults, but in Dr Walters’s opinion there is no reason in principle why the same event could not happen in a child, and he thought it only a matter of time before resetting was described in a child. He stressed that the relevant mechanisms are still not known. 65. Dr Walters referred to another disturbance of the hypothalamus which is more common than resetting of the osmostat, namely reduced sensitivity of the osmostat, such that the release of ADH or increase in thirst occurs much more slowly than with a normal osmostat. He also said that in theory there could be an upward resetting of the osmostat together with a sluggish response to concentrations of sodium above that reset level. Whilst his hypothesis in relation to Christian was presented principally in terms of resetting of the osmostat, he indicated in the course of his evidence that it might not be a resetting but simply a reduced sensitivity: it was something happening to the hypothalamus that resulted in gross disturbance of the normal mechanisms that regulate secretion of ADH and thirst. 66. Thirst is important for the other aspect of Dr Walters’s hypothesis. The hypothesis involves not just an upwards resetting of the osmostat relating to the plasma sodium concentration (perhaps to a level of 160-165 mmol/l instead of the normal 140 mmol/l, though he did not postulate any specific reset value), but superimposed water depletion due to defective thirst. Thirst is usually set slightly above the ADH setting, but in Dr Walters’s view there is no basis for assuming that the two will always be reset in parallel. In any event, if the osmostat relating to thirst is reset upwards, thirst will not be stimulated until the sodium concentration reaches a higher level than would normally stimulate it. In the absence of thirst, water will not be drunk and the body will suffer from water depletion. Such water depletion, which does not involve the loss of sodium, is to be distinguished from dehydration, in which both water and sodium are lost. Dr Walters accepted that there were no clinical signs of dehydration in Christian. 67. Dr Walters said that the appellants’ description of Christian’s attitude to drinking made him think that Christian had an abnormality in his thirst mechanism. It may be that Christian did not know what thirst was until the late stages when his plasma sodium concentration went abnormally high and he displayed frantic thirst on the morning of 8 December. 68. Dr Walters made clear that he could not prove his hypothesis about the resetting of the osmostat or similar dysfunction of the hypothalamus, because of the limited data available in respect of Christian’s condition (though he was not criticising the hospital staff for not taking the relevant measurements at the time). Equally, however, he maintained that the hypothesis provided an alternative explanation which could not be excluded . 69. The cross-examination of Dr Walters by Mr Davis QC for the Crown brought out various weaknesses or difficulties in Dr Walters’s approach. They included the following: i) The two reported cases of upward resetting of the osmostat not only concerned adults but were factually very different. Neither involved a sudden onset of coma and death resulting from the elevated level of sodium in the blood. In response to this, Dr Waters observed that there may have been other cases where people have died but the true diagnosis may have been missed because it was not thought of at the time. ii) Routine tests carried out on Christian in 1999 and 2000 showed normal sodium levels (135 to 140 mmol/l). Dr Walters’s hypothesis therefore required something to have happened thereafter to the hypothalamus to cause the osmostat to reset to a higher level or some other disturbance to occur to the normal mechanisms that regulate thirst and the release of ADH. Nonetheless Dr Walters considered that a reset could occur at any time (the trigger being unknown) and that a change of this kind would not have affected Christian’s ability to live a normal life. iii) It is still difficult, however, to explain the sudden onset of acute illness, with the sodium concentration at the dangerously high level of 184 mmol/l on Christian’s admission to hospital. Again, however, Dr Walters considered that this was possible if Christian had been running with a plasma sodium level of, say, 160 or 165 mmol/l and then for some reason had become water depleted. If that happened there would be a surge in the plasma sodium and it could reach 184 mmol/l without clinical signs of dehydration. iv) A similar point applies to the evidence of Christian’s extreme thirst on the morning of 8 December. It suggests a surge in the plasma sodium level (a “quantum leap”, as it was put in cross-examination). But Dr Walters observed that we do not actually know what Christian’s plasma sodium was doing at that time; and also that, although Christian was clamouring for drinks in the morning, his thirst appeared to have been alleviated in the afternoon, before he became unconscious. v) It was put to Dr Walters that Christian’s pattern of thirst prior to 8 December did not support the suggestion of a reset osmostat or water depletion, in that he would regularly take a drink. As to that, it is true that there is evidence of Christian taking drinks, but it is also relevant to note that on 27 November Mr Gay had told Mrs Jones that he was worried that neither of the boys asked for drinks and that they would have to be reminded to drink, but then Christian’s brother (not, it would seem, Christian) would drink excessively. There is also some evidence of Christian spurning a drink of milk on 5 December; and at breakfast on 8 December he did not finish his tea. vi) If there was severe water depletion, as Dr Walters postulated, there would have been a contraction in the volume of Christian’s extracellular fluid. Professor Haycock’s view was that there was no reason to suppose that such a contraction occurred and, on the contrary, there were some signs tending to indicate an expansion in the extracellular fluid. Professor Haycock referred in this connection to readings for blood urea and creatinine, haemoglobin and plasma albumin. These various points were put to Dr Walters, who did not agree with Professor Haycock with regard to the interpretation or relevance of the figures. vii) Various points were also raised with Dr Walters concerning his view that heart failure could not account for the body’s failure to excrete the excess sodium. They included the existence of evidence that Christian’s blood pressure was consistently low. They also included the evidence of Dr McLellan at trial that it was difficult to say what was preventing the secretion of sodium because so many things were happening: he was receiving powerful drugs, he was being ventilated, his heart was failing to pump progressively with time, his brain function was deteriorating, and he was dying. Dr Walters did not accept that any of these matters explained the failure to excrete the sodium on 9 December. The evidence of Professor Haycock 70. We can deal more briefly with the evidence given by Professor Haycock, who said that overall he still held the same view as he did at trial, that the high sodium level found on 8 December was due to the ingestion of salt. 71. As to the issue raised by Dr Walters concerning osmoreceptor dysfunction, Professor Haycock said he was familiar with the condition and had seen and treated forms of it. The two examples of upward resetting of the osmostat which Dr Walters had cited from the literature were the only two examples of which he was aware, but it was not possible to refute Dr Walters’s statement that there might be other cases that had not been investigated properly. 72. He dealt with various of the matters that had been put to Dr Walters in the course of cross-examination. He explained why in his view the data tended to indicate an expansion of Christian’s extracellular fluid, rather than the contraction that would be expected if there had been water depletion. He could not see an event or illness in Christian’s history that might have led to a change in the osmostat setting. In all the cases of osmoreceptor dysfunction that he had seen himself or had studied in the literature (i.e. not limited to the two reported cases of upward resetting of the osmostat), the patients had shown little or no thirst; and in none had there been anything like the frantic thirst displayed by Christian on 8 December. Nor did any of them involve the kind of catastrophic collapse seen in Christian’s case. Christian’s thirst on 8 December suggested a rapid rise in sodium concentration over a very short space of time. Ingestion of salt would do it. So would lack of access to water, but it would take a few hours at least to get to the point of severe thirst. 73. As to Professor Haycock’s view that heart failure might account for the fact that the excess sodium was not excreted, he made clear that he did not agree with Dr Walters’s interpretation of the aldosterone measurements. In his view, there were too many factors at work to enable any proper interpretation of the results. 74. In cross-examination he accepted that if heart failure did cause the ordinary mechanisms for the excretion of excess sodium to be overridden, it would be unique in his experience and he was unaware of any case in the literature of a similar situation. He had put it forward at trial as a hypothesis. If the hypothesis was wrong, he accepted that it would leave a number of anomalies to be explained. 75. He also accepted that hypernatraemia can occur in the absence of dehydration (in the sense of loss of water and sodium) and in the absence of salt poisoning, i.e. it may arise where there is simple water depletion. It may be caused by or associated with a disturbance of the hypothalamus, which may take different forms and the mechanism of which is in many cases not clearly understood. 76. There then occurred the following important exchange: “Q. … Now just as you at trial … postulated heart failure as an explanation, do you agree that what Dr Walters has done is a quite legitimate exercise in postulating an alternative hypothesis; is that right? A. Yes. Q. And you are not in a position, are you, to say that he is wrong? A. No, I am not.” 77. Professor Haycock was asked a number of questions about why he had not mentioned the other possible cause of hypernatraemia, namely water depletion, in his witness statement for the trial. His answer, in essence, was that he did not think it was applicable in this case, because Christian had experienced thirst, and for a child not to take in sufficient water he would have to have had a thirst deficiency. 78. Although a number of other matters were canvassed with Professor Haycock in cross-examination, including criticisms of certain of his analyses and calculations, we think it unnecessary to set them out. The fresh evidence: discussion and conclusions 79. Section 23 of the Criminal Appeal Act 1968 provides: “(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice – … (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the Court to be capable of belief: (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings for 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.” 80. For the Crown, Mr Davis took the point that the first strand in Dr Walters’s evidence, namely his rejection of salt poisoning as a cause of the hypernatraemia, should not be admitted as fresh evidence since it is simply a re-run of an issue ventilated fully at trial. The matters referred to by Dr Walters were raised by Dr Chambers or in the cross-examination of Professor Haycock. The fact that Dr Chambers’s view did not prevail at trial cannot provide a proper basis for allowing evidence to the same effect from another expert on appeal. 81. Mr Davis drew attention to what was said by Judge LJ giving the judgment of the court in R v Kai-Whitewind [2005] EWCA Crim 1092 , at para 97 (this is in a passage omitted from the version of the judgment reported at [2005] 2 Cr App R 457 ): “We should not re-write, and we are not re-writing s.23. The fact that the expert chosen to give evidence by the defence did not give his evidence as well as it was hoped that he would, or that parts of his evidence were exposed as untenable (as, certainly on one view, occurred with Dr Rushton) thereby undermining confidence in his evidence as a whole, does not begin to justify the calling of further evidence, whether to provide ‘substantial enhancement’ of the unsatisfactory earlier evidence, or otherwise. Where expert evidence has been given and apparently rejected by the jury, it could only be in the rarest of circumstances that the court would permit a repetition, or near repetition of evidence of the same effect by some other expert to provide the basis for a successful appeal. If it were otherwise the trial process would represent no more, or not very much more than what we shall colloquially describe as a ‘dry run’ for one or more of the experts on the basis that, if the evidence failed to attract the jury at trial, an application could be made for the issue to be revisited in this court. That is not the purpose of the court's jurisdiction to receive evidence on appeal.” 82. Those are important observations and we have borne them very much in mind, but we do not think that they bite on the particular circumstances of this case. It seems to us that Dr Walters’s rejection of salt poisoning as the cause of the hypernatraemia cannot sensibly be separated from the second strand in his evidence, namely the alternative hypothesis he puts forward as a possible explanation of the events that occurred. The one leads into the other and it would be wholly artificial to look at the second strand in isolation. Moreover, even in relation to the first strand Dr Walters goes beyond the defence position at trial: whereas Dr Chambers was not sure that the cause was salt poisoning, Dr Walters is sure that it was not. Accordingly, although the first strand does involve a substantial repetition of matters raised at trial, that cannot be viewed as an insuperable objection to it in the very special situation with which we are faced. 83. We therefore take Dr Walters’s evidence as a whole when considering the various criteria in section 23(2) of the 1968 Act . 84. As to section 23(2)(a) , we are satisfied that the evidence of Dr Walters is capable of belief. He is a reputable expert and his hypothesis derives some support from the scientific literature, even if the condition on which he relies is extremely rare and has not hitherto been observed in a child. Professor Haycock, as we have said, accepted that what Dr Walters had done was a legitimate exercise in postulating an alternative hypothesis and that he was not in a position to say that Dr Walters was wrong. It is plain that Dr Walters’s hypothesis faces substantial difficulties, as the cross-examination brought out, but it cannot in our view be dismissed as untenable or simply incredible. 85. That takes us to the second and crucially important criterion, in section 23(2)(b) : whether it appears to the court that the evidence may afford a ground for allowing the appeal. 86. Medically this was on any view, as Mr Mansfield submitted, an exceptional case. Not only was there a remarkable combination of features, including trauma to the head as well as hypernatraemia, but the damage to Christian’s heart was in itself a highly unusual feature in a child of this age. Moreover the prosecution case on the cause of the hypernatraemia relied not simply on the existence of that damage to the heart, but on the hypothesis that there was heart failure sufficient to override the body’s normal mechanisms for the excretion of excess sodium. If that hypothesis is correct, then Professor Haycock has accepted before us that the situation would be unique in his experience and that he is not aware of any similar case in the literature. If the hypothesis is not correct, it leaves a number of anomalies that the prosecution’s case does not explain. 87. In so far as Dr Walters challenges Professor Haycock’s hypothesis that the failure to excrete the excess sodium was accounted for by heart failure, his evidence does add materially to that given at trial but, if taken alone, it would not in our view be sufficient to provide a ground of appeal. 88. As we have said, however, that strand in Dr Walters’s evidence cannot be taken alone. Dr Walters not only rejects salt poisoning as the explanation for the hypernatraemia, but has moved on from that to a different hypothesis which provides a possible alternative explanation for the hypernatraemia. Although that alternative hypothesis faces substantial difficulties, the same is true of Professor Haycock’s hypothesis as to heart failure; and the fact is that Dr Walters’s hypothesis adds an important additional dimension to the case as considered by the jury at the trial. 89. At the trial Professor Haycock put forward heart failure as the most plausible explanation he could think of for the failure to excrete the excess sodium, and he effectively threw down the gauntlet to the defence, saying it was for someone else to come up with another explanation. Dr Chambers, although not sure of salt poisoning, was unable to say that Professor Haycock was wrong and was unable to think of an alternative explanation. All other known causes appeared to have been ruled out. In those circumstances it is perhaps unsurprising that the jury accepted the explanation given by Professor Haycock. There is a marked contrast in this respect between the position on count 2 and the position on count 1, where the jury were faced with a major conflict of expert opinion which may have contributed to their decision to acquit. Had the jury been faced on count 2 with Dr Walters’s evidence positively disagreeing with Professor Haycock and putting forward an alternative explanation for the hypernatraemia, then in our judgment there is a real possibility that their conclusion on that count would have been different. 90. We have not lost sight of the fact that the medical evidence, although important, formed only part of the evidence in the case and must be assessed in the context of the case as a whole. The appellants, previously childless and having recently taken on the immense burden of looking after three children with a view to adoption, were in a position of considerable stress. The particular difficulties they had experienced with Christian had added to that stress. There was evidence that they had sought to minimise the stress they were under. The evidence of sub-scalp bruising was on one view consistent with gripping of Christian’s head in a manner that might be associated with unlawful administration of salt (though this does not seem to have been a significant feature of the prosecution case on count 2 at the trial). A small cut on Christian’s mouth was also consistent with such action (though this, too, does not seem to have been a significant feature of the case at trial). The prosecution were able to gain some support for their case from the appellants’ lies or concealment of the truth, in particular about Christian biting Mrs Gay’s hand. All of those matters serve to underline why we put it no higher than a possibility that the jury might have reached different verdicts on count 2 if the evidence of Dr Walters had been placed before them. Such matters do not, however, serve to remove that possibility. 91. It follows that the criterion in section 23(2)(b) weighs heavily in favour of receipt of the fresh evidence. 92. As to section 23(2)(c) , there is no issue concerning the admissibility of Dr Walters’s evidence. 93. That leaves us with section 23(2)(d) , the question of reasonable explanation for the failure to adduce the evidence at trial. For the Crown, Mr Davis very fairly and realistically acknowledged that the lack of a reasonable explanation should not stand in the appellants’ way if, having heard the evidence de bene esse , the court were of the view that it threw doubt on the safety of the conviction. Nonetheless he did make the point that the hypothesis put forward by Dr Walters is based not on new science but on something that has been known about for many years and he submitted that there was no reasonable excuse for the failure to adduce it at trial. 94. There was some oblique reference in the evidence at trial to the condition on which Dr Walters’s hypothesis is based. Mr Punt, a consultant neurosurgeon, in explaining that it was improbable that the hypernatraemia was the consequence of head injury, referred to a very small number of cases within his experience in which hypernatraemia had followed severe surgical damage in the region of the hypothalamus. Dr Chambers picked this up in his evidence, stating (23G-H): “Perhaps, and one of the witnesses, Mr Punt, refers to cases he has seen during neurosurgery where the body, if you like, resets the level at which – the sodium is kept within a very narrow level by a complex physiological system. Now, other physiological systems work in the same way and can be reset so that for somebody, for most of us our normal sodium concentration is 140, but for that particular patient, the compensating mechanisms have changed and it is actually 170.” 95. Dr Chambers went on to say, however, that this was simply an educated guess, speculation, and he did not develop the point. It was evidently not something about which he had any detailed knowledge. Professor Haycock, for his part, accepts that he knew that hypernatraemia could be caused by disturbance of the hypothalamus, but he did not mention it because he did not think it was applicable on the facts of this case. In the result, neither he nor anyone else said anything that ought reasonably to have alerted the attention of the defence to the point. 96. The fact is, therefore, that the science was there, but its potential significance was not recognised by those involved in the trial. This was not through any want of diligence by the appellants or their legal team. It was only subsequently that Dr Walters was approached, by a different legal team, and expressed the opinions that he has now given in evidence to us. In all the circumstances we take the view that a reasonable explanation does exist in this case for the failure to adduce the evidence at trial. 97. Having regard to the conclusions we have reached on the application of the various criteria under section 23(2) , we are in no doubt that it is “necessary or expedient in the interests of justice” to receive the evidence of Dr Walters under section 23(1) . 98. Our decision that the evidence should be received leads inevitably to the grant of leave to appeal on ground 2. We therefore go on to deal with the substantive appeals against conviction, treating the evidence that we heard de bene esse as evidence duly received under section 23 . The submissions addressed to us by counsel covered this contingency. In reality we need add very little to what we have already said. 99. The question is whether, in all the circumstances, the evidence of Dr Walters causes us to doubt the safety of the appellants’ convictions on count 2. In considering that question we have had regard to the guidance in R v Pendleton [2002] 1 WLR 72 . We have to make our own assessment, but can properly test it by reference to whether the evidence, if given at trial, might reasonably have affected the decision of the jury. We have already explained the reasons why we take the view that the jury might have reached a different conclusion if Dr Walters’s evidence had been placed before them at the trial. Having regard to the various factors that we have discussed in that context, and after anxious consideration of the case as a whole, we have reached the conclusion that the convictions on count 2 are unsafe. 100. We should, however, stress that if Dr Walters’s evidence had been available at trial, that would not in our view have made it inappropriate for the prosecution to proceed on count 2 or have meant that the judge had to withdraw the case on that count from the jury. There is a passage in the appellants’ written grounds of appeal which suggests, by reference to R v Cannings [2004] 2 Cr App R 63 , that the existence of a genuine conflict of opinion between distinguished and reputable experts should have that effect. Very wisely, Mr Mansfield did not pursue that suggestion in his oral submissions. Such an argument has been knocked firmly on the head by the judgment of the court in Kai-Whitewind (above) at paras 73-91, where the true scope of what was said in Cannings has been explained at some length. In the present case, as it seems to us, the conflict in expert evidence on count 2 would have been a proper matter for the jury to evaluate in the context of the evidence in the case as a whole; and we cannot say that Dr Walters’s evidence would necessarily have carried the day. Decision 101. For the reasons we have given, the appeals are allowed on the ground relating to fresh evidence and the appellants’ convictions of manslaughter on count 2 are quashed. We will hear submissions from counsel on whether a retrial should be ordered.

2006_04_12-792.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/820/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/820

3d658298dc96fb2709d7ba9d5de4c726722ad50dbc78ae5f3e0973267e47ca48

[2018] EWCA Crim 858

EWCA_Crim_858

2018-02-27

crown_court

Neutral Citation Number: [2018] EWCA Crim 858 Case No: 201703023/A2 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 JAMES CHRISTOPHER MILLS 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

Neutral Citation Number: [2018] EWCA Crim 858 Case No: 201703023/A2 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 JAMES CHRISTOPHER MILLS Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms H Kubik QC appeared on behalf of the Applicant - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE GREEN: There is before the court a renewed application for leave to appeal against sentence. 2. On 30th June 2017, in the Crown Court at Wolverhampton, the applicant pleaded guilty to a count of causing death by dangerous driving. The judge treated this as a category level 1 offence, which has a starting point of 8 years and a range of 7 to 14 years' imprisonment, taking into account the guilty plea and other mitigating factors the applicant was sentenced to a period of 5 years and 4 months. He was disqualified from driving for 9 years and 8 months and until an extended re-test was passed. 3. The facts may be summarised as follows. Shortly before 2.00 pm on the afternoon of 3rd February 2017 the applicant was driving his Ford Focus motor vehicle. He had held a driving licence for approximately two-and-a-half years and had owned the vehicle for most of that time. The vehicle can be described as a performance vehicle which the applicant had modified in order to increase its power. 4. On the afternoon in question the applicant was driving northbound on the A4036 dual carriageway. This is subject to a 40 miles per house speed limit. It is divided by a central reservation. The applicant drove uphill towards the junction known as the Gateway. It was at this point that he collided with a Ford Mondeo driven Mr Magan Mistry whose wife, Mrs Vijaya Mistry, aged 74, was a front seat passenger. The court has seen CCTV coverage of the moment of impact. It is clear that Mr Mistry moved into the right-hand filter lane. In the ordinary course he would turn right and cross the dual carriageway that the applicant was driving along. The lights were such that Mr Mistry was entitled to turn right, crossing the highway provided it was safe for him to do so. 5. It is evident from the CCTV that he drove cautiously and slowly. However, as he was entering the nearside lane of the northbound carriageway his vehicle was struck by the applicant's vehicle. The force of the collision caused his vehicle to spin. Mrs Mistry was not wearing a seat belt. She was ejected through the side window of the Mondeo and she ended up on the ground. She sustained fatal injuries. 6. The cause of the accident was the applicant's dangerous driving. Evidence before the court indicated that the applicant had for a distance of between a 1000 and 1500 metres been racing a white Citroen. Both vehicles roared away from three different sets of traffic lights. The last of these lights was shortly before the road went uphill towards the Gateway where what had been a three lane carriageway now reduced to two lanes. As he raced towards the Gateway the applicant moved from side to side in an attempt to force the Citroen over. Witnesses described the applicant pulling sharply in front of the Citroen and cutting it off. In order to achieve this the applicant undertook as well as overtook other cars on the road. His driving was described as fast and erratic. He made no attempt to slow or brake and he crashed directly into the Mondeo. His average speed at various points was estimated, having been caught on CCTV in two locations, so that it could be measured, at 73 miles per hour. The speed limit was 40 miles per hour. 7. An ambulance was in the vicinity and it came to the scene of the crash. Mr Mistry was taken to hospital. He suffered bruising to his ribs. He was discharged. He was then taken to a different hospital where his wife lay. By the time he arrived she had died. It ultimately emerged that Mr Mistry had also suffered a fracture to his ankle. 8. When the police arrived the applicant was candid as to what had happened. He accepted responsibility. He was aware that he had been speeding. Drugs and drink testing proved negative. In the course of interview he underestimated the speed that he had been travelling at but he acknowledged that he had been an idiot and that he and the other driver had been playing around. He accepted that he had not looked at the junction to see if any cars were seeking to cross in front of him. He accepted however that he was familiar with the road so that he knew that drivers did turn across the carriageway at that point. 9. Ms Kubik QC, appearing for the applicant today, says that the primary thrust of the argument on behalf of the applicant is that this should have been treated as a level 2 case within the guidelines. Ms Kubik cites the authority of this court in R v Paul [2013] EWCA Crim 2034 , which addresses the distinction between levels 1 and 2. In that judgment Treacy LJ emphasised that the guidelines were to be treated flexibly and with a degree of nuance, which was fact sensitive - see paragraph 27. In that case the court held that the racing, which was the subject matter of the offending, was intermittent and that this was relevant to the analysis of persistence of the driving which otherwise was an aggravating factor tending towards a classification of a case as level 1 or 2. Ms Kubik argues that the race in the present case was also intermittent and not continuous. She argues that applying the guidance in Paul the judge in the present case should have treated this as a level 2 case. 10. She has also argued that there were significant elements of personal mitigation including the early frank admissions, the real remorse and concern shown for the victims and the early guilty plea. 11. In his sentencing remarks the judge recited the relevant facts. He rejected the submission that this was a level 2 offence. He thought that it was "obviously" a level 1 offence. He identified three broad categories of fact which were relevant to his conclusion. First, the offending encompassed driving which involved a deliberate and flagrant disregard for the rules of the road, the speed at which the applicant was travelling was excessive by a very substantial margin. Second, there was racing over persistent period of time of between 1000 and 1500 metres. Third, there was a course of dangerous driving which involved undertaking of other cars. The driving had to be seen in the context of the general layout of the road which was not a motorway. This was, as the judge explained: "... a road in a town where people could be walking, people could be cycling, people could be going around driving at normal everyday speeds, well within the limit..." The judge therefore concluded this was a level 1 case. 12. We observe that under the Sentencing Guidelines level 1 encompasses the most serious offences involving inter alia deliberate decisions to ignore or a flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others. In considering the seriousness of any offence the court is required to take account of a variety of different factors. The following are included as factors increasing the seriousness of offending: A prolonged, persistent and deliberate course of very bad driving, greatly excessive speed, racing, competitive driving against another vehicle, driving above the speed limit, driving at a speed that is inappropriate for the prevailing road, aggressive driving such as driving too close to the vehicle in front or persistent, inappropriate attempts to overtake or cutting in after overtaking and failing to have proper regard to vulnerable road users. 13. In our judgment, the single judge was correct to refuse leave. The conclusion of the sentencing judge that this was a level 1 offence was within the proper judgment of the judge to make. It was clearly in accordance with the guidelines. The judge took account of a range of aggravating and mitigating factors in coming to the conclusion that he should take as his starting point 8 years and then reduce it further to end with the sentence that he imposed. 14. For these reasons we refuse this application for leave. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

2018_02_27-4181.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/858/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/858

a7d05dcf38e236fcf02035858671e8436f9c2e0bbfda9446f1a7e0001a4364d4

[2005] EWCA Crim 904

EWCA_Crim_904

2005-04-12

crown_court

No: 03/368/D2 Neutral Citation Number: [2005] EWCA Crim 904 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 12 April 2005 B E F O R E: LORD JUSTICE AULD MR JUSTICE DAVID CLARKE MR JUSTICE CHRISTOPHER CLARKE - - - - - - - R E G I N A -v- LESLIE DAVIES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers t

No: 03/368/D2 Neutral Citation Number: [2005] EWCA Crim 904 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 12 April 2005 B E F O R E: LORD JUSTICE AULD MR JUSTICE DAVID CLARKE MR JUSTICE CHRISTOPHER CLARKE - - - - - - - R E G I N A -v- LESLIE DAVIES - - - - - - - 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 PETER WILCOCK appeared on behalf of the APPELLANT MR DAVID JACKSON appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE AULD: On 2nd December 2002 the appellant, Leslie Davies, and John Jason Cleaver, having both pleaded guilty to driving a Ford Orion car taken without its owner's consent and to driving it whilst disqualified, were convicted before His Honour Judge Hodson and a jury in the Crown Court at Wolverhampton of robbery of the keys of a Subaru car. Both were sentenced to eight years' imprisonment for the robbery and to concurrent sentences for the other offences. 2. Cleaver, against whom there had been a strong case on the robbery charge and who had attempted to lie his way out of it sought leave unsuccessfully to appeal against conviction and then, by way of renewed application to the full court, to appeal against sentence. On the same occasion the full court considered and granted Davies' renewed application for leave to appeal against his conviction of the robbery. The court did so on two proposed grounds: first, that the judge should have acceded to an application of no case to answer on the robbery at the close of the prosecution case and, second, for the court to consider the possibility of fresh evidence proffered by Cleaver exonerating Davies of that offence. 3. Cleaver has now made a written statement and the court has received evidence de bene esse from him in support of it purporting to exonerate Davies of the offence, as indicated to the full court granting leave. 4. The salient facts disclosed by the evidence at trial are as follows. The offence of robbery, though charged as one of robbery of car keys from the owner of the Subaru car, Mr Page, was in fact an allegation of what is known as "car-jacking". The story, all of which took place on 12th April 2002 in Tipton, starts some time between 3.15 and 3.30 pm that day with the taking and driving away from a car park of a blue Ford Orion, the subject of the other offences to which both men pleaded guilty. 5. Later that afternoon, at about 5.23 pm, both Cleaver and Davies were seen in the Orion outside Cleaver's sister's house at 1 Laburnum Road, Davies initially in the driving seat but then moving into the rear nearside seat to allow Cleaver to drive, and then moving off in convoy with a white Ford Fiesta behind. 6. The next sighting of the Ford Orion was about 20 minutes later at 5.44 pm when, driven by Cleaver, it rammed into the back of Mr Page's Subaru car. When Mr Page stopped to inspect the damage the Orion also stopped, and, according to him, there were three young men in it. While he was talking to Cleaver about the damage, the front seat passenger came up and punched him in the face, knocking him down, and the third man got out of the rear seat. One or other of them then stole his car keys from his pocket. Two of them drove off in his Subaru car and the third man from the rear seat of the Orion drove off in it. We shall return shortly to the descriptions that Mr Page gave of the three men, though given the attack on him, it is not surprising that he could not be very specific. 7. It looks as if the driver of the Ford Orion abandoned it very shortly afterwards, because within a few minutes a Miss Rushton in Cherry Road saw the Subaru on three occasions with three young men in it as it did circuits at speed around the area. We shall also return briefly to her descriptions of the three of them. 8. Within minutes again a police officer, Police Constable Fox, saw the Subaru being driven at speed, he thought by Cleaver alone in the car and followed by the white Ford Fiesta. We should interpolate here that Cleaver in his evidence to the court has said that the two others in the car with him when he began the robbery were still in it when Police Constable Fox saw it. 9. Finally, just over half an hour after the robbery, that is at 6.20 pm, there was a firm sighting of Davies with Cleaver in the Subaru again outside Cleaver's sister's house at 1 Laburnum Road. Davies was seen to emerge from the front passenger seat and take into the house a burgundy-coloured jacket that Cleaver had been seen wearing earlier. He then returned to the Subaru, and Cleaver drove them away. By this time there was a full police hue and cry after them, including a police helicopter. Within a short time Davies, and then Cleaver, abandoned it. 10. As Mr Gerard Quirke, counsel for Davies, acknowledged in his advice on appeal, there were therefore two crucial undisputed sightings of Mr Davies, first as a passenger in the shortly before it was used in the robbery, and second as a passenger in the Subaru about 35 minutes after the robbery. 11. The prosecution case was that those sightings were strong circumstantial evidence of Davies' presence at and participation in the robbery. However, that case fell to be considered against the descriptions given by Mr Page and Mrs Rushton of the three young men respectively in the Orion at the time of the robbery and in the Subaru a few minutes after it. We need not detail their descriptions, save to say that none of the young men they described appeared to do full justice to Davies' appearance, which is conspicuous for his size, namely 6'2 to 6'3 tall, and very heavily and muscularly built, with his hair shaven very closely to the scalp and looking considerably older than his age of 20 at the time. 12. Mr Page not only failed at an identification parade to pick him out as one of his assailants but identified someone else on the parade who could have had no connection with the robbery. Mrs Rushton was not invited to attend an identification parade and there was no evidence from her purporting to identify him as one of the three young men she saw in the Subaru within minutes after the robbery. 13. It was in the light of that negative prosecution evidence as to description and identification at or about the critical time of the robbery that Mr Quirke submitted to the judge at the close of the prosecution case that the circumstantial evidence as to timing and continuity upon which the prosecution relied was insufficient to leave the case with the jury. The judge disagreed, ruling that the matter was very much one for the jury to decide, having regard to all the evidence one way or the other. 14. Davies' unsuccessful case at trial, as eventually presented by him in his evidence to the jury, was that, shortly before the robbery, Cleaver dropped him off in the Orion at a shopping parade in Tipton so that he could meet his girlfriend. Then, he said, Cleaver drove off in the Orion with two others. Some time later (as his evidence went) Cleaver returned with the Subaru and gave him a lift in it back to Cleaver's sister's house at 1 Laburnum Road. We say "in his case as eventually presented to the jury "because he changed his account of it in the course of his evidence. But throughout he had denied that he had been present at or had participated in the robbery. 15. On Davies' renewed application to the full court to appeal against conviction David Clarke J, giving the judgment of the court granting him leave, first on the issue of the submission of no case, said this at paragraphs 14 and 15 of the court's judgment: "It has been argued before us by Mr Wilcock, who now appears for the applicant Davies, that, in the light of the evidence as a whole, which was of a number of young men being seen getting in and out of the cars as they were driven around this estate, the submission should have been upheld and the case should not have been left to the jury, having regard especially to the very different description of this applicant. He is said to be a broad, strong and bulkily-built man looking older than his 23 years. If that is right, then his description is substantially different from the three men described by Mr Page. We are persuaded that the first ground, which relates to the submission of no case to answer, is one which may be pursued before the full court." 16. The full court, as we have indicated, also gave him leave, on the strong indication to the court that Cleaver would make a witness statement and, if given the opportunity, would give evidence exonerating Davies. He has now made such a statement, dated 28th January 2005, and has verified a copy of the letter that he wrote to Davies on 11th August 2002 (that is, before the trial), in which he asserted that Davies had had nothing to do with the robbery. We have, as we have indicated, permitted him to give evidence de bene esse as to their content, which he has verified on oath. 17. In substance his account, which has not been dented by the searching cross-examination of Mr Jackson for the respondent, is that he lied at the trial in saying that he had had nothing to do with the taking of the Orion or of being party to the use of it in the robbery of Mr Page in car-jacking his Subaru. He acknowledged that he had been a party with two others in the Orion to that robbery and car-jacking but asserted that Davies was not with them at the time. 18. As to his involvement with Davies that afternoon and Davies' involvement with the Orion shortly before and shortly before, and the Subaru shortly after, the robbery, he has given an account that tallied with the second of two conflicting accounts that Davies gave in evidence at the trial. It was as follows. After taking the Orion, he met Davies and allowed him to drive it with him, Cleaver, as a passenger for a while. After returning to his sister's house at 1 Laburnum Road, they changed over. At 5.23 pm (about twenty minutes before the robbery) he drove Davies in the Orion down to a nearby parade of shops and dropped him off so that he could meet his girlfriend there. He, Cleaver, then drove off in the Subaru with two others, whom he would not name through fear, save to say that one of them came from the following Ford Fiesta. The three of them committed the robbery, and after one of them had abandoned the Orion, they joined up again in the Subaru. He, Cleaver, then did several speed circuits with them around the area as seen by Mrs Rushton and Police Constable Fox, and followed again for a while by the Ford Fiesta. Within a short time the other two left the vehicle because they were scared by the gathering police interest in them, and then, just by chance, he saw Davies outside the shopping parade where he had left him and stopped and picked him up. They drove back to his sister's house at 1 Laburnum Road, arriving at about 6.20 pm, namely about 35 minutes after the robbery, where Davies was seen to leave the car and enter the house carrying a burgundy-coloured top that, he, Cleaver, had been wearing. 19. Mr Wilcock, in his submissions to the court, echoed those of Mr Quirke to the judge below as to the inadequacy of the evidence of identification and description of the witnesses to enable the prosecution to rely on continuity of occupation by the same three men, not only in the Orion before the robbery, but also in the Subaru after it. He relied on the failure of Mr Page to identify any of his assailants, his wrong identification at the identification parade, and the difference between such descriptions as he gave from anybody who could have matched the appearance Mr Davies. He made similar criticisms of the description given by Mrs Rushton. He submitted that, in the light of that "negative evidence" as to description and identification, the circumstantial effect of the continuity evidence upon which the prosecution had relied - the before and after evidence of the occupants of the Orion and Subaru respectively - was an insufficient basis for a jury to conclude that Davies was one of the three robbers. 20. We have to say that, looked at on its own, we consider that submission of Mr Quirke to have been correct and Mr Wilcock's echo of it today in this appeal equally persuasive. 21. But it does not stand on its own, given Cleaver's evidence to this court in exoneration of Mr Davies. We have approached his evidence with all the usual caution that this court does when evidence is given by a convicted man in support of his co-accused's appeal against conviction at trial. There are all the obvious dangers in that evidence, when proffered, of close collusion between two fellow accused, particularly in instances such as this where the two are plainly close friends quite apart from being companions in crime. We have decided, having heard him de bene esse and having put his evidence alongside the uncertainties in the prosecution case, to receive it within the terms of section 23 of the Criminal Appeal Act 1968 . In our view, taking all four factors of that provision into account, it is a proper case to receive his evidence. 22. The account that he gave, as we have said, is of a piece with the account relied upon by Davies eventually at trial. It is also of a piece with the uncertainties in the prosecution evidence at trial as to the description and identification of the persons involved in the robbery. 23. We take into account what is evident from the papers in the case - the culture of those who engage in car-jackings and thefts and taking and driving away of cars in this area - the casual taking of cars, the giving of lifts to friends in them, dropping them, picking them up, and the excitement of the chase when the police finally home in on them. There is a fluidity of movement of people who commit such offences which leaves room for the account given by Davies and also now by Cleaver. The two grounds of appeal are related in that sense: the evidence of Cleaver substantiating the holes in the prosecution case at the close of the prosecution evidence. It fortifies our view that there was, in truth, no case fit to go to the jury at the close of the prosecution case. However, we emphasise that we are not in a position to say that we believe him. We are simply of the view that his evidence is capable of belief. It may be true. There is a strong possibility that it is true for the reasons we have given; we say no more than that. That being so, it clearly affords a ground for allowing the appeal because it makes us unsure as to the safety of the conviction. 24. We appreciate that the evidence comes to the court very late, but that is in the nature of evidence such as this, where a convicted man, long after conviction and failure of his appeal, then decides to do whatever he can, honestly or dishonestly, for those charged and convicted with him. 25. In all, the evidence that we have heard and the picture we have been presented of the evidence given to the court below leaves us in a state of mind that we are unsure as to the safety of this conviction. For those reasons we shall allow the appeal against conviction.

2005_04_12-485.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/904/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/904

2ed561e8cb3d0c5fce7863783d1db2a091972245524322fe4370371693576fc4

[2007] EWCA Crim 1579

EWCA_Crim_1579

2007-06-12

crown_court

Case No: 2006/02424/C1 Neutral Citation Number: [2007] EWCA Crim 1579 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 12th June 2007 B E F O R E: LORD JUSTICE PILL MRS JUSTICE DOBBS DBE MR JUSTICE LLOYD JONES - - - - - - - R E G I N A -v- MARK DORLING - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020

Case No: 2006/02424/C1 Neutral Citation Number: [2007] EWCA Crim 1579 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Tuesday, 12th June 2007 B E F O R E: LORD JUSTICE PILL MRS JUSTICE DOBBS DBE MR JUSTICE LLOYD JONES - - - - - - - R E G I N A -v- MARK DORLING - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR T CLARK appeared on behalf of the Applicant - - - - - - - J U D G M E N T 1. MRS JUSTICE DOBBS: On 19th April 2006 at the Central Criminal Court this applicant was convicted of murder and sentenced to life imprisonment with a minimum term of 25 years, less 349 days spent on remand. The co-accused, John Gordon, was acquitted and another accused, James Pearson, was convicted by the jury of conspiracy to wound with intent to do grievous bodily harm. 2. This applicant renews his applications for leave to appeal against conviction and sentence after refusal by the single judge. 3. On Tuesday 10th December 2002 Aaron Chapman, the deceased, a former prison officer, was attacked with a knife at his Surrey home. He called for an ambulance, which arrived some minutes later with the police. Although seriously injured, he was able to describe his attackers to the police. One had been a black male and the second had been a white male. He had not known his attackers. 4. The following day he died from multiple stab wounds to the heart and liver. 5. 22 months later, on 13th October 2004, this applicant was arrested. 6. It was the prosecution's case that the applicant had confessed to the stabbing. It was their case that the attack had been ordered by other criminals, and that the applicant had been recruited for a fee of £10,000 to seriously wound the deceased by "striping" him, in order to teach him a lesson for some perceived wrong he had caused. 7. The evidence against the applicant came from four sources. There was confession evidence, which came from an associate of the applicant called David Duff, and the applicant's former girlfriend, Sarita Williams, who both said that he had confessed to them that he had stabbed somebody. There was the evidence of the co-accused, Mr Pearson, which placed the applicant at the scene of the crime on the relevant day. Mr Pearson said that the applicant had picked him up on that day. They had gone to the deceased's home in the evening. Nobody was in. Then later the applicant picked up Mr Pearson, again having dropped him off, and they drove to an area near the deceased's home. The applicant left Mr Pearson and then later returned five minutes later, holding his arm and shouting he had been chased with by a man with knife. They drove to Mr Duff's house for the applicant to get a bandage. There was cell site evidence which put the applicant within the vicinity of the deceased's home prior to the offence, and there were some calls in custody relied upon, where telephone conversations demonstrated the applicant's concern about the case. Finally, there was the no comment interview. 8. The defence case was that the applicant had not been present at the scene and he had never confessed to anyone that he had stabbed the deceased. The evidence of the prosecution witnesses was false as they had their own motives for implicating him. The defence also relied on the lack of scientific evidence linking him to the deceased or the scene of the crime. 9. There are six grounds of appeal. Some are repetition of the grounds before the single judge and three are additional grounds formulated by counsel now before us, who was not counsel originally instructed at the trial. We deal with each in turn. 10. The first ground is that the learned judge failed to provide the jury with a balanced summary of the evidence of the defendant's case. The essential complaint is not that the judge ought to have rehearsed the applicant's case blandly and uncritically, but because this was a cut-throat defence, so far as Pearson in particular was concerned, in order to redress the balance, the applicant's case needed to be summed-up fairly, giving full and fair weight to the evidence and arguments of both sides. It is said that the judge did this for the other co-defendants but failed to do so for this applicant. 11. Having read the full transcript of the summing-up, the single judge noted that the summing-up was a full treatment of the evidence. He observed: "Of necessity, because there was more evidence against you than either of the other two defendants, the summing-up reflects an element of imbalance. That is not a reason for criticism of it. There was a powerful case against you in the form of the evidence of Williams, Duff and your co-defendant Pearson." 12. With regard to the detailed criticism that the judge did not make all the defence points and did not sufficiently emphasise the absence of forensic evidence, the single judge noted that: "It is not for the Judge to make the defence speech but to reflect in his summing-up the weight of the case for and against each defendant." 13. We agree with those sentiments and take the view that, taken as a whole, the judge did not fail to provide a balanced summing-up of the defence case, because the defence response to all the essential allegations made were set out in the summing-up, including putting the essence of the defence case. The judge made it clear, during the various interludes when counsel raised matters arising from the summing-up, that matters could be raised and that he had to be fair to the parties. There were no specific complaints about unfair treatment as compared to the co-defendants. 14. The second ground is that the learned judge failed to provide the jury with a balanced summary of the evidence of Sarita Williams. In particular, he failed to inform the jury as to why they should approach her evidence with caution. He failed to direct the jury properly, or at all, in relation to her allegation that the applicant had raped her. 15. The thrust of the complaint is that there was an unbalanced summary because the judge presented the jury with a picture of woman who was very close to the applicant and in whom he would have confided. It is said that the defence case was that she was an opportunist and skilled in the art of the deceit. It is to be noted that during the summing-up the judge told the jury: (a) that it was for them to decide about her evidence and for them to decide if she was being truthful or not. The picture of closeness was only one to be relied on if the jury formed the view that she was a truthful witness. It was not one-sided, therefore. 16. With regard to the caution, in his introductory directions (in Volume I of the transcripts) the judge gave direction of the need for special caution with regard to Mr Duff, Mr Pearson the co-defendant, and Miss Williams. He then went on to make further comments about credibility and the need for caution in relation to each of these individuals at some length (transcript Volume I, pages 47-52). 17. The judge also made it clear what the defence case was in relation to Miss Williams, having in Volume II reminded the jury again for the need for caution. He deals specifically with Sarita Williams at Volume II, pages 5-8 onwards. It is said that although the judge does deal with the need for caution, he does not give the jury the reason why they have to be cautious. If one looks at the way the judge introduced the matter, he did so within the context of the history of the relationship between the applicant and the witness Miss Williams. Therefore, as a matter of common sense, it would be obvious to the jury how the matter was put. Indeed, as already indicated, the judge made clear to the jury what the defence case was in relation to her. 18. Dealing with the allegation of rape by Miss Williams, the judge dealt with the matter when dealing with Miss Williams' evidence. He referred to the allegation, reminded the jury that there was no charge, but said that they could have regard to it if it had its part to play in the relationship between Miss Williams and the applicant. However this has to be put in the context of the judge's directions on bad character in relation to the applicant, which are dealt with at Volume I, pages 55 onwards. 19. When dealing with the question of previous convictions and evidence of reprehensible behaviour, the judge, although not referring specifically to the rape allegation at that stage, directed the jury that, save for the specific convictions, to which he referred, which showed a propensity to violence, for which he gave the jury the appropriate direction, all other matters went only to credibility. At page 55 onwards he gives the appropriate direction in relation to that. No complaint was made at the end of the summing-up in relation to this issue, and if one looks at the summing-up it is clear that it did not feature as an important part of the Crown or the co-defendant's cases. 20. The third ground is that the judge failed to address the jury in relation to the absence of scientific evidence as against the confession evidence provided. The judge deals with forensic evidence in various parts of the summing-up. There is at Volume II, page 22, a specific and very clear reminder to the jury that it is the case of the applicant that there was a complete lack of scientific evidence to implicate any of the three defendants. Further on in the summing-up, the judge made it clear that there was no scientific evidence in relation to the car which the applicant was said to have driven. The judge also emphasised that the essence of the case against the applicant was the confession evidence, which was relied on by the Crown. In our view, the judge was not obliged to go any further than he did. 21. The fourth ground, which is a new one, is that the judge failed properly to direct the jury as to how it should approach the applicant's failure to answer questions in interview. It is said that the judge failed to specify the facts relied on in the interview. It is to be noted at Volume II, page 26 onwards, that the judge gave an extremely long and detailed direction about this aspect and emphasised the need for care. At page 26, letters B to C in particular, the judge identified quite clearly the issues for the jury in relation to this aspect. Not only that, he reminded the jury of cross-examination by the Crown and the other parties. It is quite clear again that the failures played little part in the case overall. 22. Counsel before us is not in a position of course to identify any other issues which should have been put to the jury. It is to be noted that trial counsel, who had corrected the judge on a number of occasions during the summing-up, did not draw any omission in relation to this aspect to the judge's attention. 23. The last two grounds relate to a failure by the police. The sixth ground has now, in the light of further information that has come to counsel's attention, been withdrawn. 24. The fifth ground is that the police failure to obtain cell site data for a particular mobile phone, which featured in the case and involved others in the case but not the applicant, and which showed communication with the phone both before and after the murder left the jury with a partial and incomplete picture. This is also a new ground. We say no more than this. The judge during the course of his summing-up rightly directed the jury not to speculate about what other evidence there could have been, and that the jury must decide the case on the evidence before them. To complain of a failure to provide further evidence is in effect to speculate as to the outcome of what that further material might have yielded, and that is inappropriate. In any event, as the single judge noted, the case against this applicant was a powerful one. 25. We stand back and consider whether the matters singly or cumulatively cause us to take the view that the conviction is arguably unsafe. They do not. Therefore this renewed application for leave to appeal against conviction is refused. 26. We turn to the question of sentence. There is an application by the applicant. There are no grounds that have been settled by counsel and there were no grounds settled by previous counsel, and the applicant himself has submitted no grounds. We can deal with that renewed application by referring to the observations of the single judge when refusing leave to appeal against sentence, when he said this: "This murder having been committed on 11th December 2002 attracted the transitional provisions of the new sentencing regime. In my judgment the Judge was fully entitled to find that though there was no initial intention to kill, merely to wound seriously, within a short space of time, given the number and nature of the injuries, the intention to kill was present. This was a professional attack organised by members of the underworld which you undertook for monetary gain. There was at least one and probably two knives and there was [a] second man there. The Judge was right to say there were a number of factors aggravating the crime and none mitigating it. I am unable to say that, even applying, as he had to, the 2002 practice direction, the sentence was in any way excessive." 27. We agree, and therefore this renewed application for leave to appeal against sentence is refused. ______________________________

2007_06_12-1134.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1579/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1579

e5673fa16ee9533f6adfbfa36c00fbf496691ab4db59ddd7648fb152aabbf08d

[2019] EWCA Crim 235

EWCA_Crim_235

2019-02-07

crown_court

Neutral Citation Number: [2019] EWCA Crim 235 No: 201804454/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 7 February 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE O'FARRELL DBE HIS HONOUR JUDGE WALL QC (Sitting as a Judge of the CACD) R E G I N A v JACK MCGEECHAN Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand

Neutral Citation Number: [2019] EWCA Crim 235 No: 201804454/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 7 February 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE O'FARRELL DBE HIS HONOUR JUDGE WALL QC (Sitting as a Judge of the CACD) R E G I N A v JACK MCGEECHAN Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mr M Rowcliffe appeared on behalf of the Applicant Mr S Heptonstall & Ms Bakshi appeared on behalf of the Crown J U D G M E N T Approved MRS JUSTICE O'FARRELL: 1. On 16 June 2017 Jack McGeechan, the applicant, was made subject to a 24 month detention and training order ("DTO") imposed for offences of being concerned in the supply of Class A drugs, affray, having a bladed article and breach of a criminal behaviour order. 2. In June 2018, at the end of the period of detention and training, the applicant was released and became subject to a period of supervision until expiry of the DTO which was to run until June 2019. 3. On 1 September 2018, at Leicester Magistrates' Court, the applicant pleaded guilty to the following offences: dangerous driving, failing to stop when required by a constable, driving otherwise than in accordance with a licence, driving without insurance and possessing a controlled drug of Class B, namely cannabis. Those offences occurred on 30 August 2018. Therefore, they were committed during the supervision period of the DTO. The applicant was 18 years old when he committed those offences and 19 at the date of sentence. 4. On 3 October 2018 the applicant was sentenced, at Leicester Crown Court by His Honour Judge Hurst, to 21 months and 18 days' detention in a young offender institute ("YOI") as follows: i) firstly, for the offence of dangerous driving, 12 months' detention in a YOI; ii) secondly, for the other offences, no separate penalty, subject to licence endorsement; iii) thirdly, for the commission of an imprisonable offence during the supervision period of the DTO, a period of detention of 9 months and 18 days being the total period between the date of the new offences and the date when the DTO would have expired; iv) further, the applicant was disqualified from driving for a total period of 39 months and 18 days comprising a discretionary disqualification period of 24 months and an extension period of 15 months and 18 days. v) a requirement for an extended re-test was imposed and a victim surcharge order made. The applicant seeks leave to appeal against his sentence, his application having been referred to the court by the Registrar who granted a representation order for junior counsel who appears before us today, Mr Rowcliffe. 5. The relevant facts can be summarised as follows. On 30 August 2018, at about 5.00 pm, police officers on patrol near the village of Quorn followed and attempted to stop a black Volkswagen Golf car driven by the applicant with three passengers. The police activated their blue lights on the patrol car and a second marked police vehicle pulled in front of the applicant's vehicle. The applicant failed to stop and a chase then ensued. 6. The applicant's speed as he attempted to avoid the police was approximately 40 miles per hour - in excess of the applicable 30 mile per hour speed limit. The applicant collided with the police vehicle in front of him a few times and collided with two other police vehicles who assisted in the attempt to stop him. The applicant mounted the pavement, drove across a grassed area, rejoined the road, collided again with the police vehicles, collided with a wall and finally came to a halt. As police approached the car the applicant continued to attempt to accelerate and drive off. 7. The police officers suffered whiplash-type injuries caused by the collisions and four police cars were damaged. The pursuit lasted for about 30 seconds, over a few hundred yards. The applicant had no insurance and has never held a driving licence. 8. At the date of sentencing the applicant was 19 years old, having been born on 16 September 1999. He had 11 previous convictions for 20 offences including dishonesty, criminal damage, threatening behaviour, assaults on police and possession of cannabis. 9. In passing sentence, having viewed the CCTV footage of the incident, the judge noted that it must have been terrifying for the officers involved and for any members of the public who observed it. The judge indicated that the appropriate sentence, after a trial for the dangerous driving offence would have been 18 months. The applicant was entitled to full credit for his guilty plea, namely a reduction of one-third, resulting in a sentence of 12 months' detention. 10. The court exercised power, under section 105 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the Act"), to detain the applicant for a period equal to the length of time between the date of the current offences and the expiration of the supervision period of the DTO, a period of 9 months and 18 days. The sentencing judge ordered that period of detention (which we will refer to as "the breach detention") to be served immediately and ordered the sentence for the dangerous driving offence to run consecutively to the breach detention. 11. The grounds of appeal against sentence advanced by Mr Rowcliffe for the applicant are that: i) firstly, the court had no power to order that the sentence of detention imposed for the offence of dangerous driving should run consecutively to the breach detention; ii) secondly, it was not necessary, in all of the circumstances, to impose the whole of the period between the new offences and expiry of the DTO by way of the breach detention; iii) thirdly, that the sentence imposed in respect of the dangerous driving offence was manifestly excessive. 12. Section 100 of the Powers of Criminal Court (Sentencing) Act 2000 , empowers the court to pass a detention and training order ("a DTO") on a young person under 18 who is convicted of an offence which is punishable by imprisonment in the case of a person aged 21 or over in appropriate cases. Section 101 of the Act provides that the term of a DTO must be 4, 6, 8, 10, 12, 18 or 24 months. The court can make a DTO concurrent with or consecutive to another DTO provided that, firstly, the cumulative term does not exceed 24 months and secondly, if a period of supervision has already begun under an existing DTO, any new DTO must commence immediately. 13. Section 102 of the Act provides that the period of detention and training under a DTO shall be one-half of the term of the order. The offender is released at, or shortly before or after, the halfway point, subject to the power of the Secretary of State to release an offender earlier. Section 103 of the Act provides that on release of an offender, the period of supervision begins and continues until expiry of the term of the DTO. 14. Section 104 of the Act provides that where an offender has failed to comply with the supervision requirements under a DTO, the court is empowered to impose a period of detention. The maximum period for which such detention may be imposed is 3 months or the period between breach and expiry term of the DTO whichever is shorter. The period of such detention begins on the date the order is made and may overlap with a DTO supervision period. 15. Section 104 B provides that where an offender is subject to detention for failure to comply with supervision requirements, a separate DTO may be imposed in respect of other offending concurrent with or consecutive to that detention. 16. Section 105 of the Act provides as follows: “(1) This section applies to a person subject to a detention and training order if— (a)after his release and before the date on which the term of the order ends, he commits an offence punishable with imprisonment in the case of a person aged 21 or over ('the new offence'); and (b)whether before or after that date, he is convicted of the new offence. (2) … the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be detained in such [F1youth detention] accommodation as the Secretary of State may determine for the whole or any part of the period which— (a)begins with the date of the court’s order; and (b)is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1) above. (3) The period for which a person to whom this section applies is ordered under subsection (2) above to be detained in youth detention accommodation— (a)shall, as the court may direct, either be served before and be followed by, or be served concurrently with, any sentence imposed for the new offence; and (b)in either case, shall be disregarded in determining the appropriate length of that sentence. … (5) A person detained in pursuance of an order under subsection (2) above shall be deemed to be in legal custody.” 17. Section 105 read in isolation, empowers the court to impose a breach detention for offending during the supervision period of a DTO and a separate sentence for the new offence. Section 105 explicitly states that the breach detention may be ordered to be served before the sentence for the new offence, ie the sentences shall be served consecutively or concurrent with the new offence. However, section 105 must be read together with section 106 of the Act which provides: “(1) Where a court passes a sentence of detention in a young offender institution in the case of an offender who is subject to a detention and training order, the sentence shall take effect as follows— (a) if the offender has been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which it is passed; (b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102 ... … (4)Subject to subsection (5) below, where at any time an offender is subject concurrently— (a)to a detention and training order, and (b)to a sentence of detention in a young offender institution,he shall be treated for the purposes of sections 102 to 105 above... as if he were subject only to the one of them that was imposed on the later occasion.” 18. Thus, section 106 expressly provides that where an offender has been released, following the period of detention and training under a DTO, any sentence of detention in a young offender institution shall have immediate effect. Therefore, such sentence must be served concurrent with and not consecutive to any detention period imposed for breach of the DTO. 19. Section 106 , as originally enacted, included subsection (3) which stated that: “Subsection (1)(a) above has effect subject to section 105(3) (a) above.” This had the effect of permitting the court to impose a sentence of detention in a young offender institution to be served consecutive to a breach detention. However, this provision was repealed by paragraph 112 of schedule 32(1) of the Criminal Justice Act 2003 . The necessary implication is that Parliament intended that section 106 of the Act would no longer be subject of provisions of section 105 . Section 106 , in its current form, requires a sentence of detention in a young offender institution to be imposed with immediate effect where an offender has been released following the completion of the detention and training period of a DTO. 20. This interpretation of section 106 is consistent with the approach to adult offenders who have been released as set out in section 265 of the Criminal Justice Act 2003 which provides that: “A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released.” 21. Section 106 is engaged where, firstly, a sentence of detention in a young offender institution is imposed and secondly, the offender is subject to a DTO. 22. In this case, the applicant was 18 years old at the date of the new offences and the court passed a sentence of detention in a young offender institution in respect of the dangerous driving offence. 23. The period of detention imposed for breach of the DTO is not part of the DTO but a discrete form of detention for the following reasons. Firstly, a DTO is defined in section 100(3) of the Act as “an order that the offender in respect of whom it is made shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision.” An offender subject to a DTO is not released on licence; the supervision period is a separate part of the term. The commission of an offence during the supervision period does not permit the court to reactivate any part of the detention and training period. Secondly, the detention period which the court has power to impose is not limited to the specified terms for which a DTO may be ordered set out in section 101 of the Act . Thirdly, the period of detention imposed for a breach of DTO must be served in full. There is no provision for early release. It follows that a period of detention under section 105 is not in itself a DTO. 24. However, section 106 is engaged where an offender is subject to a DTO. In this case, at the time of sentencing the applicant was still subject to the supervision part of the 2017 DTO. Therefore, section 106 of the Act was engaged in this case. The sentence of 12 months' detention in a young offender institution was required to take effect on the day that it was passed. The court did not have power to order that this should be served as a consecutive sentence. 25. We are very grateful to counsel for their clear and concise skeletons. We note that paragraphs 7.22 and 7.23 of the Sentencing Children and Young People Guidelines set out the position regarding children and young people under 18 as follows: “7.22 If a child or young person is found guilty of further imprisonable offence committed during the currency of the order then the court can impose a further officer of detention. This period of detention cannot exceed the period between the date of the new offence and the date on which the original order would have expired. 7.23 This period can be served consecutively or currently with any sentence imposed for the new offence and this period should not be taken into account when determining the appropriate length of the sentence for the new offences.” 26. The guidelines accurately set out the position for children and young persons under the age of 18 because they will not be affected by section 106 . But they do not cover the situation where a sentence of detention in a young offender institution is imposed on someone who has reached the age of 18. In those circumstances the court does not have power to order such detention to be served consecutively to any detention imposed for breach of a DTO. 27. Ground 2 of the application is that the court could and should have exercised its power to shorten the period of the breach detention. The grounds relied upon by Mr Rowcliffe are, first of all, that Mr McGeechan had completed about two-and-a-half months of the supervision period of the DTO and although one does not carry out a straightforward arithmetical exercise in order to deduct that period from any proposed detention period, he submits that it would be appropriate for the court to recognise the applicant's compliance with the terms of his DTO for that period. Secondly, it is urged upon the court that the offending in this case was an impulse offence; effectively the applicant was showing off to his friends and panicked when pursued by police. Mr Heptonstall for the Crown draws our attention to the very serious nature of the offences in question and submits that the court may take that into account when considering the appropriate period for the breach detention. 28. In our view, there is some force in the submission made by Mr Rowcliffe on ground 2. It is accepted that the applicant should have some recognition for his compliance and co-operation with the supervisory period of his detention and training order. In addition, we accept that the nature of the offending in this case is different to the offences for which the applicant was made subject to the DTO. It is not a straightforward case of repeat offending behaviour. For those reasons we consider that it would be appropriate to make a relatively short adjustment to the breach detention period, reducing that to 6 months. 29. Ground 3 is that the sentence passed in respect of the dangerous driving offence was manifestly excessive. The judge took the starting point of 18 months, before giving full credit for a guilty plea and reducing that to 12 months. 30. The submissions made by Mr Rowcliffe today are: i) the dangerous driving occurred for a short duration and over a relatively short distance; ii) although damage was caused to the police vehicles, the applicant did not set out to cause such damage but rather the damage occurred during the course of the legitimate pursuit by police; iii) this was an impulse offence and the applicant took off in the spur of the moment. 31. In our judgment, there are no grounds for reducing the sentence imposed for the dangerous driving offence. The applicant has never held a licence. He was uninsured. Although it is accepted that the dangerous driving took place over a short duration and distance, during that period the applicant drove too fast and in a manner that endangered the police officers and other innocent drivers. We have had the benefit of watching the CCTV footage. The car swerved onto the pavement, thereby endangering pedestrians. The officers suffered injuries. Police cars were damaged. Although we accept that the applicant did not initially set out to cause damage, he deliberately rammed the police vehicles in his attempt to avoid them. The applicant had recently been released from detention. 32. In those circumstances, a substantial custodial sentence was justified. The sentence of 12 months was appropriate and certainly cannot be said to be manifestly excessive. 33. For those reasons, we grant leave to appeal. We reduce the term of detention for commission of these offences during the supervision period of the DTO to 6 months and make it concurrent with the sentence of 12 months for the dangerous driving offence. A total period of detention in a young offender institution of 12 months. We reduce the period of disqualification from driving to 30 months comprising 24 months' discretionary disqualification and an extension period of 6 months. To that extent this appeal is allowed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2019_02_07-4499.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/235/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/235

c15f101cce0e353f3938df103efaaca935f860c8bc74d9e9711fe6601ef7fc0c

[2006] EWCA Crim 3294

EWCA_Crim_3294

2006-12-06

crown_court

No: 200604583/A2 Neutral Citation Number: [2006] EWCA Crim 3294 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 WEDNESDAY, 6th December 2006 B E F O R E: LORD JUSTICE KEENE MR JUSTICE BEAN THE RECORDER OF BIRMINGHAM (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- NICHOLAS JOHN GREEN - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel

No: 200604583/A2 Neutral Citation Number: [2006] EWCA Crim 3294 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 WEDNESDAY, 6th December 2006 B E F O R E: LORD JUSTICE KEENE MR JUSTICE BEAN THE RECORDER OF BIRMINGHAM (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- NICHOLAS JOHN GREEN - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR R SHELLARD appeared on behalf of the APPLICANT - - - - - - - J U D G M E N T 1. THE RECORDER OF BIRMINGHAM: On 31st August 2006 at Cardiff Crown Court, the appellant was sentenced to a total of 40 months' imprisonment for two offences. He had previously pleaded guilty in June, which was the earliest opportunity at which his pleas could sensibly have been entered. He was sentenced to 24 months' imprisonment for causing or inviting a child to engage in sexual activity and to 16 months consecutive for causing a child to watch a sexual act. He was refused leave by the Single Judge to appeal. He has renewed his application to this Court and we have granted him leave. 2. These were offences which were committed via the Internet over a period during 2005. At that time the appellant was aged 38 and the victim of these offences was aged only 12. She was a school friend of the appellant's teenage stepdaughter. They lived close by each other, and from a fairly early stage the appellant was aware of this. 3. The appellant got involved in a chatline on the Internet with the complainant. To start with the girl believed that she was in touch with another 13-year old, but she subsequently found out he was the father of her school friend. Contact over the Internet took place on about ten occasions. The appellant started to introduce sexual content into the conversation. A web camera was used so that they could see each during these conversations. On three or four occasions, at his encouragement, she exposed and rubbed her breasts to him via the web camera and also showed her vagina. That behaviour is the subject of count 1 on the indictment. He made a permanent record of one of these occasions on his computer. 4. In relation to count 2, he masturbated in front of the girl via the web camera. He also made a permanent record of this on his computer. 5. They ceased communicating with each other some 6 months before the offences were discovered, when the girl got into the appellant's car along with his stepdaughter. This was not the first time that this girl had exposed herself via the web camera. She had done so on a previous occasion but on that occasion with a boy of her own age. 6. Matters came to light when the police examined the appellant's computer, not in relation to these matters but other matters which were not proceeded with. In the course of that examination they found the images of this activity which had been made by the appellant. 7. When interviewed by the police he made no comment but it is right to say that after that, in conversations with the probation officer, he was completely candid and frank about his conduct. The appellant had only one old previous and dissimilar conviction which the judge rightly ignored and treated him as a man of good character. 8. He is a married man. He has three step children and his family are being supportive of him. The judge accepted that he showed genuine remorse and that the pre-sentence report demonstrated that he had some insight into his problems and a desire to overcome them. 9. Mr Shellard, on behalf of the appellant, argued that the totality of the sentence is too long and either the sentences should have been concurrent or the length of each should have been reduced. 10. In passing sentence, in order to identify the aggravating features of these offences, the judge quoted from the pre-sentence report which stated as follows: "...the length of time over which the offences took place and the context and content of the behaviour outlined in the witness statements suggests a pattern of manipulative and predatory behaviour on the part of the defendant to secure the compliance of his victim, together with a gross breach of trust in respect of the adult and child relationship." Having quoted from the report in that way the judge went on to say: "Those are sentiments with which I entirely agree and are aggravating features in this case. You have accepted the inevitable, that a prison sentence must be passed in respect of these matters. The mitigating features are, firstly and importantly, your plea of guilty, which has avoided [the child] having to come and give evidence in this Court. It is apparent to me, not only from that fact but from the other material which is before me, that you do show genuine remorse for what you did. It is also, it seems, that you are prepared to seek help in respect of this problem. I also have regard to the background which is set out in that pre-sentence report, your lack of previous convictions of any relevance and also, looking at the two types of offences that I have to sentence you for, the question of totality of sentence. Taking all of those matters into account, had you contested this matter upon the basis of a plea of not guilty, taking into account the mitigating factors other than your plea of guilty, the sentence, in my judgment, would have been in the area of five years, 60 months. I reduce that by the appropriate third, discounting for the plea of guilty as well." He then passed the sentence which we have specified. 11. Mr Shellard argues that the starting point which the learned judge says to reflect the whole of the conduct of 60 months (5 years) was too high. He points out that in the case of Millberry , the guideline case, it was said that 5 years is the starting point for an offence of rape with an adult. Of course it would not be a starting point for rape with a child of this age. 12. In our judgment, although the judge could have justified making the sentences consecutively, we believe it would have been better in this case reflecting as it did a course of conduct, if the judge had made the sentences concurrent. We do think that the result of making the sentences consecutive was that the totality of the sentence was too great. 13. We have been helpfully referred to the case of R v A , which was an unreported case, but the neutral citation of which is [2006] EWCA Crim 2103 . We have looked at that case. As with many such cases there are facts which are more serious and facts which are less serious than in this case, so it does not help us enormously with reaching our conclusion, but we have considered it. 14. In our judgment, the total sentence which was justified on this man would have been a total sentence of 30 months' imprisonment. We consider that that total sentence would have been best achieved by passing sentences of 30 months concurrent on both counts 1 and 2. To that extent this appeal is allowed.

2006_12_06-981.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3294/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3294

a5b66a72279648d48e38272063d95cf82bb91dd9f6883423205921e6885c5d67

[2020] EWCA Crim 1243

EWCA_Crim_1243

2020-09-29

crown_court

Neutral Citation Number: [2020] EWCA Crim 1243 Case No: 201903988 B1 and 202000908 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ISLEWORTH CROWN COURT His Honour Judge Denniss QC 201903988 B1 / 202000908 B1 Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday 29 th September 2020 Before : LORD JUSTICE HADDON-CAVE MR JUSTICE JEREMY BAKER and MRS JUSTICE MOULDER DBE - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and – CARON WESTBROOK Respondent MART

Neutral Citation Number: [2020] EWCA Crim 1243 Case No: 201903988 B1 and 202000908 B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ISLEWORTH CROWN COURT His Honour Judge Denniss QC 201903988 B1 / 202000908 B1 Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday 29 th September 2020 Before : LORD JUSTICE HADDON-CAVE MR JUSTICE JEREMY BAKER and MRS JUSTICE MOULDER DBE - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and – CARON WESTBROOK Respondent MARTIN RICHARDSON - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Laura Brickman (instructed by The CPS Appeals Unit) on behalf of the Prosecution Mr Francis McGrath (instructed by The Registrar of Criminal Appeals) on behalf of the Respondent (Caron Westbrook) Ms Helen Dawson (instructed by The Registrar of Criminal Appeals) on behalf of the Respondent (Martin Richardson) Hearing date : Tuesday 25 th August 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Haddon-Cave: 1. On 19 th January 2017, in the Crown Court at Isleworth before His Honour Judge Denniss QC, the first applicant, Caron Westbrook, pleaded guilty to transferring criminal property (count 2) and theft (count 6) and the second applicant, Martin Richardson, pleaded guilty to possessing criminal property (count 8), converting criminal property (count 9) and fraud (count 12) (see further below). The applicants were married. The second applicant has changed his name by deed poll to Martin Richardson but for convenience we will refer to him as Martin Westbrook. 2. On 10 th March 2017, before the same Court, Caron Westbrook, was sentenced to a total of 66 months’ imprisonment. Martin Westbrook was sentenced to a total of 40 months’ imprisonment. Their respective applications for leave to appeal against sentence were refused by a judge on paper and were not renewed. 3. Confiscation proceedings were commenced under the Proceeds of Crime Act 2002 (“POCA”). A trial of those proceedings took place before HHJ Denniss QC at Isleworth Crown Court between 2 nd and 5 th October 2018. Both applicants were represented by counsel. Caron Westbrook gave evidence but Martin Westbrook did not. The judge heard from other witnesses including the officer in the case, DC Simon Allen, and accountants called for the prosecution and the first applicant. 4. We are grateful to counsel for their able submissions. Mr Francis McGrath appeared on behalf of Caron Westbrook. Ms Helen Dawson appeared on behalf of Martin Westbrook. Ms Laura Brickman appeared on behalf of the Prosecution. 5. The applicants each apply for leave to appeal against the confiscation order and extension of time. Their applications have been referred to the full Court by the Registrar. FACTS 6. Caron Westbrook was employed as a personal assistant to David Hogan, a successful and well-known photographer. She eventually became the ‘book-keeper’ for his business and photography companies. Mr Hogan entrusted all bookkeeping and financial affairs to the applicant. In 2003, Mr Hogan sold his photography business for over £2.5m. Caron Westbrook introduced her husband, Martin Westbrook, to the Hogan family, representing him to be a successful businessman. Martin Westbrook also came to be employed by the Hogan family, his role was to manage the rental properties owned by Mr Hogan and collect the rent payments for those properties. 7. Through sophisticated frauds, carried out over many years and principally by Caron Westbrook, Caron and Martin Westbrook began diverting monies from Mr Hogan’s personal and business accounts to the Westbrooks’ own accounts. Matters came to light in 2014 when Mr Hogan discovered one of his bank accounts was £50,000 overdrawn. The Hogan family contacted an accountant friend, Janice Lingwood, and asked if she would examine the affairs of their companies on a pro bono basis. Ms Lingwood agreed and reported to the Hogan’s that they had suffered losses of some £840,000, which included charges and other losses. 8. Caron Westbrook had previous convictions for 44 offences, spanning between 1990 and 2003; Martin Westbrook was of previous good character. 9. Caron Westbrook pleaded guilty to the following counts: (1) Count 2: Transferring criminal property. Between 01 January 2009 and 17 December 2014, the applicant transferred monies belonging to David Hogan to her and Martin Westbrook’s personal bank account. (2) Count 6: Theft. Between 01 January 2009 and 17 December 2014, Caron Westbrook stole £463,661.28 from David Hogan. 10. Martin Westbrook pleaded guilty to the following: (1) Count 8: Possessing criminal property. Between 01 April 2012 and 17 December 2914, the applicant possessed monies belonging to Hogan Media paid to (a company) belonging to Martin Westbrook. (2) Count 9: Converting criminal property. Between 01 January 2009 and 17 December 2014, the applicant converted monies belonging to David Hogan for his own personal use. (3) Count 12: Fraud. Between 05 June 2012 and 12 June 2012, the applicant dishonestly made a false representation to Barclays Partner Finance that he was earning £90,000 per annum intending to make a gain (purchase of a Range Rover vehicle). JUDGE’S RULING ON CONFISCATION 11. On 7 th October 2018, HHJ Denniss QC issued a detailed 8-page written ruling on confiscation carefully analysing the evidence and the issues. The following is a brief summary of the main elements of his ruling. 12. The applicants lived in rented accommodation; neither had any property registered in their name with the Land Registry (page 2). They were listed as directors of a company known as ‘North 10 Ltd’ (formerly ‘Sweet Pea Direct’). The company was incorporated in March 2010 and dissolved in 2015. There were minimal transactions in the company’s bank accounts and the average balance was around £2,000. Caron Westbrook also had her own photography business but no income had been declared (page3). 13. Personal bank accounts ascribed to the applicants during the period of offending provided an overall picture of accumulating debt. A list of bank accounts held by the applicants had been identified and examined. The transfers from those accounts highlighted extravagant spending by the couple on disposable items such as holidays or high-end points of sale (page 3). 14. The report prepared by the Prosecution expert accountant, Ms Lingwood, the methodology of which was agreed by Moore Stevens accountants for the applicants, calculated the losses to the Hogans to be £840,639. The judge made deductions totalling £316,982 from that figure in light of the report of Moore Stevens, including deducting for VAT and tax relief reclaimed. The judge considered the final benefit figure to be £523,657.00 (page 5). 15. In respect of assets, neither applicant had any tangible property, chattels, shares or money. Caron Westbrook stated she had debts of £65,000 with rent arrears of £7,000. She asserted that she had spent all of the monies fraudulently obtained on expensive holidays and rent payments. The only asset she had was a storage container, the contents of which had a nominal value of £1,000. The judge did not take those items into account as realisable assets for the purposes of confiscation. Caron Westbrook had not disclosed the existence of the storage facility until late in proceedings and access to it was only provided in September 2018. Cheap items of clothing and accessories were found therein. The judge found it impossible to believe there were no substantial electrical items or camera equipment or other type of goods in that facility; the late disclosure and access to the facility was cause for suspicion (page 6). 16. The judge found Caron Westbrook’s evidence to be untrue and took into account her previous convictions. She had been imprisoned for similar offences in the past and was aware it was likely she would be arrested and imprisoned for the instant offences. In light of that knowledge, it was likely she had hidden assets away for use when she was released (page 6). Martin Westbrook had elected not to give evidence. 17. While there was no direct evidence of available assets, the judge noted the parties had previously had access to funds to enable them to satisfy County Court judgments, including one in the sum of £3,400 in 2014. 18. The judge did not accept the applicants had spent the monies from which they had benefited and considered there “must be hidden assets”. The judge found Caron Westbrook to be “dishonest” and that Martin Westbrook had failed to engage in the confiscation proceedings by not giving evidence; it was for the defendants to establish they had no hidden assets ( R v Summers (2008) 2 Cr. App. R (S) 101) (page7). 19. The judge considered the levels of annual expenditure of the applicants to be £50,000 per year; over the 5 ½ year indictment period this amounted to £250,000. The judge calculated the available assets (hidden) to be £248,657 (being the benefit figure of £523,657 less expenditure of £250,000). 20. The judge summarised his conclusions as follows: “I therefore assess and order: received benefits for both defendants jointly and severally £523,657 available assets (hidden) £248,657 a confiscation order in respect of both defendants jointly and severally: £248,657” 21. He further stated: in respect of each defendant “I order a default period of 2 years” ; to avoid double-recovery “any payment made in satisfaction of the confiscation order by either applicant was to be set off against the total sum owing” ; in respect of time to pay “I allow a period of 3 months” ; and in respect of the costs of the confiscation proceedings, they be taxed if not agreed and “paid jointly and severally by each applicant” . 22. The judge electronically signed and dated the judgment 7 th October 2018 and added the following postscript: “This judgment is dated 7 October 2018 but will be embargoed until I have heard from each of the 3 counsel to deal with any errors or corrections or at the latest Friday, 12 October 2018. If the case need to be relisted at the request of any counsel, a mutually convenient date should be obtained from the Isleworth Crown Court listing office.” 23. The ruling was then circulated to counsel. There was no request from counsel to relist the matter. POST-HEARING 24. On 8 th November 2018, Caron Westbrook lodged an appeal against confiscation. Isleworth Crown Court and Crown Prosecution Service (“CPS”) were asked to provide a copy of the confiscation order. The CPS were specifically invited to address whether or not s.6(5)(b) Proceeds of Crime Act 2002 had been satisfied. No order was provided. 25. On 28 th February 2019, prosecution counsel, Ms Brickman, wrote a Note on Confiscation and a Note on s.6(5)(b) POCA, in response to the grounds of appeal which were sent to the Crown Prosecution Service. The Note on Confiscation stated: “No application was made to relist the case by the Defence for either Mrs Westbrook or her husband. However, the order was not made as an oversight or misunderstanding. It should have been made by the Court. In the circumstances, neither Mrs Westbrook [n]or her husband have suffered prejudice. The Court should be contacted and the matter relisted for the making of the order or it can be done administratively by agreement.” 26. On 18 th March 2019, a letter was sent by the Criminal Appeal Office to Carol Westbrook’s solicitors suggesting that the appeal was unnecessary since it appeared that no judgment had handed down in open court and no confiscation order drawn up. 27. On 30 th August 2019, confiscation orders were drawn up (on Form 5050 (06.19)) in respect of each applicant which ordered them to pay a confiscation order in the sum of £124,328.50 within three months. These documents were defective in at least three respects. First, they bore the wrong case number. Second, they ordered the applicants to pay half the sum referred to the written ruling when the confiscation order should be made for the whole value of the benefit obtained ( c.f. R v Ahmad and Fields [2014] UKSC 36 at [74]). Third, they ordered payment within three months of the dated of the document itself rather than the date of the written ruling. 28. However, the Court log from Isleworth Crown Court for 3 rd September 2019 correctly showed the “disposal amended…to Confiscation Order under s.1(5) DTOA 1986 Drug Trafficking Confiscation Order for £248,657.00” in respect of each applicant. 29. On or about 11 th or 15 September 2019, the applicants each received a letter from the London Regional Confiscation Unit, HMCTS seeking payment of £125,328.50, to be paid in full by 30 November 2019. Enquiries were made by those representing the applicants and a confiscation orders dated 30 August 2019 was provided. Those representing the applicants made enquiries of Isleworth Crown Court and it appeared no hearing was listed on that date nor on any other date following the confiscation proceedings in October 2018. 30. On 29 th October 2019, Caron Westbrook lodged fresh application seeking leave to appeal against the confiscation order. On 11 th March 2020, Martin Westbrook lodged application seeking leave to appeal against the confiscation order. SUBMISSIONS 31. Two grounds of appeal were put forward on behalf of the applicants: (1) First, the purported confiscation orders dated 30 August 2018 are a nullity (Ground 1). (2) Second, alternatively, if the orders of 30th August 2018 are valid, the Judge erred in concluding the available amount was £248,657.00 (Ground 2). 32. As regards Ground 1, Mr McGrath and Ms Dawson submitted in summary that: (1) The date of the confiscation orders was significantly after the 2-year permitted period of postponement allowed under s.14 of the Proceeds of Crime Act 2002 (the 2-year period expired on 19 th January 2019) and no relevant extension application had been made. (2) There was no evidence to suggest the applicants’ case was listed in Isleworth Crown Court on 30 th August 2018. (3) Moreover, the orders dated 30 August 2018 were defective because they bore an incorrect case number of T20190348 (the correct indictment number being T20160661). 33. As regards Ground 2, Mr McGrath and Ms Dawson submitted in summary that: (1) The judge’s conclusion that there were hidden assets was inconsistent with the unchallenged evidence of a financial investigation officer, DC Allen, who gave evidence that money transferred out of the relevant accounts was spent on disposable items such as holidays and rent. (2) The Prosecution did not ask Caron Westbrook any questions about the transactions revealed in seven years’ worth of bank statements. 34. In response, Ms Brickman submitted as regards Ground 1 in summary as follows: (1) It was accepted that there were procedural and administrative errors but (a) these did not render the judge’s ruling or the confiscation order a nullity; and (b) the applicants had suffered no prejudice as a result. The applicants and their lawyers were at all material times fully aware of the Judge’s ruling and order. (2) The confiscation proceedings were within the prescribed period, as was the ruling and order made by the Judge. (3) In any event, there are ‘exceptional circumstances’ for extending the period of postponement beyond the 2 year period pursuant to s.14(4) POCA), including the facts that £248,000 of assets were concealed by applicants and that confiscation proceedings were delayed by the Caron Westbrook’s conduct. (4) It cannot have been Parliament’s intention that a nullity should be the consequence of an administrative or procedural breach ( R v Guraj (2017) 1 WLR 22 at paragraphs 14, 16 and 22; R v Johal [2013] EWCA Crim 647 ; R v T [2010] EWCA Crim 2703). 35. As regards Ground 2, Ms Brickman submitted in summary as follows: (1) The judge was correct to conclude the applicant and her husband had hidden assets. (2) It was not necessary to cross-examine the applicant on the transactions contained in the bank statements as she had admitted her criminality by her guilty pleas. (3) The judge was entitled to accept the evidence of an accountant called by the prosecution, Ms Lingwood. There evidence to suggest valuable items, e.g. photographic equipment and lithographs, had been deliberately removed to a storage unit. (3) The applicant had the opportunity to call witnesses in support of her contentions. (4) Large sums of money were transferred by the applicant into her bank account, it would be an affront to common sense to suggest the applicant and her husband had not withdrawn some for use after sentence. 36. In response to Ms Brickman’s submissions on Ground 1, Mr McGrath and Ms Dawson further submitted that under the legislation a “confiscation order” was a formal written document which had to be drawn up within the prescribed 2-year period in order for a valid confiscation to take place. In the present case, no such formal written document was drawn up in time and, accordingly, the matter was a nullity. LEGISLATION 37. The relevant provisions of POCA are 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 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. (6A) The court must also treat the duty in subsection (5) as a power if— (a) an order has been made, or it believes an order may be made, against the defendant under section 4 (criminal unlawful profit orders) of the Prevention of Social Housing Fraud Act 2013 in respect of profit made by the defendant in connection with the conduct, or (b) it believes that a person has at any time started or intends to start proceedings against the defendant under section 5 (civil unlawful profit orders) of that Act in respect of such profit. ] (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. (8) The first condition is not satisfied if the defendant absconds (but section 27 may apply). (9) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2). “13 Effect of order on court’s other powers (1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned. (2) The court must take account of the confiscation order before— (a) it imposes a fine on the defendant, or (b) it makes an order falling within subsection (3). (3) These orders fall within this subsection— (a) an order involving payment by the defendant, other than; (b) an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders); (c) an order under section 143 of the Sentencing Act (deprivation orders); (d) an order under section 23 of the Terrorism Act 2000 (c. 11) (forfeiture orders). (3A) In this section “priority order” means any of the following— (a) a compensation order under section 130 of the Sentencing Act; (b) an order requiring payment of a surcharge under section 161A of the Criminal Justice Act 2003; (c) an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013. (4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant. (5) Subsection (6) applies if— (a) the Crown Court makes both a confiscation order and one or more priority orders against the same person in the same proceedings, and (b) the court believes the person will not have sufficient means to satisfy all those orders in full. (6) In such a case the court must direct that so much of the 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. “14 Postponement (1) The court may— (a) proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or (b) postpone proceedings under section 6 for a specified period. (2) A period of postponement may be extended. (3) A period of postponement (including one as extended) must not end after the permitted period ends. (4) But subsection (3) does not apply if there are exceptional circumstances. (5) The permitted period is the period of two years starting with the date of conviction. (6) But if— (a) the defendant appeals against his conviction for the offence (or any of the offences) concerned, and (b) the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5), the permitted period is that period of three months. (7) A postponement or extension may be made— (a) on application by the defendant; (b) on application by the prosecutor [...] 1 ; (c) by the court of its own motion. (8) If— (a) proceedings are postponed for a period, and (b) an application to extend the period is made before it ends, the application may be granted even after the period ends. (9) The date of conviction is— (a) the date on which the defendant was convicted of the offence concerned, or (b) if there are two or more offences and the convictions were on different dates, the date of the latest. (10) References to appealing include references to applying under section 111 of the Magistrates' Courts Act 1980 (c. 43) (statement of case). (11) A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement. (12) But subsection (11) does not apply if before it made the confiscation order the court— (a) imposed a fine on the defendant; (b) made an order falling within section 13(3) ; (c) made an order under section 130 of the Sentencing Act (compensation orders); (ca) made an order under section 161A of the Criminal Justice Act 2003 (orders requiring payment of surcharge); (d) made an order under section 4 of the Prevention of Social Housing Fraud Act 2013 (unlawful profit orders). ANALYSIS Ground 1 38. In support of his argument that a confiscation order had to be a formal written document, Mr McGrath drew attention to the following: (a) s.11(6) of POCA which used the language “under the confiscation order”; (b) s.39 of POCA which permits the default period of imprisonment to varied by the Court in circumstances where “a confiscation order” is varied under sections 21-33 of the Act; (b) Part 33.21.(4) of the Criminal Procedure Rules which requires “a copy of the order” to be sent to the parties where an order is made increasing the term of imprisonment in default; and (c) parallels with Sexual Harm Prevention Orders and Restraining Orders under Part 31 of the Criminal Procedure Rules. 39. Section 6(5) of POCA imposes on the court a positive duty to decide the recoverable amount and to make a “confiscation order” in that amount. However, there is nothing in the wording of that section or any other section which suggests that the a “confiscation order” is invalid (in the sense of being a nullity) unless made in writing. The fact that, e.g. , the Criminal Procedure Rules contemplate that a formal order will be drawn up and a copy sent to the parties does not mean that an order solemnly made by a judge has no legal existence unless and until draw up in a formal written document. In this regard, orders made by judges under POCA are no different from any other orders. The fact that there may be administrative delays or failures in resulting or drawing up the order, does not mean that no order exists or came into existence when uttered by the judge. 40. In any event, the judge did make a written confiscation order which substantively complied with all the strictures of s.6 of POCA since his judgment set out his relevant findings, decided the recoverable amount and duly made a confiscation order in that amount. Indeed, the judge clearly intended to make a confiscation order because he stated in crystal clear terms: “I therefore assess and order… a confiscation order in respect of both defendants jointly and severally: £248,657” (see above). 41. Section 174 of the Criminal Justice Act 2003 stipulates that sentences shall be pronounced in open court. The fact that by oversight or error a sentence or order is not pronounced in open court (as appears to be the case here) may be “a failure of good practice” as explained by Green J in R v. Billington [2017] EWCA Crim 618 , does render the sentence or order a nullity. 42. It is axiomatic that not every administrative or procedural breach renders every sentence or order a nullity (see R v Guraj (2017) 1 WLR 22 at paragraphs 14, 16 and 22; R v Johal [2013] EWCA Crim 647 ; R v T [2010] EWCA Crim 2703). It is only if the administrative or procedural breach would give rise to real prejudice or unfairness. 43. This is manifestly not the case here. There was no prejudice flowing from any of these administrative or procedural errors. At all material times, both applicants and their lawyers were immediately and fully aware of the decision of the judge and the imposition of a confiscation order since a copy of his judgment was served on them. Indeed, proofin-the-pudding is that Carol Westbrook filed an appeal against the order a month later on 8 th November 2018 (see above). 44. We are also satisfied that a confiscation order was made by the court within the prescribed period of two years of the sentence under s.11(5) of POCA. Section 11(11) of POCA makes it clear that the fact there may have been an omission in the procedure connected with the application for or the granting of a postponement does not mean that the confiscation order should be quashed. There has to be prejudice. There was none here (see above). 45. For the sake of completeness, if an in so far as relevant, we would mention that the drafting defects in the confiscation order that was eventually drawn up in August 2019 did not invalidate the order that judge had made. 46. For these reasons, we grant an extension of time and permission to appeal on Ground 1 but dismiss the appeal. Ground 2 47. The gravamen of the defence case under Ground 2 was the judge’s conclusion that there were hidden assets could not stand because it was inconsistent with the unchallenged evidence of the investigation officer, DC Allen, that money transferred out of the relevant accounts was spent on disposable items such as holidays and rent. It was also argued that Caron Westbrook was not cross examined about her bank statements. 48. We can deal with this matter shortly. As Ms Brickman pointed out, DC Allen made it clear that he believed the applicants had hidden assets. He said so in terms in reexamination: “Q. …. So far as both parties were concerned are you of the view that there are secret assets hidden away? A. Yes, just from the amount of money that they’ve stolen, and the amount of money they appear to have now, it doesn’t add up.” 49. The judge found the evidence of Caron Westbrook to be “dishonest” and gave cogent reasons for doing so (see above). He was plainly entitled to do so. 50. For these reasons, we regard Ground 2 as unarguable and refuse and extension of time and permission to appeal in relation to it. SUMMARY 51. In summary, for the reasons set out above, we grant an extension of time and permission to appeal on Ground 1 but dismiss the appeal; and we refuse an extension of time and permission to appeal on Ground 2.

2020_09_29-4977.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1243/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1243

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[2004] EWCA Crim 2375

EWCA_Crim_2375

2004-10-08

supreme_court

Case No: 200302858 B1 and 200302870 B1 Neutral Citation Number: [2004] EWCA Crim 2375 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WINCHESTER CROWN COURT MR JUSTICE LANGLEY AND A JURY Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 8th October 2004 Before : THE RIGHT HONOURABLE LORD JUSTICE JUDGE DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES THE HONOURABLE MR JUSTICE TREACY and THE HONOURABLE MR JUSTICE BEAN - - - - - - - - - - - - - - - - - -

Case No: 200302858 B1 and 200302870 B1 Neutral Citation Number: [2004] EWCA Crim 2375 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WINCHESTER CROWN COURT MR JUSTICE LANGLEY AND A JURY Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 8th October 2004 Before : THE RIGHT HONOURABLE LORD JUSTICE JUDGE DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES THE HONOURABLE MR JUSTICE TREACY and THE HONOURABLE MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - BETWEEN: Regina - v - Amit Misra AND BETWEEN Regina - v - Rajeev Srivastava - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Michael Gledhill QC and Mr J. McNally for the appellant Misra Mr A. Kennedy for the appellant Srivastava Mr P. Mott QC and Mr H. Jenkins for the Crown Mr D. Perry for the Attorney General - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Judge: 1. These are appeals by Amit Misra and Rajeev Srivastava against their convictions on 11 April 2003 on separate counts of manslaughter in the Crown Court at Winchester before Langley J and a jury. Each was sentenced to 18 months imprisonment, suspended for two years. After conviction, the judge certified: “the question of compliance of the crime of “gross negligence manslaughter” with the ECHR is one of some importance”, and that accordingly the case was fit for appeal. 2. The victim of manslaughter was Sean Phillips. He underwent unremarkable surgery to repair his patella tendon at Southampton General Hospital on 23 June 2000. Unfortunately he became infected with staphylococcus aureus. The condition was untreated. There was a gradual build up of poison within his body, which culminated in toxic shock syndrome (TSST1) from which he died on 27 June. The appellants were senior house officers involved in the post-operative care of the deceased during the period beginning on the evening of 23 June until the afternoon of 25 June. It was alleged that each was grossly negligent in respect of the medical treatment he provided to the deceased and that these failures caused the death. Each was convicted of manslaughter by gross negligence. 3. The particulars of offence against each appellant, as amended, alleged in identical terms that he unlawfully killed Sean Philips: “… by gross negligence in that: (1) as a doctor he owed a duty of care to Sean Phillips as his patient; (2) in breach of that duty of care he failed to make any or any adequate diagnosis of the nature of Sean Phillips’ illness which he should have identified as a severe infection requiring aggressive supportive therapy and antibiotics, and to take steps to ensure that he received appropriate treatment; (3) that breach of duty amounted to gross negligence; (4) that negligence was a substantial cause of the death of Sean Phillips.” 4. The prosecution case against the appellants did not arise from their failure to diagnose the precise condition from which the deceased was suffering. Given its rarity, of itself this may well not have amounted to negligence at all. Instead the Crown relied on the appellants’ failure to appreciate that their patient was seriously ill. He was showing classic signs of infection: raised temperature and pulse rate, and lowered blood pressure. These conditions were severe, and persistent, and were or should have been obvious, if only from a glance at the relevant charts. It was equally obvious that the patient needed urgent treatment. And, notwithstanding suggestions by other members of the medical team on more than one occasion that further treatment was needed, none, or none that was appropriate, was provided. Blood results were available from the hospital computer from 9.47 on the Saturday evening. They were never obtained, nor acted upon, nor did either appellant make any enquiry whatever about the results. They did not seek help from senior colleagues. In short, infection was not diagnosed when it should have been, and not properly treated until it was far too late. The mistakes made by the appellants were elementary. Accordingly, they were negligent, and grossly so, and in consequence Sean Phillips died of toxic shock syndrome. 5. We must briefly summarise the main facts. While on a visit to London, Sean Phillips, a 31 year old, healthy man from Southampton, injured his patella tendon. He required an operation, which was carried out on Friday 23 June 2000 at Southampton General Hospital. The skin was cut above the knee. A metal wire was inserted. The wound was then stitched and the leg placed in a back slab plaster. No post-operative complications were anticipated. After a period in the recovery ward, the deceased was admitted to an orthopaedic ward (Ward Four). 6. The appellants were senior house officers, and part of the team involved in the post-operative care of the deceased. Dr Srivastava was responsible for the deceased during the night shifts of 23-24 June and 24-25 June. Dr Misra was on call during the day shifts, between 8 am and 5 pm on 24 and again on 25 June. Throughout Saturday 24 and Sunday 25 June, the deceased appeared to be alert and well-orientated and in possession of all his faculties. Unfortunately the operation wound became infected with staphylococcus aureus. 7. After the deceased’s admission to Ward Four, the immediate concern for his welfare focussed on the management of his post-operative pain. Appropriate pain killers were provided for him, and Dr Srivastava prescribed voltarol, administered as a suppository. In the early hours of Saturday, 24 June, it was observed that the deceased’s temperature and pulse had both increased markedly, when simultaneously his blood pressure was falling. He also vomited and suffered bouts of offensive diarrhoea. 8. At about midday on 24 June, the deceased’s temperature was recorded at 38.3 o C, his pulse measured at 145, and his blood pressure was 89/55. Dr Misra was contacted. He saw the patient. He prescribed intravenous fluids and agreed that oxygen should be provided. Despite a marginal improvement, the patient’s condition remained abnormal. At trial Dr Misra said that he ascribed the temperature rise to the trauma of the operation and the low blood pressure and high pulse to the diarrhoea and vomiting, which would have caused dehydration. He prescribed appropriate treatment, stopping the voltarol and ordering an alternative anti-emetic. He also asked that a stool sample should be taken if the diarrhoea continued. In the meantime, the patient was to be kept under observation. 9. Later that afternoon Dr Misra was asked to review the patient. His temperature was still in excess of 38, his pulse was running at about 130, and his blood pressure was unchanged, and low. The Crown’s case was that the sister on duty suggested that blood cultures should be taken. She thought that this would be a normal precursor to antibiotics. She said that Dr Misra disagreed. No cultures were taken. In his interview, Dr Misra said that he could not recall this part of the conversation and he doubted whether it had happened at all. If blood cultures had been ordered, it would have taken 48 hours for the results to become available. Therefore the absence of blood cultures did not contribute to the death: however the fact that they were not taken itself provided an indication that proper and full attention was not being paid to the deceased’s condition. Dr Misra went off duty at 5pm. 10. Dr Gandopadhyhay assumed responsibility for the patient. At 7pm, at the request of the ward sister, he reviewed the patient. Despite continuing alertness, the patient was in bad condition. Blood tests, to ascertain the blood count, and for consideration of cultures and sensitivities, were then taken. They were sent for analysis, with results normally available a couple of hours or so later. This doctor saw no indications of infection at the site of the wound, and in evidence he said that he discounted the possibility that the patient’s condition was attributable to any such infections. Pending the results of the blood tests, his provisional view was that the patient was suffering from gastro-intestinal infection. He made appropriate notes about the patient, the first of the doctors to do so, ending his note with the words “review results”. As he was labelling the blood samples, Dr Srivastava came on duty. Dr Gandopadhyhay described how he passed on his provisional view about the patient’s condition to Dr Srivastava, and explained what he was doing and why, and that he had asked for the results of these blood tests to be checked, and for the nurses to contact Dr Srivastava if they were abnormal. Dr Srivastava in evidence agreed with this account of the conversation, and said that he worked on the basis that if anything abnormal was shown by the tests, he would be told of it by the nurses. 11. The blood tests were available on the hospital computer by 9.47 that evening. They showed a rise in creatinine levels, together with a high level of protein indicative of an acute inflammatory condition. In short, there was evidence of kidney damage and possible infection. These results were not seen by Dr Srivastava that night. He said that he had not been given a password to access the computer. He did not ask to see the results. They were not accessed by Dr Misra on the following day, nor indeed by anyone until late on the Sunday evening by when it was too late. In other words, the blood tests ordered by Dr Gandopadhyhay were entirely disregarded. 12. During the night of 24-25 June, at 11 pm, observations on the patient showed that his temperature was running at 39.1. His pulse rate was 135, and his blood pressure 90/50. At midnight his blood pressure declined further. The nurses summoned Dr Srivastava. To increase blood pressure he prescribed a plasma volume expander. This was started at 12.10 am. Further episodes of diarrhoea were observed, and a staff nurse recorded in the notes, “to be reviewed. Doctor is aware.” She recorded further abnormalities. Dr Srivastava again saw the patient at 12.50. He advised additional plasma volume expander, and continuation of observation. The evidence from nursing staff suggested that they asked whether anything else could be done for the patient. Dr Srivastava responded that if the systolic blood pressure fell below 70 further action should be taken by calling in the registrar or the medical senior house officer on duty. 13. In interview Dr Srivastava said he could not recollect any such conversation, and that it would be unlikely for him to have spoken in these terms in the context of a figure as 70, for a patient with a base line of 100. This would be very low. In evidence, he said that he had to accept that conversation happened, commenting that he had spoken to one of the nurses, who must have passed it on to the other. Dr Srivastava also wrote in the patient’s notes, “continue monitoring”. He misread the patient’s fluid chart, noting a urine output at nearly twice the actual amount of 250 ml. In evidence he described this as a “silly mistake”. According to the evidence however, “silly” or not, the mistake was not insignificant. Dr Srivastava also said that the patient remained fine and well, cheerfully asking why he was under such constant observation. He acknowledged that he did not look at the observation chart. This, too, was an admitted, further mistake. The review ended at about 1.00am. 14. At 4.30am a member of the nursing team noted that the patient’s blood pressure was “still low and tachycardic”. At 6 am, Dr Srivastava saw the patient again. His temperature had reduced to 38.1, and his blood pressure increased to 100/52. His pulse rate remained high. At the end of her shift one of the members of the nursing staff described her concerns about the patient. In her experience his deterioration was unusual. Dr Srivastava went off duty, describing in evidence that he thought that his patient was not very ill and had improved. He said nothing about his condition before leaving, and did not participate in the ward round. 15. Dr Misra came on duty on Sunday morning. At the end of his ward round, at about 11am, the ward sister asked him to review the patient, who was now complaining of a burning sensation in the knee. The knee was dry. No discharge or infection was apparent. And indeed, the pathologist confirmed that this remained the case at post mortem. However the patient was still suffering from diarrhoea. His blood pressure was 88/47, pulse 148, and his temperature 39.2 o C. Dr Misra decided that the fluid regime should be increased, in order aggressively to increase blood pressure. The fluid input rate was to be doubled. He said that he would have read the notes made by Dr Gandopadhyhay about blood tests. He knew that a request for them had been made. However he did not see any document containing the results, and he did not recollect asking for them. He said that the practice was for the laboratory to flag up anything abnormal. Accordingly, he assumed or expected that they were unremarkable. 16. The nursing handover took place at 1.30pm. The nurse going off duty at 1.30 was concerned that her patient was not improving and the nurse who took over from her was extremely concerned that her patient’s condition had deteriorated since she had last been on duty some 22 hours earlier. Dr Misra’s assistance was sought. Although it was not then known, on the basis of the expert medical evidence called at trial, the patient was passing, or had already passed the point of no return, after which his death was inevitable. It is therefore unnecessary to provide any narrative of the subsequent events in this unhappy story. 17. The history of events between the time when the patient was admitted to Ward Four and the mid-afternoon of the Sunday were closely examined by expert witnesses called by the Crown. Dr Lowes is the microbiologist in the public health laboratory used by Southampton General Hospital. In his judgment the observations of the patient showed “severe sepsis”, to be treated with broad spectrum antibiotics until a clear alternative diagnosis was available. 18. Professor Forrest is a professor of forensic toxicology at Sheffield University. In his opinion the observations at midday on 24 June were attributable to a single obvious cause, infection. These observations should have been treated very seriously indeed by an orthopaedic senior house officer. “They should have triggered investigations by blood cultures and blood tests to check for kidney function, and by consulting colleagues as well as examination of the patient”. He also considered that if the patient continued to be ill, and the blood tests were not received, the doctor was obliged to “chase up for the results”. He criticised the failure to react to the severity of the deceased’s illness as shown by the repeated observations and his poor urine output, which he said he would expect a final year student to recognise. His examination of the clinical notes on the patient led him to express the opinion that the quality of the care provided by the appellants “did not even begin to approach the standard to be expected of them”. 19. Professor Forrest gave evidence on the issue of causation. Although he was prepared to accept that even with proper treatment the patient might have died, he would confidently have expected him to leave the hospital alive if the nature of his condition had properly been recognised and appropriately treated. 20. Dr Wilcox is a consultant, and the head of medico-microbiology at Leeds Training Hospitals. His responsibilities extend to the examination of medical students. He said that if he were examining a third or fourth year medical student, and postulated the observations of the deceased’s condition following the operation on his knee, and the student failed to diagnose infection, he would have thought of failing the student on that basis alone. He suggested that every mother knew what a high temperature might mean, and if this were combined with a high pulse rate and low blood pressure, every doctor should be able to identify that the patient was seriously ill. 21. Dr Wilcox dealt with causation. He believed that if the deceased had been prescribed aggressive fluids and a broad spectrum antibiotic, he stood a very high chance of survival. It was very uncommon for death to result from TSST1. Furthermore, the particular patient had remained alert and orientated, which suggested that, at the outset, his body was responding well. His overall view was that the patient would have survived, if provided with appropriate treatment by lunchtime or the early afternoon on Sunday. When cross-examined he indicated that he was not sure that the deceased would have survived with proper medical treatment, but he believed on the balance of probability that he would have done. In re-examination he said that if appropriate treatment had been given at 12 o’clock on the Saturday, he was as certain as one could be that he would have survived. We shall later examine a distinct aspect of the evidence on causation, arising from material of a statistical nature, when we consider an application to admit further evidence under s 23 of the Criminal Appeal Act 1968 . For present purposes however we note that statistical material did not feature as a significant aspect of the Crown’s case before the jury. 22. At the close of the prosecution case it was submitted to the judge that there was no case for either appellant to answer. In part, the submission depended on legal argument about the ambit, if any, of the offence of manslaughter by gross negligence. We shall address this issue later in the judgment, for the moment simply recording our indebtedness to Langley J for his careful judgment on the issue. A distinct feature of the submission, however, was that the case should be withdrawn from the jury on the basis that the Crown’s case had failed on causation. The judge rejected the submission. His decision is criticised, essentially on the basis that the deceased may have died from TSST1 in any event, or from the developing consequences of the condition before negligence could be established against either appellant. In our judgment the submission that there was no case to answer on the causation issue was untenable. We have narrated a brief summary of the evidence, including the expert medical evidence. The causation issue was entirely for the jury. If the submission had been upheld, the judge would have usurped its function. His decision was right. We refuse the application for leave to appeal on this ground. 23. Both appellants gave evidence. Each accepted that, looking at the matter with hindsight, mistakes were made, but they genuinely did not realise how ill their patient was. His condition was very rare indeed. Each had done his best, acting in good faith. Moreover, all those involved in the care of the patient had worked on the same erroneous basis. Even if the mistakes made individually were to be regarded as negligent, their extent did not justify the conclusion that the negligence was gross. 24. Dr Wilson, a consultant microbiologist at University College London, gave evidence on behalf of Dr Misra. He thought that by 12 o’clock on Saturday, the observations revealed a plainly abnormal situation. He explained that the toxins were causing leakage from the blood vessels and the gut, and that this caused the blood pressure to drop and the heart rate to rise. Low blood pressure would then result in damage to organs such as the kidney, liver and pancreas and the lining of the gut. The patient needed far more fluids, to bring up his blood pressure and to protect his vital organs until the toxins could be stopped by removing the source of infection. The creatinine level suggested that by 8 o’clock on the Saturday evening significant kidney function had already been lost. He thought that the time when the point of no return was reached was a matter of speculation. The chances of survival were much better on the Saturday than on the Sunday, but he could not say with any certainty that the patient would have survived. The judge summarised his evidence: “there was a finite and significant risk of death in any patient having toxic shock syndrome quite regardless of treatment … he could not postulate when in his particular case he probably passed the point of no return, but again he would place it earlier than … Sunday lunchtime … he agreed that if he had been treated appropriately on Saturday afternoon then one was probably looking at a 3-5% level of risk of death.” 25. For present purposes the critical passages in the summing up read: “… duty and breach of duty - … will be the starting point to establish civil liability to pay damages. But as you would expect, and is the law, the prosecution must make you sure of something much more, and much more serious, than that before a person can be convicted of the crime of manslaughter. That is why you see in the indictment the words ‘gross negligence’. Mistakes, even very serious mistakes, and errors of judgment, even very serious errors of judgment, and the like, are nowhere near enough for a crime as serious as manslaughter to be committed. If you do conclude that you are sure that either or both of the defendants have been in breach of their duty of care in their treatment of Sean, you must therefore go on to consider the nature of that carelessness or negligence, as you find it to be. Over the years, the courts have used a number of expressions to describe this vital element of the crime, but the key is that it must be gross in the perhaps slightly old-fashioned sense now of the use of that word. So in this case, when you are considering the conduct of each doctor, I think you will find it most helpful to concentrate on whether or not the prosecution has made you sure that the conduct of whichever one you are considering in all the circumstances you have heard about and as you find them to be, fell so far below the standard to be expected of a reasonably competent and careful senior house officer that it was something, in your assessment, truly exceptionally bad, and which showed such an indifference to an obviously serious risk to the life of Sean Phillips and such a departure from the standard to be expected as to amount, in your judgment, to a criminal act or omission, and so to be the very serious crime of manslaughter.” 26. As already recorded, the jury convicted both defendants. It was argued before us as an independent ground for granting leave to appeal, that the verdicts were perverse. We have only recorded this argument for the purpose of completeness. Our view can be expressed in a few words. After a fair and balanced summing up, these verdicts were plainly open to the jury. The perversity argument is unmeritorious, and we shall summarily dismiss it. 27. We can now address the appellants’ submission on the question certified by Langley J. 28. Mr Michael Gledhill QC on behalf of Dr Misra submitted that manslaughter by gross negligence is an offence which lacks certainty. As presently understood, it requires the trial judge to direct the jury that the defendant should be convicted of manslaughter by gross negligence if they are satisfied that his conduct was “criminal”. Indeed, the effect of his argument was that it is a separate additional ingredient of this offence that the jury has to decide whether the defendant’s conduct amounted to a crime. Relying in particular on the Law Commission paper on Involuntary Manslaughter (Law Com. No. 237) as a convenient summary of a good deal of the debate by distinguished academic commentators, he suggested that the current test is “circular”. It is this circularity which leads to uncertainty. Mr Gledhill drew attention to, and adopted for the purposes for his argument, the way in which the Law Commission identified the potential problems arising from linking the civil and the criminal law concepts of negligence where the allegation against the defendant arose from omission. This was such a case. “It is by no means certain that the scope of liability for negligent omissions is the same in criminal law as it is in tort.” The principles were “so unclear” that it is difficult to tell whether “the law as currently understood represents a change, and if so, what the implications might be.” The relevant part of the Law Commission paper ends, “It is possible that the law in this area fails to meet the standard of certainty required by the European Convention on Human Rights (ECHR).” In Mr Gledhill’s submission this is an understatement: the standard of certainty is not met. 29. To develop his argument on uncertainty, Mr Gledhill focussed our attention on Article 7 of the ECHR, entitled “No punishment without law”, which provides: “7(1) No-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” In our view the essential thrust of this Article is to prohibit the creation of offences, whether by legislation or the incremental development of the common law, which have retrospective application. It reflects a well-understood principle of domestic law, that conduct which did not contravene the criminal law at the time when it took place should not retrospectively be stigmatised as criminal, or expose the perpetrator to punishment. As Lord Reid explained in Waddington v Miah [1974] 59 Cr App R 149 at p. 150 and 151, “There has for a very long time been a strong feeling against making legislation, and particularly criminal legislation, retrospective. ... I use retrospective in the sense of authorising people being punished for what they did before the Act came into force.” 30. Mr Gledhill demonstrated that the Convention contained repeated references to expressions in English such as “prescribed by law”: in French, the same phrase reads “prevue par la loi”. We shall assume that the concepts are identical. Article 7 therefore sustains his contention that a criminal offence must be clearly defined in law, and represents the operation of “the principle of legal certainty”. (See, for example, Brumarescu v Romania [2001] 33 EHRR 35 at para 61 and Kokkinakis v Greece [1993] 17 EHRR 397 at para 52). The principle enables each community to regulate itself: “with reference to the norms prevailing in the society in which they live. That generally entails that the law must be adequately accessible – an individual must have an indication of the legal rules applicable in a given case – and he must be able to foresee the consequences of his actions, in particular to be able to avoid incurring the sanction of the criminal law.” ( SW v United Kingdom: CR v United Kingdom [1995] 21 EHRR 363 ) 31. Mr Gledhill further emphasised that in Grayned v City of Rockford 408 US 104 the United States Supreme Court identified “a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vagueness offends several important values … A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” He pointed out that Lord Phillips MR had approved these dicta in The Queen (ZL and VL) v Secretary of State for the Home Department [2003] EWCA Civ. 25 , para 25. 32. We acknowledge the force of these submissions, but simultaneously emphasise that there is nothing novel about them in our jurisprudence. Historic as well as modern examples abound. In the seventeenth-century Bacon proclaimed the essential link between justice and legal certainty: “For if the trumpet give an uncertain sound, who shall prepare himself to the battle? So if the law give an uncertain sound, who shall prepare to obey it? It ought therefore to warn before it strikes ... Let there be no authority to shed blood; nor let sentence be pronounced in any court upon cases, except according to a known and certain law ... Nor should a man be deprived of his life, who did not first know that he was risking it.” (Quoted in Coquillette, Francis Bacon p. 244 and 248, from Aphorism 8 and Aphorism 39 – A Treatise on Universal Justice.) The judgment of the Supreme Court of the United States in Grayned effectively mirrored Blackstone: “... Law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.” (Commentaries, 3rd edition, 1769, vol 1 p.62) 33. Recent judicial observations are to the same effect. Lord Diplock commented: “The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. ( Black-Clawson International Limited v Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at p. 638).” In Fothergill v Monarch Airlines Ltd [1981] AC 251 at 279 he repeated the same point: “Elementary justice or, to use the concept often cited by the European court, the need for legal certainty, demands that the rules by which the citizen is to be bound should be ascertainable by him (or more realistically by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible.” More tersely, in Warner v Commissioner of Police for the Metropolis [1969] 2 AC 256 at p. 296, Lord Morris explained in terms that: “... In criminal matters it is important to have clarity and certainty.” The approach of the common law is perhaps best encapsulated in the statement relating to judicial precedent issued by Lord Gardiner LC on behalf of himself and the Lords of Appeal in Ordinary on 26th July 1966 [1966] 1 WLR 1234 . “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual case. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.” In allowing themselves (but not courts at any other level) to depart from the absolute obligation to follow earlier decisions of the House of Lords, their Lordships expressly bore in mind: “… the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.” 34. No further citation is required. In summary, it is not to be supposed that prior to the implementation of the Human Rights Act 1998 , either this Court, or the House of Lords, would have been indifferent to or unaware of the need for the criminal law in particular to be predictable and certain. Vague laws which purport to create criminal liability are undesirable, and in extreme cases, where it occurs, their very vagueness may make it impossible to identify the conduct which is prohibited by a criminal sanction. If the court is forced to guess at the ingredients of a purported crime any conviction for it would be unsafe. That said, however, the requirement is for sufficient rather than absolute certainty. 35. The ambit of the principle, as well as its limitations, were clearly described in the Sunday Times v United Kingdom [1979] 2 EHRR 245 . The law must be formulated: “… with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee to a degree that is reasonable in the circumstances, the consequences which any given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unobtainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice.” Moreover, there is a distinction to be drawn between undesirable, and in extreme cases, unacceptable uncertainty about the necessary ingredients of a criminal offence, and uncertainty in the process by which it is decided whether the required ingredients of the offence have been established in an individual case. The point was highlighted in Wingrove v United Kingdom [1996] 24 EHRR 1 : “It was a feature common to most laws and legal systems that tribunals may reach different conclusions, even when applying the same laws to the same facts. This did not necessarily make the laws inaccessible or unforeseeable.” 36. We can see the practical application of these comments in Handyside v United Kingdom [1974] 17 YB 228, where the Commission considered the definition of obscenity in the Obscene Publications Acts, 1959-1964. This offence is concerned with items which have a tendency to deprave and corrupt, a very general definition, certainly capable on forensic analysis of being criticised on the basis of uncertainty. The Commission nevertheless concluded that the offence was adequately described. In Wingrove itself, the court rejected the argument that blasphemous libel – that is, libel defined in very broad terms as “likely to shock and outrage the feelings of the general body of Christian believers” – was insufficiently accessible or certain. 37. Since the implementation of the Human Rights Act , the issue of uncertainty has also been addressed on a number of occasions in this court. It has been decided that the offence of making indecent photographs of children was sufficiently certain to satisfy Articles 8 and 10 of the Convention ( R v Smethurst [2001] EWCA Crim 772 ); that the offence of publishing an obscene article satisfies the requirements of Article 7 of the Convention ( R v Perrin [2002] EWCA Crim 747 ); and that the offence of causing a public nuisance, by sending an envelope through the post containing salt, which was suspected to be anthrax, contrary to common law, was also sufficiently certain to satisfy the requirements of Article 7, 8 and 10 of the Convention ( R v Goldstein [2004] 1 Cr App R 388 ). In each case the uncertainty argument was rejected. In Goldstein itself, at p. 395, Latham LJ commented: “The elements of the offence are sufficiently clear to enable a person, with appropriate legal advice if necessary, to regulate his behaviour. … A citizen, appropriately advised, could foresee that the conduct identified was capable of amounting to a public nuisance.” In our judgment, the incorporation of the ECHR, while providing a salutary reminder, has not effected any significant extension of or change to the “certainty” principle as long understood at common law. 38. In further argument Mr Gledhill relied on Article 6(1) of the ECHR which entitles a defendant to: “… a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The developing jurisprudence in relation to Article 6 suggests that a reasoned decision is a concomitant to a fair hearing. The jury provides a verdict. It is not required to explain how it came to its verdict. When deciding whether manslaughter by gross negligence has been proved, the nature of this offence, and the problems of uncertainty and circularity associated with it, are such that the jury is deciding whether the conduct of the defendant should be defined as a crime. Mr Gledhill submits that this is no more and no less than an issue of law. The absence of a reasoned judgment on questions of law engages the right to a fair trial, and the absence of reasons diminishes or extinguishes that entitlement. 39. After he had fully considered the recent decision of the House of Lords in R v G and Another [2004] 1 AC 1034 , Mr Gledhill deployed an additional argument which was not before Langley J. In essence, he submitted that with the exception of causing death by dangerous driving, no serious criminal offence could be committed without mens rea. He relied on what Lord Bingham, at paragraph 32, described as a “salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable”. Unless some element of mens rea, such, for example, as recklessness, was a necessary ingredient of manslaughter by gross negligence, this essential principle was contravened. 40. Mr Gledhill’s submissions were adopted and supported by Mr Kennedy. As we shall see, save for the recent additional argument based on R v G & Another , they were also and most cogently advanced by Lord Williams of Mostyn QC, and rejected by the House of Lords in R v Adomako [1995] 1 AC 171 . Mr Gledhill, in effect, redeploys the same argument on the basis that, if the ECHR had been incorporated into domestic law when Lord Williams was making his submissions, they would have succeeded. Mr Gledhill’s arguments therefore require us to consider whether the implementation of the ECHR means that we are no longer bound by Adomako . 41. Our analysis of these submissions begins with the simple proposition that at common law a wide variety of unlawful homicides which are not murder are classified as manslaughter. “… Of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions …” (per Lord Atkin in Andrews v DPP [1937] AC 576 at 581). However although the difficulty of definition tends to encourage the conclusion that the true ambit of manslaughter is uncertain, the reality is that the offence is based on well-established principles. Involuntary manslaughter (with which we are concerned) encapsulates homicides in which the perpetrator lacked the specific intention to cause death or serious bodily harm and therefore lacked the “malice aforethought” required for murder. In view of some of the more enthusiastic submissions made by Mr Gledhill in exchanges with the court, notwithstanding the risk of stating the obvious, we must observe, first, that involuntary manslaughter does not extend criminal liability to deaths caused by accident, or indeed to deaths which occur without some recognised element of fault by the offender, and second, that the existence of the offence itself engages the right to life and its protection by the criminal law. 42. We are not here immediately concerned with involuntary manslaughter which falls within the category of death resulting from what is sometimes described as an unlawful act likely to cause bodily harm, or alternatively, from an unlawful and dangerous act. (On this topic generally, see the discussion in Smith and Hogan, Criminal Law, 10th edition at pp. 378-385). Professor Sir John Smith QC explained that in this category of manslaughter (that is, causing death by an unlawful and dangerous act) the ingredient of unlawfulness “must arise otherwise than through negligence”. “This requirement is implicit in the rule in Church . An act which all sober and reasonable people would realise entailed the risk (sc., an unjustifiable risk) of harm to others or most certainly becomes the tort of negligence when harm results and therefore the reference to “an unlawful act” would be otiose if it did not mean unlawful in some other respect. This is in accordance with the well-established rule that negligence sufficient to found civil liability is not necessarily enough for criminal guilt, that death caused in the course of committing the tort of negligence is not necessarily manslaughter. But the limitation goes further than this: there are degrees of negligence which are criminally punishable which are yet not sufficient to found a charge of manslaughter. If, then, the unlawfulness, whether civil or criminal, of the act arises solely from the negligent manner in which it is performed, death caused by the act will not necessarily be manslaughter. This follows from the decision of the House of Lords in Andrews v DPP . … The distinction evidently intended viz. between acts which are unlawful because of negligent performance and acts which are unlawful for some other reason, is at least intelligible and, in view of the established distinction between civil and criminal negligence, a necessary limitation.” 43. This is the background against which the offence of involuntary manslaughter by gross negligence must be addressed. The offence has long been recognised by the common law, and it has recently been examined in the House of Lords in Adomako . An account of its historic development is therefore unnecessary. 44. A number of problematic matters were considered in Adomako . First, as a matter of ordinary English, manslaughter by gross negligence and manslaughter by recklessness sound very similar. It was therefore arguable that, in reality, they amounted to the same offence, rather than two distinct forms of involuntary manslaughter. Second, given that death could and did arise from reckless driving of motor vehicles, the development of an additional species of manslaughter, motor manslaughter, might be discerned. The third issue for consideration was the impact on the offence of manslaughter by recklessness (and possible also on manslaughter by gross negligence) of the well-known and troublesome decisions of the House of Lords in relation to the meaning of recklessness in criminal statutes. ( Metropolitan Police Commissioner v Caldwell [1982] AC 341 , and R v Lawrence [1982] AC 510 ). The problem was further complicated by the later decision of the House of Lords in R v Seymour [1983] 2 AC 493 , where the indictment charged manslaughter by reckless driving and it was said that recklessness in the sense described in Caldwell and Lawrence applied to all offences, including manslaughter, “unless Parliament has otherwise ordained”. It is sufficient to note the answer given to the certified question by Lord Roskill in the only speech in the House of Lords: “Where manslaughter is charged and the circumstances are that the victim was killed as a result of the reckless driving of the defendant on a public highway, the trial judge should give the jury the directions suggested in R v Lawrence .” He added that it was “appropriate also to point out that in order to constitute…manslaughter, the risk of death being caused by the manner of the defendant’s driving must be very high”. The reference to “the risk of death” should be noted: so should the recent departure of the House of Lords from its own decision in Caldwell ( R v G and Another [2004] 1 AC 1034 ). 45. The fourth matter for consideration was linked with the fact that Adomako’s unsuccessful appeal to the Court of Appeal Criminal Division had been decided at the same time as successful appeals by Prentice and Sullman, who were also doctors whose negligence was said to have caused the death of a patient ( R v Prentice and Others [1994] QB 302). The convictions of Prentice and Sullman were quashed on the basis that the judge’s direction meant that the jury did not consider any “excuses” or relevant mitigating circumstances when deciding whether gross negligence had been established. That error did not apply to Adomako , to which we must now return. 46. Adomako was an anaesthetist who was convicted of manslaughter by gross negligence. His patient underwent an operation to his eye. During the course of the operation an endotracheal tube became disconnected. The patient was deprived of oxygen. Adomako’s alleged negligence arose from his failure to observe or respond to obvious signs that a disconnection had taken place and that the patient had stopped breathing. At trial it was accepted that he had been negligent in the sense that he had failed to observe appropriate professional standards to a patient to whom he owed a duty of care. The issue was whether his conduct fell within the ambit of manslaughter by gross negligence. 47. In the House of Lords, the earlier authorities were fully reviewed. Reference was made to the Consultation Paper by the Law Commission on Criminal Law, Involuntary Manslaughter (1994) (Law Com. No. 135) but not, of course, to their recent Paper on the same subject, (Law Com. No. 237), which had not yet been published. Submissions advanced by Lord Williams of Mostyn QC, on behalf of the appellant, were directed at establishing the absence of any “logical or jurisprudential difference” between cases of involuntary manslaughter caused by the driving of motor vehicles and those caused by any other means. Attention was directed to the possible impact of Lawrence [1982] AC 510 and Seymour [1983] 2 AC 493 . Lord Williams suggested the single test of recklessness for all cases of involuntary manslaughter, and mounted a sustained criticism of the offence for its lack of clarity and certainty, and its circularity, because the jury was directed to convict only if they thought that a crime had been committed. Accordingly the offence of manslaughter by gross negligence could not properly be sustained. 48. The decision of the House of Lords in Adomako clearly identified the ingredients of manslaughter by gross negligence. In very brief summary, confirming Andrews v DPP [1937] AC 576 , the offence requires first, death resulting from a negligent breach of the duty of care owed by the defendant to the deceased, second, that in negligent breach of that duty, the victim was exposed by the defendant to the risk of death, and third, that the circumstances were so reprehensible as to amount to gross negligence. 49. No issue arises whether both appellants owed a duty of care to the deceased, or were negligently in breach of it. There was however helpful argument about the nature of the relevant risk. Was it, as the judge directed the jury in the present case “serious risk to life”, or was it much broader, extending to serious risk to safety as well as life? In its original formulation in Bateman , Lord Hewitt CJ referred to “disregard to the life and safety of others” in the sense of serious injury. In Seymour , the risk was confined to the risk of death. In Stone [1977] QB 554 and West London Coroner, ex parte Grey [1988] QB 467 reference was made to risks in broader terms, extending to health and welfare. Although Lord Mackay spoke in approving terms of these decisions in a different context, it is clear that his approval was directed to the deployment of the word “reckless”. He was not addressing, and it would have been inconsistent with his own analysis of the legal principles if he were approving, the wider basis for identifying risk described in Stone and West London Coroner ex parte Grey . It is also striking that Lord Mackay did not expressly adopt or approve the broader formulation of risk made by Lord Taylor CJ in Prentice . Since Adomako , this issue has been addressed in this court, in R v Singh (Gurphal) [1999] CLR 582 and the Divisional Court in Lewin v CPS , unreported, 24 May 2002. In Gurphal Singh , this court strongly approved the trial judge’s direction in a case of manslaughter by gross negligence that “the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death”. In Lewin , the Divisional Court applied that direction. 50. Mr David Perry, on behalf of the Attorney General, informed us that, as a matter of policy, when making a decision whether to prosecute for this offence in cases like the present, the Director of Public Prosecutions looks for evidence of an obvious risk of death, and that, if the extent of the risk were limited to the obvious risk of serious injury, and no more, prosecution would not follow. 51. The editors of Blackstone’s Criminal Practice suggest that the law needs clarification, and that, if it were clarified, some “degree of symmetry” between murder and manslaughter would be achieved if, for the purposes of gross negligence manslaughter, the risk should extend to grievous bodily harm. Professor Smith took the contrary view, suggesting that “if we are to have an offence of homicide by gross negligence at all, it seems right that it should be…limited. The circumstances must be such that a reasonably prudent person would have foreseen a serious risk, not merely of injury, even serious injury, but of death”. 52. There will, of course, be numerous occasions when these distinctions are entirely theoretical. From time to time, however, they will be of great significance, not only to the decision whether to prosecute, but also to the risk of conviction of manslaughter. In our judgment, where the issue of risk is engaged, Adomako demonstrates, and it is now clearly established, that it relates to the risk of death, and is not sufficiently satisfied by the risk of bodily injury or injury to health. In short, the offence requires gross negligence in circumstances where what is at risk is the life of an individual to whom the defendant owes a duty of care. As such it serves to protect his or her right to life. 53. Adomako further explained that with involuntary manslaughter, notwithstanding Seymour , recklessness as explained in the Lawrence / Caldwell sense had no application. The use of the word “reckless” by the trial judge, as part of his exposition of the concept of gross negligence in an appropriate case, was permissible. In the single speech agreed by the other members of the House, as we have already indicated, Lord Mackay approved Stone and West London Coroner, ex parte Grey as examples of an acceptable use of the word “reckless” in its ordinary connotation. In Stone , Geoffrey Lane LJ described examples of “recklessness”, and reflected the observations of Lord Atkin in Andrews that reckless “was an appropriate epithet for the very high degree of negligence required before the defendant could be convicted of manslaughter by gross negligence.” Although the word “reckless” might be deployed in summing up to the jury, its use simply reflected one way of describing the ingredients of the offence. At the end of his speech Lord Mackay’s language was quite unequivocal: “While therefore I have perhaps said in my view it is perfectly open to a trial judge to use the word ‘reckless’ if it appears appropriate in the circumstances of a particular case, as indicating the extent to which the defendant’s conduct must deviate from that of a proper standard of care, I do not think it right to require that this should be done, and certainly not right that it should incorporate the full detail required in Lawrence .” 54. The point of law certified for the decision of the House of Lords was answered: “In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence tests set out by the Court of Appeal in the present case, following Rex v Bateman 19 Cr App R 8 , and Andrews v Director of Public Prosecutions [1937] AC 576 , and that it is not necessary to refer to the definition of recklessness in Reg. v Lawrence [1982] AC 510 , although it is perfectly open to the trial judge to use the word ‘reckless’ in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.” The result of the appeal was that the continuing existence of the offence of manslaughter by gross negligence was confirmed. The attempt to replace manslaughter by gross negligence with manslaughter by recklessness was rejected. 55. It is convenient now to address the argument that the decision in R v G and Another should lead us to reassess whether gross negligence manslaughter should now be replaced by and confined to reckless manslaughter. As we have shown, precisely this argument by Lord Williams of Mostyn was rejected in Adomako . We also note, first, that Parliament has not given effect to possible reforms on this topic discussed by the Law Commission and, second, notwithstanding that Adomako was cited in argument in R v G and Another , it was not subjected to any reservations or criticisms. Indeed in his speech Lord Bingham of Cornhill emphasised that in R v G he was not addressing the meaning of “reckless” in any other statutory or common law context than section 1(1) and (2) of the Criminal Damage Act 1971 . In these circumstances, although we gave leave to Mr Gledhill to amend his grounds of appeal to enable him to deploy the argument, we reject it. 56. We can now reflect on Mr Gledhill’s associated contention that if recklessness is not a necessary ingredient of this offence, the decision in Attorney General’s Reference (No. 2 of 1999) [2000] QB 796 led to the unacceptable conclusion that manslaughter by gross negligence did not require proof of any specific state of mind, and that the defendant’s state of mind was irrelevant. In our judgment the submission is based on a narrow reading of the decision that a defendant may properly be convicted of gross negligence manslaughter in the absence of evidence as to his state of mind. However when it is available, such evidence is not irrelevant to the issue of gross negligence. It will often be a critical factor in the decision (see R (Rowley) v DPP [2003] EWHC 693). In Adomako itself, Lord Mackay directed attention to “all” of the circumstances in which the defendant was placed: he did not adopt, or endorse, or attempt to redefine the list of states of mind to which Lord Taylor CJ referred in Prentice , which was not in any event “exhaustive” of possible relevant states of mind. It is therefore clear that the defendant is not to be convicted without fair consideration of all the relevant circumstances in which his breach of duty occurred. In each case, of course, the circumstances are fact-specific. 57. Mr Gledhill nevertheless contended that even so, the problem of mens rea remains. This, he argued was a necessary, but absent ingredient of the offence. We have reflected, of course, that if the defendant intends death or really serious harm, and acts in such a way to cause either, and death results, he would be guilty of murder. If he intends limited injury, and causes death, he would be guilty of manslaughter in any event. We are here concerned with the defendant who does not intend injury, but who in all the contemporaneous circumstances is grossly negligent. As a matter of strict language, “mens rea” is concerned with an individual defendant’s state of mind. Speaking generally, negligence is concerned with his failure to behave in accordance with the standards required of the reasonable man. Looked at in this way, the two concepts are distinct. However the term “mens rea” is also used to describe the ingredient of fault or culpability required before criminal liability for the defendant’s actions may be established. In Sweet v Parsley [1970] AC 132 , Lord Reid explained that there were occasions when gross negligence provided the “necessary mental element” for a serious crime. Manslaughter by gross negligence is not an absolute offence. The requirement for gross negligence provides the necessary element of culpability. 58. We can now return to the argument based on circularity and uncertainty, and the application of Articles 6 and 7 of the ECHR. The most important passages in the speech of Lord Mackay on the issue of circularity read: “… The jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that, to a certain extent, this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal…The essence of the matter which is supremely a jury question is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.” 59. Mr Gledhill suggested that this passage demonstrated that an additional specific ingredient of this offence was that the jury had to decide whether the defendant’s conduct amounted to a crime. If the jury could, or was required to, define the offence for itself, and accordingly might do so on some unaccountable or unprincipled or unexplained basis, to adopt Bacon, the sound given by the law would indeed be uncertain, and would then strike without warning. Mr Gledhill’s argument then would be compelling. 60. Looking at the authorities since Bateman , the purpose of referring to the differences between civil and criminal liability, whether in the passage in Lord Mackay’s speech to which we have just referred, or in directions to the jury, is to highlight that the burden on the prosecution goes beyond proof of negligence for which compensation would be payable. Negligence of that degree could not lead to a conviction for manslaughter. The negligence must be so bad, “gross”, that if all the other ingredients of the offence are proved, then it amounts to a crime and is punishable as such. 61. This point was addressed by Lord Atkin in Andrews at p. 582, when he referred to Williamson (1807) 3 C&P 635: “....where a man who practiced as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died.” To substantiate that charge – namely, manslaughter – Lord Ellenborough said, “The prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention.” The word “criminal” in any attempt to define a crime is perhaps not the most helpful: but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence. So at a much later date in Bateman [1925] 18 Cr. App. R 8 a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson’s case .... I think with respect that the expressions used are not, indeed they were probably not intended to be, a precise definition of the crime.” 62. Accordingly, the value of references to the criminal law in this context is that they avoid the danger that the jury may equate what we may describe as “simple” negligence, which in relation to manslaughter would not be a crime at all, with negligence which involves a criminal offence. In short, by bringing home to the jury the extent of the burden on the prosecution, they ensure that the defendant whose negligence does not fall within the ambit of the criminal law is not convicted of a crime. They do not alter the essential ingredients of this offence. A conviction cannot be returned if the negligent conduct is or may be less than gross. If however the defendant is found by the jury to have been grossly negligent, then, if the jury is to act in accordance with its duty, he must be convicted. This is precisely what Lord Mackay indicated when, in the passage already cited, he said, “…The jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime” (our emphasis). The decision whether the conduct was criminal is described not as “the” test, but as “a” test as to how far the conduct in question must depart from accepted standards to be “characterised as criminal”. On proper analysis, therefore, the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally , it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case. 63. On examination, this represents one example, among many, of problems which juries are expected to address on a daily basis. They include equally difficult questions, such as whether a defendant has acted dishonestly, by reference to contemporary standards, or whether he has acted in reasonable self-defence, or, when charged with causing death by dangerous driving, whether the standards of his driving fell far below what should be expected of a competent and careful driver. These examples represent the commonplace for juries. Each of these questions could be said to be vague and uncertain. If he made enquiries in advance, at most an individual would be told the principle of law which the jury would be directed to apply: he could not be advised what a jury would think of the individual case, and how it would be decided. That involves an element of uncertainty about the outcome of the decision-making process, but not unacceptable uncertainty about the offence itself. 64. In our judgment the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako . They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter. 65. After Lord Williams’ sustained criticism of the offence of manslaughter by gross negligence, the House of Lords in Adomako clarified the relevant principles and the ingredients of this offence. Although, to a limited extent, Lord Mackay accepted that there was an element of circularity in the process by which the jury would arrive at its verdict, the element of circularity which he identified did not then and does not now result in uncertainty which offends against Article 7, nor if we may say so, any principle of common law. Gross negligence manslaughter is not incompatible with the ECHR. Accordingly the appeal arising from the question certified by the trial judge must be dismissed. 66. This conclusion in effect disposes of the Article 6 argument. It is well-understood in the European Court, and accepted, that a jury is not required to give reasons for its decision. (See, for example, Saric v Denmark Application 31913/96.) In the present case, by reference to the indictment in its amended form, and the summing up of the trial judge delivered in open court, the appellants knew the case alleged against each of them, and the issues that the jury had to consider, and we, by reference to the same documents, can examine the basis on which they were convicted. The jury concluded that the conduct of each appellant in the course of performing his professional obligations to his patient was “truly exceptionally bad”, and showed a high degree of indifference to an obvious and serious risk to the patient’s life. Accordingly, along with the other ingredients of the offence, gross negligence too, was proved. In our judgment it is unrealistic to suggest that the basis for the jury’s decision cannot readily be understood. Accordingly this contention fails. 67. We must now turn to a separate application on behalf of the appellants to call fresh evidence. Fresh Evidence 68. At the conclusion of the oral argument, we indicated our decision that the application to call fresh evidence from Professor Michael Campbell was refused. We shall now give our reasons. 69. Professor Campbell is Professor of Medical Statistics at the University of Sheffield. His speciality is statistics, not medicine. His report is dated 2nd February 2004. It was not commissioned until after the trial and convictions of the appellants. The focus of the report, which we have studied, is statistical material relating to mortality rates for staphylococcal toxic shock syndrome. The essential submission on behalf of the appellants is that this report demonstrates that in relation to the issue of causation of death the jury at trial was presented with an unrealistically high estimate of the deceased’s chances of survival. 70. Langley J correctly directed the jury that one of the matters about which they had to be sure before the appellants could be convicted was that such failure or failures as were proved against each individually was a substantial, even if not the sole or the major cause of death. His directions include this passage: “The last element is the element of causation. If the prosecution has made you sure that either or both of the doctors did fail so grossly in their duty of care, then you must consider whether it has also made you sure that the failure or failures were a substantial cause of Sean Phillips’ death. If you are not sure that Sean Phillips would have survived at all, either however well he had been treated or because he might not have received appropriate treatment, then the prosecution has failed to prove its case on this aspect and that is the end of the matter. You must find both defendants not guilty. Equally, if at some point in the events of the Saturday or the Sunday you reach the conclusion that you are not sure that Sean Phillips would have survived beyond that time, then from that time onwards the prosecution will fail to prove that anything Dr Misra or Dr Srivastava did or failed to do was a cause of Sean Phillips’ death, and, whatever you think of the subsequent events, they cannot lead you to a verdict of guilty. If you have any reasonable doubt about when Sean’s condition became irreversible, I repeat that you must give the defendants the benefit of those doubts.” 71. We must briefly address the way in which evidence of a statistical nature came to be before the jury. The initial evidence tendered on behalf of the Crown did not refer to it. However, some three weeks before trial, the Crown received the defence report from Dr Wilson. This raised the possibility that the deceased’s illness could reasonably have been taken for a different type of infection (clostridium difficile) to that which he did in fact suffer (TSST1). The correct management for this form of infection would have avoided the use of antibiotics. However, in addition, the report set out statistics relating to toxic shock syndrome, which included one study of thirty-five cases in the United Kingdom prior to 1985, where a fatality rate of 16.7% was recorded. It concluded that “deaths occur in 3% of patients who have acute tubular necrosis, inflammatory changes in the liver and ... lung”. A further defence report, served pre-trial from Professor Cartwright, a microbiologist, who was not ultimately called to give evidence before the jury, postulated a fatality rate of “less than 5%”. 72. Following receipt of the report from Dr Wilson the Crown instructed and obtained a report from Dr Wilcox. The trial began on 3rd March 2003. His report was served on 6th March. As a result of legal argument, the calling of evidence was postponed until 10th March. This report dealt largely with the clostridium difficile point. The short reference made to statistics by Dr Wilcox (presumably in response to the defence expert) reported “the case fatality rate associated with staphylococcal toxic shock syndrome is low (~4%), although this rate is higher in patients with non-menstrual forms of the disease.” Dr Wilcox appended an extract from a textbook, “Principles and Practice of Infectious Diseases”, published in 2000, which showed a fatality rate in non-menstrual cases of “about 3%”. He described this textbook as “the authoritative textbook used by clinical microbiologists in the UK and the US”. 73. During the course of the Crown’s evidence, but before Dr Wilcox gave evidence, a further report was served on behalf of the defence from Dr Nathwani, a lecturer in infectious diseases. He put the mortality rate in non-menstrual toxic shock syndrome cases at around 4%. 74. When he was called to give evidence-in-chief, Dr Wilcox gave no statistical evidence. The issue was raised in cross-examination by Mr Gledhill. Dr Wilcox then gave some evidence on the topic. The deceased was one of a relatively small proportion of people who lacked the necessary anti-bodies which would deal with toxins produced by staphylococcus aureus, and referred to an overall fatality rate of less than 5%. He indicated that different reports showed different figures. This evidence was not initially challenged by Mr Gledhill, and when Mr Coonan QC, then acting for Dr Srivastava cross-examined Dr Wilcox, he too referred to the 5% figure in a way which did not challenge it. However on the next day, Dr Wilcox was recalled for further cross-examination by Mr Gledhill, who put to him that certain individual studies tended to show a much higher fatality rate than 5%. Dr Wilcox responded that he did not consider that useful figures could be drawn from very small studies, and that the “ballpark” figure of 5% was based on taking a group of reported studies. In effect, he emphasised the need for caution and the limited conclusions which could properly be drawn from the statistics. He pointed out that he had referred to medical literature consulted by all the experts, as well as the standard textbook, adding that he expected a fit and healthy 31 year old (such as the deceased) would be at the lower end of the mortality rate range, although he was not in a position to quote any statistical information about the risks which might apply to such an individual. 75. Professor Forrest gave no evidence of a statistical nature, and he was not cross-examined on the subject. 76. We have recorded, and shall not repeat, a summary of the evidence given by Professor Forrest and Dr Wilcox on the causation issue, based on their analysis of the clinical evidence, the standards of management, and remaining matters (other than statistical evidence) which bore on this question. 77. When Dr Wilson gave evidence for the defence, he explained that he thought that the fatality rate was speculative, because the condition from which the deceased suffered was so rare that there was a lack of verifiable information on which to base properly drawn conclusions. He mentioned a non-menstrual fatality rate of 11% (which had not appeared in his report) and was thus suggesting a higher fatality rate than Dr Wilcox. He did however point out that this rate was based on a small number of cases. Having stated that there was a greater than a 3% to 5% risk of death in any patient suffering from toxic shock syndrome, he said that as time passed, while the patient suffered from the condition without treatment, the risk of fatality increased. 78. This provides the context in which we considered the report from Professor Campbell. The issue of statistics had been introduced and pursued by the defence. It had not formed any positive part of the Crown’s case, although when cross-examined, one of the Crown experts, Dr Wilcox, gave evidence on the topic. At trial, the balance of evidence from both sides seemed to suggest a figure in the order of 5% as the appropriate overall statistical figure for fatality rates. 79. In his report, Professor Campbell refers to the four small studies about which Dr Wilcox had been cross-examined. It was agreed before us however that one study (of menstrual toxic shock cases) was irrelevant for present purposes. That left three studies for consideration by Professor Campbell. He suggested that two of these papers advanced a higher fatality rate than the 5% mentioned by Dr Wilcox, adding however, that the data sets were small, and that there would be considerable uncertainty about the fatality rate. He further pointed out that the data were old, and that by now the risk may have been reduced. Indeed he referred to wide confidence intervals (or margins of error) in calculating fatality rates in all three of these studies. The third study analysed thirty-six cases, where the subjects were aged between ten months and seventy-four years. Professor Campbell suggested that this study did not identify the age of the victim as a risk-factor, adding that in the absence of any controlled trials, it was not possible to put a figure on the mortality rates among those encompassed in this study who were treated appropriately. 80. Professor Campbell did not consider that there were sufficient data to express an opinion whether the chance of death in the case of Sean Phillips was low or high. The disease from which he suffered was very rare, and therefore a great deal of uncertainty attached to any estimates. He suggested that it was always dangerous “to try to extrapolate a medical model without empirical evidence”. He agreed that Dr Wilcox was correct to state (as he did) that there was no relevant statistical information about the risks attaching to a thirty-one year old man, suffering from TSST1, who is properly treated. However he pointed out that there was no individual study which highlighted that younger people were at a lower risk of death. He expressed the view that the experts’ conclusions at trial did not appear to be drawn from the published studies, and that some of the opinions expressed by them were unsupported by evidence. However he made no reference to the textbook, “Principles and Practice of Infectious Diseases”, upon which Dr Wilcox based his overall figures and to which he referred when this issue was explored. 81. This material led Mr Gledhill to submit that Professor Campbell’s evidence was important in two respects. First, it showed that there was no statistical evidence that age was a prognostic factor, or that ability to cope with toxins was related to age. Second, the breadth of the confidence intervals described by Professor Campbell undermined the statistical evidence given by Dr Wilcox. This evidence would significantly increase the prospect that the jury might have been unable to be sure of any causal link between the absence of appropriate treatment and Sean Phillips’ death. Mr Kennedy, for Dr Srivastava, supported these submissions, particularly in relation to what he characterised as the “fit and healthy mantra”. 82. The Crown’s position before us, in essence, was that this issue, so far as it had any relevance at all, was introduced and pursued at trial by the appellants, and that all the evidence on the issue should have been raised then. In the result, the balance of evidence available to all sides at trial suggested that a figure in the order of 5% provided the appropriate overall base figure for fatality rates. The material provided by Professor Campbell would not, it was argued, provide any basis for allowing the appeals and the statistical material failed to address the clinical aspects of the causation issue. 83. We need not recite s 23 of the Criminal Appeal Act 1968 . The principles are well-understood. In general, the defendant must deploy his case before the trial jury. If he were free on appeal to mount a case based on expert evidence which could and should have been advanced before the jury, the trial process would be subverted. Therefore the absence of any reasonable explanation for failing to adduce such evidence is a highly material factor to the exercise of the court’s powers under s 23. Nevertheless this would not provide an absolute bar or prohibit the reception of fresh evidence if this were necessary or expedient in the interests of justice. 84. The narrative of events demonstrates that evidence of a statistical nature was introduced into the case, and eventually the trial, by the defendants. When Dr Wilcox was cross-examined, his evidence on this topic was not seriously controversial. Dr Wilson suggested that there were studies which tended to produce a higher figure than that advanced by Dr Wilcox, but his essential dispute with him turned on the emphasis which could properly be attached to this statistical material. The defence did not call either of the other experts available to them, who had put the fatality rate in the same range as Dr Wilcox and so, at trial, they depended on Dr Wilson. Mr Gledhill candidly explained to us that after Dr Wilcox had rejected the proposition that real value should properly be attached to the small studies which were put to him in cross-examination, the defence considered whether a statistician should be approached. One was identified. His secretary was contacted, but the statistician could not then make himself available. No further step was taken. No enquiry was made even in general terms as to whether a statistician could in fact help. No application was made to the judge for the trial to be adjourned, let alone for the jury to be discharged. These decisions were deliberate and conscious. Mr Gledhill said that the defence were happy to rely on Dr Wilson as their expert. The general feeling was that the trial had gone well from the defence point of view, and they did not really know what the statistician could or would say. So it was decided to rely on Dr Wilson to counterbalance Dr Wilcox on this issue. Regrettably from the defendants’ point of view, Dr Wilson’s evidence failed to match up to their expectations. We understand the tactical dilemma faced by the defence at trial, but the application to adduce expert evidence in this appeal is to be contrasted with cases where the defence at trial were wholly unaware of the availability of potentially relevant information. In reality, there is no reasonable explanation for the failure to adduce Professor Campbell’s evidence, or evidence from a similarly qualified expert, before the jury. 85. In any event, we considered the possible impact of Professor Campbell’s report. It does not directly address Dr Wilcox’s reference to an authoritative textbook, upon which he said (and we have no reason to doubt) the other experts in the case had relied. The report considers four small-scale studies which were put to Dr Wilcox in cross-examination, one of which is now agreed to be irrelevant. The report acknowledges the limitations of the data in these studies, and concedes, as Dr Wilcox asserted in his evidence, that it was unsafe to extrapolate too much from such limited material. Indeed it supports Dr Wilson’s view that the rarity of the condition and the overall lack of relevant data means that no statistically sound mortality rate could safely be put forward. By implication therefore it suggests that this issue should not have been raised by the defence at all. 86. We must return to the two principal matters relied on by Mr Gledhill. There is no statistical evidence that a previously fit, thirty-one year old had a better chance of survival than anyone else. However Dr Wilcox said as much in his evidence. The small-scale studies considered by Professor Campbell make no observations either way about the relevance of age, and they do not in our judgment serve to undermine Dr Wilcox’s evidence. His analysis of the deceased’s prospects of survival depended on much more than statistics. Nothing raised by Professor Campbell deals with the clinical assessments made by Dr Wilcox (and Professor Forrest). 87. The second matter relates to broad confidence intervals. These occur in relation to every small-scale study. Dr Wilcox commented in his evidence on the limitations of small-scale studies as a basis for reaching any firm conclusion. On close analysis, Professor Campbell confirms the reservations expressed to the jury by Dr Wilcox. 88. In our judgment, this further statistical material is of very questionable assistance, and appears to us to add very little, if anything, to the “statistical” evidence which was available at trial, and deployed before the jury. From the Crown’s point of view, the material was peripheral to the issue of causation. To the extent that it was relevant, the material should have been adduced at trial. We were unpersuaded that it was necessary or expedient in the interests of justice in either of these appeals for this evidence to be admitted. For these reasons the application to call evidence from Professor Campbell failed. 89. These appeals are dismissed. 90. An application to certify a point of law of general importance was adjourned for counsel to furnish the court with written submissions.

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[2004] EWCA Crim 1433

EWCA_Crim_1433

2004-05-21

crown_court

No. 2002/05299/C2 Neutral Citation Number: [2004] EWCA Crim 1433 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 21 May 2004 B e f o r e: LORD JUSTICE WALLER MR JUSTICE JACK and MR JUSTICE DAVID CLARKE - - - - - - - - - - R E G I N A - v - ALBERT GEORGE JAMES - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - -

No. 2002/05299/C2 Neutral Citation Number: [2004] EWCA Crim 1433 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 21 May 2004 B e f o r e: LORD JUSTICE WALLER MR JUSTICE JACK and MR JUSTICE DAVID CLARKE - - - - - - - - - - R E G I N A - v - ALBERT GEORGE JAMES - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - MR E REES QC and MISS R TROWLER appeared on behalf of THE APPELLANT MR S DRAYCOTT QC and MISS J HOPKINS appeared on behalf of THE CROWN - - - - - - - - - - J U D G M E N T Friday 21 May 2004 LORD JUSTICE WALLER: 1. On 16 October 1986, in the Crown Court at Reading, before McCowan J, the appellant was convicted of murder (count 1) and of conspiracy to rob (count 2). He was sentenced to life imprisonment on count 1 and to 15 years' imprisonment concurrent on count 2. The co-accused Johnson, Hall and Windsor had each pleaded guilty to conspiracy to rob and were convicted of murder. Thus as will be clear from that summary, the appellant pleaded not guilty to both conspiracy to rob and to murder. 2. An application for leave to appeal against conviction was refused by the single judge. A renewed application to the full court on 6 December 1999 was also refused. 3. However, the Criminal Cases Review Commission has referred the matter to this court. Their concerns are these. The key evidence against the appellant were admissions or confessions which the Crown alleged that he had given in interview and/or by virtue of a statement taken by the police. The Commission were also concerned about the fact that there appeared to have been breaches of the Police and Criminal Evidence Act 1984 . They were concerned that these confessions should have been excluded under sections 76 or 78 of that Act. 4. It is by reference to those concerns that the appeal has been mounted in this court. There clearly were serious breaches of the 1984 Act . In particular there was a breach of section 58 relating to the refusal to allow the appellant to have a solicitor to advise him privately or be present during the interviews. At the outset of this appeal very properly Mr Draycott for the Crown has accepted that that breach was such that these interviews should have been excluded. Furthermore, Mr Draycott has conceded on behalf of the Crown that if these interviews had been excluded, the effect would have been either that the case would have been stopped at the conclusion of the evidence for the prosecution and there would have been effectively no evidence on which a jury could safely convict, or possibly (but not the likely outcome) the case would have continued but the appellant would not have been called to give evidence, and again that might well have led to his acquittal. The only other evidence was that of the appellant's co-accused, about which the jury would have had to have been given the usual warning. 5. In the circumstances we will give our judgment reasonably shortly. The facts of the case were these. The Pelham family were travelling showmen who kept large sums of cash in their caravan on the site where they lived in Twyford, Berkshire. During the evening of 11 January 1986, the victim of the murder, Charles Pelham, went outside to see to his dog. He was shot twice with bullets fired from a revolver. Two men ran off, but they left behind a sawn-off shotgun, a live round, a pair of handcuffs and a woollen glove. 6. There was no dispute that the co-accused, Johnson and Hall, had entered the yard with the intention of robbing the Pelhams. Hall accepted that he had fired the revolver. The co-accused Windsor had been the getaway driver. 7. The revolver, loaded with six cartridges (two spent) was found buried near the caravan site, where the appellant, who was also a showman, lived. The shotgun had been first sold to the appellant in December 1985 and then had been supplied to one or other of the co-accused. 8. The prosecution case was that the appellant was a party to the agreement to rob the Pelhams. It was their case that he had supplied the information about them and had supplied the shotgun. It was also alleged that all four co-accused were guilty of murder because the use of loaded firearms was contemplated if the need arose. 9. The appellant denied being a party to the plan to rob. His case was, therefore, that as he had not been a party to that plan, he was not guilty of the murder. 10. The appellant was arrested originally on 12 January 1986. Having been questioned, he was released. But he was arrested again on Friday 17 January 1986. On all relevant occasions he was denied access to a solicitor. As already indicated, during the interviews on the 17th he made certain admissions on which the Crown wished to rely. He then made a statement in which again he made admissions and upon which the Crown wished to rely. Finally, in further interviews, after making that statement, he made admissions on which the Crown wished to rely. 11. Because of the point that arises on this appeal it is unnecessary to go into further detail. It is right, however, to say two further things about the facts. The first is that following the close of the prosecution case, the appellant's co-accused went into the witness box. Both gave firm evidence that the appellant was a party to the conspiracy. In his summing-up the judge warned the jury, as he was bound to do, that it was dangerous for the jury to convict the appellant on un-corroborated evidence. He directed them that there was corroboration and that corroboration was what the appellant had said in interview. 12. The second point to make on the facts is this. A Dr Thomas gave evidence to the effect that he had prescribed drugs to the appellant for the purpose of calming him down and for the purpose of enabling him to sleep; that he thought that the appellant would not be able to answer questions sensibly; and that he thought that the appellant would not be fit to undergo six hours of interview having regard to the condition he was in, including the drugs the doctor had prescribed for him. 13. The first feature of the appeal is this. The fact that the appellant had been denied a solicitor must have been readily apparent to those advising him. Cases since 1986 have made the position clearer than it may have been then, but it must have struck those advising the appellant that there might be arguable points as to whether the admissions made in interview should be placed before the jury, but the decision taken by the defence at the trial was not to apply to have those confessions or admissions excluded. At trial the material was placed before the jury, such as it was, that the appellant had been interviewed. The appellant made assertions as to the circumstances in which he had come to make the admissions, including threats being made by the police in relation to his wife and child, and asserting that he was not fit and did not know what he was saying. Therefore the question of the reliability of the admissions was placed before the jury. 14. The arrest of the appellant took place only a few days after the Police and Criminal Evidence Act 1984 came into force. Those cases with which we are now readily familiar, which demonstrated the attitude that the court was likely to take in relation to the provisions of PACE, were not then decisions available to those advising the appellant. Furthermore, it is fair to say that there are experts in the field relating to the reliability of confessions -- medical evidence and psychological evidence -- which is now allowed to be admitted in court, but in those days was in its infancy. It was unknown to many of those who were advising defendants and obviously such evidence was not available to those advising the appellant at the time. 15. The submission which Mr Rees QC makes on behalf of the appellant can be summarised in this way. His submission is that on a proper application of sections 76 or 78 these admissions or confessions should not have been placed before the jury. His submission thus is that there would then have been no case to answer, that the jury would have acquitted, and that accordingly the conviction is unsafe. In relation to section 76 his submission is that the Crown would have been unable to discharge the burden of proving to the criminal standard that the admissions were not obtained in consequence of things said or done which were likely in all the circumstances existing at the time to render unreliable any admission which might be made in consequence thereof. So far as section 78 is concerned, he submits that in the circumstances in which the evidence was obtained, its admission would have had such an adverse effect upon the fairness of the proceedings that it ought not to have been admitted. 16. The sequence of events is that, as indicated, the appellant was first arrested on 12 January. That is not however the most relevant date. It is in relation to his further arrest on 17 January on which we must concentrate. He was arrested at 6.50 in the morning. At 7.45am, on the authority of Superintendent Eyles, Police Sergeant Harman, a custody officer, refused the appellant's request for a solicitor. The appellant was then interviewed by Detective Constables Greenall and Dixon over a period of seven hours, starting at 9.20am and culminating in a voluntary statement at 2.45pm. It is right to say that that seven hours included breaks. However, at 12.20pm on that day (while the appellant was being interviewed) the custody officer refused the request of a duty solicitor, Mr Wroe, to see the appellant. Mr Wroe has made a witness statement dated 14 September 2001. His evidence is (and it is not challenged) that he would have advised the appellant to remain silent. At 12.40pm the solicitor was again refused access by Superintendent Eyles. In particular the solicitor's request to advise the appellant of his legal rights was refused. It is in those circumstances that the admissions were made without access to the solicitor. 17. The question of whether the confessions should be excluded would have to be viewed in the context of the evidence in relation to the appellant's physical condition. In that context there would have been before the trial judge, if he had been conducting a voire dire, the evidence of Dr Thomas to which we have already referred. It is unnecessary to repeat the details of that, save that his evidence was to the effect that the appellant was not, in his medical view, in a fit condition to be interviewed over that period of time. 18. What would not have been available to the trial judge, but is available to us, is the evidence of Professor Kopelman, which is to the following effect. He believes that the appellant's low intelligence and poor literacy skills, his tendency to 'compliance' and his low self-esteem, compounded by an over dosage of benzodiazepines at the time of the critical second interview would have made him vulnerable to the making of a false confession, especially if he perceived a police threat to his safety or that of his family. His view is that the appellant's confession may not be reliable. 19. It is in that context that the approach to section 58 must be viewed. We say that because, as submitted by Mr Rees, the Police and Criminal Evidence Act was passed and the Codes were produced under PACE because of the dangers of the vulnerability of witnesses or potential defendants. The whole idea was to put safeguards into the interrogation processes. 20. The key section of the Act is section 58. That provides so far as relevant: “(1) A person arrested and held in custody in a police station shall be entitled, if he so requests, to consult a solicitor at any time. .... (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section. .... (6) Delay in compliance with a request is only permitted: (a) in the case of a person who is in police detention for a serious arrestable offence; and (b) if an officer of at least the rank of superintendent authorises it. .... (8) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right .... (a) will lead to interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or (b) will lead to the alerting of other persons suspected .... but not yet arrested....; or (c) will hinder the recovery of any property obtained as a result of such an offence .... .... (11) There may be no further delay in permitting the exercise of the right .... once the reason for authorising delay ceases to exist.” Code C provides guidance on the way in which that section applies. It is unnecessary to go into the details of that. 21. As already indicated, when this section first came into force it may well be that the police thought that section 58(8) gave a general discretion as to whether to delay the entitlement to access to a solicitor, and it may well be that those advising the appellant on this occasion thought that the superintendent in this case had exercised that fairly wide discretion. However, the Court of Appeal authority of R v Samuel (1988) 87 Cr App R 232, put a very different complexion on the approach to section 58. It emphasised, for example, that the most important right given to a person detained by the police is his right to obtain legal advice. It also emphasised section 58(8), and the factors which the police superintendent must believe if he is to exercise his discretion in favour of authorising delay. The emphasis placed by that decision was on the fact that the officer had to believe that access to a solicitor will lead to interference and will lead to alerting other persons suspected and will hinder the recovery of any property, and not simply that it might do so or could do so. It also emphasised that for a solicitor deliberately to alert persons suspected, or deliberately to hinder the recovery of property, would make him guilty of a criminal offence. That was an unlikely situation in which a solicitor would find himself. On any view the case suggested that it would be unlikely for the police to believe that the result of allowing a solicitor to see the appellant, or for a defendant to have access to a solicitor, would lead to those results. It would be even more unlikely when a duty solicitor -- somebody well known to the police -- was the solicitor in relation to whom access had been denied. 22. The problem in this case was that the police gave evidence at the trial as to why it was that they had taken the view that access should be denied, but their evidence showed that they did not apply the test that Samuel indicated must be applied. The test applied was simply that they were worried at the time as to whether there may be other suspects, and they were worried about the recovery of the gun. Thus they thought that access to a solicitor might have the result of hindering those aspects. 23. The Crown have had to concede that the police could not have had any anxieties about other suspects since all other suspects had been arrested by the time access to a solicitor should have been allowed. So far as the gun was concerned, there was very little which could have allowed the police to say that access to a solicitor might have had the effect of hindering the recovery of the gun. But on any view there was no possibility that they could have believed that to have permitted the appellant to have access to Mr Wroe (who although not acting as a duty solicitor on this occasion was somebody who did act as a duty solicitor), could in any way have alerted other persons suspected but not arrested, or could have hindered in any way the recovery of the gun, which was the matter of concern. 24. It was conceded by Mr Draycott that there was a very clear breach of section 58. Although Samuel in one sense could be said to take matters further than the Crown would accept now they should be taken, there are Court of Appeal authorities following Samuel , for example, R v Allerdice (1988) 87 Cr App R 380, R v Absolam 88 Cr App R 332 , and more modern cases where the Court of Appeal has looked retrospectively at cases referred back to them, as are we. There is the unreported case of R v Roberts (19.3.98), a transcript of which we have. That was a case in which the court looked at the situation even prior to the passing of the Police and Criminal Evidence Act, and emphasised the importance of the presence of a solicitor and the unreliability of confessions which were obtained in the absence of a solicitor. 25. We consider that the submissions of Mr Rees on this aspect are sound. He has other points, but the Crown have very properly conceded that this point itself renders the conviction unsafe. It would therefore not be right to take up time going through those other points. The position is simply this. If an application had been made at the trial that these admissions or confessions should not have gone before the jury, and if the authorities such as we have referred to had been before the judge, we have no doubt that the confessions and admissions would have been excluded. We have no doubt that if that had happened there simply was no case which would have been able to go to the jury implicating the appellant in the conspiracy. On that basis there would have to have been a direction to acquit. That being the situation, it seems to us that this conviction must be held to be unsafe. The appeal will be allowed and the conviction quashed. 26. MR REES: My Lord, I am instructed to raise with your Lordships one matter. The view we took was this. Although we knew in advance that the Crown had no particular challenge to any of the three proposed witnesses in these proceedings, namely Professor Kopelman, Mr Young and indeed Mr Wroe, the solicitor, the view that we took -- and I hope it is a proper one (and I am basically seeking your Lordships' approval) -- is that it was nevertheless appropriate to ask for their attendance in case a point cropped up on which the court needed assistance or upon which I might need assistance. My application is that the court approves the attendance of the witnesses today for the purposes of their expenses. 27. LORD JUSTICE WALLER: Yes, their expenses should be paid for being here. 28. MR REES: I am grateful, my Lord.

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[2011] EWCA Crim 885

EWCA_Crim_885

2011-03-22

crown_court

Neutral Citation Number: [2011] EWCA Crim 885 Case No: 201100804 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 22 March 2011 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE MACKAY MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v STEVEN JON HEWITT - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fl

Neutral Citation Number: [2011] EWCA Crim 885 Case No: 201100804 A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 22 March 2011 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE MACKAY MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - - - - - - - - - R E G I N A v STEVEN JON HEWITT - - - - - - - - - - - - - - - - - - - - - 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 J Smith Reid appeared on behalf of the Applicant Ms RS Scott-Bell appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE HICKINBOTTOM: This is a referral by the Registrar of an application for leave to appeal against an aggregate sentence of 17 months imposed upon the applicant, Steven Hewitt, by His Honour Judge Thorn QC in the Crown Court at Newcastle-upon-Tyne on 24 January 2011. Having heard full argument, we grant leave and shall proceed to deal with the substantive appeal. 2. The make-up of that aggregate sentence of 17 months is relevant to this appeal, but it would be helpful if we outlined the facts before dealing with the details of sentence. 3. On 24 June 2010 in the same Crown Court, but before Mr Recorder Hyland QC, having earlier been convicted of one count of making threats to kill, the appellant was sentenced to a 12 month term of imprisonment suspended for 24 months, with supervision and mental health requirements during that period. The complainant in respect of that matter, and the target of the threats, was the appellant's former partner, Cerise Callaghan. Their short relationship ended in August 2009, as a result of an incident of domestic violence for which the appellant was later charged with common assault. He was, however, granted bail in August 2009, with a condition that he did not contact Miss Callaghan. 4. He ignored that condition, and contacted her by e-mail and telephone. As a result, on 29 September 2009, he was arrested again, and charged with offences against Miss Callaghan under the Harassment Act; but he was again given bail, with a non-contact condition. 5. He immediately breached that condition by sending the complainant texts, e-mails and phone calls. Despite Miss Callaghan moving address and changing her telephone number, the appellant still contacted her. The contacts became more sexually explicit, and more disturbing. He set up e-mail and social networking accounts in Miss Callaghan's name, from which he not only contacted her, but also her friends. 6. On 28 November 2009, he telephoned her and said that he would only stop contacting her if she withdrew her complaints against him. During that conversation, he said that he would murder her, a threat which she believed he was capable of carrying out. That threat to kill founded the charge in respect of which the appellant was sentenced to the suspended sentence to which we have referred. In respect of that charge, he spent a considerable time, now agreed at 204 days, detained on remand. 7. That 12 month suspended sentence was imposed, as we have said, on 24 June 2010. About three months later, in the early hours of 3 October 2010, the police were called to a disturbance in Newcastle city centre in which the appellant, who had consumed a large quantity of alcohol, was involved. During the police attempts to detain him, he struggled and kicked out, making contact with a police officer and causing him minor injury. He spat at a police inspector. During the course of the evening, he also damaged two taxis by jumping on them and punching them, causing £90 worth of damage to one and £250 to £300 worth of damage to the other. As a result, he was charged before Newcastle Magistrates' Court with two offences of assaulting a police officer in the execution of duty, and two offences of criminal damage. He was committed to the Crown Court for sentencing for those offences and for the breach of a suspended sentence by the commission of new offences during the operational period of the order, and he was remanded in custody. 8. However, when the matter came before the Crown Court on 19 November 2010, Mr Recorder Hutton QC deferred sentence to March 2011, with the purpose of seeing how the appellant progressed under the supervision requirement of the recently imposed suspended sentence, which was allowed to continue unamended. The appellant was consequently that day released on bail pending the deferred sentence. 9. A week later on 27 November, he was again out in Newcastle city centre, when he took offence at a roped-off area outside a nightclub which he considered obstructed the public footpath. He picked up and threw one of the stands to which the rope was attached. The police were called and attended, but the appellant did not go quietly; and he struggled when they later sought to arrest him. He kicked out and struck an officer three times, causing bruising to his shin. He also made aggressive and threatening remarks to other officers when detained at the police station. 10. As a result of those incidents, he appeared before the Newcastle Magistrates' Court on 13 December 2010 charged with (i) assaulting a police officer, and (ii) obstructing a police officer in the course of his duty. He again pleaded guilty and was again committed to the Crown Court for sentence, with the further breach of the suspended sentence order. 11. Consequently, on 24 January 2011, the appellant appeared before Judge Thorn in the Crown Court at Newcastle, and was sentenced as follows: (i) Breach of the suspended sentence order: 10 months of the original 12 months suspended sentence was activated. That reduction was expressly to mark the extent to which the appellant had previously worked to comply with the supervision and curfew requirements in the order. (ii) Two charges of assaulting a police constable on 3 October 2010: 4 months' imprisonment concurrent with each other, but consecutive to the 10 months' imprisonment activated on the suspended sentence. (iii) Two charges of criminal damage on 3 October 2010: 2 months' imprisonment, concurrent with each other and concurrent with the other sentences imposed. (iv) Assaulting a police officer on 27 November 2010: 3 months' imprisonment, consecutive to the terms imposed for the breach of the suspended sentence and the October assaults. (v) 12. Obstructing or resisting a police officer on 27 November 2010: 3 months' imprisonment, concurrent with the other sentences imposed. 13. That is how the aggregate terms of 17 months to which we have referred was made up. 14. Additionally, the judge gave a direction under section 240 of the Criminal Justice Act 2003 that 80 days, which he understood had been spent on remand in respect of the charges arising out of 3 October and 27 November 2010 incidents, should count towards the time to be served in custody under the sentence. (We should say that a recalculation has now been done, and the correct number of days spent on remand is in fact 102.) Judge Thorn made no such order in respect of any days spent on remand for the charge of threats to kill, despite activating the suspended sentence that had been imposed as a result of that conviction. 15. The appellant now relies upon four grounds of appeal against those sentences. 16. The first concerns the manner in which the judge dealt with time spent on remand, when he activated the suspended sentence. Mr Smith Reid on behalf of the appellant submitted that the judge erred in failing to give any credit for any of the time spent on remand prior to the imposition of the suspended sentence order on 24 June 2010. 17. By virtue of section 240 of the 2003 Act , unless the court considers it is just in all of the circumstances not to give such a direction, when a court sentences an offender to imprisonment it must direct that the number of days which the offender was remanded in custody in connection with the offence or a related offence shall count as time served by him as part of the sentence. When the court is considering not giving such credit, then it is of course incumbent on the judge to give the defendant an opportunity to make submissions on the exercise of that discretion; and, if the court then exercises its discretion not to give a direction, then it must give its reasons ( section 240(6) ). 18. By section 240(7) , for the purposes of such crediting procedure, a suspended sentence is to be treated as a sentence of imprisonment when it "takes effect" under paragraph 8(2) of Schedule 12 to the 2003 Act , i.e. when it is activated following breach by a further conviction or failure to comply with the community requirements of such a sentence. Time in custody on remand prior to the imposition of a suspended sentence therefore generally falls to be taken into account when sentence is activated, rather than imposed. That makes sense, because, at the time of imposition, the court may not be in a position to decide on a fully informed basis whether time on remand should or should not be ordered to count: Fairbrother [2007] EWCA Crim 3280 ; [2008] 2 Cr App R (S) 43 , and Carruthers v Hampshire Probation Service [2010] EWHC 1961 (Admin) . In Carruthers , Wyn Williams J (with whom Moses LJ agreed) said this (at paragraph 38): "I see nothing wrong with a judge or magistrate indicating to a defendant, when passing a suspended sentence, that one of the consequences of breaching that sentence would be that a custodial term would be activated and consideration would then be given as to how time spent in custody should be treated. It does seem to me, however, that the time for deciding whether to give a direction under 240 is the time when the sentence is actually activated. It seems to me that it is the circumstances as then pertaining which are the circumstances which should be taken into account in deciding whether or not to make a direction under section 240 ." 19. With that, we respectfully agree. When a judge imposes a suspended sentence, in determining the appropriate length he should not ordinarily give credit for days spent on remand. Those should be taken into account by the judge activating the sentence who should, in the usual way, give a section 240 direction with the number of days specified, unless it would be unjust to do so. That, it seems to us, is the intent of the statutory scheme. 20. We have been referred today to the judgment of this court (Thomas LJ, Bean and Sharp JJ) in Whitehouse [2010] EWCA Crim 1927 . Mr Smith Reid submitted that this case suggested (albeit obiter) that it might be appropriate for a judge, when imposing a suspended sentence, to take into account time spent on remand. Bean J, giving the judgment of the court, said this (paragraph 11): "It is very common for a sentencing judge to be faced with a defendant whose offences merit, say, two years imprisonment but who has served six months on remand in custody. Mitigation is advanced on the lines that the defendant has learned his lesson and should be given a sentence which permits his immediate release from prison. The judge may consider that this is a proper course to follow provided that in the event of further offences being committed the defendant would serve a further period of 6 months in custody (bringing the total to the 12 month custodial period of the 2 year sentence he originally had in mind)." 21. We respectfully understand the thinking behind those remarks. However, we consider that the appropriate procedural course to effect it would be for the judge to impose the sentence merited by the offence (in the example, two years) and suspend it, with an indication that, if there be a breach in the future sufficient to warrant activation of the sentence, then the defendant could expect to have a section 240 direction in his favour so that, on activation, the amount of future time spent in custody would be the net amount (in the example, only six rather than 12 months – or whatever the figure might be, to reflect such matters as past compliance with the supervision requirements of the order). It was suggested in Whitehouse itself that that might be the appropriate course (see paragraph 14). Certainly, if such a sentence is effected in another way, then the imposing judge must make it very clear what he has done and why. 22. In any event, a judge activating a suspended sentence should not assume that days on remand were taken into account by the judge imposing the sentence when fixing the length: although we accept that, where it is clear and obvious that the judge imposing the sentence did in fact do so, it would be open to the activating judge not to make a section 240 direction on the basis that it would be unjust to do so, i.e. it would be unjust for the defendant to obtain double credit for the days he had in fact spent on remand. However, we stress that such a course would, in our judgment, only be open to the activating judge where it is clear that the judge imposing the suspended sentence has, contrary to the practice we have outlined, taken those days into account in assessing the length of the suspended sentence he imposed. 23. The other side of that coin is that, of course, if the judge imposing the sentence extraordinarily considers there are good reasons for taking days spent on remand into account in fixing the length of the sentence, he must make clear that he has taken that time into account, the number of days for which he has given credit, and his reasons for doing so. 24. Whilst, in our view, when imposing a suspended sentence, the sentencing judge should not ordinarily take into account days spent on remand when assessing the length of sentence to impose, it is nevertheless important that he should know the length of time spent on remand. That is because, if the defendant has already been in custody on remand for a period longer than that which he would serve in prison in respect of a custodial sentence of a length merited by the offence, then the judge must consider whether it would be appropriate to impose a suspended sentence at all. It is important that he does not impose a suspended sentence that may either be more severe in its custodial impact than the maximum appropriate sentence of immediate custody, or alternatively be of no practical effect on activation (and hence no incentive to comply) because of the effect of section 240 . The imposition of a suspended sentence in these circumstances would, in our view, usually be wrong as a matter of principle (see McCabe (1988) 10 Cr App R (S) 134 , Peppard (1990) 12 Cr App R (S) 88 and Barrett [2010] EWCA Crim 365 ; [2010] Cr App R (S) 86)). The judge should look elsewhere for an appropriate sentence, which might for example take the form of an immediate term of imprisonment (with a section 240 direction), a community order, or a conditional or absolute discharge. The appropriate sentence in a specific case will of course depend upon the particular circumstances of that case. 25. In any event, for those reasons, even when a suspended sentence is being considered and prior to its imposition, the court should always be informed of days spent on remand, to enable the judge to reaching an informed decision as to the appropriate sentence. It is, of course, the obligation of both the prosecution and the defence to ensure the court has all information relevant to sentence, including days spent on remand (see Fairbrother , at paragraph 6). 26. In this case, when activating the suspended sentence, Judge Thorn appears from his comments to have assumed that, in assessing the length of the sentence he imposed, Recorder Hyland would have set off the days spent on remand. 27. We have had the advantage of a transcript of the remarks of the Recorder when he imposed the sentence. He indicated that it was, in his view, inevitable that a sentence of imprisonment must be passed. Given the history and circumstances of the offence to which we have alluded, we respectfully agree. However, he said that he had concluded that, as serious as the offending was, "help and rehabilitation" were his primary concerns. As a consequence, he imposed the suspended sentence with the community requirement which we have indicated. In relation to the future, the Recorder said that any breach of the order would inevitably lead to immediate imprisonment, and indeed he reserved the matter to himself; although, in the event, the matter does not appear to have come back to him. 28. In his sentencing comments, the Recorder did not mention days on remand; nor do those observations suggest that they were in his mind at all. Before us today, Ms Scott-Bell for the Crown has indicated that she has spoken to counsel who prosecuted, and there is an indication that days on remand were at least mentioned to, if not pressed upon, the Recorder: but there is no specific evidence before us as to that, nor the extent to which the judge took any time on remand into account, nor (insofar as he did take any time into account) the number of days for which he gave credit. The number of days has only been confirmed and agreed at 204 very recently (although we should say that Ms Scott-Bell told us that the number thought to have been correct at the time of the original sentence was in the same region, namely 175). 29. Ms Scott-Bell made two submissions that we do accept. First, we accept her submission that a sentence as short as 12 months for these serious threats to kill appears to be very lenient; but, as we have indicated, the Recorder indicated that he intended to be merciful. Second, we accept the submission that the number of days the appellant spent on remand (whether 175 or 204) would mean that any term activated of the suspended sentence would inevitably be wiped out by the credit that would have to be given by virtue of section 240 . Therefore, with the benefit of hindsight, the suspended sentence order may appear curious or even empty, and it may not have had the effect that the Recorder thought and hoped it had. 30. Nevertheless, in all of the circumstances, on the material that was before Judge Thorn and is now before us, we do not consider that it can safely be assumed that the Recorder did take into account the days the appellant spent on remand when he fixed the length of sentence at 12 months. That assumption is neither clear, nor obvious: and we consider that the judge erred by working on the basis of such an assumption. 31. Of course, each case turns on its own facts, but the facts of this case are, in our view, substantially indistinguishable from those of Shariff [2009] EWCA Crim 2687 , where the appellant was sentenced to 36 weeks suspended for two years, with various supervision and curfew requirements that he regularly breached. On the breaches, the full 36 week sentence was activated without any section 240 direction, although he had spent 104 days in custody on remand. The judge who activated the suspended sentence found it was inconceivable that the judge imposing the sentence had not taken into account the days on remand in fixing it, although there was no evidence that he had in fact done so. He in effect made the same assumption as did Judge Thorn in this case. This court (Simon and Royce JJ) held that, in those circumstances, there was no proper basis for directing that the days spent on remand should not count towards the sentence. There was a similar response in Fairbrother . Our conclusion effectively reflects the conclusion of those different constitutions of this court on similar facts. 32. In the circumstances of the case before us, for the reasons we have given, we consider that the judge who activated the sentence was wrong in principle to find, as he must have done, that it was unjust in all the circumstances to give a direction that days on remand count towards the sentence under section 240 . On this ground we allow the appeal, and in relation to the 10 months activated on the suspended sentence, with which we do not interfere, we make a direction that the 204 days spent on remand count towards that sentence. 33. The second ground of appeal is that the sentence imposed for obstructing a police officer in the execution of his duty on 27 November 2010 is wrong in principle and unlawful. The maximum sentence for such an offence is one month ( section 89(2) of the Police Act 1996 ); and, consequently, although it was imposed as a concurrent sentence and therefore does not affect the aggregate length of sentence, we allow the appeal on this ground. We replace the three months imposed with a sentence of one month, concurrent with the other sentences. 34. We can deal with the final two grounds conveniently together. First, it is submitted that the aggregate length of the sentence for the offences committed on 3 October and 27 November 2010 (7 months), was unlawful because the offences were committed to the Crown Court under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 , so that the maximum sentence that could have been imposed was the maximum available to the magistrates, i.e. 6 months. Second, it was submitted by Mr Smith Reid, although without great force or enthusiasm, that the 4 month concurrent sentences imposed for the assaults on the police in the October 2010 episode were manifestly excessive in any event. 35. We do not find this last ground in itself compelling. We have outlined the nature of the offences, which were, in our view, of some seriousness. But, in any event, the sentencing court was properly able to take into account the appellant's antecedents. He has 15 previous convictions since 1995, primarily for being drunk and disorderly, criminal damage, assaulting police officers and resisting arrest. In 2009, he was convicted of assault occasioning actual bodily harm and was sentenced to a 12 month community order with a mental health requirement. Later that year, he was sentenced to 80 days' imprisonment for assaulting a police officer and common assault. The appellant has been diagnosed with Asperger's Syndrome, which may in part explain his inability properly to respond to everyday circumstances he faces; but he has been given a number of opportunities to address both his mental health and alcohol issues. It is clear from the report that we have seen that he has singularly failed to engage with those who have tried to help him. 36. In those circumstances, we do not consider any of the sentences imposed for convictions that arose out of the October and November 2010 episodes as excessive in substance. 37. However, the appellant having been committed under section 6 of the 2000 Act , the judge's powers were limited to those available to the magistrates who committed him. By section 133 of the Magistrates' Courts Act 1980 , all of the offences being summary only, the maximum aggregate term that the justices could have imposed was 6 months. That was also, therefore, the maximum aggregate sentence that the Crown Court could impose on a section 6 committal. 38. We consequently allow the appeal in respect of those matters to the following extent. We vary the sentences of 4 months for each of the 3 October 2010 assaults, and replace those sentences with ones of three months; again to run concurrently with each other, but consecutive to the sentences activated on the suspended sentence and imposed for the 27 November 2010 matters. That will reduce the aggregate sentence for the matters committed under section 6 to 6 months. 39. Therefore, in summary, this appeal will be allowed, and the sentences imposed by the Crown Court will be varied as follows: (i) Breach of the suspended sentence order: 10 months of the original 12 months suspended sentence will be activated, with a direction that 204 days spent on remand count towards that sentence. (ii) Two charges of assaulting a police constable on 3 October 2010: 3 months' imprisonment concurrent with each other, but consecutive to the 10 months' imprisonment activated on the suspended sentence. (iii) Two charges of criminal damage on 3 October 2010: 2 months' imprisonment, concurrent with each other and concurrent to the other sentences imposed. (iv) Assaulting a police officer on 27 November 2010: 3 months' imprisonment, consecutive to the terms imposed for breach of the suspended sentence and the October assaults. (v) Obstructing or resisting a police officer on 27 November 2010: one month's imprisonment concurrent with the other sentences imposed. (vi) In relation to the 6 month aggregate sentence imposed in relation to (ii) to (v), we make a direction under section 240 that 102 days spent on remand shall count towards that sentence. 40. The appeal is allowed to that extent.

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[2019] EWCA Crim 619

EWCA_Crim_619

2019-04-02

crown_court

NCN: [2019] EWCA (Crim) 619 201804327 A2; 201804482 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 2 April 2019 B e f o r e: LORD JUSTICE SIMON MR JUSTICE SWEENEY and MR JUSTICE WARBY _________________ R E G I N A - v - JUNIOR MAMPUYA APIO GOMES ____________________ 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 Shorth

NCN: [2019] EWCA (Crim) 619 201804327 A2; 201804482 A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 2 April 2019 B e f o r e: LORD JUSTICE SIMON MR JUSTICE SWEENEY and MR JUSTICE WARBY _________________ R E G I N A - v - JUNIOR MAMPUYA APIO GOMES ____________________ 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 Durr appeared on behalf of the Appellant Junior Mampuya Mr A Thompson appeared on behalf of the Appellant Apio Gomes ______________________ J U D G M E N T ____________________ LORD JUSTICE SIMON: 1. On 23 July 2018, following a trial in the Crown Court at Norwich before Her Honour Judge Bacon QC and a jury, the appellants were convicted on three counts of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861 . 2. On 4 October 2018 they were sentenced by the trial judge to the same terms of imprisonment: on count 1, where the victim was Ahmed Ibrahim, eighteen years' imprisonment; on count 2, where the victim was Rabeh Rashid, nine years' imprisonment concurrent; and on count 3, where the victim was Goran Karim, nine years' imprisonment concurrent. The total sentence was, therefore, one of eighteen years' imprisonment for each appellant. 3. The appellants appeal against those sentences with the leave of the single judge. 4. At about 9.30pm on 25 October 2017, Amanj Wali approached his car which was parked on St Peters Plain in Great Yarmouth. He saw a man on a BMX bike (Gomes) next to it and thought that the bike had hit his car. Mr Wali challenged Gomes who immediately became aggressive. Mr Wali looked around his car and, seeing no damage, said "Okay". Gomes was not prepared to let the matter rest. He shouted and gestured at Mr Wali, indicating that he wanted a fight. He then used his mobile phone to call Mampuya, who subsequently jointed him. At this point, Mr Wali had called his friend, Goran Karim, who arrived with some others. Mampuya handed Gomes a small knife. He had a knife himself. As Mr Wali's group walked off down a side street, the appellants went after them and stabbed the three victims of counts 1, 2 and 3. They then made off and returned to their nearby accommodation on St Peter's Road, at which they were later arrested. 5. Ahmed Ibrahim (the victim on count 1) sustained two stab wounds to the back, on each side of the thoracic spine, which caused him to suffer a right-sided pneumothorax (collapsed lung) and blood in his chest cavity. He was admitted to the surgical ward at the James Paget Hospital, where a chest drain was inserted and the lung re-expanded. The chest drain remained in place for six days and he remained an inpatient for seven days. The treating accident and emergency consultant expected him to make a full functional recovery from his injuries, although pain might be expected for a number of months and he would have permanent scars at the site of the wounds and the chest drain. 6. Rabeh Rashid (the victim of count 2) sustained three stab wounds. The first was a 1.5cm long skin-deep wound to the centre of the back. The second was a skin and muscle-deep 3cm wound to the right arm, with a blood clot in the wound and bruising around it. The third was a skin-deep 2.5cm wound to the front right side of his upper chest. These wounds were cleaned with saline and closed with steristrips. He was discharged after having anti-tetanus and antibiotic injections and was given painkillers. As the sentencing judge was to observe, there was no internal injury in his case, although this was a matter of chance, given the number and location of the wounds. 7. Goran Karim (the victim in count 3) sustained five knife wounds: the first, a 4cm laceration to the back (the posterior aspect right scapula); the second, a 1cm laceration to the thoracis lumbar region; the third, a 4cm laceration to the left hand area; and the fourth and fifth wounds, further injuries to the left hand which the judge considered were likely to have been caused when he tried to protect himself from further injury. He, too, was treated in hospital, in his case with intravenous fluids, antibiotics, an anti-tetanus injection, oxygen and painkillers. In his case too, the judge observed that it was fortunate that he had no internal injuries in view of the injuries to his back. 8. In interview, Mampuya denied any involvement in what occurred. Gomes said that he punched someone, but did not have a knife. 9. Mampuya was aged 22 at the date of sentence. He was of previous good character. 10. Gomes was aged 21 at the date of sentence. He was treated as being of previous good character. 11. Pre-sentence reports were prepared in respect of both appellants. Mampuya maintained his account before the jury. He denied that he had possession of a knife. In the view of the author of the report, it was a matter of concern that he had not taken responsibility for the use of a knife, nor given any meaningful account of his thinking and attitudes about the use of weapons. The author of the report considered that he posed a high risk of serious harm to the public. It was acknowledged that there was no pattern of violent offending. The proposal was an immediate custodial sentence. 12. Gomes was recorded as continuing to deny the offences, particularly the use of a knife. His denial of the offences and the lack of genuine victim empathy indicated that he, too, took limited responsibility for the offences. The absence of any pattern of violent offending made the accurate assessment of imminence of harm more problematic. However, he was assessed as posing a high risk of harm to the public. Custody in his case was also inevitable. 13. Each of the victims made statements in August 2018 – nine months after the commission of the offences. They were of Kurdish origin. Ahmed Ibrahim's statement described how he had been left feeling in fear and mistrustful of strangers, to the extent that he no longer went out as he did before. He had been afraid that there might be problems from others in the appellants' community. He had had cause to contact his general practitioner several times since the attack. He came from Iraq, a country ripped apart by war. He had felt safe here until this incident brought back to mind all the violence that he had seen in his own country. 14. Rabeh Rashid's statement recorded the continuing effect of the attack on him. He had had to stop working in his part-owned kebab shop because of his continuing fear, which had begun to transfer to a fear of his customers. He becomes angry at himself at his own feelings of fear and wants to regain his confidence, but does not know how to do so. He said "I was just trying to calm the situation". 15. Goran Karim's statement also described the very serious way in which the attack affected him – his fear of going out on his own, his anxiety and wakefulness, which are not improving. 16. In passing sentence the judge noted that both appellants continued to deny responsibility for stabbing their three victims. Neither appellant had any previous convictions in the United Kingdom during the limited period that they had lived her. They would be sentenced on the basis that neither had any previous convictions in any jurisdiction. 17. The offences were committed against three men during the hours of darkness, when each of the victim was stabbed repeatedly by either one or both of the appellants acting together in a joint enterprise throughout. 18. Both appellants had come to live in this country recently – Gomes in early 2016 and Mampuya in June 2017. They had come to improve their lives and find work. Their three victims came to the United Kingdom as refugees, seeking to escape the strife of war in their native Iraq. They, too, were looking for better lives. They had begun to enjoy life in a peaceful way, away from the sort of concerns for their personal safety that the indiscriminate violence and chaos of war had rendered commonplace in their homeland. 19. The brutish violence inflicted by the appellants changed all of that. The stabbings occurred for no better reason than that Gomes felt aggrieved at the suggestion that he had damaged a car belonging to Amanj Wali. Despite Mr Wali immediately retracting his accusation and adding an apology for his mistake, Gomes sought to engage him in a fight. The victims tried to get the appellants to leave, telling them that they did not want trouble. However, Gomes was so offended by Mr Wali's short-lived and soon-corrected allegation that he would not go. Instead, he summoned his friend Mampuya to bring knives to the scene so that he could extract his own retribution on Mr Wali and his friends. Mampuya was a willing armourer for Gomes and brought the knives that he asked for. Both of them hid knives in and under the clothing that they wore and carried, until they went after their victims. They stabbed each one of the three repeatedly and in quick succession. Each of the victims received more than one stab wound and each sustained at least one stab wound to the back. 20. This had all happened in a residential area during the hours of darkness, when others were present. People had been shocked at what they had witnessed and had been left to cope with the injured men in the aftermath. 21. The appellants made off, quickly and separately. Mampuya disposed of at least one knife. Gomes had put items of clothing that they had worn in his washing machine which was through a washing cycle by the time the police came to arrest them not much later that evening. His reason for the prompt attention to his laundry was plainly to remove any incriminating blood from the victims on those garments. In their subsequent police interviews both appellants told lies. 22. The judge referred to the CCTV footage which this court has also seen. She described it as showing Gomes behaving aggressively and Mampuya there to support him. It showed Mampuya passing a knife to Gomes before the stabbings, Gomes holding a knife after the stabbing and, as he returned to his address, Mampuya engaged in disposing of at least one of the knives. 23. The judge noted that both appellants contested the case. The victims' poor English was relied on by the appellants to try to construct a defence that others had been responsible for what each knew he had done. 24. The judge took count 1 as the lead offence. Ahmed Ibrahim suffered the worst injury. The judge was satisfied that both appellants stabbed him. Although all three men were stabbed within seconds of each other, he was the last of the victims to be stabbed. She then described his injuries and the effect on him both at the time and subsequently. She categorised this crime by reference to the Sentencing Council guidelines on assault for section 18 offences. It was an offence of greater harm, since Mr Ibrahim suffered two stab wounds, including a wound which penetrated into his lung and caused very serious injury. It was an offence of higher culpability, because each of the appellants used a knife to inflict the wounds to his back. There was some premeditation in that the knives were requested by Gomes and supplied by Mampuya. The judge rejected the argument that there was anything in the way of provocation from Mr Ibrahim or anyone else in his group which prompted the appellant's actions. The crime was committed on a street, in a residential area after dark, where other people were present. It caused distress to those who were there. 25. The appellants had attempted to, and were partly successful in, disposing of evidence. These were all aggravating features, as was the ongoing effect of their violence upon Mr Ibrahim months after that night. Their lack of previous convictions served to mitigate. 26. The starting point was a term of twelve years' imprisonment, with a range of nine to sixteen years, after a trial, where an offender had no previous convictions. 27. In respect of count 2, Rabeh Rashid was a slightly older man who had come upon the scene and tried to persuade Gomes to leave. He was attacked first. His description of the person who stabbed him suggested it was Mampuya, but this was a joint enterprise and there would be no distinction between the appellants in terms of sentence, not least because Gomes had asked Mampuya to bring the knives and thereby at least encouraged Mampuya to act in the way he did. The count fell within the greater harm category because it was a repeated assault upon Mr Rashid, albeit the injuries were not as severe as that suffered by Mr Ibrahim. It was also a higher culpability case because there was the use of at least one knife. 28. In respect of count 3, Goran Karim sustained five inflicted injuries when he was attacked. This crime, too, fell within the greater harm category. It was a repeated assault upon him, too. Although his injuries were less serious than those of Mr Ibrahim, this was a higher culpability offence, where either one or both of the appellants used a knife repeatedly and by doing so demonstrated an intention to commit more serious harm than that suffered. The same aggravating features applied as in the preceding counts, as did the starting point and sentencing range. 29. The judge noted that the use of knives in the course of violence to inflict serious injuries and on occasions death was a matter of grave national concern. The appellants' willingness to use knives against the three victims in a town in Norfolk which had given them the opportunity of a better life would be marked with long sentences. The appellants seemed to present a significant risk to the public of serious harm by the commission of further such offences. The sentence to be imposed at the appellants' ages might reduce that risk, and so determinate sentences were imposed in each case. 30. Their comparative youth, the fact that neither had any relevant previous convictions and such positive features advanced in mitigation were borne in mind. Account was taken of totality and the sentence on count 1 was aggregated to eighteen years' imprisonment for each appellant, with a concurrent term of nine years' imprisonment on each of counts 2 and 3. 31. For the appellants, Mr Durr for Mampuya and Mr Thompson for Gomes advanced similar arguments. Their first point was that the sentence on count 1 of eighteen years' imprisonment was too long as a matter of totality. They developed that in their second submission: that in reaching the sentence, the judge wrongly categorised the offences charged as counts 2 and 3 as offences of greater harm. Mr Durr submitted that the offences charged under counts 2 and 3 were category 2 offences because the injuries were less serious; and that it was necessary to look at the potency of the harm caused and the fact that the attack lasted about one minutes. He added that Mampuya was using his time in prison usefully and was currently engaged in an Open University course. 32. Mr Thompson, for Gomes, submitted that the sentence on count 1should have been within the category range of nine to sixteen years' imprisonment, and that the assaults fell short of the high level of harm that was often found in section 18 assaults, particularly in relation to counts 2 and 3. 33. On any view of the matter, these were very serious offences. The motive, if such it can be described, seems to have been to punish the victims for some perceived slight to Gomes, who was pumped up by a wholly unjustified and inflated self-regard. The appellants armed themselves with knives, pursued their victims and stabbed them repeatedly in the back. The judge was right in her view that this type of knife crime is a matter of national concern. She was fully entitled to treat count 1 as the lead offence and to weight the sentencing on that count to take into account the overall offending. 34. There can be no complaint that count 1 was a category 1 offence, with a starting point of twelve years' custody and a range of nine to sixteen years. The offences on counts 2 and 3 were serious offences. They were offences of higher culpability because knives were used; but we are doubtful that they were properly categorised as category 1 offences. This is because, although there were repeated assaults, the attack was not sustained, and the harm that was caused was not the most serious harm, despite the intent. 35. However, the submission that counts 2 and 3 were in fact category 2 offences is of limited assistance, since the starting point for a category 2 section 18 assault is a term of six years' custody, and a range of five to nine years. The judge passed sentences of nine years' imprisonment on each of counts 2 and 3, but ordered them to run concurrently with each other and with the sentence passed on count 1. 36. The judge was in a good position to assess the seriousness of these crimes, having presided over the trial. Knives were brought to the scene, which was a significant aggravating circumstance, and they were used to stab three victims in the back, causing the injuries we have described. The victims were in no position to defend themselves from what was a vicious and cowardly knife attack which, as the judge noted, might have justified an extended sentence, had it not been for the appellants' relative youth. It was a joint attack; it was an attack at night; and it took place in front of bystanders. 37. Although we accept that the sentence on count 1 was a stiff sentence and one that was towards the top of the range of appropriate sentences, we are not persuaded that the sentence was manifestly excessive. The sentence on count 1 by itself would have justified a sentence of fourteen years' imprisonment; and an increase of four years to take into account the offending on counts 2 and 3 justified a necessary increase to that sentence. 38. For these reasons, the appeals are dismissed.

2019_04_02-4553.xml

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[2023] EWCA Crim 1514

EWCA_Crim_1514

2023-11-07

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 sure that applicable restrictions are not breached. A pers

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 1514 No. 202302105 A2 Royal Courts of Justice Tuesday, 7 November 2023 Before: LORD JUSTICE POPPLEWELL MR JUSTICE JEREMY BAKER HER HONOUR JUDGE DE BERTODANO REX V LAMAR BARLEY __________ 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 T BASS appeared on behalf of the Appellant. _________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 The appellant pleaded guilty at the first opportunity at Luton Magistrates’ Court to an offence of possession with intent to supply heroin and an offence of being concerned in the supply of cannabis. He was committed for sentence in the Crown Court at Luton, where on 23 June 2023 Mr Recorder Cohen imposed a total sentence of 2 years’ detention in a young offenders institution. The appellant was 20 at the date of sentence and 18 when the offences were committed. The sole ground of appeal is that the sentence should have been suspended. 2 The facts are that on 20 July 2021, police officers were in Bedford Park on patrol in an area known to be used for drug dealing. The officers subsequently observed two males, one of whom was the appellant, acting suspiciously and exchanging items freely. When the appellant and the other male noticed the police officers they suddenly turned and left the park. Local police officers were thereafter asked to assist on a search of the area and the appellant and the other male were subsequently sighted and stopped by the police in the street. As the appellant and the other male were being told they would be searched, they made off from the police. 3 Police officers eventually detained the appellant and an initial search did not reveal any drugs. However, he was subsequently searched at the police station and there were found concealed within his underwear 30 clingfilm wraps of what was subsequently analysed to be heroin with a street value of about £150. That was offence 1. In interview that day the appellant stated that he had seen the drugs on a bench and had picked them up, believing them to be cannabis, which he intended to keep for his own use. He denied being in possession of heroin with intent to supply. 4 The appellant’s mobile phone was analysed and the police found messages which indicated that he had been concerned in street dealing cannabis on two separate days in December 2020 and June 2021. That was offence 2. The appellant was released and was not charged until some 21 months later. No explanation has been given for the delay. 5 He has no previous convictions or cautions and had not committed any offences in the two years between these offences and the date of sentence. 6 The pre-sentence report revealed that the appellant had endured a fractured childhood. His father left home at an early age and his mother, with whom he lived, has a longstanding Class A drugs addiction. This led to his family home being cuckooed and inhabited by other users or dealers, some of whom were very violent towards his mother. The appellant became involved in street supply as a result of drugs debts owed by his mother, and the financial constraints on the family. The author of the pre-sentence report assessed him to be immature for his age and to have become involved through both naivety and pressure. Notwithstanding his troubled childhood and disadvantages in life, the appellant had demonstrated that there were positive attributes to his character. He managed to achieve good qualifications at both GCSE and ‘A’ Level, he had also shown a good work ethic and was in full-time employment at the time of his sentence. The author of the report assessed his likelihood of re-offending as low. 7 In sentencing, the Recorder went through the factors set out in the Imposition of Community and Custodial Sentences Guideline as relevant to whether a sentence should be suspended. The court accepted that the appellant posed no risk or danger to the public, that he had not failed to comply with court orders and that he had strong person mitigation. It also accepted that he presented a realistic prospect of rehabilitation. The Recorder noted that a custodial sentence would not have a harmful impact on others, but he gave as his principal reason for declining to suspend the sentence that supplying Class A drugs is a very serious offence indeed for which the only appropriate punishment is immediate custody. 8 Mr Bass, who has appeared on behalf of the appellant before us, submits that this was an erroneous approach. Not all Class A drug offences must attract an immediate custodial sentence and the Recorder made an error of principal in adopting such an approach. Moreover, he submits properly weighing the seriousness of the offence against all the other factors which pointed towards suspension, the balance came down firmly in favour of suspension. Before the court, he submits, was a young and immature youth who committed a serious offence two years earlier but in a difficult family context; pleaded guilty to it; learned from it; rehabilitated himself; and has led a law-abiding life ever since, gained employment and entered into a positive personal relationship, all against the backdrop of a difficult and troubled upbringing. Incarcerating the appellant, he submits, involved taking away all of the progress which the appellant had made, potentially his relationship, his home and his job and, more than likely, his motivation to better himself. If anything, it increased the likelihood of the offending and was counterproductive to his rehabilitation. Mr Bass also relies on the state of the prison conditions referred to in R v Ali [2023] EWCA Crim 232 . 9 We consider that there is force in these submissions and that the sentence could and should have been suspended. Accordingly, we will quash the sentence of immediate imprisonment and substitute for it a sentence of 2 years’ detention in a young offenders institution suspended for a period of 18 months. We attach an unpaid work requirement of 100 hours and a 10-day rehabilitation activity requirement. In imposing those conditions, we have taken into account the fact that the appellant has spent a little over 4 months in prison. However, we also take account that had conditions been attached when he was sentenced it would have been appropriate to include an electronically monitored curfew but for the fact that the author of the pre-sentence report had been unable to verify the address given by the appellant. 10 To that extent, the appeal is allowed. __________

2023_11_07-5899.xml

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e1861e162b0c5d76e0ad58f2b68fd85cb2ad8d2959b014ddcec5c1409e8d6854

[2008] EWCA Crim 814

EWCA_Crim_814

2008-02-15

crown_court

No. 2007/00399/B1 2007/00499/B1 Neutral Citation Number: [2008] EWCA Crim 814 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 15 February 2008 B e f o r e: LORD JUSTICE KEENE MR JUSTICE HEDLEY and HIS HONOUR JUDGE HALL ( Sitting as a Judge of the Court of Appeal, Criminal Division ) __________________ R E G I N A - v - EDITA GEDMININTAITE JOSEPH KENRICK COLLIER __________________ Computer Aided Transcription by Wordwave Inter

No. 2007/00399/B1 2007/00499/B1 Neutral Citation Number: [2008] EWCA Crim 814 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 15 February 2008 B e f o r e: LORD JUSTICE KEENE MR JUSTICE HEDLEY and HIS HONOUR JUDGE HALL ( Sitting as a Judge of the Court of Appeal, Criminal Division ) __________________ R E G I N A - v - EDITA GEDMININTAITE JOSEPH KENRICK COLLIER __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ Mr R Garson appeared on behalf of both Applicants ____________________ Judgment LORD JUSTICE KEENE: I will ask His Honour Judge Hall to give the judgment of the court. HIS HONOUR JUDGE HALL: 1. This is an application for leave to appeal against a ruling given by His Honour Judge Gibson as to how he would address the jury in a case of an offence under the Dangerous Dogs Act 1991 . Following the ruling the applicants pleaded guilty and were sentenced. They now challenge the ruling, as they are entitled to. 2. The facts are simple. The second applicant is the owner of two Rottweiler dogs. The first applicant and her friend took them for a walk. While passing a young lad on the pavement, one of the Rottweilers, "Rocky", went for him, bit him and tore his scrotum. A Good Samaritan came to his rescue. He went to hospital. Seemingly there are no long-term effects but it was extraordinarily painful for him at the time. 3. In presenting the legal argument, it was acknowledged that neither of the Rottweiler dogs had ever shown a propensity to attack; that at the time they were both on a lead; that it was in a public place; and that injury was caused. The question was: was that behaviour of the dog such that the applicants were guilty of the offences under section 3 of the Dangerous Dogs Act 1991 ? 4. The Act is straightforward. It provides that if a dog is dangerously out of control in a public place, the owner (or the person in charge of it) is guilty of an offence, and if injury is caused, is guilty of an aggravated offence. There is a definitions section. Section 10 provides: "(3) For the purposes of this Act a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person, whether or not it actually does so ...." 5. It is argued that, although there are two decided cases on the topic, they are incorporated in Rafiq v Director of Public Prosecutions [1997] JP 161 (Divisional Court, Auld LJ and Popplewell J). In giving the judgment of the court, Popplewell J referred to R v Bezzina [1994] 3 All ER 964 , where Kennedy LJ said at page 968: "Accordingly, we come to the conclusion that the terms of the statute in section 3(1) do have to be read in the way that we indicated at the start of this judgment. In other words, when one encounters the words in section 3(1) -- 'dangerously out of control' -- one applies the meaning which is set out in section 10(3) and that means, in effect, that if a dog is in a public place, if the person accused is shown to be the owner of the dog, if the dog is dangerously out of control in the sense that the dog is shown to be acting in a way that gives grounds for reasonable apprehension that it would injure anyone, liability follows. Of course, if injury does result then, on the face of it, there must have been, immediately before the injury resulted, grounds for reasonable apprehension that injury would occur." Popplewell J slightly dissented from that approach. He said: "It seems to me that in order to impose some logic in this case the proper way to approach these cases is to take the view that if there is a bite without a reasonable apprehension immediately before that, the use of the word 'any occasion' is sufficient to impose a liability because there are grounds thereafter for reasonable apprehension that it will injury some other person." Auld LJ commented: "Depending on the circumstances, the time for apprehension, even by the notional reasonable bystander, may be so minimal as for practical purposes to be non-existent. The notion of reasonable apprehension of injury before it occurs in such circumstances, is artificial and the court should strain against adding that unhappy element to an already difficult statutory formulation. It seems to me that Kennedy LJ in that passage was unnecessarily focusing on the injury as if it were a necessary culmination and demonstration of anterior reasonable apprehension of injury. In my view there is no need for such an approach. The act of a dog causing injury, a bite or otherwise, is itself capable of being conduct giving grounds for reasonable apprehension of injury." 6. Mr Garson on behalf of both applicants submits that we should consider the type of occasion where a dog reacts to provocative behaviour. He submits that it is possible to conceive a factual situation where it would be unjust to impose actual liability in such circumstances. The teasing schoolboy -- a stick with the horse's head handle -- comes to mind. But that is not this case. This was an ordinary pedestrian walking past a woman in charge of a Rottweiler dog which swung round and bit him. 7. Having referred to the authorities to which we have referred, Judge Gibson in his ruling said: "My conclusion is that the directions to the jury should include a direction that in law the occasion on which the boy was bitten was an occasion on which there arose grounds for reasonable apprehension that the dog would injure a person, and that in consequence the dog was to be regarded, immediately it administered the bite, as being dangerously out of control. " 8. We ask ourselves: was this dog under control? The answer is patent: No. What is the evidence of that? It bit someone else who was innocently walking past it on the pavement and who exhibited no provocative behaviour. Was it dangerous? Yes, because the dog bit the boy. 9. On either the interpretation propounded in Rafiq or that of Kennedy LJ in Bezzina , this dog was dangerously out of control. We are inclined to go further. In any event the definitions section, section 10, is not exclusive. It does not read as a matter of construction, "For the purposes of this Act , a dog shall only be regarded as dangerously out of control ...." and then proceed to the definition. Therefore we feel ourselves entitled to go back to the straightforward words of section 3 : "If a dog is dangerously out of control in a public place ...." In our judgment, this dog was dangerously out of control in a public place. That was amply evidenced by the way it behaved and the fact that it was not controlled by its handler. 10. In these circumstances this application is refused. ___________________________________

2008_02_15-1376.xml

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3e2bfff10c68b15e773f6f75a0682dd83696f582d13f916ce8c11522920eb78b

[2019] EWCA Crim 866

EWCA_Crim_866

2019-05-09

crown_court

Neutral Citation Number: [2019] EWCA Crim 866 No: 2018 04377 B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 9th May 2019 B e f o r e : LORD JUSTICE GREEN MR JUSTICE SPENCER MR JUSTICE MORRIS R E G I N A v R.R. 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 Cro

Neutral Citation Number: [2019] EWCA Crim 866 No: 2018 04377 B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 9th May 2019 B e f o r e : LORD JUSTICE GREEN MR JUSTICE SPENCER MR JUSTICE MORRIS R E G I N A v R.R. 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 Owen Greenhall appeared on behalf of the Applicant Mr Alaric Bassano appeared on behalf of the Crown J U D G M E N T (Approved) 1. MR JUSTICE SPENCER : This application for an extension of time and for leave to appeal against conviction has been referred to the Full Court by the Single Judge. We grant the extension of time and we grant leave to appeal against conviction. 2. It 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 lead to the identification of the alleged victim of the relevant sexual allegations underlying the conviction. The prohibition applies unless waived or lifted in accordance with section 3 of the Act. 3. We are grateful for the comprehensive written submissions of Mr Greenhall on behalf of the appellant, who did not appear at trial, and for the written submissions on behalf of the Crown from Mr Bassano, who did appear at trial. In the circumstances we can explain the position fairly shortly as the Crown very properly do not oppose the appeal. However, it will be necessary to explain in little detail how that conclusion has been reached. 4. In November 2017, in the Crown Court at Manchester, Minshull Street, the appellant (now aged 45) stood trial on an indictment alleging two offences of rape (counts 1 and 2) and an offence of doing acts tending and intended to pervert the course of public justice (count 3). The alleged victim of the rapes was his wife. The jury acquitted the appellant of the rapes. They convicted the appellant by a majority of eleven to one on count 3, perverting the course of justice. That conviction was recorded on 22nd November 2017. 5. On 20th December 2017 the appellant was sentenced by the trial judge, Mr Recorder Lasker, to a term of eight months' imprisonment. The judge also made a restraining order pursuant to section 5 of the Protection from Harassment Act 1997 prohibiting contact by the appellant with his wife (the complainant in the counts on which he was acquitted) and his children, save in specified circumstances. The appellant was also ordered to pay £690 towards the prosecution costs. That sum (in cash) had been recovered by the police during the investigation, and, on the judge's direction, the money in the possession of the police was earmarked to meet the order for costs. 6. To put the appeal in context it is necessary to summarise the background very briefly. The complainant met the appellant in 2004 and they married the following year. They spent only limited time together during the early years of their marriage as the appellant worked away on cruise ships. In 2007 their first child, a daughter, was born. In 2009 the complainant and their daughter joined the appellant in England, where they lived for over three years with one of his friends. In 2013 their son was born. 7. The prosecution case was that over time the appellant had become controlling and forceful, demanding sexual intercourse with the complainant on a regular basis when she did not want it. The allegations of rape related to occasions in June and July 2016 when she refused his sexual advances. It was alleged that he continued regardless to have vaginal intercourse with her. She reported the allegations to the police on 23rd November 2016. The appellant was arrested the same day. He vehemently denied the allegations. He was granted bail with a condition not to contact her directly or indirectly. 8. The basis of count 3 was that soon after his release on bail, and in breach of that condition, the appellant contacted various members of the complainant's family and friends, including her work colleagues. The contact was mainly by text message. He also sent her £690 via a friend following a child contact meeting. The complainant handed over to the police copies of text messages and other communications which the appellant had conducted with members of his own family and her family in India. Much of the material was exhibited for the jury during the course of the trial. 9. In his sentencing marks the judge summarised the effect of the material in this way: "... the Crown's case, which was plainly accepted by the jury, was that you were attempting, through these messages, to have pressure placed on the complainant via members of your or her extended family. In particular, you messaged the complainant's brother, again over an extended period of time, and when he failed to respond to you, you messaged him with pleas and comments such as 'This is not the time for silence'. You said: 'Everybody's life is going to be such a mess if you don't step in. Do you not understand your role as a brother?' Also in a later series of messages, you said that the reason you were contacting him was to pass on messages to the complainant. You asked him to come to the UK and you promised to bear all the expenses of any visit that he made. You also sent messages reminding him that you had always been helpful to him in the past and that it was important to make her (that is to say the complainant) understand that the police and the court would not lose anything but that you would be destroyed. To SA, the wife of the complainant's brother, you texted that it was her husband's job to set things right." 10. The judge went on in his sentencing remarks to explain that the appellant's position at trial was that, although he admitted sending all the messages, he had no ulterior motive and his actions were not in any way motivated by an intention to have family pressure applied to the complainant in order to get her to withdraw the complaint. He had sent his wife the sum of £690, which he sought to justify as simply to assist her with rent for the property. The judge observed in his sentencing remarks that if the appellant had genuinely wanted to pay the rent he could sent money direct to the landlord especially as he regarded the complainant as a prolific spender. The judge expressed his view that the money was no more than an ill-disguised bribe. The jury had rejected that account, he said, and he was on bail for the allegations of rape when he had committed the offence with a condition in force of no contact with the complainant. 11. Later in his sentencing remarks the judge said: "I have to say that I take the view that it was a deliberate and sustained offence, and the pressure that you sought to apply was subtle; there may have been no threats of violence expressed, but you sought to use your cultural background in an equally effective manner in order to pervert the course of justice." 12. The judge gave the jury comprehensive written directions which he repeated orally in his summing-up. Following the approved modern approach, he assisted the jury by giving his directions of law before counsels' speeches. His directions of law were agreed by both counsel. In respect of count 3 he said this: "This offence is committed if the Crown can prove each of the following three elements, namely: (1) that the defendant carried out an act or a series of acts, (2) that those acts had a tendency to pervert the course of justice, and (3) that it was intended by the defendant to pervert the course of justice. Now, the particulars to count 3 as set out in the indictment which you have specify that the act or the series of acts alleged here was the contact made by the defendant via social media with the complainant's family and other work colleagues in an attempt to persuade the complainant to reconcile with him, thereby bringing the criminal investigation, meaning this prosecution, to an end. For the purposes of this trial, the criminal investigation leading to the prosecution of the defendant for rape does amount to a course of public justice, that is the way it is described in the indictment. The defendant says he is not guilty of this offence and, whilst he admits sending all of the messages which you have in your jury bundle behind tabs 4 and 5 and which plainly amount to a series of acts, he says that his intention was nothing more than wholly innocent in the sense that, although he wanted his family life to continue as before, he had no ulterior intent in seeking for the complainant to be persuaded to withdraw her allegations. And so you will see what I have now set out are the questions you should ask yourself in arriving at your verdicts in relation to count 3. Again, deal with them in the order in which they are set out here. Question 1, ask yourselves, 'Are we sure that the defendant carried out a series of acts as alleged, that is to say sent text and other messages?' And, as I have said, this is admitted, so you can move to question 2. Ask yourselves, 'Are we sure that they had a tendency to pervert the course of justice, that is to say a tendency to bring the criminal prosecution for rape to an end?' If your answer is 'No', your verdict would be not guilty. If your answer is 'Yes', move on to question 3. And question 3 is as follows, 'Are we sure that the defendant intended these messages to bring the criminal prosecution for rape to an end?' If your answer is 'No', your verdict will be not guilty. But if your answer is 'Yes', your verdict will be guilty." 13. Those directions of law did not address the scenario which developed during the jury's deliberations, namely the question of whether the appellant could still be guilty on count 3 even if the jury acquitted him on the counts of rape. We shall return to this point. 14. In summarising the evidence for the jury, the judge reminded them that the officer in the case had told the appellant that he should not be contacting him as he was the investigating officer; he advised him that any contact should be by email. As a result of the text messages provided to the police by the complainant, the appellant had been arrested and interviewed again. The jury had a summary of that interview. As to the appellant's attitude over the months leading up to the trial, the officer in the case said that there had been quite a lot of contact; the appellant had always been polite, generally animated, upset and, on occasions, angry. He himself had received about 50 emails from the appellant, who had always maintained that he was innocent of the charges. He had sent photographs to the officer of his family life, making the point that he had a happy family life. 15. The judge reminded the jury of the appellant's own evidence about count 3 and the period when he was on bail with conditions. The appellant had said it was a terrible time for him and he could not sleep properly; he had no appetite. The £690 he gave the complainant was to pay the rent and expenses: "Any good thing can be twisted." He accepted that he had spoken to relatives both on his own side of the family and on his wife's side of the family. He told the jury: "I was trying to express my feelings, and I did intend that these things, or some of these things, should be passed on to my wife. But I never asked them to get her to withdraw the charges because I know dropping the charges is a big offence." 16. The judge reminded the jury that the appellant was taken through some of the messages in cross-examination, although he was not himself going to remind the jury of all the points; the jury could read the messages for themselves and would recall the submissions from both counsel in their closing speeches. 17. The judge reminded the jury that in re-examination the appellant had repeated that his intention in sending the messages was for his wife and children to come back to him; it was not that he wanted his wife to drop the allegations. He did want his brother-in-law to intervene. He wanted him to speak to complainant. He wanted him to persuade her to come back to him. When he had written in the text message, "What will happen to the woman?" he was referring to how she could survive. He did suggest that his brother should come to England for a few days. He insisted that the money he sent was for rent and expenses; it was not a bribe. 18. During the course of the jury's deliberations they sent a note with the following two questions: "1. Can we ask if the decision on the first two counts [i.e. the counts of rape] will impact on the decision on the third count? 2. Could you be found guilty of perverting the course of justice based on a charge that he may not be guilty of?" The judge discussed the note with counsel. He said he thought the answer to the first question should simply be 'No' and the answer to the second simply 'Yes'. Counsel for the appellant submitted that no more explanation than that was required because "to answer that will take some time and it could answer it in a way which may unintentionally influence them ... I think that is probably the safest ... because otherwise we get into all sorts of interpretations". Mr Bassano for the Crown agreed. 19. Accordingly, the judge answered the questions in the jury's note in this way: "Well, I can answer them both very simply. Question 1, 'Can we ask if the decision on the first two counts will impact the decision on the third count?' No. I told you, you consider each count separately because the evidence is different. Question 2, 'Could you be found guilty of perverting the course of justice based on a charge he may not be guilty of?' The answer is 'Yes', and I don't propose to say any more." 20. The jury resumed their deliberations. They returned within half an hour to return unanimous verdicts of not guilty on the counts of rape. They indicated that they had not reached a unanimous verdict on count 3, so the judge gave a majority direction. Within just over an hour, the jury returned a majority verdict of guilty on count 3. 21. There was no appeal against conviction lodged initially, although there was an appeal against sentence. The application for leave to appeal against sentence was refused by the Single Judge on 23rd January 2018 and was not renewed. 22. On 24th October 2018 the appellant, acting in person, lodged grounds of appeal against his conviction on count 3. 23. On 14th December 2018 the Single Judge, Butcher J, spotted that there was potentially an error of law in the judge's directions which merited the consideration of the Full Court. May we, with respect, pay tribute to the thoroughness of the Single Judge's consideration of the papers in spotting this point, which in the event has led to the quashing of the conviction. 24. Following the grant of legal assistance by direction of the Single Judge, Mr Greenhall was instructed. His ground of appeal is encapsulated with commendable succinctness as follows: "The learned trial judge erred in law in failing to direct the jury to consider the propriety of the ends and means employed by the appellant in assessing whether the acts tended to pervert the course of public justice and/or were intended to do the same." 25. Developing the ground in his written argument Mr Greenhall submitted that the trial judge's direction was to the effect that a tendency to bring the criminal prosecution for rape to an end was of itself a tendency to pervert the course of justice, and that an intention to bring the criminal prosecution for rape to an end was necessarily an intention to pervert the course of justice. He submits that the trial judge should have directed the jury that if they concluded that the appellant intended to bring the prosecution to an end but that he genuinely believed the rape allegations were false then the jury should consider the propriety of the means adopted by the appellant to achieve his end. He submits that the need for such a direction was heightened in a case where the alleged pressure placed on the complainant by the appellant was assessed by the trial judge in his sentencing remarks to be "subtle". 26. Mr Greenhall submits in relation to the transfer of £690 to the complainant that the circumstances of the case required the jury to be directed specifically that they could only convict on that basis if they were sure that the money amounted to a bribe or other improper pressure. Nor, he submits, were the jury provided with sufficient assistance on how to approach the text messages. They should have been directed that they could only convict if they were sure the text messages constituted improper pressure on the complainant to withdraw her allegations. 27. In support of these submissions Mr Greenhall relies on the leading authority of R v Kellett [1976] QB 372. Stephenson LJ, giving the judgment of the Court, said at page 388: "... we would not consider that the offence of attempting to pervert the course of justice would necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence. ... we think that however proper the end the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means. Threats and bribery are the means used by offenders in the cases, and any pressure by those means -- or by force, as for example by actually assaulting or detaining a witness -- would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongly interfering with a witness. If he alters his evidence or will not give it 'through affection, fear, gain, reward, or the hope or promise thereof' (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope." Later, at page 392-393, Stephenson LJ continued: "We have already given our opinion that some means of attempting to influence witnesses are outside the limits of this particular offence. But subject to the qualification that the means must be unlawful or improper, such as force or a threat of force, a reward or the promise of a reward, we accept his general submission that an intentional interference with a witness is enough. There may be cases of interference with a witness in which it would be for the jury to decide whether what was done or said to the witness amounted to improper pressure, and so wrongfully interfered with the witness and attempted to pervert the course of justice, and it would be not only unnecessary and unhelpful but wrong for this court or the trial judge to usurp their function. The decision will depend on all the circumstances of the case, including not merely the method of interfering, but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given. Pressure which may be permissible at one stage of the particular proceedings may be improper at another. What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority. But it is for the judge to direct the jury that some means of inducement are improper and if proved make the defendant guilty, and this was such a case. A jury should be directed that a threat (or promise) made to a witness is, like an assault on a witness, an attempt to pervert the course of justice, if made with the intention of persuading him to alter or withhold his evidence, whether or not what he threatens (or promises) is a lawful act, such as the exercise of a legal right, and whether or not he has any other intention or intends to do the act if the evidence is not altered or withheld." 28. Mr Greenhall has also drawn our attention in his written submissions to the decision of this Court in R v Thomas [2008] EWCA 183 which was a similar case to the present, in that the allegation of perverting the course of justice related to persuading the complainant in a rape case to withdraw her complaint. In that case the trial judge had directed the jury that they had to decide whether the defendant had applied improper pressure to persuade or compel the complainant to withdraw the allegations, but he had also wrongly directed the jury that as a matter of law any inducement of a witness to refrain from giving evidence in criminal proceedings is unlawful. This Court referred to the passages we have quoted from Kellett and concluded that there was evidence capable of giving rise to the application in the defendant's favour of the principles set out in Kellett, and the possibility should have been left open to the jury with an appropriate direction in the summing-up. The conviction was quashed. 29. On behalf of the prosecution Mr Bassano has realistically and responsibly conceded that the judge's direction was inadequate, and in particular that there should have been a fuller direction in answer to the jury's question. He accepts that the jury's note and the judge's answer to the jury's question brought into focus the inadequacy of the original direction. Rather than a simple 'Yes' or 'No' in answer to the jury's questions, there needed to be a fuller direction. Mr Bassano accepts that it is impossible to say that the verdict would have been the same if a fuller and accurate direction had been given. He accepts that the means employed by the appellant to dissuade the complainant from continuing with the allegations were not manifestly improper; there was no threat of violence and the alleged bribe was not particularised in count 3. 30. It is unfortunate that the judge was not given more assistance by counsel in formulating the legal directions in relation to count 3. It is apparent that otherwise his direction were meticulously careful, helpful and accurate, and there could be no conceivable criticism of the rest of the summing-up or of his conduct of the trial. However, what needed to be brought home to the jury in the directions of law on count 3 was that although they could still convict on count 3 even if they acquitted the appellant of the rapes, he would only be guilty of this serious offence if the jury were sure that he had used improper means to persuade the complainant, directly or indirectly, to withdraw her evidence. For example, specifically in relation to the sending of the £690, the jury would have had to be sure that it was intended by the appellant to be a bribe or inducement to withdraw the complaint. The jury needed to be directed that if what the defendant said was true or might be true as to his motivation then he could not be guilty of the offence unless the jury were sure that the means he used were unlawful or improper. 31. It may well be that had the jury been directed in these terms they would still have convicted, but we cannot possibly say this would necessarily have followed, particularly as there was one dissenting juror in any event. In these circumstances we conclude that the appellant's conviction on count 3 is unsafe and must be quashed. Accordingly, we allow the appeal against conviction and quash his conviction on count 3. Mr Bassano has indicated that the Crown do not seek a retrial, not least because the appellant has already served his sentence in full. 32. That leaves the question of the restraining order. Even if the appellant had been acquitted on all counts at trial, it would still have been open to the judge to make a restraining order pursuant to section 5A of the 1977 Act, which provides in subsection (1) as follows: "A court before which a person ('the defendant') is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order." Subsection (3) provides: "Where the Court of Appeal allow an appeal against conviction they may remit the case to the Crown Court to consider whether to proceed under this section." 33. We are told that the complainant has been spoken to and has requested that the restraining order should remain in place. Mr Bassano submits that there was evidence given at the trial which continues to make it necessary to protect the complainant from harassment, namely the number and nature of the messages sent by the appellant, the alleged violence to the complainant, the appellant's evident displeasure that the allegations had been made against him and that the complainant had deserted him, and the complainant's own testimony against him. 34. In his sentencing remarks in respect of the restraining order the judge said this: "You continue to blame your wife and I am concerned about what I read in the pre-sentence report: that you are said to harbour deep and abiding resentment towards her which the probation officer fears will become amplified after sentence and that you will continue to present an active risk to your wife. The report says you are driven by a sense of injustice and betrayal such that you will continue to seek her out, to try to find information about her work and her personal life. In my view, therefore, it is appropriate to consider the inherent safeguards of a restraining order, and I take those words directly from the comments made by the author of the pre-sentence report. In my view, the provisions of section 5 of the Protection from Harassment Act apply to your case by virtue of section 5A. I am entitled to make the restraining order and I do so. In making such an order I want to make it clear that it is not my intention to prohibit proper contact in the future between you and your children, but the order that I make is that you should be prohibited from contacting your wife and your children (S and S) by any means: whether by direct contact by yourself or by indirect contact through third parties, and that includes, but is not limited, to contact by social media, telephone, letter, text or otherwise on the internet. The order, however, does not prohibit the following: namely, contact with the complainant through a solicitor or other court-appointed official concerning the former matrimonial property or applications or discussions about contact with the children; secondly, any contact with the children which may be permitted by a Family Court exercising its proper jurisdiction under the Children Act. It is my view that the restraining order should remain in force 'until further order' of this court." 35. On behalf of the appellant Mr Greenhall submits that this Court should not remit the matter to the Crown Court for consideration of making such a restraining order. He submits that it is now unnecessary. Since the sentence was imposed and the restraining order was made family proceedings are in progress, and those proceedings should be allowed to regulate contact between the appellant and the complainant and the appellant and the children. Mr Greenhall also submits that in any event, contrary to the submission by Mr Bassano, if it is to go back to the Crown Court the matter should not be remitted specifically for Mr Recorder Lasker to deal with it. Mr Greenhall emphasised that he intends no disrespect to the learned Recorder, but he submitted that there might be the appearance of bias, at least in the eyes of the appellant, if the same judge were to deal with the matter again. 36. We have considered these submissions carefully. We note that the wording of subsection (3) of section 5A of the Act simply permits this Court to "remit the case to the Crown Court". It does not require, and perhaps does not even entitle, this Court to direct that a particular judge should deal with the matter if it is remitted. 37. We take the view that it is appropriate that the case be remitted to the Crown Court for consideration as to whether there should be a restraining order continuing in force under section 5A of the Act. We say that not least having regard to the undercurrent of hostility between the appellant and the complainant which is very evident from the material we have seen, to which I will return in a moment. 38. We therefore make the order under section 5A(3) remitting the case to the Crown Court to consider whether to proceed under that section. 39. We are not going to direct (even if we had the power to do so) that the matter should be heard by Mr Recorder Lasker. However, we should indicate that it seems to us that there is nothing wrong in principle with Mr Recorder Lasker dealing with the matter again. If he himself felt in any way embarrassed and felt the need to recuse himself no doubt he would say so. We think the proper course is to leave the matter to the good sense and discretion of the resident judge at the Crown Court at Manchester Minshull Street, if necessary in consultation with the presiding judges of the Northern Circuit. 40. We mentioned a moment ago other material we have seen. We should say for completeness that we have seen extensive correspondence from the appellant to the Registrar and her office, much of it complaining about the investigation which led to the prosecution for rape and the appellant's wife's conduct in relation to the investigation and the allegations of rape themselves. He even sent further such messages to the office this week. We have read the material, but it has no relevance to the appeal, not least because he was acquitted of the rapes in any event. That material does, however, reinforce our view that the depth of bitterness and resentment harboured by the appellant towards his wife makes it appropriate that the question as to whether the restraining order should continue should be considered by the Crown Court afresh. 41. That leaves one question outstanding. The order for costs made in favour of the prosecution in the sum of £690 was made as part of the sentence following conviction. It follows that that order is quashed now that the conviction itself has been quashed. The money which was in the possession of the police was earmarked for payment of that sum to the prosecution. Preliminary exchanges with Mr Bassano on behalf of the Crown during the course of argument reveal, however, that the question of whether the money still in the possession of the police (if that is where it still is) should be returned to the appellant is something which is not straightforward. The question of the disposition of that money is one which will have to be considered elsewhere, possibly by the judge considering the restraining order when the matter is remitted to the Crown Court, or ultimately under the Police (Property) Act 1897. 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 42. Email: Rcj@epiqglobal.co.uk

2019_05_09-4586.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/866/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/866

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[2019] EWCA Crim 1111

EWCA_Crim_1111

2019-07-05

crown_court

Neutral Citation Number: [2019] EWCA Crim 1111 Case Nos: 2017 03911 B3 and 2017 03991 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM His Honour Judge Carr T2015 8138/8110 Before: LORD JUSTICE SIMON MR JUSTICE PICKEN and MR JUSTICE SWIFT - - - - - - - - - - - - - - - - - - - - - Between: Regina and (1) Manoj Chauhan (2) Terence Croft - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Royal Courts of Justice Strand, Londo

Neutral Citation Number: [2019] EWCA Crim 1111 Case Nos: 2017 03911 B3 and 2017 03991 B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM His Honour Judge Carr T2015 8138/8110 Before: LORD JUSTICE SIMON MR JUSTICE PICKEN and MR JUSTICE SWIFT - - - - - - - - - - - - - - - - - - - - - Between: Regina and (1) Manoj Chauhan (2) Terence Croft - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Royal Courts of Justice Strand, London, WC2A 2LL Date: 5.7.2019 Respondent Appellants Lee Marklew for Manoj Chauhan Ben Williams for the Terry Croft Luke Blackburn for the Crown - - - - - - - - - - - - - - - - - - - - - Approved Judgment Lord Justice Simon: Introduction and the prosecution case 1. On 1 August 2017, in the Crown Court at Birmingham, before His Honour Judge Carr and a jury, the appellants Manoj Chauhan (count 1) and Terence Croft (count 3), were convicted of conspiracy to commit fraud by false representation. On 20 October 2017, Croft was sentenced to a 12-month Community Order, and Chauhan to a Suspended Sentence Order. 2. They appeal against those convictions with the leave of the Full Court. 3. Two co-defendants were also convicted. Dinesh Chudasama was convicted of 3 counts of conspiracy to make a false representation (Counts 1-3) and Edward Barker was convicted on the same charges. 4. The case concerned the sale of properties which were owned by Severn Trent Water (‘STW’). 5. The prosecution case was that Barker, who was an employee of STW, arranged for the sale of property owned by STW on the basis that it was in disrepair and could no longer command a high rent. The property was sold at an artificially low price (‘the first sale’) and subsequently sold-on at an open market value (‘the second sale’), thus generating a fraudulent profit represented by the difference between the two sales. 6. The prosecution case was circumstantial and relied on a number of features of the arrangements: first, the significant price difference between the first and second sales; second, the speed with which the first sale was made after the property was made available for sale; third, evidence of pressure placed on agents to keep the first sale valuations low; fourth, the fact that the number of valuations was kept to a minimum, with usually only one agent providing a valuation, and minimal publicity; fifth, the buyers were often well known to Barker; sixth, on one occasion, relating to the appellant Croft, a fee was demanded which was paid in cash and was supported by a false invoice; seventh, on occasions people seemed to know who the eventual buyer would be long before the highest bid had been received; and eighth, false documents were created so as to suggest that estate agents had given valuations when in fact they had not, or that buyers had made offers which they had not. 7. The case against Chauhan was that he had purchased one of the STW properties and was involved in buying or selling others funded by Satbinder Pnaiser, a director of a company, Camberbest Ltd, working closely with the co-defendants Barker and Chudasama. Chauhan had left 3 voice mail messages on Chudasama’s telephone which showed that they were working closely together. One of the ‘fake’ bidders gave Chauhan’s address. 8. The prosecution case against Croft was that he had bought one property, Waterworks Cottage (‘Waterworks’), at an undervalue and almost bought another, Stanford Reservoir Cottage (‘Stanford’). Waterworks had been a very quick and quiet sale; and had been bought in the name of Croft’s partner. It was contended that, in reality, Waterworks belonged to the appellant and had been purchased using his money. Waterworks had been purchased for £160,000. The prosecution case was that only a fortnight later, its value was stated to be £400,000 despite the fact that no work had been carried out. In the event, and after some renovation work, it was sold 14 months later for £376,000. The prosecution also contended that Croft had paid £15,000 in cash in order to be in a position to buy property, with the money going to various codefendants; and that a false invoice was given under the guise of a different piece of work for a different property. The prosecution also relied on inferences to be drawn from the presence of Croft, Barker and Chudasama at a dinner in Cheltenham paid for by Croft prior to his viewing of Stanford. The history of the case 9. A trial had initially taken place before His Honour Judge Henderson in the Crown Court in Birmingham involving a number of other co-defendants. At the conclusion of the prosecution case, the defendants made submissions as to the form of the indictment, contending that what the prosecution alleged was not a single conspiracy but a number of conspiracies. Judge Henderson indicated that he would allow the indictment to be amended; and that there was a case to answer against Croft, Chauhan and others, but not against two other defendants, Mummery and Corbett. 10. He discharged the jury on the basis of difficulties caused by valuation evidence and issues of disclosure. The contents of Judge Henderson’s ruling on 23 October 2016 in relation to Croft is material to the arguments on this appeal. 11. The second trial took place in early June before His Honour Judge Carr (‘the Judge’); and on 1 July he heard submissions of no case on behalf of all defendants. On 5 July, he emailed the parties informing them that the submissions were rejected for reasons that would follow. It appears that defence counsel repeatedly asked the Judge for the promised reasons and that none were provided. On 1 August the jury returned their verdicts; and on 15 August, counsel for Croft emailed the Judge asking for the reasons, since grounds of appeal against conviction were in the process of being drafted. On 28 August, an advice and grounds of appeal were lodged; and on 6 September, the Court of Appeal Office had to ask the Judge to provide the reasons for rejecting the submission of no case, which now formed one of the grounds of appeal. The written reasons were not provided to the Court of Appeal Office until 19 September. The Judge indicated that he could not recall when he had finalised them and said that the failure to send them had been an oversight. 12. On 20 October, the Judge sentenced Croft to a 12-month community order, with an unpaid work requirement of 120 hours, and Chauhan to a 24-month sentence of imprisonment suspended for 2 years. 13. Although the appellants raised independent grounds of appeal, there was a degree of overlap, and it is convenient to group them under four headings. The first ground of appeal 14. This ground is founded on the Judge’s failure promptly to provide his reasons for dismissing the submission of no case. 15. In our view the complaint is fully justified. It is perfectly acceptable for a judge to give a decision and reserve reasons; but those reasons should be provided as soon as possible. Although Mr Williams relied on the decision of the ECtHR in Bilani v. Spain 1994 19 EHRR 566, we doubt whether any authority is needed for the proposition that decisions of the court must be supported by reasons. However, it is important to note, as the ECtHR recognised, that the extent of the duty varies ‘according to the nature of the decision.’ In Flannery and anor v. Halifax Estate Agencies Ltd [2000] 1 WLR 377 , the Court of Appeal (Civil Division), in the context of a judge preferring one expert over another, made clear that he had to explain why he did so. Again, the scope of the duty was said to depend on the circumstances and the subject matter of the case. There are similar statements of this principle, which is rooted in the common law, in other cases. 16. Where the conduct of the defence may depend on the nature and quality of the reasons for dismissing a submission of no case, it is crucial that a judge should give his or her reasons at a time that will enable the defence to make informed decisions as to the conduct of the defence. In Kiziltan [2017] EWCA Crim 1461 this Court expressed the point at [24] by reference to the admission of hearsay evidence: It is often convenient and less disruptive of the evidence for a decision as to admissibility of evidence or some other point of law to be given immediately after argument with a detailed ruling later in the trial. This is good practice. However, where a judge permits hearsay evidence to be adduced the detailed ruling should be given before speeches so that counsel may tailor their speeches to the ruling and, where appropriate, make submissions in respect of the content of the proposed hearsay direction in light of the ruling. 17. Although Mr Williams argued that the delay in the present case caused difficulties to the defence, in view of the way in which the case proceeded, we are not persuaded that this was so. Croft’s defence were in no doubt as to the case that had to be met. It had been set out fully in the prosecution written response to the submission of no case. We note that, when it came to the closing stages of the trial, there was no suggestion on the part of the defence that the case then advanced by the prosecution, and reflected in the summing-up, was different to the case advanced throughout the retrial. The second ground of appeal 18. This contains within it two matters of complaint: first, that the delayed reasons were, in any event, inadequate; and secondly, that there was, contrary to the Judge’s conclusion, in fact no case for the appellants to answer. 19. The Judge’s reasons were as follows (with added lettering for ease of reference): [ a ] Submissions of ‘no case’ were made on behalf of all defendants. [ b ] When those submissions were made to HHJ Henderson at the last trial, he rejected them. So do I. [ c ] The prosecution have set out the evidence as it relates to each of the defendants in their skeletons dates 26 and 27 June, 2017. [ d ] I repeat the well-known passage from R v. Galbraith : ‘where however the prosecution evidence is such that it’s strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.’ [ e ] That, for the reasons set out in the prosecution’s skeletons, is the situation here. 20. In our view these reasons were scarcely sufficient: [a] and [b] simply set out the forensic background to the application (we will return later in this judgment to an argument for Croft based on Judge Henderson’s ruling); [d] indicated no more than that the Judge was applying what is commonly referred to as the second limb of R v. Galbraith [1981] 1 WLR 1039 ; and [c] and [e] simply referred to written prosecution skeletons. 21. There can be no all-embracing rule as to what is required by way of reasoning: it will depend on the circumstances. The recitation of the well-known test in Galbraith fixes attention to what is properly within the province of the jury; but that can only be a start. A ruling adverse to the prosecution either as a matter of law or on an evidentiary basis will require properly developed reasons. In decisions adverse to the defence there will be cases where it may be sufficient for a judge to accept and briefly summarise some or all of the prosecution’s written or oral submissions which demonstrate a case to answer. Substantive reasons can often be brief and sometimes very brief. Much will depend on the particular circumstances of a submission; and much must be left to the good sense and judgement of judges and recorders. 22. In the present case, there was nothing wrong in principle in referring to and adopting the previous reasoned decision of Judge Henderson; but that approach did not address the appellants’ point that Judge Henderson’s decision either explicitly or implicitly supported their argument that there was no case to answer. 23. We should add that on an appeal against conviction this court will usually focus on whether there was in fact a case to answer and whether a conviction is safe, rather than on an analysis of the sufficiency of stated reasons. 24. It is on this basis that we turn to consider whether there was in fact a case to answer against the appellants at the conclusion of the prosecution case. Chauhan 25. Mr Marklew submitted that his client was simply a middleman and that all the bids were made on behalf of, and all the funds were provided by, his employer, Pnaiser or his company. His client had accepted that he had behaved in an underhand way in creating a false market by his actions, but had claimed that he was not dishonest. 26. As noted above, the case against Chauhan (count 1) was that he bought one of the 12 properties from STW and gave Pnaiser what looked like a profit. The first sale was supported by a false marketing email and the second sale, slightly over a month later, was for significantly more than the purchase price. It was open to the jury to conclude that his role in buying on behalf of Pnaiser as a front could only have been to deceive people into thinking that Pnaiser or his company were not buying as many properties as in fact they were. It was also open to the jury to conclude that he must have known about the use of other fronts in relation to other properties because of his central role in buying and reselling the properties. In relation to two properties, he made successful offers in his own name, but then gave way to Pnaiser after the purchase was agreed. In relation to three other properties he made supporting offers where the successful bid was made by Pnaiser. Each of these sales was supported either by fake bids or valuations from estate agents that were forged. The jury was entitled to conclude that this was another form of fronting and that his conduct was deceitful. 27. In short, the prosecution evidence was such that, on one view of the facts, there was evidence on which the jury could properly come to the conclusion that the defendant was knowingly participating in a conspiracy in which a number of properties were purchased at under-values from STW within a narrow time-frame and re-sold quickly for substantial profit. In our view, there was very plainly a case for him to answer. As Judge Henderson had put it in his earlier ruling, he was the middleman in a number of tainted sales. Croft 28. The case against Croft (count 3) was different. The prosecution evidence was that he had bought Waterworks within a narrow timeframe with the only competing bids coming from people who had not seen it. There was evidence that it had been resold at a considerable profit, although there was other evidence which suggested that this was not so. The prosecution case was that the purchase occurred in a false market, in that Barker had used forged estate agents’ valuations, a suppressed valuation and a forged email. In addition, there was evidence that the property had never been openly marketed. The prosecution also relied on the deposit of £2,000 in Barker’s account in June 2010, in respect of which prosecution invited the inference could be drawn that it had come from cash given by Croft to Chudasama and another man. 29. During his police interview Croft had accepted that Chudasama and Barker were involved in the sale of Waterworks and Stanford, were both present at the Cheltenham dinner, for which he paid, and were also present when he viewed Stanford. He admitted to being ‘uncomfortable’ about paying a fee of £15,000 in cash, which he understood placed him at ‘towards the top of the list’ of those who could buy STW properties. He knew that this was ‘an exclusive list’ which meant that his offer would be ‘very favourably looked at’. He had been told, ‘either you pay this fee of £15,000 and get this property and get on the list or you don’t …’ He did not like paying fees in cash. The invoice for the £15,000 fee paid in respect of Waterworks was false. 30. These are all matters which, in our view, and despite the deficiencies in the ruling, show that there was a case to answer against Croft. We accept that, like Chauhan, there were points to be made in answer to the prosecution case that were fully argued before us. We note that, although he did not acquire the property, he was involved in the sale of Stanford which the jury would have been entitled to find was marketed in a false market which he had ‘bought into.’ Accordingly, the second ground fails. Ground 3 31. This is a complaint by both appellants that there were deficiencies in the summing-up. 32. On a charge of statutory conspiracy the prosecution must prove: (1) an agreement between at least two persons; (2) that a course of conduct will be pursued; (3) the course of conduct will necessarily amount to the commission of an offence if carried out with the participants’ intentions; (4) the participants intended to agree; (5) they intended that the agreement be carried out; and (6) they had an intention or knowledge as to the circumstances forming part of the substantive offence. 33. As we have already noted, Croft and Chauhan were the subject of different charges and different conspiracies: count 1 in the case of Chauhan and count 3 in the case of Croft. 34. The legal directions were the subject of discussion before the Judge began the summing-up; and no issue was taken on the form of the written and the nature of the oral directions in relation to the conspiracy charge in the following terms: A conspiracy is an agreement. An agreement to commit a crime is itself a criminal offence. As against the defendant whose case you are considering the prosecution must prove: (a) (counts 1 and 2) that there was an agreement between the particular defendant whose case you are considering and at least one other person (whether named as defendant or not); (b) (count 3) between the particular defendant whose case you are considering and with at least one other person (whether named as a defendant or not) … and that (c) the agreement was to commit fraud by representation as alleged, and that (d) the defendant whose case you are considering joined that agreement; and that (e) when the defendant whose case you are considering joined that agreement he intended that the agreement should be carried out. Different people may join an agreement at different times. If the defendant whose case you are considering joined in the particular conspiracy you are considering at any stage (and for whatever period) and intended that the agreement should be carried out, then he is guilty of conspiracy. Different people may be involved in an agreement on different levels, and play different roles in putting it into effect. They need not know every other conspirator, or know every detail. If a person joins in an agreement, at whatever level and whatever role he plays (or agrees to play), intending that the agreement should be carried out, then he is guilty of conspiracy. NOTE: In relation to each count, and each defendant named in the count that you are considering you will need to ask yourselves: 1. are we sure that the conspiracy alleged existed? 2. was the defendant whose case we are considering a party to that conspiracy? 35. The Judge also directed the jury that in relation to the agreement to commit fraud by representation the prosecution had to show in relation to each count that: (a) a false representation would be made to STW, (b) it would be made dishonestly and (c) it was intended either to make a gain for himself or another, or cause a loss to another. The Judge went on to direct the jury as to the required elements of ‘a false representation’ and ‘dishonesty’. No issue is taken as to content of the legal directions. 36. The direction was not a direction founded on the earlier ruling of Judge Henderson. This was because the prosecution case on the particular conspiracies was now materially different; and it follows that Judge Henderson’s earlier ruling on no case was not a sound basis for the later ruling. Chauhan 37. Part of the Judge’s summing up of Chauhan’s evidence was as follows: He said that he accepted acting in a dishonest way by putting in bids for others, but at the time he did not think it was criminal. He thought, and here is the word he used previously, he thought it was a bit ‘underhand’. He agreed that Pnaisers appeared to be successful every time they bid and he was never asked to increase an offer made on Pnaisers’ behalf which surprised him. 38. Mr Marklew submitted that the Judge should have told the jury that, even if they were sure that his client had been acting dishonestly, they should acquit him unless they were sure that the representation in count 1 would be made to Barker. This was a point made to the Judge, whose response was that his directions had covered the point. 39. Having considered the totality of the summing-up, we agree. We are satisfied that the jury would have had the point now made by Mr Marklew well in mind, and that there is no merit in this ground of appeal as far as Chauhan is concerned. Croft 40. In his written ruling of 23 October 2016, Judge Henderson had ruled that there was a case for Croft to answer. He focused on the Waterworks sale. The evidence of overt commissions were not unusual features of land deals. He continued: One possibility is that this was dishonest, not in the way alleged, but that Edward Barker was taking a backhander to give Mr Croft the ‘preferred bidder’ status the latter spoke of in his interviews. Were that the case, without a dishonest undervalue first sale , Mr Croft and the group would be not guilty of the charge since it’s very different from what the prosecution allege. Of course, were it the case that both aspects were present [corrupt and a dishonest undervalue sale] he would be guilty. So the question here is: is there evidence on which a reasonable jury could be sure that this is a transaction of the kind alleged? In my judgment the circumstances; in particular the speed of the first sale; the rejection by Mr Barker of much higher valuations; the significant profit [even over a significant period, even allowing for significant work] are material on which a reasonable jury could be sure this was fraudulent in the way alleged and involved Mr Croft as a knowing participant. ( Underlining in original ) 41. Mr Williams submitted, first, that Judge Henderson had identified the dishonest undervalue of Waterworks as an element which the prosecution had to prove; second, that the prosecution evidence failed to show that there was an undervalue of Waterworks; and third, that the Judge failed to sum up adequately on this point. 42. So far as the first point is concerned, the charge was of an inchoate offence. As such, it was not essential to the prosecution case that a particular property was bought as part of the conspiracy, or, if bought, that it was purchased at an undervalue. It was the agreement and the intent that was important, rather than the result. Judge Henderson was no doubt correct that the proof that it was a purchase at an undervalue could amount to evidence that there was the conspiracy alleged by the prosecution; but we accept Mr Blackburn’s submission that such proof was not a necessary part of the prosecution case, which was that there was a conspiracy rather than that the conspiracy was actually put into effect. 43. As to the second point, Mr Williams identified prosecution evidence in which witnesses accepted that Waterworks had been acquired at a realistic market price; but the evidence called by the prosecution was not all one way. There was evidence from those qualified to give it, which, if the jury accepted it, indicated that it was purchased at an undervalue despite its poor condition. 44. We have considered the summing-up in relation to the third point. In our view, there was no error in summing-up. The defence valuation evidence was summarised at pp.66G-67E and was the last part of the summing-up which the jury heard. Doubtless, the defence would have preferred a repetition of points made in relation to the valuation of Waterworks, but the Judge accurately summed-up the evidence (including, importantly, Croft’s evidence) and he was not bound to repeat points which were doubtless forcefully made by leading trial counsel as to valuation. We are not persuaded, in the circumstances, that there was any material misdirection. Ground 4 45. This ground is based on what is said to give rise to doubts as to the safety of Croft’s conviction. Mr Williams argued that this court should come to the inexorable conclusion that the conviction was unsafe. He referred to R v. Cooper [1969] 1 QB 267 at 271 and R v. Pope [2013] 1 Cr App R 214 , and submitted that this was a case in which the court should entertain a lurking doubt as to whether an injustice was done, and conclude that the conviction was unsafe. 46. Among the points made was that, when it came to sentence, the Judge proceeded on the basis that Waterworks had not been bought at below its market value. It is clear that the Judge found it difficult to assess the harm to STW from Croft’s involvement in the count 3 conspiracy. He took into account defence evidence that the first sale was not at an undervalue and concluded that there was ‘no, or hardly any, quantifiable loss.’ It was on this basis that he sentenced Croft to a community order. 47. We do not accept that the verdict is unsafe in this case. The basis of sentence reflected the Judge’s difficulty in placing a financial value on the harm caused in the Waterworks transaction; but that does not put in doubt the safety of the conviction. Conclusion 48. For these reasons, the appeals of both appellants are dismissed.

2019_07_05-4655.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1111/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1111

5469c9271e688af27ec13557ff35ffda5577dfbe7224a85c8660d499025ffa8b

[2008] EWCA Crim 972

EWCA_Crim_972

2008-05-08

supreme_court

Neutral Citation Number: [2008] EWCA Crim 972 Case Nos: 2007/00035/D5, 2007/03364/D5, 2007/00654/D5, 2007/00235/D5, 2007/00036/D5 & 2007/00241/D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ST ALBAN'S CROWN COURT (His Honour Judge Plumstead) Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/05/2008 Before : LORD JUSTICE LAWS MR JUSTICE GRIFFITH WILLIAMS and HIS HONOUR JUDGE RADFORD - - - - - - - - - - - - - - - - - - - - - Between : R Respondent

Neutral Citation Number: [2008] EWCA Crim 972 Case Nos: 2007/00035/D5, 2007/03364/D5, 2007/00654/D5, 2007/00235/D5, 2007/00036/D5 & 2007/00241/D5 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ST ALBAN'S CROWN COURT (His Honour Judge Plumstead) Royal Courts of Justice Strand, London, WC2A 2LL Date: 08/05/2008 Before : LORD JUSTICE LAWS MR JUSTICE GRIFFITH WILLIAMS and HIS HONOUR JUDGE RADFORD - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - v - Gabriel Kiernan, Kevin Kiernan, Sean Kiernan, Julian Burton, Nigel Coyne Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Robert Altham and Patrick Cahill for the Crown Prosecution Service Robin Pearse Wheatley (instructed by Meldrum Young ) for the 1st appellant Roderick Johnson QC and James Nicholas (instructed by Meldrum Young ) for the 2nd appellant Terence Boulter (instructed by Meldrum Young ) for the 3rd appellant Malcolm Sinclair (instructed by Achillea & Co ) for the 4th appellant Yogain Chandarana (instructed by Meldrum Young ) for the 5th appellant Hearing dates : 6 & 7 March 2007 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Laws: INTRODUCTION 1. Before the court are four appellants and one applicant for leave. We shall refer to all five as appellants for convenience. Together with three other defendants they originally faced an indictment containing 23 counts. However in the event the Crown did not proceed on a number of charges, and in the result there were thirteen live counts for the jury to consider. These were pleaded in a revised indictment and sequentially numbered 1 – 13. We shall use this numbering in what follows. 2. On 8 December 2006 before His Honour Judge Plumstead at the St Albans Crown Court the jury returned verdicts as follows. They convicted Gabriel Kiernan (to whom we will refer as “Gabriel”) on count 1 – conspiracy to defraud, count 2 – forgery, count 3 – using a false instrument, count 4 – forgery, count 5 – using a false instrument, and counts 6 and 12 – obtaining a money transfer by deception. Kevin Kiernan (“Kevin”) was also convicted on counts 1, 2, 3, 4, 5, 6 and 12 and in addition on counts 7, 8, 9, 10 and 11: all offences of obtaining a money transfer by deception. Julian Burton was convicted on counts 8, 10, 11 and 12. Nigel Coyne was convicted on count 12. Sean Kiernan (“Sean”) was convicted on counts 7, 8 and 9. Gabriel and Kevin, together with another defendant called Kevin Halliday, were acquitted on count 13 (a further charge of obtaining a money transfer by deception). 3. There were three co-accused including Mr Halliday, whose acquittal on count 13 was by direction of the judge after his counsel’s successful submission of no case to answer. The Crown chose not to proceed against Linda Kiernan and Peter Procopi on such charges as they faced, which we need not enumerate. 4. On 14 December 2006 His Honour Judge Plumstead passed sentence. Gabriel and Kevin were each sentenced to four years imprisonment on count 1, and lesser concurrent sentences on the other counts on which the jury had convicted them. The other three appellants were sentenced to non-custodial penalties. 5. Gabriel, Kevin, Sean and Nigel Coyne all appeal against conviction by leave of the single judge, though in the case of Gabriel and Kevin on limited grounds as we shall explain. Mr Burton’s application for leave to appeal against conviction has been referred to the full court by the single judge, but only in relation to three of his five grounds. Gabriel and Kevin also appeal against sentence by leave of the single judge. As we shall explain, Kevin seeks to renew his conviction application in respect of two grounds on which the single judge refused leave. Mr Burton does not seek to renew the two grounds (grounds 4 and 5) on which the single judge refused him leave. OUTLINE OF THE FACTS 6. It will be necessary to give further details of the facts in dealing with the grounds of appeal. What follows will serve as an introductory sketch. 7. Gabriel and Kevin are brothers. Sean is Kevin’s son. Gabriel worked for a man called Derek Barrett who was involved in property transactions. Mr Barrett was named in count 1 of the indictment as a co-conspirator, but was not before the court as a defendant. Kevin also worked in the property business, as a builder and developer. Mr Coyne worked for Sean. Mr Burton was a mortgage broker. The Crown Case 8. The subject-matter of the indictment consisted in a series of property and mortgage frauds. It may be divided into three parts under the headings “Claregate”, “the Grand Hotel”, and “the mortgage frauds”. Counts 1 - 3 (which charged only Gabriel and Kevin) together constitute the Claregate part of the case. They concerned a large run-down property in about an acre of ground at Potters Bar. It was called Claregate. The Crown’s case on count 1 was that Gabriel and Kevin conspired with Derek Barrett to defraud Claregate’s very elderly owner John Harness, by inducing him to sell the property at an undervalue. On 18 November 2002 Kevin obtained from Mr Harness, for a consideration of £1, an option to purchase a 999 year lease of Claregate for £500,000, valid for two years, with a right to extend the option upon payment of a further £50,000. On the same day Mr Harness granted Kevin a shorthold tenancy of the property for two years at £10,000 a year. The option agreement was the subject of the conspiracy alleged in count 1. The Crown did not call expert evidence as to the value of Claregate; but they placed before the jury evidence of a considerable number of offers made by other parties for the purchase of the property. The Crown said that this evidence went to show that the defendants’ purpose in procuring the option from Mr Harness was to obtain the property at an undervalue. The Crown also relied on other evidence of the appellants’ conduct at the relevant time. 9. Counts 2 and 3 concerned a letter forged by Gabriel and Kevin purporting to be written by Mr Harness to a firm of solicitors called Nicolaou and Co, stating that they (the solicitors) had never acted for Mr Harness. Nicolaou and Co were in fact solicitors for a company called Love and Care Ltd. Love and Care Ltd were rivals with Gabriel and Kevin for the acquisition of Claregate. At a date after the grant of Kevin’s option, they claimed to have obtained from Mr Harness a long lease over Claregate. They sought to register this supposed interest at the Land Registry but found themselves unable to do so because Kevin’s option was on the register. The Crown accept and accepted at trial that Love and Care acted, or at the very least may have acted, in bad faith; in truth they had no lease on the property. It was also as we understand it accepted that Nicolaou and Co themselves acted in bad faith in the course of representing Love and Care Limited. 10. The Crown case on counts 2 and 3 was and is that Gabriel and Kevin placed this false letter before Mr Harness, whose mental faculties and especially his memory were gravely impaired, in order to secure that he should distance himself from Nicolaou and Co and thereby, so to speak, ward off Love and Care Limited, so as to clear out of the way any remaining difficulties which the Land Registry might raise, or which might be raised in litigation, as to the title to Claregate. This ruse would ultimately smooth the appellants’ path towards the exercise of Kevin’s option and thus the rewards of the conspiracy charged at count 1. 11. Counts 4 – 6 comprise “the Grand Hotel” part of the case. Again only Gabriel and Kevin were charged on these counts. Among them only count 6 is the subject of any ground of appeal (as we will explain in due course). The context of these counts was the refurbishment and conversion into flats of the Grand Hotel in Weymouth. The hotel was bought by Jasmin Limited, an offshore company owned or controlled by Derek Barrett. However, Kevin and Gabriel were both involved in the project. Kevin assisted Mr Barrett in obtaining a loan of £900,000 from BM Samuels Finance Group plc. Samuels had the property valued by a Mr Moses. Documentation, called the “City Space Construction Estimate”, containing a list of estimates of the cost of works and a schedule of monies paid was produced. The Crown’s case was that Gabriel and Kevin forged these documents (count 4), used them by providing them to Mr Moses (count 5) and procured the loan by the pretence to Samuels that the documents were genuine and their contents true (count 6). 12. Counts 7 – 12 (and indeed 13, although as we have said the defendants charged on that count were acquitted, and it will be unnecessary to describe its particular facts) are the mortgage frauds. Counts 7 – 9 concerned a mortgage on Flat 6, 24 Greenhill, one of the finished flats at the Grand Hotel. It was bought in Sean’s name with a mortgage of £134,975 obtained from the Royal Bank of Scotland. Count 7 charged Kevin and Sean with dishonestly obtaining the mortgage money by pretending that Sean was the true applicant for the mortgage and had a gross annual salary of £45,000. A further loan of £11,000 was obtained from Swift Advances plc. Count 8 charged Kevin, Sean and Mr Burton with having made false representations to Swift that the true applicant was Sean with a salary of £40,000. Thereafter the flat was re-mortgaged and a loan of £168,000 was obtained from the London Mortgage Company upon a representation that Sean’s income was £55,000. This was the subject of count 9, upon which Kevin and Sean were charged. 13. The Crown’s case on counts 7 – 9 was that all these loans were obtained by deception: that Kevin was behind the applications, which were in truth a financing exercise to which Sean lent his name and for which he allowed his identity to be used. The various salaries stated in the applications were entirely fictitious. 14. Counts 10 and 11 concerned Flat 8, 24 Green Hill, and a property at Goff’s Lane which belonged to Kevin. Kevin and Mr Burton were the defendants. Kevin obtained a loan of £126,976.50 from Igroup Limited to purchase Flat 8. He also raised a mortgage of £74,000 on his own home, Goff’s Lane, from Future Mortgages. Both applications were made through Mr Burton and supported by an accountant’s letter from a Mr Harnick. Mr Harnick appeared as a witness for the Crown and told the jury that the accountancy evidence he had provided was entirely bogus. Count 10 related to the false representations thus deployed in relation to the loan on Flat 8, and count 11 to Goff’s Lane. 15. Gabriel, Kevin, Mr Burton and Mr Coyne were all charged on count 12 which concerned a mortgage obtained in the name of Nigel Coyne for £191,925 from Igroup Limited in order to finance the purchase of Flat 7, Danebury, in Notting Hill. The application for the mortgage was supported by a statement that Mr Coyne’s income was £50,400, an accountant’s letter from Mr Harnick, and other documents. The Crown’s case was that the application was a money-raising exercise; Gabriel and Kevin were behind it; Mr Coyne’s income figure was false, as were the accountant’s letter and other documents. 16. There were a number of interlocutory matters on which the learned trial judge was required to rule. We shall describe these so far as necessary in dealing with the grounds of appeal, but note at this stage that submissions of no case to answer were made for all the defendants on all counts. The judge rejected all save one, count 13, which the judge allowed in part; the jury acquitted Kevin Halliday on what remained of the count. The Defence 17. Of the defendants only Gabriel, Kevin and Mr Burton gave evidence and only Mr Burton answered questions in interview. All denied any wrongdoing. 18. On counts 1 – 3 it was said that £500,000 was a fair price for Claregate, and that the letter stating that Nicolaou and Co had never acted for Mr Harness contained no more than the truth and would be used only if Mr Harness approved it. Gabriel and Kevin believed that Nicolaou and Co had purportedly acted for Mr Harness, though in fact without his instructions or consent, in relation to the supposed acquisition of a long lease over Claregate. On counts 4 – 6 it was said that the City Space Construction documents were genuine, that no deception was practised on Samuels to procure the loan for £900,000 which had been paid back in full. As for counts 7 – 12, there were cut-throat defences as between Mr Burton and the other defendants. The case advanced for Kevin, Sean and Mr Coyne was that Mr Burton was responsible for putting forward any false information in the mortgage applications. Mr Burton accepted that he filled in the relevant forms but claimed to have done so using only information provided by the named clients who signed the forms as correct. He denied ever filling in blank forms. He never suggested that Mr Harnick provide false references. Generally, it was submitted for the defendants that the lenders were not deceived. They were “sub-prime” lenders, interested only in the value of the secured property. Statements of the mortgage applicants’ income were in reality window-dressing. THE GROUNDS OF APPEAL AGAINST CONVICTION 19. We shall first address the grounds for which leave has been given or which have been referred to the full Court by the Registrar, arranged by reference to the counts in the indictment to which they relate. Kevin seeks to renew two grounds on which the single judge refused leave (his grounds 1 and 11) and we shall deal with those last. Count 1: Evidence of Value 20. Gabriel and Kevin both submit (ground 3 in each case) that the Crown’s evidence of offers to purchase Claregate, other than Kevin’s option, was in principle insufficient to support count 1. They say that the Crown’s case to the effect that £500,000 was an undervalue could not be established without expert evidence of which there was none. The proposition that £500,000 was indeed an undervalue is said to have been a material averment in count 1, and for the purposes of the argument we shall proceed on the footing that that is so. This ground is articulated on the basis that the judge should have acceded to the submission of no case to answer on count 1, but it is also submitted that the convictions by the jury on count 1 are unsafe. The point is the same: the count could not survive the absence of expert evidence. 21. The Crown’s evidence of other offers for Claregate was adduced through a surveyor, Robert Griffiths. There was a broad range of offers. They are set out in a schedule attached to the skeleton argument prepared by Crown counsel. They go as high as £1.3m for the “unrestricted freehold purchase of the site” (P+R Associates, 29 June 2001). There are other offers of lower sums. It is submitted for Kevin and Gabriel that this evidence was entirely inadequate. The higher offers took no account of certain cautions on the property; some offers were subject to the grant of planning permission for the development of the site, which Kevin’s option was not; one offer (from a Mr Eugenio, made one month before Kevin’s option was signed, of £550,000 for a lease of 125 years) was particularly relied on as being in the same range as the option; the offerors gave no live evidence and were not cross-examined, and (as the judge recognised) an offer may be pitched high in the first place to attract the vendor, but then adjusted down. There was evidence that the valuation of real estate was a highly specialised discipline, and so the over-arching submission was that without expert valuation evidence the jury were in no position to infer, or to find, that £500,000 was an undervalue for a 999 year lease. 22. There were a large number of offers. Plainly Claregate generated much interest, though the evidence was it was never advertised for sale. We have already referred to an offer of £1.3m. Within about a year before Kevin obtained his option Mr Harness received offers between £900,000 and £1.25m whose terms would have involved greater restrictions on the purchaser than were imposed pursuant to the option. One of the cautions relied on by the appellants, arising from a charge registered by a Mr Baker, was cleared by Kevin himself for £7,000. As for the option, it prevented Mr Harness from dealing with the land during its currency; there were no restrictions such as had been stipulated by Mr Harness in respect of other offers (such as a requirement that the property be used as an educational establishment or a nursing home); and the 999 year term was as good as a freehold. 23. There is plainly no legal rule that a fact such as the value of a property can only be proved by expert evidence, though obviously expert evidence would be amenable and would be likely to illuminate such an issue. However absent such a rule the only question on this ground of appeal is whether on the evidence that was adduced a reasonable jury could conclude, applying the criminal standard of proof, that a purchase pursuant to Kevin’s option would have been at an undervalue. We are clear that it could so conclude. The evidence of offers provided a variegated picture of the spread of serious interest in Claregate. No doubt the jury could not arrive at a precise valuation for themselves. But in our judgment it was certainly open to them to decide that £500,000 for a 999 year lease was below the range for a fair and reasonable price. 24. In dealing with the evidence going to undervalue it is convenient at this stage to consider a related point taken by Kevin at ground 4. It is that in addressing the relative value of leasehold interests for different terms of years the judge in his summing-up went beyond what was warranted by the evidence. This criticism is directed at a passage (summing-up transcript vol. VIII 34E – 35E) in which the judge made some graphic observations about the difference between a lease for 125 years and one for 999 years: supposing oneself to be at the end of the term, the former might have been granted in the lifetime of a juror’s grandparents; the latter when “the Britons were still living in mud huts” (the judge was not, it seems, a very good historian of early 11 th century England). He concluded (35E): “So, members of the jury, as I say, it is up to you but you are entitled to take into account that this was to be a 999 year lease on terms attached.” Kevin had himself given evidence to the effect that the difference in value between a 999 and 125 year lease was negligible. 25. The jury were plainly entitled, to say the least, to adopt a guarded view of this evidence from Kevin. While we consider the judge’s picturesque observations about times past were unhelpful, he was entitled to make the essential point that it was open to the jury to consider for themselves the difference between 999 and 125 years. There is nothing in this ground. 26. The Crown, however, has more to say on count 1. It is important not to consign the evidence into rigid compartments. The Crown relied not only on the evidence of offers, but also on other evidence concerning the appellants’ conduct. There was before the court evidence from what has been referred to as a probe – a recording device – fitted to a car used by Kevin, Gabriel and Derek Barrett. It recorded, among other things, a conversation between Gabriel and Mr Barrett in the car on 11 July 2003 (the day on which the Crown said the letter the subject of counts 2 and 3 was forged). As I have said Mr Barrett, though not a defendant, was named as a co-conspirator on count 1. The jury were plainly entitled to infer from the probe material that Gabriel had been bragging about Mr Harness having been duped into granting the option (Mr Barrett said “You’ve done very well to get all that done”). The context of this boast, however, was not so much the past as the future – the plan to create the forged letter, the subject of counts 2 and 3. As we understand it the Crown deployed the whole of the probe evidence to support their case on count 1. 27. Mr Altham, who appeared for the Crown at trial and before us, submits that material tending to show that Mr Harness was tricked into granting the option tends also and by the same token tends to show that the tricksters can have had no scruples as to the market value of the property: quite the contrary. Kevin and Gabriel’s purpose in duping Mr Harness, if that was properly proved, was to make a lot of money by illicit means. In our judgment evidence to that effect clearly went to support the Crown’s case on count 1. 28. That is, however, subject to the merits of ground 5 in Kevin’s appeal. The probe evidence was relied on by the Crown not only against Gabriel but also against Kevin. By ground 5 it is submitted that the judge failed to direct the jury correctly as to the approach they should take to statements put before them to prove the furtherance of the conspiracy. Kevin was not in the car when the recorded exchanges between Gabriel and Mr Barrett took place on 11 July 2003. However he involved himself in the discussions to the extent that he spoke to Mr Barrett by phone in the course of comments being made about whether Mr Barrett’s mother might be sent to Bournemouth to befriend Mr Harness – Mr Barrett explained the idea to him; he also joined in by phone when agreement was being arrived at to meet up in order to forge the letter. 29. The essence of the complaint advanced by Mr Johnson QC for Kevin under ground 5 is that although the judge stated the right test for admissibility of a statement in furtherance of a conspiracy as against a party absent when the statement was made, he invited the jury to apply the test for themselves; whereas he should have ruled as to what was and was not admissible evidence under this head. 30. At 39B – 40B of the summing-up transcript the judge made some observations as to what the jury might get out of the discussions between Gabriel and Mr Barrett. Mr Johnson referred to this passage in the course of his oral submissions, but it is in our judgment entirely unexceptionable unless the judge’s earlier directions on the law relating to statements made in furtherance of a conspiracy can be faulted. These directions are at 17D ff. Dealing with the probe evidence in the context of the conspiracy charge he said: “You need to know what use you can make of that and how you can use them [sc. the conversations] and that is because they include on a number of occasions things said by one of the accused in that conspiracy, and if you have your indictments there you will see the three names are [Gabriel], [Kevin] and [Mr Barrett], when things are said by one of those accused which may, if you apply these directions I am about to give you, affect the case of another accused even if that other accused is not there and not involved in the conversation… The answer is when you are dealing with a statement made during the time that a conspiracy was underway by one person to another which involves the interests of a third one you need to have these factors in mind. Firstly, you would have to be satisfied… that the people who are talking are people who are involved in the conspiracy. Secondly, as to what is said, you would have to be satisfied that what was said is reasonably open to the interpretation that they were talking in furtherance of the conspiracy. That is that the discussion was a part of an ongoing conspiracy. Thirdly, before you could use that against the absent person… you would have to be satisfied in relation to the third person that that other person is within the conspiracy…” The learned judge proceeded to illustrate the effect of these directions by means of a somewhat graphic example. We need not set that out. 31. Mr Johnson for Kevin accepts that the judge’s directions as we have set them out were perfectly correct as far as they went. However he says that they delineate a test for the admissibility of the evidence in question, and so the judge should have applied them so as to decide for himself which parts (if any) of the exchanges between Gabriel and Mr Barrett were admissible against Kevin and ruled accordingly. By contrast he told the jury this (20A – B): “[I]t is your job to look in the way that I have just directed you to see what evidential value you believe those conversations have.” 32. Mr Johnson submits further that as regards any part of this evidence which he held admissible as against Kevin, the judge should have warned the jury of its drawbacks or dangers as hearsay. By reason of these failures of the judge the verdict on count 1 is said to be unsafe. 33. Mr Altham for the Crown reminds us that in any event Kevin was party to some of the discussion between the other two, having joined in by telephone. However that did not apply to the exchange where Gabriel is bragging about having tricked Mr Harness into signing the agreement and the two discuss the creation of the letter (the subject of counts 2 and 3), nor to a conversation between Gabriel and Mr Barrett on 16 August 2003 about sending a person of Greek appearance, posing as a representative of Nicolaou and Co, to talk to Mr Harness. 34. In Jones [1997] 2 CAR 119, 132A this court referred to Ahern (1988) ALR 162 in which the High Court of Australia considered (p. 171) that “the preferable view [was] that the trial judge alone should determine the sufficiency of the independent evidence” (in context, the reference is to evidence of the kind in question here). Mr Altham submits, however, that it is at least not clear that this approach was endorsed in Jones as correct in the law of England, because the court cited without criticism (at 133F – 134A) a passage from the trial judge’s summing-up in which the jury were directed in terms akin to the direction in this case which we have set out. But as we understand it the trial judge in Jones had in fact himself ruled the relevant evidence admissible (see 134B – C), and this court expressed no reservations as to the reasoning in Ahern , which is of course high persuasive authority. There is in our view no basis for suggesting that the law of evidence in this respect differs as between England and Australia. 35. That, however, is by no means the end of Mr Altham’s answer to this ground of appeal. He submits first that in truth, the relevant evidence of exchanges between Gabriel and Mr Barrett was plainly admissible. The three conditions mentioned by the judge in his direction to the jury were all met. In particular there was ample other evidence to show that Kevin was involved in the conspiracy. This seems to us to be right. Kevin obtained the option in the first place. His telephone interventions on 11 July 2003 were intermingled with what the other two were saying. He was party to the creation of the letter. And these two points run together: Kevin joined the other two at the internet café where the letter was produced, and then got into the car with the other two and the conversation was promptly picked up virtually where it had been left off. 36. It is not without significance that so far as we are aware no submission was made during the trial to the effect that the judge should rule inadmissible as against Kevin any part of the exchanges between the other two, nor was any objection taken to the terms in which the judge directed the jury about those exchanges. There has been no serious attempt before us to show that any of the evidence was in fact inadmissible. There is in our judgment nothing in Kevin’s ground 5. We should add that we find no force in the subsidiary argument that the jury should have been warned as to the limitations of this evidence, or the use they might properly make of it. It is true, certainly, that against Kevin it was hearsay: save, however, to the extent that he participated from time to time, and that is in our judgment an important feature. So is the fact that, as we have said; Gabriel gave evidence and was accordingly subject to any proper cross-examination on behalf of Kevin. 37. In our judgment the grounds advanced for Gabriel and Kevin relating to count 1 are without foundation. They possess, however a corollary which we should deal with now. It is expressed as ground 4 in Gabriel’s case, ground 6 in Kevin’s. The argument is that had a submission of no case on count 1 succeeded, an application to discharge the jury in relation to the remaining counts faced by Gabriel and Kevin would also have succeeded owing to the substantial prejudice occasioned to Gabriel and Kevin by the jury’s knowledge of the count 1 accusation. However in light of our conclusions on the grounds relating to count 1 the point falls away. Counts 2 and 3: Whose Prejudice? 38. Gabriel (ground 5) and Kevin (ground 7) both submit that counts 2 and 3 should have been withdrawn from the jury. Mr Pearse Wheatley for Gabriel draws attention to the terms of ss.1 and 3 of the Forgery and Counterfeiting Act 1981 to show that the offences of forgery (count 2) and using a copy of a false instrument with intent (count 3) both require proof that the defendant intended “to induce another to accept it [the document in question] as genuine and by reason of so accepting it to do or not to do some act to his own or another person’s prejudice”. It is then submitted that on the facts of the present case the only persons who might be affected by the letter – and thus potential victims of prejudice under the statute – were the solicitors for Love and Care Ltd, Nicolaou and Co, and Mr Harness. However neither could be prejudiced by the letter since its statement that the latter had not instructed the former was the simple truth. Gabriel’s ground 5 also makes a related point, namely that the letter cannot in law have been a forgery, because it did not “tell a lie about itself”. 39. On this approach one might be forgiven for wondering what the letter was for. At trial it was said for the defence (see summing-up, 43C) that it was intended to put the letter before Mr Harness for his approval and used only if he approved it. But part of the exchanges between Gabriel and Mr Barrett recorded by the probe on 11 July 2003 make it plain that they were at that stage contemplating forging Mr Harness’ signature. As it happened, on the Crown’s case the plan evolved through several forms and when at length it was carried into effect it involved an unsigned copy being left at Mr Harness’ home in Bournemouth, where such a copy was found after his death. 40. Mr Altham points to the fact, of which there was ample evidence, that Kevin and Gabriel were prepared to go to very great lengths to obtain the fruits of the option. Inherent in this ambition, it is submitted, was a determination to neutralise the competition offered by Love and Care Ltd. It was shown that Mr Barrett was concerned at the scrutiny being brought to bear on the title to Claregate by the Land Registry, who were seemingly faced with two competing interests. There was also a concern to avoid litigation. The letter was to play its part in clearing Love and Care Ltd out of the way. The consequence would be that the Land Registry would step back and the goal of achieving the 999 year lease would be that much nearer. 41. The judge told the jury this (45F – H): “You only convict [on count 2] if you are sure that the defendant whose case you are considering took part in the creation of a bogus letter nothing to do with Jack Harness in order to obstruct or deflect their rivals and damage theirs or Harness’s economic interest and you bear in mind that the Crown’s case is that this was an attempt to spike the guns of the solicitors, Nicolaou & Co, who the defendants, say the prosecution, wished to discomfort and deflect and thereby to act to their own or another’s prejudice.” 42. In our judgment this direction sits perfectly well with the way the case was put by Mr Altham before us, as we have described it. The appellants would have it that there was some slippage (not a term that counsel used) in the Crown’s identification of the victim of potential prejudice between Mr Harness and Messrs Nicolaou and Co. We do not think there was. The overriding purpose of the letter was to facilitate the grant of the lease on Claregate pursuant to the option; given count 1, that was obviously to Mr Harness’ prejudice since if the plan came to fruition he would be parting with the property at an undervalue. This was the position whatever might be said of any prejudice to Messrs Nicolaou and Co. 43. We should add that there is no question of the letter not telling “a lie about itself”. It would falsely purport (signed or not) to have been written by Mr Harness. 44. There is nothing in the grounds relating to counts 2 and 3. Gabriel and Kevin’s appeal in relation to the Claregate counts will accordingly be dismissed. Count 6: Was Samuels Deceived? 45. The Grand Hotel counts (4 – 6) come next. There is no appeal relating specifically to counts 4 and 5, which concerned the City Space Construction Estimate. (Gabriel and Kevin applied for leave to appeal their convictions on these counts. Their applications were refused by the single judge and have not been renewed. However Gabriel has one ground of appeal (his ground 10) not tied to any particular count; we assume he intends it to apply to all the counts on which he was convicted, and we deal with it below.) Count 6 also concerned the City Space Construction Estimate. As we have said it charged Gabriel and Kevin with obtaining the loan of £900,000 from BM Samuels Finance Group plc by deception. Counts 7 – 12, relating to the mortgage frauds, were as we have shown also charges of obtaining money transfers by deception. Kevin appeals (ground 9) against his conviction on all of these counts, that is counts 6 – 12, on the ground that there was insufficient evidence to prove that the person from whom the money was obtained was in fact deceived. Gabriel appeals (ground 8) against his conviction on grounds 6 and 12 on a like basis (he was not charged on counts 7 – 11). There are like appeals by Mr Coyne and Sean against their convictions on the mortgage fraud counts on which they were charged. It is convenient to deal with Kevin and Gabriel’s appeal on count 6 first and separately, not because it alone relates to the Grand Hotel but because all the other counts (7 – 12) possess a common feature absent from count 6, namely that the Crown did not call as a witness the person on whose mind the relevant deception was said to have operated. 46. That is not, however, the case in relation to count 6 to which we now turn. The Crown case was that after receiving the application BM Samuels sent their valuer, Mr Moses, to value the Grand Hotel. He was supplied with the City Space Construction Estimate, which purported to be or to contain a true and accurate representation of the works so far done and to be done, together with estimates of costs and money so far expended. The documents were on City Space headed paper. In fact, said the Crown, they were bogus. The Crown asserted (and presumably the jury accepted) that the work had not been done by City Space as the documents stated. They called Mr Samuels from the lenders. He told the jury that he would not have authorised the loan of £900,000 had he known that he was being supplied with forged documents in support of the loan application. 47. In this court there is no issue but that the documents were forged. However the Crown had also of course to prove a causal link between the presentation or use of the forged documents and the grant of the loan. The appellants point to the fact that Mr Samuels agreed that it did not matter to him “a row of beans” who had done the renovation work on the Grand Hotel as long as it had been done to the appropriate standard. There was no suggestion that it had not. Accordingly it is submitted for Gabriel and Kevin that the fact of the forgery had no operative effect on the mind of Mr Samuels when he authorised the loan. 48. Summing up to the jury the learned judge said this (58E – 59E): “[The prosecution case] is using bogus documents... and that that falsehood... at least in part caused Samuels to make the transfer. I have said at least in part because of course it is perfectly clear from the evidence in this case that Bernard Samuels is a business which specialises in marginal business. Its primary concern when it makes a loan... is the value of the asset... So, members of the jury, you must only convict in this case if you are sure... that the effect [sc. of the false documents] was material, that is of some significance, real significance, on Mr Moses’ opinion and therefore on Samuels’ decision to make a loan.” 49. In our judgment the appellants’ argument rests on a non sequitur. The fact, if fact it was, that Samuels were not interested in who had done the renovation work so long as it was up to standard does not imply that the authenticity or otherwise of the documents produced was irrelevant to the loan decision. As we have said, Mr Samuels told the jury that he would not have authorised the loan had he known that he was being supplied with forged documents. That evidence is not undermined by the company’s attitude to the quality of the work and who carried it out. The judge was right to reject the submission of no case that was made on count 6, and the jury were wholly entitled to convict the defendants. There is nothing in the grounds relating to count 6. Counts 7 – 12: Proof of Deception 50. As we have indicated Gabriel’s ground 8 and Kevin’s ground 9 encompass a submission in relation to counts 7 – 12 (in Gabriel’s case, count 12 only) to the effect that there was insufficient evidence to prove that the person from whom the money was obtained was in fact deceived. There is thus on the face of it an affinity with the appeal on count 6, but the argument is quite distinct. The over-arching point on counts 7 – 12 is that the Crown failed to call direct evidence to prove the operation of deception upon the person or persons who in each case could be said to represent the state of mind of the company which was said to have been deceived. Under this head we have to consider not only Gabriel and Kevin’s appeals but also those of Mr Coyne and Sean. Mr Coyne was charged and convicted only on count 12; Sean on counts 7 – 9. Mr Coyne has advanced two related grounds of appeal, both of which bear on this part of the case. In Sean’s appeal grounds 1 and 2 are relevant. 51. On counts 7 – 12 it was generally the defence case (as we have stated) that the lenders were not deceived. They were “sub-prime” lenders who charged high rates of interest and would usually not lend more than 75% of the property’s assessed value. The loans took the form of self-certification mortgages. Proof of income was not required and the income stated was not checked. The lenders were really only interested in their security. That is the background, it is said, against which the Crown were required to prove that the deceptions alleged in these counts operated on the lenders’ minds so as to procure the loans. 52. Much of the burden of argument on this part of the case was undertaken by Mr Chandarana on behalf of Mr Coyne. His first and primary point consists of a twofold submission. (1) In a case of obtaining by deception the Crown must prove that the deception in question operated on the mind of the person deceived so as to cause him to act in the way alleged. (2) Evidence to that effect must come from the person deceived. The first of these propositions is effectively, and rightly, conceded by Mr Altham for the Crown, whose skeleton argument (p. 18) accepts that the Crown must prove that “a mind, which is a mind capable of being taken as representative of the company, has operated under a false inducement”. 53. The real question is as to the second proposition. The appellants say it draws support from Laverty (1970) 54 CAR 495 and Rozeik [1996] 1 CAR 260. In Laverty Lord Parker CJ said this at 497 – 498: “It is axiomatic that it is for the prosecution to prove that the false representation acted on the mind of the purchaser, and in the ordinary way, and the court emphasises this, the matter should be proved by direct evidence... This court is anxious not to extend the principle in Sullivan more than is necessary. The proper way of proving these matters is through the mouth of the person to whom the false representation is conveyed.” In Sullivan (1945) 30 CAR 132 it was held that proof of an operative deception need not in every case be afforded by direct evidence, if no other inducement is suggested. 54. Mr Chandarana says that the approach taken in Laverty was built on in Rozeik [1996] 1 CAR 260. In that case the defendant was charged with dishonestly obtaining cheques from two finance companies. The prosecution accepted that the branch managers of the companies might not have been deceived; but the judge directed the jury that they could convict if they found that any employee of the company was deceived by the false invoice into doing something which resulted in a cheque being obtained. Delivering the judgment of the court Leggatt LJ said this at 266F – 267A: “There were therefore two reasons why the judge’s direction was wrong, that it was sufficient that any employee of the company was deceived who was concerned in the provision of each cheque. First, the question is not whether any employee of the company was deceived but whether any employee whose state of mind stood as that of the company knew of the falsity of the transaction, since if he or she did know, the company also knew. If the company knew, it would not matter how many fellow employees were personally deceived. Secondly, and in any event, a cheque could only be obtained from the company from an employee who had authority to provide it. The deception had to operate on the mind of the employee from whom the cheque was obtained. In no sense could a cheque be ‘obtained’ from the person who merely typed it out. So the judge’s references to ‘any’ employee were fatally wide. What the Crown had to prove was that when the cheque was obtained from the company it was obtained from a person who was deceived.” 55. Between the decisions in Laverty and Rozeik the House of Lords gave judgment in Lambie [1982] AC 449 . The defendant was charged with obtaining a pecuniary advantage by deception. She was in possession of a credit card but had exceeded her credit limit and had failed to return the card to the bank, despite her promise to do so. In those circumstances she had no authority from the bank to use the card. However she used it to acquire goods at a shop, presenting the card to the departmental manager who checked the details on the face of the card and filled in the appropriate voucher. The defendant thus obtained the goods. This court allowed her appeal against conviction on the footing that there was no evidence that the departmental manager was induced by a false representation that her credit standing at the bank gave her authority to use the card. The Crown’s appeal to their Lordships’ House was allowed on the basis that the defendant’s credit standing was irrelevant. Her presentation of the credit card implied only a representation that she had actual authority to make the contract with the shop on the bank’s behalf to the effect that the bank would honour the voucher. As Lord Roskill (giving the only reasoned speech) observed (at 460C) the only remaining question was whether the departmental manager was induced by that representation to complete the transaction. Lord Roskill held that had she been asked whether she would have done so had she known that the defendant was acting dishonestly and had no authority whatever from the bank to use the card, her answer must have been No. 56. Lord Roskill proceeded to state as follows 460G – 461A: “My Lords, credit card frauds are all too frequently perpetrated, and if conviction of offenders for offences against sections 15 or 16 of the Theft Act 1968 can only be obtained if the prosecution are able in each case to call the person upon whom the fraud was immediately perpetrated to say that he or she positively remembered the particular transaction and, had the truth been known, would never have entered into that supposedly well-remembered transaction, the guilty would often escape conviction. In some cases, of course, it may be possible to adduce such evidence if the particular transaction is well remembered. But where as in the present case no one could reasonably be expected to remember a particular transaction in detail, and the inference of inducement may well be in all the circumstances quite irresistible, I see no reason in principle why it should not be left to the jury to decide, upon the evidence in the case as a whole, whether that inference is in truth irresistible as to my mind it is in the present case.” After expressing his agreement with the ratio in Sullivan , Lord Roskill continued (461D – E): “It is true that in R v Laverty ... Lord Parker CJ said that the Court of Appeal, Criminal Division, was anxious not to extend the principle in Sullivan further than was necessary. Of course, the Crown must always prove its case and one element which will always be required to be proved in these cases is the effect of the dishonest representation on the mind of the person to whom it is made. But I see no reason why in cases such as the present, where what Humphreys J called the direct evidence of the witness is not and cannot reasonably be expected to be available, reliance on a dishonest representation cannot be sufficiently established by proof of facts from which an irresistible inference of such reliance can be drawn. ” 57. The judge referred to some of this authority in rejecting submissions of no case to answer. He said (transcript vol. III 6A – C): “The defence rely on Sullivan and Laverty and distinguish Lambie and submit that the Crown can only prove that the deception operated on the mind of someone who authorised the loan by calling the individual who dealt with the application on the lender’s behalf. While I am sure this remains literally true in any instance where the individual is directly the target of a fraud, I rule that where a company is the target and the application is processed by one or more of teams of staff whose role is to check applications against criteria established by their employers, none of whom may be expected to have any recollection at all of one among many routine applications, there can be no universal rule requiring that such individuals be identified and brought to court.” 58. In due course the judge directed the jury thus (summing-up, 153E – 154H): “[S]ubmissions have been made to you that in these cases what you have lacked... is somebody who comes along and says, ‘I looked at this application and I made the decision to grant the loan. The decision I made was influenced by A, B or C.’ ... There is no such evidence in this case. The question is does that prevent you from reaching a conclusion on these counts? I direct you that it does not. If you are looking at a mortgage that is granted by a large commercial provider of domestic mortgages I direct you that you are entitled... to act on the evidence of a member of staff authorised to speak on behalf of the company about such matters... You do not need to root through a call centre or trawl through a processing centre to find which individual looked at a form and pressed the buttons... What you have to be sure of is the principle and the principle in this case was set out for you by Anne Bowes who her company puts forward as somebody who can speak on their behalf and what she said was that if the details on an application were found to be untrue they wouldn’t lend money.” 59. Anne Bowes was a prosecution witness who had been employed, as we understand it, by one of the lenders. At 155B – H the judge described her cross-examination by Mr Boulter for Sean. He reported her (155H) as saying when pressed that “she wouldn’t even lend 15% of the value of the property on a false application form”. 60. Upon each of counts 7 – 10 the Crown relied on evidence of system or practice, to the effect that had the lender known that the mortgage applications and/or supporting documentation contained false representations as to such matters as the applicant’s income, the loan would not have been advanced. One can see an example of such testimony in the transcript (vol. XII) of Mr Jeffery Maye’s evidence in chief at 3H – 7E. 61. It is submitted for Kevin, in somewhat general terms, that on counts 7 – 12 the Crown witnesses called to prove the operative deceptions “were essentially document producers or fraud investigation officers... [who] were not the people on whom the deception could be said to operate”. The argument is that it must be shown that the relevant deception operated on the mind of the person who actually authorised the mortgage in each instance, and if the Crown is to prove its case that person must give evidence (skeleton argument paragraph 17). We apprehend that Gabriel would join in this submission so far as it relates to count 12. It was likewise submitted for Sean that fraud investigators were called from the lenders, and they were by no means individuals on whom any deception might have operated so as to procure a mortgage. 62. Mr Chandarana on behalf of Mr Coyne has somewhat more detailed submissions on the facts of count 12. The Crown said that Mr Coyne was not a bona fide applicant to Igroup for a mortgage to purchase 7 Danebury. He was a front for Kevin and Gabriel. A witness called Kate Sinnott (who gave evidence also on other counts) produced the mortgage application and linked documents. However her job description, at any rate at the date of trial, was Money Laundering Prevention Officer. She had played no part in dealing with the application, and could not answer questions as to the detail of the process. Concerns as to the scope or efficacy of her evidence were expressed by the defence. It is stated in Mr Chandarana’s skeleton (paragraph 8) that it was expressly submitted to the judge that Mr Ian Harding, the underwriter at Igroup who acted on the application, would be the right witness. But the Crown informed the court (as Ms Sinnott had said in evidence) that Mr Harding no longer worked for the company. They called Mr Maye, to whom we have already referred in passing. He was an underwriting manager but had had nothing to do with the particular case. 63. As we understood him Mr Chandarana did not submit that the only permissible mode of proof of the alleged operative deceptions in the mortgage fraud counts was “through the mouth” of the person on whom the deception is said to have operated. His first argument was, rather, that indirect evidence would only suffice if “the direct evidence of the witness [sc. who acted on the deception] is not and cannot reasonably be expected to be available” ( Lambie at 461E: it is notable, however, that Mr Chandarana suggested – skeleton paragraph 32 – that Lambie was decided on its own facts). On count 12 the relevant witness was Mr Harding, and it was by no means shown that his testimony was not and could not reasonably be expected to be available. As we have indicated the Crown simply informed the court that Mr Harding no longer worked for the company. In the alternative, Mr Chandarana submitted that a Mrs Shelia Patel might have been an appropriate witness, there being some evidence that she too was directly involved in the mortgage application process to which count 12 related. 64. Before confronting this submission, and the more general submissions advanced for Gabriel, Kevin and Sean which march with it, it is convenient to describe Mr Chandarana’s second argument. This seeks to advance a specific reason why Mr Harding should have been called. It requires us to describe certain further factual points relating to count 12. In particular, reference is made to two documents. One is headed “Declaration of Affordability”. It was numbered 11a at the trial and we shall so refer to it. It was the only document disclosed by the Crown which contained a statement (actual or purported) of income from the mortgage applicant. The second document – 12a – is a letter from the appellant Mr Burton to Mr Harding at Igroup dated 24 February 2003. 11a is signed but not dated by Mr Coyne. The date (“19/2/03”) is inserted in manuscript under the words “taken today’s date”. 12a, which contains a request for the mortgage to be increased to the amount of the purchase price, also contains a handwritten note. It says “purchase price - £190,000 we cannot do this?”. Ms Sinnott stated that someone at Igroup would have made this note. An expert witness stated (through a formal admission) that the manuscript additions to both documents were likely to have been made by the same hand. In the course of his evidence Mr Maye (vol. XII 26H – 27A) accepted that it is bad practice and “verges on illegal” (counsel’s words) for an underwriter to date a document such as 11a. 65. On this material Mr Chandarana submits that had Mr Harding been called he could have been cross-examined as to whether he made the manuscript notes, and if so why he (or if it was not him, another member of his team) put a date on 11a. Counsel would have been able to investigate whether an employee – Mr Harding or another – “whose state of mind stood as that of the company” ( Rozeik ) in fact knew of the falsity, if false it was, of the income declaration. Such a person’s knowledge would fix the company with like knowledge along the lines explained by Leggatt LJ in Rozeik , and in that case the Crown would not have proved that the deception procured the mortgage. 66. Those are the arguments on this part of the case. We turn to confront the first: that the operative deceptions had to be proved “through the mouth” of the person on whom the deception is said to have operated. 67. The law of evidence contains no rule that the effect of a deception may only be proved by the testimony of the person said to have acted on the deception. In accepting ( Lambie , 461E) that proof of facts giving rise to an irresistible inference of reliance may suffice “where... the direct evidence of the witness [sc. who acted on the deception] is not and cannot reasonably be expected to be available” Lord Roskill was not with respect suggesting that if the person who so acted is available to come to court, he must be brought and other evidence should not be admitted. The reference to direct evidence being available must refer to the prospective testimony of a witness who recalls the specific transaction and can give “direct” evidence of the effect on his mind of the representations made. In Lambie itself the departmental manager was no doubt available to give evidence. She had attended the committal hearing and her deposition was read at trial. But she could not give “direct evidence” because she could not be expected to recollect the particular transaction. No doubt in a case where such “direct evidence” is available, it should be called; Laverty establishes nothing more. 68. It follows that the possible availability of Mr Harding to give evidence on count 12 was no impediment (subject to what may be called Mr Chandarana’s Rozeik argument) to the receipt of evidence, such as was given by Mr Maye, to the effect that had the lender known that the mortgage applications and/or supporting documentation contained false representations as to such matters as the applicant’s income, the loan would not have been advanced. It is not suggested, as we understand it, that evidence of general practice of this kind is inadmissible, nor could it be. On this first argument, therefore, the only question is whether in the circumstances of the mortgage fraud counts or any of them such evidence is insufficient to prove that the deception was acted on by the lender. 69. We see no reason why such evidence should be insufficient. And there may be many cases where it will be the only kind of evidence available to prove the nexus between the deception and its outcome. Mortgages are granted by very large companies on a very large scale, deploying more or less fixed and formal procedures. It is simply unreal to suppose that an individual employee of such a company, called months or years after the event, will remember the details of a specific past transaction and the effect of the specific loan application. He can only speak of the company’s practice. He can say, if it is the fact, that had he known the application contained deliberate falsehoods he would not have authorised the loan. 70. We therefore reject the submission that the operative deceptions had to be proved “through the mouth” of the person on whom the deception is said to have operated. 71. That being so, all that is left in Mr Chandarana’s Rozeik argument is the suggestion that the Crown were obliged to call Mr Harding to allow for the possibility that his cross-examination by the defence might show that he, or another employee, had knowledge of the deception inherent in the mortgage application, thus fixing Igroup with the same knowledge. In our judgment, however, documents 11a and 12a do not in reality contain the seeds of such a suggestion; it was in any event open to Mr Coyne’s counsel to explore such a possibility as far he chose with Mr Maye; Mr Coyne’s actual defence was to lay the blame for all and any deception at Mr Burton’s door; he could have given evidence to rebut what was to our minds the otherwise irresistible inference that he was party to the supply of false information which operated on the mind of the lender. 72. For all these reasons the grounds of appeal relating to proof of deception on counts 7 – 12 are not made out. Counts 10 and 11: Mr Harnick –Kevin’s Knowledge 73. This is Kevin’s ground 10. It will be recalled that on these two counts the Crown alleged that the mortgage applications were supported by an accountant’s letter from a Mr Harnick, who appeared as a prosecution witness and told the jury that the accountancy evidence he had provided was entirely bogus. It is submitted that there was no evidence that Kevin knew about these false references, and so the case should have been withdrawn from the jury. On count 10, the mortgage application form contained no reference to Mr Harnick, whose supporting reference bears a later date. Mr Harnick’s evidence was that he sent the letters to Mr Burton. Likewise on count 11 there was no cross-reference on the face of the documents between the application and the Harnick letter, and no evidence on either count that the Harnick letter was sent to Kevin. 74. There is no merit in this ground. First, it is in the highest degree unlikely that Mr Burton would have submitted the Harnick letters to the lender without Kevin’s knowledge. As a matter of practice (of which Mr Burton would have been well aware) Igroup conducted what was called a “speakwith” with the applicant before the mortgage was completed. There was every possibility that the speakwith would have revealed that Mr Harnick was not Kevin’s accountant. The application form on count 11 had Kevin’s mobile phone number on it, and in another instance Mr Burton provided Kevin’s mobile number to the lender to facilitate the speakwith (though in fact in that case the mortgage was being taken in Sean’s name). 75. Moreover the jury had evidence, introduced by Mr Burton after the close of the Crown case, that a faxed copy of a Harnick reference was found in a filing cabinet at Kevin’s home. It was addressed to Igroup and bore Kevin’s reference. In addition there was evidence of a meeting at a supermarket between Kevin, Mr Burton and Mr Harnick after the police had made arrests in the case. Mr Harnick had been arrested, and gave evidence that he had telephoned Kevin twice to seek reassurance. There was no suggestion that Kevin had been surprised to hear from him, or wondered who he was, or anything of the kind. Lastly – but this of course could not prove the case on its own – Kevin’s previous convictions for mortgage fraud were introduced by way of admission. He had on earlier occasions used accountants’ references to support bogus income figures. The Mortgage Fraud Counts: A Witness not Called 76. Under this head the grounds are Kevin ground 10 and Gabriel ground 9. Mr Johnson for Kevin has made the running; his argument is adopted for Gabriel (in relation to count 12). There were as we have said cut-throat defences on the mortgage fraud counts. The case advanced for Kevin, Sean and Mr Coyne was that Mr Burton was responsible for putting forward any false information in the mortgage applications. He would ask them to sign the application forms in blank, and himself filled in whatever figures were necessary to justify the loans sought. They had no idea that he put in false figures and did not ask him to do so. Mr Burton accepted that he filled in the forms but said he only inserted details provided by the client, who signed them as correct. He denied ever filling in blank forms simply to suit a lender’s criteria. Some blank signed application forms were found by the police among Mr Burton’s papers. He said he sometimes gave Kevin blank forms and they came back signed; they were no use, but he did not throw them away. 77. Late in the trial, after Mr Burton gave evidence but before the conclusion of Kevin’s case, the Crown served a statement made by Alison Braithwaite. She was Mr Burton’s ex-wife. It seems the statement was made in domestic proceedings in which Mr Burton sought, or had obtained, a freezing order against her assets. In it she stated that she often signed forms which Mr Burton then took away to complete. Mr Johnson for Kevin applied to call Ms Braithwaite, contending that what she had to say conspicuously supported his defence. The application was not opposed by the Crown, though Mr Altham observed in passing (transcript vol. VII 8C) that it was a “bad character application”, and the judge said he supposed that it was. This was a reference to s.101(1) (e) of the Criminal Justice Act 2003 , to which we will refer further. 78. The judge opined that had this material come to light earlier, when Mr Burton’s case was still under way, he might well have acceded to Mr Johnson’s application. As it was, however, to do so at the present juncture would involve allowing Mr Burton to “re-open his case utterly” (vol. VII 9B), and perhaps giving time for investigations to be made into the documents referred to by Ms Braithwaite (9C). The process would be unfair to Mr Burton: his case would have to be re-visited after other defendants had given evidence. As it was, the jury already had evidence of blank signed application forms in Mr Burton’s possession. And so the judge declined to allow Mr Johnson to call the witness. 79. By s.98 of the Criminal Justice Act 2003 : “References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which— (a) has to do with the alleged facts of the offence with which the defendant is charged...” S.101(1) (e) provides: “ In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— ... (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant”. 80. Apart from the passing reference which we have noted the judge in his ruling on this issue did not turn his mind to the question whether Ms Braithwaite’s testimony would amount to evidence of Mr Burton’s bad character within the meaning of s.98 , and if so whether it was admissible pursuant to s.101(1) (e). For the sake at least of clarity it would have been better had he done so. If it was not bad character evidence, its admissibility would have depended on the general law, and in particular its relevance to the issues joined in the case; if relevant, Mr Johnson would on the face of it have been entitled to put it in. Mr Altham submits that it would indeed have been bad character evidence but, he says, it is doubtful whether it had “ substantial probative value in relation to an important matter in issue between the defendant and a co-defendant”. 81. We entertain considerable doubt whether what Ms Braithwaite might have said would have amounted to evidence of Mr Burton’s bad character within s.98 . As the judge was at pains to recognise (vol. VII 5A – E, 7C – F) she was describing things done in an entirely domestic setting, and it must be questionable whether evidence of a husband giving his wife blank forms to sign can realistically be said to show misconduct on his part, at least in the absence of a telling and specific context. But even if this was bad character evidence, we do not think it possessed the substantial probative value required by s.101(1) (e). It threw little light if any on Mr Burton’s business practices. By the same token, if it was not bad character evidence and its admissibility depended simply on its relevance, we consider its relevance was thin at best. We are clear that its exclusion does not touch the safety of Kevin or Gabriel’s conviction. We consider, as did the judge, that it is not without significance that the jury had other (and if anything more telling) evidence of signed blank forms in Mr Burton’s possession. 82. In our judgment this ground of appeal is not sustained. Counts against Gabriel: Criminal Justice Act 2003 s.101(1) (f) 83. As we have indicated, we take it that Gabriel’s ground 10 is intended to apply to all the counts on which Gabriel was convicted, that is to say counts 1 – 6 and 12. The complaint concerns a ruling of the judge allowing cross-examination of Gabriel by the Crown as to the fact that he had absconded many years earlier following a previous conviction, and had remained unlawfully at large for thirteen years until he was arrested on these present charges. 84. Gabriel (in common with Kevin) had a previous conviction or convictions for mortgage fraud and the learned judge ruled at an early stage that those matters might go before the jury. No complaint is made of that. The judge at that stage rejected the Crown’s further application to admit evidence of the fact that Gabriel had absconded on the day of his conviction and remained at large, as we have said, until his present arrest. He later reversed this ruling in light of certain answers given by Gabriel in cross-examination. Here is what the judge said (transcript vol. VI, 3A – F): “[Gabriel] was pressed on whether or not he is a dishonest man and he said, ‘I did things in 1992 and I have paid for it’... I suppose that might have been a slip. He might have paid for it when in fact ‘paying for it’ would have been technically more accurate. If that’s as far as it went I should not have entertained the Crown’s application. He went on to say, ‘I broke the law in 1992 and paid my debt to society’. That was the point that I recollect my attention being drawn very strongly to what he was saying. He was asked, ‘You haven’t done anything wrong in this case?’ ‘No.’ ‘You must have decided to mend your ways?’ ‘I learned my lesson. I went to prison and I didn’t like it.’ The past tense is maintained in circumstances which lead to this impression [ sic ]. In my opinion, I am quite sure that the defendant was seeking to give the impression that he had learned his lesson before the events with which he is now being faced on this trial ever took place. In other words, that he had a past record, he was entitled to live it down and put it behind him and that he had learned his lesson. That is very different from somebody who... was only apprehended when his identity became known and at the point of arrest in this investigation which led to these proceedings. So [Gabriel] has given an impression which is false, in my judgment, which is that before he ever got involved working for Mr Derek Barrett in these events he is somebody who had (past tense) learned his lesson.” 85. Though the syntax is ragged the reasoning is perfectly clear; and in our judgment entirely correct. In the witness-box Gabriel was purveying the impression that he was a reformed character, having “learned his lesson” by serving his time for previous crimes. He was nothing of the sort. He had by no means served his time. He had been on the run and (plainly) would have remained so had he not been arrested for these fresh crimes. Mr Pearse Wheatley submits that the cross-examination recorded by the judge amounted to a trap laid by the prosecution. We see no reason so to hold. The judge was quite right to allow cross-examination of Gabriel’s absconding as “ evidence to correct a false impression given by the defendant” within the meaning of s.101(1) (f) of the Criminal Justice Act 2003 . Counts 7 – 9: Sean’s Further Ground 86. Sean’s ground 3 asserts that the judge wrongly refused to allow Mr Burton to be recalled to face further cross-examination on Sean’s behalf on certain documents which had been put to Mr Burton in the course of his cross-examination by the Crown. The documents are four letters from Mr Burton, three to Sean and one to the lender, Swift Advances plc. Mr Boulter on Sean’s behalf says that this cross-examination would have assisted him in exposing Mr Burton’s fraudulent conduct in completing mortgage application details on a form signed in blank by Sean. He says that the judge had allowed the Crown to put the documents to Mr Burton (the Crown had not disclosed them earlier) on the basis that he (Mr Boulter) would have an opportunity to cross-examine on them. It was not in fact the judge’s clear recollection that he had in terms indicated that that would be allowed (see transcript vol. V 4A); but what matters is not whether the judge changed his mind but whether his refusal to allow the cross-examination goes to the safety of Sean’s conviction. 87. It is necessary only to set out part of the first of these documents, a letter from Mr Burton to Sean dated 7 August 2002: “I have been asked by your dad to send you the enclosed mortgage application form, for your proposed purchase of one of his flats. I understand the purchase price to be £145,000, and that you require 85% of this on a ‘self certification of income’ basis. In addition to the completed application form, I would also require from you a copy of either your passport or driving licence as proof of ID... On receipt of the above, I will be able to place it with a lender, and confirm to you the scheme, interest rate, payments etc, that you will need to know...” This letter does not, as we understand it, relate to any count in the indictment. It apparently related to an application in respect of another flat (Flat 10) which did not proceed. Mr Boulter says (and submitted to the judge) that it marries up with other documentation which was referred to in Mr Boulter’s exchanges with the judge as the “hybrid” document, because it was part original and part photocopy. The hybrid document is, or is part of, a mortgage application form showing Sean as the applicant. It contains some entries which are crossed through and other details substituted: £40,000 instead of £35,000 as Sean’s income figure, and Flat 6 instead of Flat 10. In his summing-up the judge described it as a work in progress document – not in a form that would actually be submitted to the lender (vol. VIII 159A – B). It is said that the manuscript entries on the hybrid document were made by Mr Burton. 88. Mr Boulter has developed a somewhat elaborate argument, but the essential point is a short one: it is that the terms of the letter of 7 August 2002, clearly emanating from Mr Burton, are inconsistent with Mr Burton’s use or treatment of the hybrid document, and he should have been allowed to confront Mr Burton with the fact in developing his client’s cut-throat defence. 89. The judge held (we summarise) that there was insufficient reason to recall Mr Burton to the witness-box. Mr Boulter had put his case to Mr Burton and any elaboration of it based on the new documents could be deployed before the jury in his speech (this is the effect of the passage at vol. V 8B – E). 90. This was a matter for the judge’s discretion. He had to balance the interests of Sean and of Mr Burton. Sean’s substantive case must have been put vigorously in cross-examination, including, we assume, all the points Mr Boulter wished to make on the hybrid document. The new letters were before the jury. It was open to Mr Boulter to make what he would of them when he closed his case. We are quite unable to conclude that the judge’s refusal to allow this cross-examination begins to infect the safety of Sean’s conviction. We note that Sean never lived in Flat 6; he provided none of the money for its purchase; he received none of the proceeds when it was sold on; when the London Mortgage Company were paid off the balance went to other parties, including Kevin and Mr Barrett. 91. This ground of appeal is without merit. Counts 8, 10, 11 and 12: Mr Burton 92. As we have indicated Mr Burton does not have leave to appeal against conviction. His application for leave has been referred to the full court by the single judge, but only in relation to grounds 1 – 3; he was as we have said refused leave on grounds 4 and 5 and does not seek to renew them. 93. Grounds 1 and 2 concern confessions made by Mr Burton and relied on by the Crown. They were made in his second police interview on 6 September 2005 in the presence of his solicitor. He admitted his guilt on counts 10 and 11, accepting that he had paid Mr Harnick to produce false references. His case before the jury was that these admissions were false and had been procured by an inducement offered by the police, namely that if he confessed he would be let off with a caution, as had happened in Mr Harnick’s case. 94. However no submission was made to the judge that the confession should be excluded as having been improperly obtained. It is plain from Mr Sinclair’s supplemental skeleton argument and his submissions before us that this was a deliberate decision made for pragmatic and tactical reasons. We make no criticism whatever of that, but it presents to say the least a difficulty in the way of Mr Burton’s prospective appeal, as the single judge pointed out. 95. Evidence of the alleged inducement was given by the solicitor who was present at the interview. He was a trainee, Mr Blackerby. He said that a policeman showed him a statement made by Mr Harnick who, said the officer, had been cautioned for three false references “and that if Julian Burton confirmed that he had been involved he would be cautioned, too” (vol. VIII 217H – 218A). The judge directed the jury thus (218D): “If you think that Mr Blackerby is right then Mr Burton’s confession in his second interview is valueless and don’t even bother reading it. If you think that he may be right, the same applies.” An earlier passage (67B – D) shows that the judge expressly directed the jury to apply the criminal standard of proof in considering this issue. 96. The burden of Mr Burton’s grounds 2 and 3 is that although no application was made to exclude the confession evidence, and no voir dire was sought, the judge should of his own motion have decided whether the evidence should be kept out (pursuant to s.76(2) (b) of the Police and Criminal Evidence Act 1984 ) and indeed should have excluded it, since it was clear from Mr Blackerby’s evidence that an improper inducement was offered. Reliance is place on the decision of the Privy Council in Ajodha v The State [1982] AC 204 in which Lord Bridge of Harwich, delivering the judgment of the Board, said this (at 223): “(1) In the normal situation which arises at the vast majority of trials where the admissibility of a confession statement is to be challenged, defending counsel will notify prosecuting counsel that an objection to admissibility is to be raised, prosecuting counsel will not mention the statement in his opening to the jury, and at the appropriate time the judge will conduct a trial on the voir dire to decide on the admissibility of the statement; this will normally be in the absence of the jury, but only at the request or with the consent of the defence: Reg v Anderson (1929) 21 Cr.App.R. 178 . (2) Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not. If the defence adopts this tactic, it will be open to defending counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu . (3) It may sometimes happen that the accused himself will raise for the first time when giving evidence an issue as to the voluntariness of a statement already put in evidence by the prosecution. Here it will be a matter in the discretion of the trial judge whether to require relevant prosecution witnesses to be recalled for further cross-examination. If he does so, the issue of voluntariness should be dealt with in the same manner as indicated in paragraph (2) above.” 97. There is no reason in this case to suppose that the judge himself considered that the voluntariness of the statement was in doubt, and there are substantial grounds for concluding that it was not. Nothing was said on the tape recording of the interview suggesting that such an inducement was given, despite Mr Blackerby’s presence. Mr Blackerby made a poor note. He was a nervous witness (vol. VIII 218B). In all these circumstances we consider that the judge was by no means bound to exclude the confession evidence, and was entitled to take the course he did. 98. In his submissions before us Mr Sinclair very candidly accepted that if the court was against him in relation to the confession evidence, that was the end of his appeal. However we shall make short observations about his other points, not least since his conviction on counts 8 and 12 are not on the face of it connected with the confession. 99. In his first skeleton argument Mr Sinclair refers to strong comments made by the judge in disparagement of Mr Harnick. But Mr Altham by contrast points out that important parts of Mr Harnick’s evidence were not disputed: he had undoubtedly provided the references used to obtain the money transfers on counts 10 and 11; he had met with Kevin and Mr Burton after the arrests; Mr Burton had originally introduced him to Kevin. 100. Mr Burton’s ground 3 alleges that the judge should have permitted further cross-examination of Mr Harnick following the discovery of a false reference from Mr Harnick at Kevin’s home. Mr Sinclair submitted that this went to the question whether Kevin and Mr Harnick were up to no good behind Mr Burton’s back. The learned judge had permitted Mr Harnick to be recalled and cross-examined for Kevin. We do not have a transcript of the judge’s ruling. In any event the discovery of this reference constitutes no inconsistency with the Crown case against Mr Burton. The want of this cross-examination cannot affect the safety of Mr Burton’s conviction. 101. Lastly, Mr Burton seeks by amendment of ground 2 to assert that there was no evidence against Mr Burton fit to go to the jury on counts 8 and 12. However we note these following points, collected in Mr Altham’s skeleton argument (pp. 41 – 42). Mr Burton provided one of the lenders with Kevin’s mobile phone number where the mortgage was being taken out in Sean’s name. He processed application forms relating to the count 8 transaction in Sean’s name but bearing Kevin’s phone number. On count 12, he collected information about Mr Coyne from Kevin. 102. There is no merit in Mr Burton’s application for leave to appeal against conviction. Kevin’s Renewed Grounds 103. As we have said Kevin seeks to renew grounds 1 and 11. Ground 1 is to the effect that the judge was wrong not to stay the proceedings as an abuse by reason of a breakdown in the process of disclosure. Ground 11 is to the effect that there was no evidence, or no legally sufficient evidence, that Kevin was the true applicant for the loan on counts 7, 8, 9 and 12. 104. We turn to ground 1. As we have said evidence of offers for Claregate was adduced through a surveyor, Robert Griffiths. Despite many requests his file was disclosed extremely late – indeed not until he came to court to give evidence. It is said they contained material which assisted the defence. Other failures of disclosure were also complained of. On 26 September 2006 the learned judge declined to stop the case as an abuse because of the want of disclosure, holding (vol. I 3F) that there was not “a systemic failure of disclosure such as to amount to an abuse of process of the court”. 105. The next month, October 2006, files taken from Mr Burton’s home were inspected. They contained signed blank forms relevant to the issues on counts 7 – 12. Some of the documents had in fact been exhibited and were already before the jury. But the files, described as “Conveyancing files” had been marked CND (clearly not disclosable). Their significance had been missed. The disclosure officer, Mr Jones, gave evidence on a voir dire on 18 and 19 October 2006 that he had not read the defence case statements and had been on another case since March 2006. Mr Johnson submits that there had in effect been no disclosure officer since that time. A further application was made to the judge to stop the case on 26 October 2006 but was refused. 106. The single judge refusing leave said this: “There was late disclosure in particular of the Griffiths papers relating to offers on the Claregate property and the signed blank forms from the Burton files. The problem appears to have flowed from the absence of a full time disclosure officer after March 2006 in place to oversee secondary disclosure once the defence case statements were served. However the judge was entitled to take the view he did that there had been no bad faith and that it could not be said that the disclosure process had broken down to such an extent that a fair trial could no longer be guaranteed.” We agree. 107. On ground 11 the single judge said this: “’Falsely representing he was the true applicant’ in counts 7, 8, 9, 12: this ground does not appear sustainable. The Crown appear to have relied upon the overall circumstances of the development of the Grand Hotel enterprise, including the lack of physical involvement of the purported applicant in the property in question, the history of the resales, the apparent lack of income to sustain mortgage payments, the source of the deposit, to establish that the true applicant was yourself. It was for the jury to decide whether they were satisfied this was so but it was open to them so to conclude. It is noteworthy that this ground is not pursued by either [Sean] or [Mr Coyne].” Again, we agree. 108. For the reasons we have given, all the appeals and applications for leave to appeal against conviction are dismissed. SENTENCE: GABRIEL AND KEVIN 109. As we have said Gabriel and Kevin were each sentenced to four years imprisonment on count 1, and lesser concurrent sentences on the other counts on which the jury had convicted them. The only ground of appeal is that the four year terms will require Gabriel and Kevin to serve longer than the judge intended. In his sentencing remarks he stated (vol. X 6A – B): “So in each case the sentence of the court in total is one of four years imprisonment. The effect of that is that you serve two years in custody before your automatic release.” 110. But the offences pre-dated the coming into force of the relevant provisions of the Criminal Justice Act 2003 , and under the anterior regime a sentence of four years meant that these appellants would serve 2 years 8 months before automatic release. It is unnecessary to go into the details of the statutory provisions. It is clear that the judge intended them to serve two years. We are by no means persuaded that they did not richly deserve the sentences passed by the judge, with the longer period in custody which those sentences implied. But fairness requires that they serve no longer than the time the judge expressly intended. In each case we will quash the sentences of four years, and substitute sentences of 3 years 10 months. We understand that will produce a release date after two years detention. To that extent the appeals against sentence succeed.

2008_05_08-1500.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/972/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/972

716f980ea5b8ea49d09ca6409d165787d449eb0f3181c9542f07d7b0c170052c

[2015] EWCA Crim 390

EWCA_Crim_390

2015-02-20

crown_court

Neutral Citation Number: [2015] EWCA Crim 390 Case No: 201404029/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 20th February 2015 B e f o r e : LORD JUSTICE LAWS MR JUSTICE HICKINBOTTOM MR JUSTICE KNOWLES - - - - - - - - - - - - - - - R E G I N A v MARLEE DANN - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2D

Neutral Citation Number: [2015] EWCA Crim 390 Case No: 201404029/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 20th February 2015 B e f o r e : LORD JUSTICE LAWS MR JUSTICE HICKINBOTTOM MR JUSTICE KNOWLES - - - - - - - - - - - - - - - R E G I N A v MARLEE DANN - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr R linford appeared on behalf of the Appellant Mr I Dixey appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LAWS: On 4th August 2014 before His Honour Judge Cottle at the Plymouth Crown Court this appellant pleaded guilty on re-arraignment to conspiracy to blackmail. The Crown case was in barest outline as follows. A man called Josh Pollard was serving a prison sentence in 2013 in Exeter jail. The appellant was on remand at the jail. Pollard was said to owe money to an associate of the appellant's called Mathew Bird. The accusation was that the appellant together with others attempted to force Pollard to repay by threatening to throw scolding water over him or slash him with a blade. 2. There were three co-defendants, Mathew Bird, who pleaded guilty to the conspiracy and Joe Burkett and Ashton Hall. Ashton Hall was the appellant's partner and the mother of his two small children. Her role was allegedly that of a conduit through which the appellant in prison could communicate with Bird and Burkett. The Crown offered no evidence against Burkett and Hall, in respect of whom not guilty verdicts were duly entered. The appellant was sentenced to 18 months' imprisonment on 19th December 2014. He appeals against his conviction by leave of the single judge. As we shall explain the appeal concerns the circumstances leading to his plea of guilty on 4th August 2014 and the fact that on 9th October 2014 his application to vacate the plea was refused which His Honour Judge Darlow. 3. All four defendants pleaded not guilty at a mention in the Crown Court on 6th December 2013. It was at that stage anticipated that the Crown would proceed to trial against all four. Mr Dixey for the prosecution this morning has indicated there were however some discussions in June 2014. At all events on 30th July 2014 at the Plymouth Magistrates' Court a representative of the CPS approached Mr Stephen Nunn, a solicitor, instructed in this case on behalf of Ashton Hall. In fact the proceedings in the Magistrates' Court involved this appellant's brother Luke Dann, who Mr Nunn also represented. The Crown representative indicated to Mr Nunn that if acceptable pleas were received in this case from the appellant, Bird and Burkett the Crown would not seek to proceed against Ashton Hall. The next day the indication was repeated but this time to the effect that pleas from the appellant and Bird only would be acceptable and in that case the other two would not be proceeded against. That is what in the event happened. Mr Nunn deposes to these events in a witness statement. 4. The proposal to drop the case against Burkett and Hall if the appellant and Bird pleaded guilty was put to the appellant's counsel Mr Linford by counsel for the Crown, at court, on 4th August 2014, when the case was listed for trial. Mr Linford was concerned about it. He considered that his client was being put under very great pressure to plead. He and Ashton Hall has we have mentioned two children, they were aged 2 and 4 and would dependent on relatives if both parents were convicted and sent to prison. The judge gave Mr Linford plenty of time to consider the position. 5. In the event the appellant pleaded guilty on 4th August 2014 having signed a statement which includes this: "I have two children aged 4 and 2. I cannot countenance the possibility of their being without a mother for a period of time were Ashton to be convicted and sent to prison. Today is the first time this has been suggested to me ie that her fate may be in my hands ... I am not guilty of the offence of which I am charged. My barrister Mr Linford, has advised me that I must not plead guilty unless I am guilty. However, I feel that the pressure that this offer has put me under leaves me with no choice but to admit to something that I have not done. I cannot take the risk of Ashton being convicted and imprisoned and me likewise when a plea from me will certainly avoid the risks of Ashton's conviction." 6. In these circumstances it is submitted that the appellant's plea of guilty was obtained through improper pressure and should have been vacated and in the circumstances the conviction is unsafe. 7. It is elementary that a conviction may be set aside if a defendant is put up under pressure to plead guilty by the judge or anyone else, even a member of his family including a member of his family - see for example R v Nightingale 2 Cr App R 7 and R v Jordan 73 Cr App R 194. Such cases however offer little assistance here. The case of R v Herbert (1992) 94 Cr App R 230 does. In that case the appellant was jointly charged with his wife and another which drugs offences. During the trial the wife's counsel approached prosecution counsel and asked if the Crown would wish to proceed against the wife if the husband pleaded guilty. The Crown indicated that in that case they would consider it in the public interest not to proceed against the wife. The appellant changed his plea while continuing to maintain his innocence. Just as happened here. 8. He was very properly advised by counsel, as was this appellant, that he should only plead guilty if he was guilty. He was sentenced to five-and-a-half years' imprisonment. He appealed against conviction alleging that he had been put under improper pressure to plead guilty. The appeal was dismissed. 9. The single judge refusing leave in this case said this: "I see no reason why, having obtained the benefit of your decision to admit guilt by getting the charge against your partner dropped, you should now be allowed to disown it. The case of Steven Herbert (1992) 94 Cr App R 230 confirms that you cannot. Nevertheless, there is a difference in the case of Steven Herbert in that the approach and proposal, were in this case made and instigated by the Prosecution. While I doubt that this difference is material, the issue raised by your appeal is in my view one of sufficient general importance that it should be considered by the Full Court of appeal." 10. The essential reasoning in Herbert is with respect contained in the following passages from the judgment of the court in delivered by Taylor LJ (as he then was): "It is common ground that, either when asked or of his own initiative, it is perfectly proper for prosecuting counsel to state the Crown would accept a plea to unlawful wounding on a charge under section 18 of the Offences Against the Person Act 1861 , or allow counts charging earlier offences of dishonesty to lie on the file, should the defendant plead guilty to the latest offence charged. Such 'offers' could be said to be inducements or to involve pressure, but making them has long been accepted as properly part of the discharge of his duty by counsel for the Crown. That duty requires him to balance the need to bring serious wrongdoing to book and, on the other hand, not necessarily to pursue every charge to a conclusion regardless of the public interest and the public purse ... Mr Lucas sought to distinguish between offers or inducements relating solely to the particular defendant's own case and offers or inducement relating to interest of others. He submitted that the former category may be permissible as in the instance examples of agreeing to accept a lesser plea or dropping certain counts. This case, however, comes into a letter category, for here the inducement relates not only to the appellant's case by also to that of his wife. The second category involves a form of 'pressure' which should not, counsel submits, be permitted. Although it may be that many defendants would be more influenced by the effect of their plea on their wives than on themselves, we can see no valid distinction in principle." Then finally a little later: "In the end, therefore, the appellant's case comes to this. Nobody did anything wrong; not the judge not prosecuting counsel, not defending count. Indeed defending counsel carried out his duty to his client to the letter and beyond. But, despite that, prosecuting counsel's answer, which was not in truth an offer but a statement of how the Crown saw its duty, has had the effect of rendering this appellant's plea a nullity. We cannot accept that argument. Of course there are, as Mr Lucas accepts, always pressures on an accused person, and sometimes the factors he has to weigh in deciding how to plea make for difficult decisions. By in our judgment, the course of events here involves no fault on anyone's part. The appellant had the benefit of the post conscientious advice and he made his own free choice." 11. It seems to us there is a principle to be derived from the reasoning of this court in Herbert . A defendant faced with the prospect that if he pleads guilty he may obtain some advantage may of course feel pressurised to plea guilty, depending no doubt on the attraction of the advantage, the strength of the case against him and, if he has any moral centre, his own knowledge of his guilt or otherwise. Herbert and other cases show that the fact of such pressure will not always render a resultant plea of guilty unlawful. In our judgment the principle is that a plea of guilty following a proposal made or endorsed by the Crown will not be vulnerable on grounds of improper pressure if it is made or endorsed by the Crown only by reference to Crown counsel's judgment as to what the public interest in the prosecution taken as a whole, including the case against other defendants, demands. 12. In the present case there is nothing to suggest that the Crown's proposal or offer was moved by anything other than a proper apprehension of the public interest. Mr Linford has very properly this morning shown us the case of R v Najera and referred us to a passage starting at paragraph 49. It is not necessary to look into the facts. At that paragraph Kay LJ giving the judgment of the court says think: "The question of the pressures on one defendant when a close relative is a co-accused were considered and acknowledged by the court in Herbert. They are an inevitable part of the process unless the prosecution have 'cynically' proceeded against the relation to put pressure on the accused. It is not suggested in this case that in prosecuting the appellant's husband the prosecution were 'cynically' trying to bring pressure to bear on the appellant or that they were acting with any improper motive in not dropping the prosecution against him." 13. While this reasoning does not in terms state the principle that we have sought to articulate, it seems to us that it is consonant with it and it; is this principle that underlies what was said in that case. The principle assumes that the defendant has been properly and carefully advised by his counsel. That was well fulfilled here. For completeness we should say that it says nothing about the kind of case where a plea is induced or apparently induced by an indication of sentence from the judge. That is addressed in other authorities which we need not cite for the purpose of the present appeal. 14. In all these circumstances we conclude that this appellant's appeal was not improperly induced and his application to vacate it was rightly refused. It follows this appeal must be dismissed. 15. We should add by way of postscript that a further point arose on the papers. Mr Linford reports what was said in conversations in July 2014 between Josh Pollard's father and Luke Dann and between Luke Dann and Josh Pollard himself. It is not necessary to go into these. We mention them only because there was a suggestion that they might constitute material casting doubt on the safety of the conviction. However, Mr Linford rightly accepts that in the events that happened nothing arising from those conversations can advance the case. The merits of the prosecution are closed by the appellant's proper plea of guilty. The appeal is dismissed.

2015_02_20-3552.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/390/data.xml

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0550f32e631c7fae49bcb274a889118c302c7ac82530e5a2c06b631fe6c00e17

[2004] EWCA Crim 2042

EWCA_Crim_2042

2004-06-25

crown_court

No: 200301689/D4 Neutral Citation Number: [2004] EWCA Crim 2042 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 25th June 2004 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE ASTILL MR JUSTICE GROSS - - - - - - - R E G I N A -v- PAUL LEE BRANCHFLOWER - - - - - - - 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 th

No: 200301689/D4 Neutral Citation Number: [2004] EWCA Crim 2042 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 25th June 2004 B E F O R E: LORD JUSTICE KENNEDY MR JUSTICE ASTILL MR JUSTICE GROSS - - - - - - - R E G I N A -v- PAUL LEE BRANCHFLOWER - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR D PRESTON appeared on behalf of the APPELLANT MISS B BAXTER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE KENNEDY: On 17th December 2002 in Crown Court at Manchester, this appellant pleaded guilty to aggravated vehicle taking, which was count 3 in an indictment containing three counts. Count 1 alleged murder and count 2 manslaughter. 2. All three counts related to events which took place on the same day, 27th August 2002. The appellant also pleaded guilty to manslaughter but that plea was not acceptable to the prosecution, so he was tried on count 1 and on 28th February 2003 he was convicted of murder. He was then sentenced on count 1 to custody for life and on count 3 to 3 years' detention in a young offender institution, those sentences to be served concurrently. He was also disqualified for 5 years from holding or obtaining a driving licence and ordered to take an extended driving test before being granted a licence. No separate penalty was imposed in respect of count 2 because it was treated, in our judgment rightly, as an alternative to count 1. He now appeals against his conviction on count 3, by leave of the Single Judge, and in grounds of his own composition he seeks leave to appeal against his conviction on count 1. 3. The man who died was Mr Glyn Ellis, aged 46. On 27th August 2002 he had been to a Manchester United football match at Old Trafford and went to his brother's garage at St Lawrence Quays to collect his Ford Mondeo motorcar. He unlocked the garage and reversed out. He then got out of his car to shut the garage door. He left the engine running and it was the prosecution case, supported by eyewitnesses, that the appellant saw the momentarily unattended car and attempted to drive it off, killing Mr Ellis by driving the car over him in his efforts to get away. 4. For present purposes it is unnecessary to deal with the eyewitness, scientific, medical and police evidence. 5. It is sufficient to say that the issue which the jury had to decide and which they decided by their verdict in relation to count 1 was whether the appellant deliberately drove the Ford Mondeo motorcar at Mr Ellis with intent to kill him or at least to do him really serious harm. 6. After the appellant had run over Mr Ellis, and Mr Ellis was jammed underneath his own car, the appellant and his two friends ran off. Before Mr Ellis could be freed he was dead. 7. The appellant and his friends were arrested on 30th August 2002, and the appellant was then interviewed over the next two days. He told officers that after he had jumped into the car, a man appeared from nowhere just in front and he went over him. He tried to reverse off, but the car was stuck so he put it in first gear to see if he could drive it off and it then stalled. 8. When he was charged he did say he was very sorry, it was a tragic accident and "I didn't mean to hurt anyone". 9. At his trial the appellant chose not to give evidence, and called only one expert witness, Mr Jowitt. 10. The ground of appeal which the Single Judge gave leave to argue is that the conviction on count 3 is inconsistent with the jury's verdict on count 1. The allegation in count 3 was that the death of Mr Ellis was caused by "an accident". It is contended that once the jury determined that the appellant had intended to kill or at least to do really serious harm, then count 3 should have been simply left on the file with no sentence imposed following the procedure outlined in R v Cole (1965) 49 Cr App R 199. 11. In grounds of appeal of his own composition the appellant also seeks to challenge the decision on count 1. He contends that the conviction was unsafe, he was not guilty of murder and was wrongly persuaded not to give evidence; an assertion which seems to have surfaced for the first time in a letter to the Registrar, dated 16th April 2004, over a year after his conviction and long after the Single Judge had refused leave to appeal in respect of count 1. 12. The Criminal Appeal Office then, on 26th May 2004, invited the appellant to waive privilege so that the Registrar could seek the observations of trial counsel on the criticisms of them made by the appellant in his letter of 16th April 2004. That produced a letter from the appellant, but no waiver of privilege and none has yet been received. Furthermore, he has chosen to waive his right to attend for the hearing of his appeal today. 13. In our judgment, there is no evidence whatsoever of any arguable ground of appeal in relation to count 1 and the appellant's attempt to renew his application for leave to appeal in relation to that ground is therefore dismissed. 14. We return to count 3. Section 12A of the Theft Act 1968 , so far as relevant, reads: "...a person is guilty of aggravated taking of a vehicle if- (a) he commits an offence under section 12(1) above (in this section referred to as a 'basic offence') in relation to a mechanically propelled vehicle; and (b) it is proved that, at any time after the vehicle was unlawfully taken (whether by him or another) and before it was recovered, the vehicle was driven, or injury or damage was caused, in one or more of the circumstances set out in paragraphs (a) to (d) of subsection (2) below. (2) The circumstances referred to in subsection (1)(b) above are- (a) that the vehicle was driven dangerously on a road or other place; (b) that, owing to driving of the vehicle, an accident occurred by which injury was caused to any person; (c) that, owing to the driving of the vehicle, an accident occurred by which damage was caused to any property, other than the vehicle; (d) that damage was caused to the vehicle." 15. What, in this contexts, is meant by the word "accident"? The statute itself contains no definition. Mr Preston, on behalf of the appellant, submits that if a vehicle is deliberately used as a weapon, then the resultant damage to an intended victim cannot properly be described as an accident. He points to the alternatives which are available within the statute itself as to the way in which the offence could be charged. For example, it could be related to driving dangerously on a road. But in this particular case, that was not the way in which the offence was charged. He says that either there is an accident or there is intention and, having regard to the structure of this statute, there cannot be both. 16. In some context that would no doubt be right. But this undoubtedly, in our judgment, is a word which takes its meaning from where and how it is used. Etymologically the word means 'something which happens' but it does not have to be unintended or fortuitous. In R v Morris (1972) 56 Cr App R 175 the court was concerned with section 2(2) of the Road Safety Act 1967 . The relevant part of that subsection reads: "If an accident occurs owing to the presence of a motor vehicle on a road or public place, a constable in uniform may require any person who he has reasonable cause to believe was driving or attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test..." An attempt had been made to start a vehicle by pushing it with another vehicle. They ended up with their bumpers interlocked. A request was then made by an officer, pursuant to section 2(2) , for a breath test. His request was considered to be inappropriate because it was said that there had been no accident. 17. The Court held, in that case, that there had been an accident, within the meaning of the subsection, because they were satisfied that an accident was simply an unintended occurrence which had an adverse physical result. 18. A somewhat similar approach was adopted in the subsequent case of R v Billingham [1979] 1 WLR 747 , where a police inspector required Mr Billingham to take a breath test after he had allegedly deliberately released the brakes on a parked police car, steered it round some other vehicles before sending it off downhill to hit a telegraph pole and carry on down an embankment. Mr Billingham refused to take the breath test. The statutory provision relied upon in that case was section 8(2) of the Road Traffic Act 1972 , which provided: "If an accident occurs owing to the presence of a motor vehicle on a road, a constable in uniform may require any person whom he has reasonable cause to believe was driving or attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test." On behalf of Billingham it was submitted his actions were allegedly deliberate there had been no accident. That submission was accepted in the Magistrates' Court. In the Divisional Court, the question posed for the consideration of the Court in the Case Stated was "whether the word the 'accident' in section 8 of the Road Traffic Act 1972 included an intended occurrence which had an adverse physical result?" That question was answered in the affirmative. Bridge LJ, as he then was, said at page 753: "I hesitate to attempt a definition, lest my judgment should in future be quoted as if it were writing something into the statute. But it seems to me that 'accident' in this context is perfectly capable of applying to an untoward occurrence which has adverse physical results, notwithstanding that one event in the chain of events which led to the untoward occurrence was a deliberate act on the part of some mischievous person. Applying the test whether an ordinary man would say in these circumstances that an accident had occurred owing to the presence of motor vehicle on a road, I would answer the question affirmatively." Before us, on behalf of the prosecution, Miss Baxter has submitted that that is the approach we should adopt. She submits that section 12A of the 1968 Act is intended to have regard to the consequences of what occurred and is not really concerned with the way in which those consequences came about. She submits that count 3 in the indictment was not truly to be regarded as an alternative to murder. The fact was that there was a vehicle in this parking place. It was in motion and because it was in motion it caused death to the wretched victim. 19. In our judgment, that is right. In this case there is no reason to think that count 3 should be regarded as a true alternative to count 1. Accordingly, this appeal against conviction is, in relation to count 3, also dismissed.

2004_06_25-268.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2042/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2042

8a548cace02e75b08e160118776f3e4f4077ca07c315f28c7c8164ca9fc15795

[2008] EWCA Crim 2466

EWCA_Crim_2466

2008-10-17

crown_court

Neutral Citation Number: [2008] EWCA Crim 2466 No: 2008/3048/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 17th October 2008 B E F O R E: LORD JUSTICE TOULSON MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF WINCHESTER ( His Honour Judge Brodrick ) ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- STUART JOHN BARLEY - - - - - - - - - - - - - - - - - - - - - Computer Aided T

Neutral Citation Number: [2008] EWCA Crim 2466 No: 2008/3048/A8 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 17th October 2008 B E F O R E: LORD JUSTICE TOULSON MR JUSTICE GRIFFITH WILLIAMS THE RECORDER OF WINCHESTER ( His Honour Judge Brodrick ) ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- STUART JOHN BARLEY - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype 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 Lamb appeared on behalf of the Applicant Mr D Wilson appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE GRIFFITH WILLIAMS: On 26th March 2008 at the Crown Court at Ipswich, the applicant was convicted of sexual activity with a child (count 2). He was acquitted of a like offence (count 1). On 15th May he was sentenced by the trial judge, His Honour Judge De Mille, to a community order with a supervision requirement for 2 years and disqualified from working with children, in accordance with provisions of section 28 of the Criminal Justice and Courts Services Act 2000 . Additionally, as he had been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003 , he was required to comply with the notification to police requirements of Part 2 of that Act for 5 years. 2. His application to appeal the disqualification order was refused by the single judge and has been renewed to the full court. We grant leave to appeal. 3. The facts can be briefly stated. The applicant was a full-time teacher at a school in Suffolk. The 17-year-old victim was a full-time boarding pupil at that school. On an evening in March 2007 there was a social night in the boarding house where the victim lived. The appellant was working behind the bar. During the course of the evening the victim drank six glasses of wine and described herself as very drunk. She recalls at some point falling over. Her next recollection was being in her room and kissing the appellant. He put his tongue inside her mouth and she responded by kissing him back. 4. What in fact happened was that a senior pupil, whom the appellant told he was going upstairs to look for her, had followed and heard a kissing sound coming from the girl's room, and so it was that the appellant was caught committing the offence. 5. When the appellant realised that he was being observed, he stopped kissing the girl and said, "This shouldn't have happened." 6. The victim disclosed that prior to the incident she had received text messages and emails from the appellant, to which she had responded. Some of them were general messages about her tutor groups, but some of them were flirtatious and suggestive. 7. There was a pre-sentence report before the court in which the probation officer assessed the risk of further offending. He reported at paragraph 3.1: "The Court will be aware this is Mr Barley's first conviction. Whilst the seriousness of the current matter must not be diminished, there is no indication the behaviour on this occasion went beyond inappropriate communication and a kiss. As a result of his conviction Mr Barley will no longer be allowed to teach thus the opportunities for further offending of this nature are significantly reduced. It is my view the current matters will have acted as a significant deterrent and as such I would assess Mr Barley as posing no more then a low risk of further offending." 8. At paragraph 4.1: "This offence reflects distorted views on acceptable boundaries in a teacher-student relationship and demonstrates the impact when such boundaries are crossed. The victim in this case indicates a lasting psychological impact with it having affected her education and social functioning to some extent. However, whilst this cannot be ignored, the factors in this case do not support an assessment of the risk of harm posed by Mr Barley as being more than low. The abuse of power did not extend to sexual contact beyond kissing and it would appear the offence was a result of poor judgment and lack of an appropriate response to a risk situation rather than an indication of any deviant sexual interest in young girls." 9. Additionally, there was before the court evidence from the headmaster of the school, who had terminated the appellant's employment. His opinion was that the appellant did not pose a threat to young people. 10. When he passed sentence the sentencing judge said this: "As I said to your Counsel, I accept that the risk of your offending in such a way again is not high, and indeed could be classified as low, but in my judgment that risk nonetheless remains, even if it is not a high one. And so it does seem to me that there is a likelihood that you would commit an offence with a child again if, in the course of your working relationship with a child, you were to form the kind of close relationship or friendship that you had with this girl. In those circumstances, it does seem to me that there should be the disqualification from working with children, and I do so." 11. Section 28 of the Criminal Justice and Court Services Act 2000 provides that if an offender is convicted of an offence against a child when the offender was 18 years or more and sentenced to a term of imprisonment of 12 months or more, the court must make an order that he be disqualified from working with children unless the court is satisfied, having regard to all the circumstances, that it was unlikely that the offender will commit any further offence against a child. When an offender is so convicted but not sentenced to a prison sentence of 12 months or more, the court may make a disqualification order if it is satisfied that it is likely that the offender will commit a further offence against a child. 12. When this appeal was in the list on 10th October last, the court expressed concerns that on the facts of the offence and the material before the Crown Court, the identified risk would seem to be restricted to young girls and not to young men. If that is the correct conclusion, the provisions of section 28 of the 2000 Act are not such as to permit a limitation or restriction on a disqualification order to either young boys or young girls. The order is generic and applies to all children. It seemed to this court that that may be a disproportionate order in this appellant's case and so we said we wanted to consider an alternative of a Sexual Offences Prevention Order, pursuant to the provisions of section 104 of the Sexual Offences Act 2003 . That section applies to the appellant by reason of his conviction of a Schedule 3 offence: see sub-section (2). The relevant parts of the section are these: "104(1) A court may make an order under this section in respect of a person ('the defendant') where any of subsections (2) to (4) applies to the defendant and - ... (b) in any other case, it is satisfied that it is necessary to make such an order, for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant." 13. The court has received a report dated 13th October from the probation officer. It is in these terms: "Mr Barley was sentenced to a Community Order with a 24 months supervision requirement and was disqualified from working with young people under the age of 18 by Ipswich Crown Court on 15 May 2008. He was placed on the Sex Offender Register. The index offence, Abuse of Trust - sexual activity with a child, involved Mr Barley kissing a 17 year old female student in her room at ... School. This was a culmination of a 'flirty relationship' that had developed over the period that Mr Barley was the victim's personal tutor, and Mr Barley continues to deny kissing the victim but maintains that he was 'embracing' her and that his actions, seen by another student, was misinterpreted. However, the witness statement of the student who observed Mr Barley and the victim states the couple were engaged in a 'consensual, passionate kiss'. Mr Barley has complied fully with his order and reports regularly. To date he engaged with the offending focussed work, exploring and analysing his behaviour, and identifying strategies and points in the relationship where he could, and should, have behaved more responsibly. The victim of this offence is a 17-year old female student. Mr Barley does not have any convictions prior to this offence, and there is no evidence to suggest he poses a risk of harm to male students of any age. Mr Barley was assessed by the PSR author as having a low risk of serious harm to the public and I concur with that assessment. It is my opinion that Mr Barley's experience of the Justice system, and the extensive consequences of his conviction to his personal and professional life, will provide a strong deterrent to any further offending of this nature. I am aware that the Court is considering revoking the disqualification order, replacing it with a Sexual Offences Prevention Order. It is my opinion that providing Mr Barley is prevented from working with young females, there is no reason why he should not be allowed to work with young males under the age of 18." That is an assessment which the Crown accepts. 14. We agree with the learned judge's conclusion that there is in this case a risk, albeit not on the high side, of reoffending by the appellant, but we have concluded that that risk is one directed at young girls. We observe that it is a disquieting feature of this latest report from the probation officer that the appellant, in the face of the clearest evidence in the Crown Court, continues to minimise his behaviour towards the victim. 15. We are satisfied that the criteria for the making of a disqualification order are met in this case. However, as the risk which has been identified is one which is limited to young girls, we consider that the Crown Court, had it been appraised of these matters, could have considered the exercise of the court's discretion under section 28 to make no order under that section but to make a Sexual Offences Prevention Order instead. It is certainly the view of this court that that is the appropriate order in this case. 16. We observe that a Sexual Offences Prevention Order is necessary when the court is satisfied that there is a need to protect the public, or any particular members of the public, from serious sexual harm from the defendant. "Serious sexual harm" is defined in section 106(3) of that Act as including physical or psychological harm. One only has to consider the victim impact statement in this case to appreciate how, in a case of this type of inappropriate behaviour, significantly real psychological harm can be occasioned to the victim. 17. It was submitted by Mr Lamb that the court should impose, as an alternative to a Sexual Offences Prevention Order, an anti-social behaviour order. We were referred to the relevant statutory provision, that being section 1 C of the Crime and Disorder Act 1998 . We are satisfied that such orders are not intended to address the risk of this type of offending and we do not consider that an anti-social behaviour order is an acceptable or appropriate alternative. 18. The court has therefore concluded, for the reasons we have given, that the disqualification order in this case should be quashed and replaced with a Sexual Offences Prevention Order in the terms helpfully drafted by Mr Wilson, counsel for the respondent. The Sexual Offences Prevention Order will prohibit the appellant from engaging in any work (paid or unpaid) involving unsupervised conduct with female persons under the age of 18 years until further order. 19. Although we were invited by Mr Lamb to restrict the order to young girls aged between 12 and 18, we are not satisfied on the information we have that that would be an appropriate order to make. We observe that if in the course of time the appellant's circumstances are such that he would want to apply to the appropriate authority for a review of that order, he may do so. But as we have indicated, this court is not prepared to restrict the effect of that order to any age group. The order will therefore apply to all females under the age of 18 years. 20. To that extent, and that extent only, the appeal is allowed. 21. LORD JUSTICE TOULSON: Mr Barley, no doubt you will have followed and understood that and the consequences of breach will actually be set out in the form of an order. Breach leads to terms of imprisonment. We trust and imagine that that would not arise in this case. 22. THE APPELLANT: Yes, I understand. Thank you. 23. LORD JUSTICE TOULSON: Mr Gardner, thank you very much for your help on this. Would you please also convey the court's thanks to Mrs Mendham? 24. THE LIAISON PROBATION OFFICER: Yes, certainly. 25. LORD JUSTICE TOULSON: Thank you very much indeed. ______________________________

2008_10_17-1678.xml

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9ca6a6b7c134c520046a5e83e5597992f186d9f8f73cb5719de587ccf68eec21

[2006] EWCA Crim 2032

EWCA_Crim_2032

2006-07-20

crown_court

No. 2004/02692/C5 2004/02693/C5 Neutral Citation Number: [2006] EWCA Crim 2032 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 20 July 2006 B e f o r e: LORD JUSTICE WALLER MR JUSTICE MACKAY and MRS JUSTICE COX DBE _______________ ATTORNEY GENERAL'S REFERENCE No. 83 and 84 of 2004 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 _______________ R E G I N A - v - JEROME LEGALL TRACY MACAULAY __________________ Computer Aide

No. 2004/02692/C5 2004/02693/C5 Neutral Citation Number: [2006] EWCA Crim 2032 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 20 July 2006 B e f o r e: LORD JUSTICE WALLER MR JUSTICE MACKAY and MRS JUSTICE COX DBE _______________ ATTORNEY GENERAL'S REFERENCE No. 83 and 84 of 2004 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 _______________ R E G I N A - v - JEROME LEGALL TRACY MACAULAY __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MR D PENNY and MR R GRIFFITHS appeared on behalf of THE ATTORNEY GENERAL MR P DAVIES appeared on behalf of THE OFFENDER JEROME LEGALL MR J JENKINS appeared on behalf of THE OFFENDER TRACY MACAULAY ____________________ J U D G M E N T Thursday 20 July 2006 LORD JUSTICE WALLER: I will ask Mr Justice Mackay to give the judgment of the court. MR JUSTICE MACKAY: 1. This is a resumed reference by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 . On 6 April 2006 before this court differently constituted (Hooper LJ, Owen and Bean JJ) the Attorney General was granted leave for the reasons set out in the judgment of that court ( [2006] EWCA Crim 796 ). Briefly, the first offender Raymond Jerome Legall pleaded guilty on 23 September 2003 to count 2 of an indictment which charged him with conspiracy to supply a controlled drug of Class A (cocaine) together with other named persons including the second offender. On the same day, following legal argument, count 1, which alleged a different conspiracy with another person (not the second offender) between 1 January 2000 and 30 April 2002, was the subject of a verdict of not guilty in favour of the first offender. This was because the quality of certain covert recorded evidence on which that count depended was judged to be too poor to put before a jury. 2. The second offender had pleaded guilty to count 2 at an earlier appearance before the Crown Court on 1 April 2003. 3. The first offender was sentenced by His Honour Judge Denyer QC on 13 November 2003 to ten years' imprisonment. The following day the second offender was sentenced by the same judge to four years' imprisonment. On 22 March 2004 the judge refused to adjourn or postpone the hearing of confiscation proceedings under the Drug Trafficking Act 1994 . That was the decision held by this court to be unduly lenient. 4. The consequence of this decision was therefore that confiscation proceedings had to be determined. That has led to this hearing before this constitution of the court. Perhaps surprisingly, there is no power to remit the matter to the Crown Court for the confiscation hearing to proceed there, which seemed to us, at first sight at least, to be a more appropriate venue, not least because the offenders would have normal rights of appeal. Further, by virtue of section 55(4) (aa) of the Supreme Court ( Senior Courts) Act 1981 , this court must sit as a three judge court for the purpose of "reviewing sentencing under Part IV of the Criminal Justice Act 1988 ". Part IV of that Act includes section 36 which creates the power for the Attorney General to refer the sentencing of a person where he considers that to have been unduly lenient. It reads: "(1) .... he may with the leave of the Court of Appeal, refer the case for them to review the sentencing of that person; and on such a reference the Court of Appeal may -- (i) quash any sentence passed on him in the proceeding, and (ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him." It was in accordance with these provisions that this court on 6 April 2006 gave certain directions for the hearing which has taken place before us today. The Facts 5. The brief facts were that the first offender was arrested on 25 August 2002 after the second offender had been found in possession of 2 kilograms of cocaine which she was intending to deliver to him in Cardiff. The judge had already heard a trial of other defendants, all of whom were acquitted by the jury, and had also seen and heard the covert evidence involving the first offender in count 1. 6. In sentencing the first offender the judge said that he was satisfied that he was a central figure so far as the bringing of cocaine into Cardiff and its subsequent distribution was concerned. He described him as a major regional wholesaler. The cocaine that the second offender was delivering from London to Cardiff on his behalf was of nearly 50% purity. He had £70,000 in cash at his flat, which the judge found he intended to hand to the second offender as the price of the delivery. There was also clear evidence that there had been another such delivery by the second to the first offender on 27 July 2002. The judge's view was that the value to the first offender of these two deliveries would have been "not much less than a couple of hundred thousand pounds". His conclusion was that the first offender was at the top of the Cardiff tree, though there were others higher up the chain in London. He would have been sentenced, had he fought the case, as a substantial wholesaler and received a sentence of fourteen years of thereabouts; but giving credit for a plea of guilty the judge passed a sentence of ten years' imprisonment. The first offender has not sought to appeal that sentence. 7. The second offender entered a basis of plea, which was not accepted by the prosecution, that she was a courier acting for a man in London and made deliveries to the first offender "at various times" and that she received £250 per day for her work. The Relevant Legislation 8. These confiscation proceedings fall to be considered under the Drug Trafficking Act 1994 , which was the legislation relevant to these offences. 9. It is common ground that the conviction of each offender on their pleas of guilty was a conviction for a "drug trafficking offence" within the meaning of section 1(3) of that Act . 10. The Act , so far as is relevant to this reference, provides as follows: 2. (1) .... where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences ... then -- (a) if the prosecutor asks the court to proceed under this section .... it shall act as follows. (2) The court shall first determine whether the defendant has benefited from drug trafficking. (3) For the purposes of this Act , a person has benefited from drug trafficking if he has at any time (whether before or after the commencement of this Act ) received any payment or other reward in connection with drug trafficking carried on by him or another person. (4) If the court determines that the defendant has so benefited, the court shall, before sentencing or otherwise dealing with him in respect of the offence .... determine in accordance with section 5 of this Act the amount to be recovered in his case by virtue of this section. (5) The court shall then, in respect of the offence or offences concerned -- (a) order the defendant to pay that amount .... .... (8) The standard of proof required to determine any question arising under this Act as to -- (a) whether a person has benefited from drug trafficking; or (b) the amount to be recovered in his case by virtue of this section; shall be that applicable in civil proceedings. .... 4. (1) For the purpose of this Act -- (a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act ) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and (b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards. (2) Subject to subsections (4) and (5) below. the Crown Court shall, for the purpose -- (a) of determining whether the defendant has benefited from drug trafficking, and (b) if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions. (3) The required assumptions are -- (a) that any property appearing to the court -- (i) to have been held by the defendant at any time since his conviction, or (ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him; (b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; .... (4) The court shall not make any required assumption in relation to any particular property of expenditure if -- (a) that assumption is shown to be incorrect in the defendant's case; or (b) the court is satisfied that there would be a serious risk of injustice in the defendant's case if the assumption were to be made; and where, by virtue of this sub section, the court does not make one or more of the required assumptions, it shall state its reasons. .... 5. (1) Subject to subsection (3) below, the amount to be recovered in the defendant's case under the confiscation order shall be the amount the Crown Court assesses to be the value of the defendant's proceeds of drug trafficking. .... (3) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant's case under the confiscation order shall be -- (a) the amount appearing to the court to be the amount that might be so realised; or (b) a nominal amount, where it appears to the court (on the information available to it at the time) that the amount that might be so realised is nil. 6. (1) For the purposes of this Act the amount that might be realised at the time a confiscation order is made against the defendant is -- (a) the total of the values at that time of all the realisable property held by the defendant, less (b) where there are obligations having priority at that time, the total amount payable in pursuance of such obligations, together with the total of the values at that time of all gifts caught by this Act . .... 8. (1) A gift (including a gift made before the commencement of this Act ) is caught by this Act if -- (a) it was made by the defendant at any time since the beginning of the period of six years ending when the proceedings were instituted against him ...." Proceedings against the First Offender 11. In a prosecutor's statement dated 10 March 2004 the prosecution alleged that the first offender, who is now aged 34 and a single man, had had, according to Inland Revenue records, no income within the previous six years, except for a three-month period when he had earned just over £1,000. He had also claimed incapacity benefit over a fifteen month period. It identified deposits in two bank accounts between July 1999 and July 2002 of £62,493 odd. He had purchased a flat with a mortgage of £90,000 and a deposit of £47,000. He was found to have £67,163.17 in cash when arrested. As to his expenditure in that period, the prosecution noted the second offender's admission in the basis of plea that she had been engaged as a courier "at various times" by the first offender. It also appeared through phone contacts that there would have been six other apparent deliveries and assuming the same value as the two in March and April 2002, an expenditure therefore of some £300,000. Other items of expenditure were set out and documented. On this basis the first prosecutor's statement assessed the total benefits applying the section 4 assumptions at £710,000 odd and the amount that might be realised at £153,499, being essentially the net equity in the flat and the cash seized on the first offender's arrest. As will be seen, these figures have now been replaced by agreed figures. 12. In his response statement, the first offender took various points about items on the schedules, but as a matter of principle argued that, having pleaded guilty to count 2, which covered a period of 22 weeks only, and having been found not guilty on count 1, which covered a longer period of 28 months, there would be a "serious risk of injustice" within the meaning of section 4(4)(b) if the statutory assumptions were applied, in that "he would be subjected to a form of double jeopardy". This seemed to us to be the main issue of principle raised in these proceedings. Counsel likewise urged us to deal with it as a preliminary issue. We heard argument on it and announced our decision on it for which we now give reasons. 13. The issue of principle thrown up by the exchanged statements in relation to the first offender seems to us to be clearly covered by a previous authority of this court. In R v Lazarus [2004] EWCA Crim 2297 this court considered a case where a defendant pleaded guilty to supplying cocaine over a six month period. He had entered a written basis of plea to that effect and the Crown had accepted it. In subsequent confiscation proceedings it was then shown that over the six year period described by section 4(3)(a)(ii) some £51,000 odd had gone through the defendant's bank account, of which only some £11,591 related to the six month period covered by the charge and thus by the basis of plea. The defendant proceeded to give evidence about the provenance of the balance of the sums and he was disbelieved. His argument was that there would be a serious risk of injustice if the statutory assumption was made in respect of money deposited otherwise than in the six month period. 14. Giving the judgment of this court Hughes J said: "A confiscation order is not limited to the proceeds of the offence which is charged on the indictment. The effect of the Act is that any conviction for a relevant drug trafficking offence opens the confiscation inquiry into property which has passed through the defendants' hands, not simply during the period of offence but for six years prior to the commencement of proceedings. It is then for the defendant to show on the balance of probabilities that such property was not the proceeds of crime or drug trafficking as the case may be. It is also for the court to keep a careful eye on whether there is a serious risk of injustice if the statutory assumption is made. This obligation of the court is a critical part of the scheme of the Act and is essential if injustice is to be avoided: see R v Benjafield [2002] 2 Cr App R(S) 71 but what the scheme of the Drugs Trafficking Act makes clear is that such risk of injustice does not and cannot arise simply because the assets in question were unrelated to the charge on the indictment. The confiscation scheme is subject to rules quite different to those which govern the laying of charges upon an indictment. When laying a charge on an indictment the Crown can charge only what it can prove to the criminal standard of proof. In the case however of confiscation proceedings the onus is not on the Crown but on the defendant (to the civil standard). Moreover the defendant can be ordered to provide information, which is something which he cannot be required to do when proof of the offences is in question. It follows that it will often be the case that offending which could not be proved to the criminal standard in support of courts on the indictments does fall to be considered when it comes to confiscation." 15. In R v Lunnon [2004] EWCA Crim 1125 this court faced a different situation in which a minor member of a conspiracy to supply cannabis set out the part he had played in the conspiracy, including an assertion that he had derived no financial benefit from the transaction, and stated, as the Crown explicitly accepted, that, prior to the single incident of importation charged on the indictment, he had had no previous involvement in drug trafficking at all. In that case the court held that to deploy the statutory assumptions to the opposite effect would indeed have created a serious risk of injustice to the appellant. 16. The first offender seeks to distinguish this line of authority and to argue on the basis of Sambasivan v Federation of Malaya [1950] AC 458 , a decision which Mr Penny on behalf of the Attorney General correctly analyses as a decision on the admissibility of evidence, that an acquittal is "both binding and conclusive in all subsequent proceedings between the parties to the adjudication". On the first offender's behalf, Mr Davies, in a skilful argument, acknowledged that this topic was examined in depth and qualified by the House of Lords in R v Z [2000] 2 Cr App R 281 , in which Lord Hutton said that: "provided the defendant is not placed in double jeopardy .... evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was in fact guilty of an offence of which he had earlier been acquitted." 17. In oral submissions it was therefore argued that the acquittal on count 1 had the effect of making it seriously unjust to cast the burden on to the first offender, as the legislation does, to show that the six years' benefits were not, in fact, the proceeds of drug trafficking. In our judgment in so arguing Mr Davies overstates the impact of that acquittal. That acquittal meant that he was not guilty of a particular prior conspiracy between certain dates with certain persons. It did not mean that it was proved or accepted that he had not been involved in any form of drug trafficking within that period. The contrast with Lunnon could not, as we see it, be clearer. 18. It seems to this court that references to double jeopardy in this context are misplaced. The scheme of the Act was carefully scrutinised in R v Benjafield [2002] 2 Cr App R(S) 71 and found to be compliant with Article 6(1) and (2) of the European Convention on Human Rights. The 1994 Act consciously sets out to subject a convicted drug trafficker to two forms of detriment, namely, punishment by way of imprisonment and confiscation of any benefits from the trafficking, with further imprisonment in default. The second of these, as will have been seen from the legislation set out above, operates in accordance with its own particular code, which is markedly different from the rules governing the process of sentencing. The court must, of course, be alive to the potential for injustice. That injustice will need to relate, in our judgment, however, to something other than the mere fact of exposure to these two distinct but parallel processes. We agree with the way Hughes J expressed the matter in Lazarus as cited above, a case essentially on all fours with the present reference, save for the fact that the appellant's position in Lazarus was stronger than that of the first offender here, in that he had the benefit of an agreed basis of plea. There is in our judgment no injustice of any kind in applying the statutory assumptions in this case. 19. There was a time when the second offender sought to take the same point as the first offender, but that was explicitly abandoned today. 20. The result, therefore, of our decision on this issue of principle was that this continued reference became a matter of arithmetic. Due to the efforts of counsel, for which this court is extremely grateful, that part of the reference has been able to proceed on an agreed basis as follows. In the case of the first offender it is agreed that the benefits he has received, within the meaning of the legislation, total £336,000; that the realisable property in his hands is £148,000; and that therefore the confiscation order should be made in that sum, namely £148,000. He will have six months within which to pay that sum. In default of payment he will serve a further three years' imprisonment consecutive to the term he is now serving. 21. In the case of the second offender, Miss Macaulay, it is agreed that the benefits were £56,000, and that the realisable assets are £54,395.16. A confiscation order will therefore be made in the amount of £54,395.16. She will have three months within which to pay that sum. If it is not paid, she will serve two years' imprisonment in default.

2006_07_20-882.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2032/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2032

cad6ea8c34379a5298d0d2ffcbc6e888d087d2c5172272a13c351a11fd88705e

[2022] EWCA Crim 316

EWCA_Crim_316

2022-03-16

crown_court

Neutral Citation Number: [2022] EWCA Crim 316 Case No: 201903270 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT OXFORD MR JUSTICE SWEENEY T20187145 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/03/2022 Before : PRESIDENT OF THE QUEEN’S BENCH DIVISION SIR NIGEL DAVIS and SIR STEPHEN IRWIN - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - FIELD Applicant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2022] EWCA Crim 316 Case No: 201903270 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT OXFORD MR JUSTICE SWEENEY T20187145 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/03/2022 Before : PRESIDENT OF THE QUEEN’S BENCH DIVISION SIR NIGEL DAVIS and SIR STEPHEN IRWIN - - - - - - - - - - - - - - - - - - - - - Between : REGINA Respondent - and - FIELD Applicant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr David Jeremy QC (instructed by Reeds Solicitors ) for the Applicant Mr Oliver Saxby QC & Ms Victoria Ailes (instructed by CPS Criminal Appeals Unit ) for the Respondent Hearing date: 27 January 2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Dame Victoria Sharp, P: Introduction 1. On 9 August 2019, following a trial at the Oxford Crown Court before Sweeney J and a jury, the applicant, Benjamin Field, was convicted of murdering Peter Farquhar. He was acquitted on counts of conspiracy to murder and attempting to murder Anne Moore-Martin. He was also acquitted on a count of possessing an article for use in fraud. He had previously pleaded guilty to various counts of fraud and burglary. He was in due course sentenced to imprisonment for life. The minimum term was specified as 36 years. 2. He sought permission to appeal against his conviction for murder. Permission was granted by the Single Judge. In granting permission the Single Judge among other things had said this: “… You raise an important point of principle in a most difficult area and you advance powerful arguments (as do the Crown in a very full [Respondent’s Notice]).This is clearly a case for the Full Court and your grounds are clearly arguable. This was a difficult case in many ways and there was no clear and obvious route to verdict…” 3. The appeal came on for hearing on 28 January 2021 before Fulford LJ (Vice-President of the Court of Appeal, Criminal Division), Whipple J and Fordham J. The applicant was represented by Mr David Jeremy QC, who had appeared below and Mr Paul Wakerley. The Crown was represented by Mr Oliver Saxby QC, who had appeared below, and Ms Victoria Ailes. At the end of the hearing judgment was reserved. Judgment was handed down on 18 March 2021. The appeal against conviction was dismissed. Subsequent applications for permission to appeal to the Supreme Court and for the certification of a point of law of general public importance were refused on 22 June 2021. 4. On 29 June 2021 the applicant applied, pursuant to Crim PR 36.15, to re-open the determination of the Full Court of 18 March 2021. By this stage, Counsel for the applicant was Mr Jeremy alone. The grounds for seeking to do so are wide-ranging. But the essence of the complaint is, among other things, that the decision of the Full Court was incapable of rational justification and involved ignoring or wholly misunderstanding the applicant’s arguments; was vitiated by procedural unfairness; and/or was the product of bias (whether apparent or actual or both). Consequently, it is said, there has been manifest injustice. 5. Following initial directions given on the papers, this application came on for hearing before this court on 27 January 2022. Very full written and oral arguments were presented. At the conclusion of the hearing it was announced that judgment was reserved. 6. This is the considered judgment of the court. Background 7. The background facts are, on any view, most unusual. A full statement of those facts, and an outline of the respective cases advanced at trial, are to be found in the judgment of the Full Court, which can be taken to be incorporated into this judgment: [2021] EWCA Crim 380 , [2021] 1 WLR 3543 , at paragraphs 7 to 39 of the judgment. Consequently, we set out only a relatively short summary here. 8. As was not disputed, the applicant over a considerable period of time had pretended to be in a genuinely loving and caring relationship, first with Peter Farquhar (PF) and then, subsequently but concurrently, with Anne Moore-Martin (AMM). PF was a retired teacher: a lonely man, wrestling with reconciling his Christian beliefs with his gay sexuality, and described as craving love and affection. In 2013 he commenced a relationship with the applicant, who had set about seducing him. In due course, PF changed his will, as the applicant had wished and intended, so that the applicant would receive a large inheritance. Whilst the applicant was presenting a picture of caring for PF, in actuality he was (as he was to accept) covertly drugging him. The applicant also sought to present PF as drinking far too much and as developing suicidal intentions. Further, the applicant engaged persistently in what was described as “gaslighting” PF, in the sense of manipulating and brainwashing him, so as to increase PF’s dependence on him and to instil a diminished sense of perception, identity and worth. 9. The Crown’s case at trial was that what occurred was done by the applicant with a view to killing, and with an intention to kill, PF, so that he could then receive the large inheritance. In this respect the Crown was able to rely, among other things, on detailed entries in the applicant’s own journals and notes, recording his plans, intentions and acts. Much of this was undisputed by the applicant when he came to give his evidence at trial. For example, as recorded by the judge in his summing up, the applicant’s own evidence was to this effect: “…. that for those years from late 2012 through to mid-2017 he had lived by deception and deceit and was plainly a well-practised and able liar, whether it be to [PF], [AMM] or others, in furtherance of pretending that he was in a genuine and caring relationship with them…. He also explained to you how he could manipulate and manoeuvre people to achieve his own ends without actually ever asking them to do what he wanted them to do. Indeed, he explained to you how he was able to build pressure on his victims to believe what he needed them to believe and thus to do whatever he needed them to do without ever specifically asking for it, no matter how sceptical they might otherwise have been.” The judge also noted that the applicant had described himself as a “snake talker” during the various frauds which he admitted committing with regard to PF and AMM. 10. As to the entries in the applicant’s own journal and notes (which were before the jury, as also were those kept by PF), the flavour of them can be extracted from a selection. For example, one such note read: “I moved in so that he could die.” Others recorded an intention that PF be induced to commit suicide (but “it became clear that he suicides not.”). Whether such notes were in whole or in part fantasy, as the defence said, was a jury matter. 11. PF was found dead at his home on the morning of 26 October 2015. He had in the preceding period been taking the prescribed drug Dalmane, to help with his insomnia: alcohol should not be taken with Dalmane and in fact there was evidence that PF had, prior to this, been trying to abstain from drinking. A bottle of 60% proof malt whisky, however, was found next to him, of which less than a third remained. The bottle had the applicant’s fingerprints on it. Subsequent pathological reports indicated a blood-alcohol level of around three times the drink-driving limit. The initial post-mortem report recorded the cause of death as “acute alcohol toxicity”. A subsequent post-mortem report recorded the cause of death as acute alcohol toxicity and Dalmane use. There was no pathological evidence of any smothering or of any violence. 12. The Crown’s case was that the events of this evening were, in effect, the culmination of the applicant’s plans, fully recorded in his journals and notes. Particular reliance was placed on notes recording the applicant’s research into whisky and so on. In particular (although by no means the only note of particular relevance) one such note stated among other things: “High percentage malt £. Suffocation only a mistake if either survival or evidence ensues. Feed ‘Dalmane’ and more alcohol and less air.” The applicant accepted that he had purchased the whisky for PF’s use. However, he denied being present at PF’s house on the evening/night of 25/26 October 2015 and denied having any intent to kill him then. As to this particular note, he claimed that that (as had been certain others) was written after, and not before, PF’s death. It was not in substance disputed, however, on the appeal to the Full Court that the jury were to be taken as having rejected his evidence in these respects. But even if that were so, the applicant’s case, at trial and on appeal, was to the effect that the Crown could not make the jury sure of an act on the part of the applicant causative of death: rather, death had been or may have been caused by PF’s voluntary decision to consume the whisky (at a time when he had also voluntarily been taking Dalmane). 13. As to AMM, it is sufficient to say that the applicant had also established a sexual relationship with her (a retired teacher aged 83, with strong moral standards): again, by exploiting her loneliness and vulnerability. He falsely pretended that he loved her, procured various cash gifts from her and sought to persuade her to change her will in his favour. In the event, she died from natural causes at around the end of 2017; but the investigations into the conduct of the applicant with regard to her caused the police to reinvestigate the death of PF. The applicant, apart from a short prepared statement, made no comment to questions asked in interview. We need not detail the other matters to which the applicant in due course pleaded guilty: the various frauds all related to PF and AMM. The trial 14. The trial lasted several weeks. It no doubt will have been a difficult and complex trial. Before he came to sum up to the jury on the law, the judge discussed matters with counsel. Differing routes to verdict with regard to the count of murder were proposed: the judge rejected that proffered by the defence (and which was shown to us at the hearing before us). He then summed up first on the law and, in due course, on the evidence. After the jury retired, they put in a note on the issue of causation, as dealt with in the summing-up. The judge, following discussions with counsel, gave further, quite lengthy, instructions to the jury on that issue. Although Mr Jeremy particularly desired this court to have regard to the transcripts of the discussions between judge and counsel before the various directions were given (and we have done), we think that what really mattered was how the jury were actually directed: and that was the approach of the Full Court on the appeal. 15. The relevant legal directions variously given by the judge to the jury are fully set out in paragraphs 51 to 58 of the judgment of the Full Court, to which reference can be made. 16. In the result, the jury (by unanimous verdict) convicted on the count of murder of PF. The appeal hearing 17. The appeal cannot exactly be said to have been under-argued. The grounds of appeal ran to 15 pages. The applicant’s written argument extended to 105 paragraphs and 39 pages. The Crown put in a Respondent’s Notice extending to 29 pages and subsequently a written argument of 95 paragraphs and 26 pages. Further, each side at the hearing put in a written “speaking note”; and, at the request of the court, Mr Jeremy after the hearing also put in a further note of his oral arguments. The appeal hearing itself lasted for most of the allocated day. Because of the pandemic, counsel were appearing by video link: and although this court was provided with a transcript of the oral arguments, issues of audibility made it (through the fault of nobody) of limited value. 18. Four grounds of appeal were advanced before the Full Court. They all related to the issue of causation and to the legal adequacy of the judge’s directions to the jury on that issue. It was said: (i) The directions failed to make sufficiently clear that, before the jury could convict, they had to be sure that the alleged actions of the applicant amounted to more than a minimal cause of PF’s death. (ii) The directions failed to make clear that the voluntary action of PF in consuming the whisky and Dalmane would be capable of breaking any chain of causation initiated by the applicant in supplying the whisky. (iii) The directions failed to identify the evidence from which the jury could conclude that the consumption of alcohol or drugs by PF was involuntary. (iv) The directions failed to direct the jury as to how the alleged deception on the part of the applicant was the cause of PF’s decision to consume alcohol and/or drugs and that, but for that deception, PF would not have consumed them. 19. At the outset of the written argument, put before the Full Court, the overarching question of law had been formulated on behalf of the applicant as being: “When is it appropriate to find someone guilty of murder where that person has given another alcohol and/or a lawfully prescribed drug, which is then voluntarily consumed by that other causing his death and when at the time of doing so he intends that the other should die but the other is ignorant of that intention?” 20. The applicant’s suggested answer to that question was: never. The written argument, reflected in subsequent oral argument, then developed at length the four criticisms of the legal directions in the summing-up. In doing so, however, it was not sought to be said that a defendant’s undisclosed intention would never be relevant. The applicant’s position on an undisclosed intention was addressed in the following passage at paragraph 22 of the written argument: “That is not to say that a defendant’s intention will always be irrelevant to the risk attaching to a course of action. For example, were a defendant to encourage the victim, a weak swimmer, to swim, on the promise that he would rescue him if he got into difficulties, but in fact had no intention of doing so and did not do so, resulting in the victim’s death by drowning, then he could be the causer of the victim’s death. The victim had volunteered to swim on the false assurance of rescue, if necessary. He had had not volunteered to take his own, unaided, chances. The victim’s uninformed state as to the defendant’s actual intention would have changed the nature of the act embarked upon and rendered it more dangerous.” The core submission on the appeal nevertheless was that that was not the position here and the asserted misdirections, both individually and cumulatively, were determinative of the appeal; and, indeed, the suggested correct answer to the formulated legal issue as set out above in paragraph 19 was of itself said to be determinative. 21. The detailed arguments of the Crown on the appeal were, predictably, to contrary effect. It emphasised that the events of 25 October 2015 had to be set against the background of “gaslighting” and so on, as manifested by, for example, the applicant’s own notes. It was, among other things, argued that a lack of knowledge on the part of PF of the applicant’s alleged true intention to kill was, when set against the background of this case, plainly sufficient to deprive PF’s acts of the character of being free, voluntary and informed. It was submitted that if PF drank the whisky supplied by the applicant not knowing of the applicant’s plan to kill him, PF’s decision to consume it was not capable of breaking the chain of causation. 22. The central legal authority for the purposes of the arguments was agreed, for the purposes of the appeal, to be the decision of the House of Lords in the case of Kennedy (No.2) [2007] UKHL 38 , [2008] AC 269 . (We record that no reliance was sought to be placed by either party on legal authorities concerning consent procured by deception in sexual offending cases.) 23. The factual context of the case of Kennedy (No.2) was different from the present case. It was a manslaughter, not murder, case. The defendant Kennedy was told by the deceased, a man called Bosque, that Bosque (who had been drinking) wanted a “hit” to make him sleep. Kennedy warned him to take care that he did not go to sleep permanently. Kennedy then, as requested, prepared a dose of heroin for Bosque and gave him the syringe ready for injection. Bosque then injected himself and returned the syringe to Kennedy, who left the room. Bosque thereafter died. Kennedy was convicted both of supplying heroin and of manslaughter. His appeal against his conviction for manslaughter was dismissed by the Court of Appeal in 1998: see ( Kennedy (No.1) [1999] Crim LR 65). Following doubts raised, particularly in the light of subsequent appellate decisions in other cases, the matter was referred back to the Court of Appeal by the Criminal Cases Review Commission (CCRC). The appeal was again dismissed by the Court of Appeal. But it was allowed by the House of Lords: Kennedy (No.2). 24. In Kennedy (No.2) the search was for the unlawful act causative of death necessary to ground a conviction for manslaughter. The sole act relied on by the Crown was the supply of the heroin-filled syringe: this was argued to comprise “administering” for the purposes of s.23 of the Offences Against the Person Act 1861, properly construed. The House of Lords, however, held that Kennedy had not “administered” the heroin so as to cause of death. Rather, Kennedy had simply supplied the drug to Bosque who then had the choice, knowing the facts, whether then to inject himself or not. Accordingly Kennedy had not “administered” the drug and could not be guilty of manslaughter. 25. Thus, the salient facts of that case were very different from the present. Further, it may be noted that, in the opinion of the Committee delivered by Lord Bingham, it was stated at paragraph 15 that: “…causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises.” In a similar vein, the Supreme Court had stated in the course of the decision in Hughes [2013] UKSC 56 , [2013] IWLR 2461 – a case also cited to the Full Court in the present appeal- “…it is trite law…that the meaning of causation is heavily context specific…it is not always safe to suppose that there is a settled or ‘stable’ concept of causation which can be applied in every case.” The Supreme Court in Hughes went on to observe: “In the case law there is a well-recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common-sense view is regarded as instrumental in bringing about the occurrence.” 26. For the purposes of the argument on the appeal in this case, however, the main focus had been on the general statements of principle set out in paragraph 14 of the opinion delivered by Lord Bingham in Kennedy (No.2) : “The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another. There are many classic statements to this effect. In his article " Finis for Novus Actus? " (1989) 48(3) CLJ 391, 392, Professor Glanville Williams wrote: "I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new 'chain of causation' going, irrespective of what has happened before." In chapter XII of Causation in the Law , 2nd ed (1985), p 326, Hart and Honoré wrote: "The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility." This statement was cited by the House with approval in R v Latif [1996] 1 WLR 104 , 115. The principle is fundamental and not controversial.” Particular reliance was placed before the Full Court, on behalf of the applicant, on this entire passage, and on the endorsement of the quoted statements of Professor Glanville Williams. Events Preceding Handing Down 27. When the Full Court, at the conclusion of the hearing, reserved judgment, the Vice-President orally indicated, in conventional terms: “Can you please respond in the usual way in relation to any factual errors or typographical errors.” A draft judgment was in due course sent out by email on this basis to the parties (with the usual statement in the box at the top of the front page) on 3 March 2021: with any corrections required to be submitted by 8 March 2021. 28. On 7 March 2021 Mr Wakerley sent, in neutral terms, a short email to the clerk to the Vice-President. Four corrections were proposed. One related to the spelling of Dalmane. In paragraph 49 of the draft judgment it was proposed that the word “could” be substituted for the word “would”. In paragraph 59, the draft judgment had read: “Mr Jeremy accepts that, in his weak swimmer example, it would be appropriate for the Judge to give the jury a direction on causation referable to the victim’s knowledge or ignorance of the accused’s intentions” As to that Mr Wakerley said: “This has never been accepted in written or oral argument.” Certain modifications were also proposed to lines 4, 7 and 8 of paragraph 60 of the draft judgment. The email concluded with an indicated intention to seek permission to appeal to the Supreme Court. 29. On 12 March 2021 counsel for the applicant enquired by email whether there would be sight of the final judgment before handing-down. The clerk to the Vice-President responded that it was hoped that judgment would be handed down on 16 March 2021 and that he would revert to counsel about the amended judgment on 15 March 2021. That did not happen, because a written 35 paragraph application, drafted by Mr Jeremy and Mr Wakerley, for a re-hearing of the appeal was sent on that day. The application sought in part to build on the previously identified errors alleged to be contained in the draft judgment and in part on a further advancement of the applicant’s grounds and on an assertion that the reliance (to which we will come) on the “weak swimmer” example was “fundamentally mistaken”. It was also, among other things, said that “the premise of the reasoning on which the draft judgment is founded is demonstrated to be a false one” and that “its logic collapses”. It was said that there had been “no reasoned determination of an appellate court” on the legal aspects of the case and “the appellant has been denied fair process.” A re-hearing was sought. 30. The decision of the court on this application for a re-hearing was sent (by email) on 16 March 2021. It read as follows: “ Decision on the Application for a Hearing 16 March 2021 1. After this judgment was sent to the parties in draft but before it was handed down, Mr Jeremy QC and Mr Wakerley applied for a hearing. We refuse that application. 2. Their main argument is that the Court failed to give the parties a proper opportunity to deal with the weak swimmer example and anyway misunderstood that example. We are satisfied that the Court’s acceptance of the weak swimmer example reflected submissions on behalf of the appellant, both in writing and at the hearing. Further, there was no misunderstanding. The Court accepted that the person who encouraged the weak swimmer could (not would ) be criminally liable, see paras 49 (“could be”), 59 (“was potentially”) and 62. Whether causation was established in such a case would be for the jury, to be decided as a matter of fact, subject to careful direction by the Judge (see para 59). 3. They make a separate criticism to the effect that the Court has mischaracterised as matters of law certain matters of fact which should properly be left to the jury, namely whether the deceit in any given case did cause the death. The Court does not accept that it has fallen into error in that way, but it recognises that confusion has crept in. The Court as a consequence has clarified its conclusions at para 61 and 63. 4. Those paragraphs having been clarified, there is no need for any further hearing in this appeal. The judgment has now been listed for hand down at 1030 on Thursday 18 th March 2021…” 31. Judgment was then formally handed down on 18 March 2021. Mr Jeremy then sent an email asking for a judgment on the application for a re--hearing. The court’s response to that was that there was no right to a re-hearing and that the reasons for refusing the application for a re-hearing had sufficiently been given by the decision sent on 16 March 2021. Subsequently, as we have said, an application for permission to appeal and for the grant of a certificate of a point of law of general public importance was refused. Consequently, an appeal to the Supreme Court is not available to the applicant. The Judgment of the Court of Appeal 32. The reserved judgment of the Full Court extended to 66 paragraphs. 33. The opening sections set out the background facts very fully. These were followed by a detailed account of the prosecution case and the defence case at trial. There then followed an extensive summary of the grounds of appeal and the arguments advanced on behalf of the applicant in criticism of the summing-up of the trial judge, at paragraphs 40 to 49 of the judgment. It was not suggested to us that that summary of the applicant’s case on appeal was incorrect or unbalanced. We do not here set out in full those parts of the judgment, though of course we bear them in mind; but the closing two paragraphs of this section of the judgment perhaps are worth expressly setting out: “48. If – says Mr Jeremy – the victim, therefore, is informed (viz. knows the facts that are relevant, most particularly as regards the contingent risks of harm) the decision will be voluntary. The fact that he or she is unaware of other facts that were not relevant to the nature of the act, and the risks attaching to it, would not remove the voluntary nature of the act. PF's ignorance of the appellant's secret intention thus did not change the nature of PF's act or his perception of the risk of harm attaching to it. Accordingly, on the appellant's submissions PF's decision to take drink was informed and voluntary. 49. It is accepted by Mr Jeremy that a defendant's intention can, in certain circumstances, be relevant to the risk attaching to a course of action. He gave this example. If an accused, for instance, encouraged a weak swimmer to take to the water having promised to provide assistance if the swimmer encountered difficulties, but privately had no intention of doing so and did not do so, the accused could be criminally liable for the victim's death by drowning in these circumstances. The victim had volunteered to swim on the false assurance of rescue if the need arose. The victim's uninformed state as to the defendant's actual intention would have changed the nature of the act embarked upon and rendered it more dangerous.” 34. There then followed, at paragraphs 50 to 64 of the judgment, a full exposition of the trial judge’s directions (both before and after the jury note) and the Full Court’s reasons for its decision. This section of the judgment commenced with the court holding (at paragraph 50) that ultimately “this appeal turns on whether the judge’s directions to the jury were legally correct.” The judgment described (at paragraph 58) the decision of the House of Lords in Kennedy (No.2) (cited above) as the “critical authority” for the resolution of the issues raised on the appeal. It set out paragraph 14 of the decision in Kennedy (No.2) in full. 35. The core of the Court’s reasoning is to be found in paragraph 59 to 63 of the judgment. In view of the submissions now made to us it is unavoidable that we set them out in full: “59. The concession made by Mr Jeremy in relation to the weak swimmer is both correct in our view and important. As he accepts, the victim's uninformed state of mind in this example as to the accused's real intention would have changed the nature of the undertaking on which the victim embarked, by rendering it more dangerous. The false friend was potentially liable to a conviction for homicide on account of his or her undisclosed intention that the victim should die by not providing assistance in the event of difficulty. This is highly pertinent in the present case. Mr Jeremy's concession also recognises that whether the victim's ignorance of the accused's real intention does relevantly change the nature of the undertaking on which the victim embarks, as in his example, will depend on the specific nature of the individual case. The concession acknowledges, moreover, the appropriateness of the trial judge addressing the nature of the individual case in deciding how to direct the jury. It follows that in situations exemplified by the weak swimmer example, it would be appropriate for the judge to give the jury a direction on causation referable to the victim's knowledge or ignorance of the accused's intentions. 60. The undisclosed murderous intention of the appellant, in our judgment, substantively changed the nature of the undertaking upon which PF embarked, in this particular case. The jury must have rejected the appellant's account that he was not present when the victim drank this large quantity of whisky which he had supplied. PF, therefore, would have believed that he was drinking 60% proof whisky in the company of someone who loved and would care for him, not someone who wished for his death. As a consequence, PF would not have had an informed appreciation of the truly perilous nature of what was occurring. Being provided with the whisky, he was being encouraged by the appellant to consume a significant quantity of a powerful alcoholic drink, which inevitably would have started to impair his judgment, most particularly as it interacted with the Dalmane. Engaging in this activity was not, as a consequence, the result of a free, voluntary and informed decision by PF. To the contrary, he was being deliberately led into a dangerous situation, as with the weak swimmer, by someone who pretended to be concerned about his safety: as was undisputed on the evidence in the case, the appellant posed as his lover and partner – someone who PF would undoubtedly have assumed would be solicitous of his wellbeing – whereas, in reality, the appellant simply desired PF's demise. The appellant, therefore, manipulated and encouraged PF into a position of grave danger, given the combination of the sedative effects of the substances risked decreasing the levels of the victim's consciousness, thereby fatally impairing his airway. The appellant's undisclosed homicidal purpose, in these circumstances, changed the nature of the act: PF was to a material extent unwittingly lured into a perilous drunken and drugged position by someone who feigned to be his loving partner. Once the effects of the substances started to affect PF's judgment and as he succumbed, the appellant would have been a mere bystander, or worse. He certainly would not have sought medical assistance, given he admitted he wanted to increase the risk of PF dying. 61. It follows we are of the view that the position of the appellant is to be likened to that of the deceived swimmer. It would be open to a jury in either case to conclude that the victims (real and fictional) had been lured into a false sense of security by the accused's undisclosed murderous purpose, embarking as a consequence on a fatal course of action uninformed as to or unaware of the true dangers of the undertaking, so that the deceit was a cause of death. 62. Whether or not the deceased acted freely and voluntarily, when in a position to make an informed decision, will always depend on a close analysis of the facts of the case. If, in the context of a decision by the deceased, there is a significant deception by the accused that changes the truth or the reality of what is happening, such as materially to increase the dangerous nature of the act, then he or she may be criminally liable for what occurred. That 'deception' as to the 'nature of the act' may – as in the weak swimmer example – be directly linked to the undisclosed intentions of the accused. The judge incorporated the idea of 'deception' as to 'the nature of the act' thus in a ruling given on 4 July 2019 in relation to the charge of conspiracy to murder AMM by encouraging suicide (count 3 TI): "[…] a Defendant's conduct may amount to murder if he drives the victim to suicide by force, duress or deception (with the deception being as to the nature of the act encouraged) such that the suicide was not the voluntary act of the victim. […]" 63. For these reasons we consider that the approach of the judge was correct. He left it to the jury to determine whether the appellant's actions were a more than minimal cause of PF's death. He told the jury if they were sure that, with intent to kill, the appellant in person gave PF drink, and PF drank it, it was open to them to conclude that the giving of drink was a cause of the death; but he told them that conclusion would not be open to them if PF knew the drink being offered was intended to cause his death. He also told them that if PF agreed to drink – not knowing that it was intended by the appellant that it was to kill him – it would be open to them to conclude that the appellant's giving of drink was a cause of death. These directions rightly recognised that in this particular case the jury had to be sure that the drink was given to the deceased with intent to kill, that the drink was a (more than minimal) cause of death and that PF's act of drinking was not a free, voluntary and informed decision such as to break the chain of causation. The judge's directions captured the essence of the issue in a clear and admirably succinct manner. Those directions were, moreover, given in the broader context of the supposedly caring and protective nature of the relationship, whose falsehood lay at the centre of the undisputed evidence in the case, as the jury undoubtedly understood.” 36. It is to be observed, as the ruling of 16 March 2021 makes clear, that the final judgment had included adjustments to the previous draft in the light of Mr Wakerley’s observations, and that in addition the court had of its own motion made certain other adjustments prior to handing-down. Mr Jeremy was very critical of all those adjustments, his most particular (though not sole) complaint being directed at the alteration to paragraph 63. In the fourth sentence, the draft judgment had read: “These directions rightly recognised that in this particular case- if the jury was sure that the appellant was giving PF drink with intent to kill him, of which intention PF was ignorant- then PF’s act of drinking could not be a free, voluntary and informed decision, because in those circumstances PF was being deceived by the appellant as to the nature of the act.” In the judgment as handed down (as set out above) this passage was replaced with the sentences starting with “He also told them” and ending with “such as to break the chain of causation.” The Jurisdiction Under Crim PR 36.15 37. Rule 36.15 (to a considerable extent reflecting corresponding provisions under the Civil Procedure Rules) provides, in the relevant respects, as follows with regard to an application to reopen the determination of an appeal: “(1) This rule applies where— (a) a party wants the court to reopen a decision which determines an appeal or reference to which this Part applies (including a decision on an application for permission to appeal or refer); or (b) the Registrar refers such a decision to the court for the court to consider reopening it. … (3) The application must— (a) specify the decision which the applicant wants the court to reopen; and (b) explain— (i) why it is necessary for the court to reopen that decision in order to avoid real injustice, (ii) how the circumstances are exceptional and make it appropriate to reopen the decision notwithstanding the rights and interests of other participants and the importance of finality, (iii) why there is no alternative effective remedy among any potentially available, and (iv) any delay in making the application.” … The Note at the end of the Rule states: “[Note. The Court of Appeal has power only in exceptional circumstances to reopen a decision to which this rule applies.]” 38. The underpinning rationale for this rule is, of course, the avoidance of injustice. But that has to be set in the context of the need for finality in judicial decision making. A legal system would be unworkable if a party, having no further right of appeal under the Rules, could simply seek to open up a final decision, after a hearing where the respective arguments have been presented and debated, on the ground that that party considers the reasoning and outcome wrong and unjust. Moreover, the interests of the losing party are not the only interests to be considered. The wider public interest in the good administration of justice and in finality and the interests of the victim and victim’s family also have to be taken into account: as reflected in the language of the Rule. 39. It is essentially for these reasons that an application to open up a final decision is regarded as an exceptional step. In the context of criminal appeals, the position has been discussed in a number of cases. Some antedate Crim PR 36.15; but all authoritatively set out, in consistent terms, the approach required to be adopted and stress that such applications can succeed only in exceptional circumstances. 40. Some instances where a final decision may be reopened involve cases where there has been a fundamental defect in procedure giving rise to real injustice or where a decision can be treated as equivalent to a nullity: for example, where an applicant has stated a wish to renew an application for leave to appeal against sentence through counsel but by error counsel is not notified of the hearing date: Daniel [1977] QB 364. The position generally is discussed further in Yasain [2015] EWCA Crim 1277 , [2016] QB 146 . 41. In Gohil [2018] EWCA Crim 140 , [2018] 1 WLR 3697 the position was fully reviewed. It was held, at paragraph 110, that the Court of Appeal (Criminal Division) will not reopen a final determination of an appeal unless (i) it is necessary to do so in order to avoid real injustice; (ii) the circumstance are exceptional and make it appropriate to reopen the appeal; and (iii) there is no alternative effective remedy. (These criteria, of course, were subsequently reflected in Crim PR 36.15). The court went on to hold that these were what might be described as “necessary conditions” for the exercise of the jurisdiction and that, almost invariably, they had to be cumulatively satisfied. The court further went to on to suggest (at paragraph 129) that the jurisdiction was “probably best confined to ‘procedural errors’ ” – the court contemplating that such errors were to be “clear and undisputed”. 42. The courts’ reluctance to reopen final determinations is further illustrated by the approach taken in Hockey [2017] EWCA Crim 742 , [2018] 1 WLR 343 . An application, some years after the original decision, to reopen a confiscation order was made on the footing that subsequent appellate authority had showed that the original confiscation order had been made on a misinterpretation of the proper application of the Proceeds of Crime Act 2002. The court refused the application. It emphasised the “very limited” nature of the jurisdiction. It went on to say (at paragraph 14) that the jurisdiction was “absolutely not available” where it was said that the proper construction of the relevant legislation had been misunderstood. 43. Finally, it should be added that the exceptional jurisdiction to reopen a final appellate determination perhaps may not necessarily be confined to cases of nullity or of procedural errors, as (with qualification) had been suggested in Gohil . Thus in Cunningham and Di Stefano [2019] EWCA Crim 2101 , the court, whilst endorsing the decision in Gohil , stated (at paragraph 22): “……… we do not wish to close the door entirely on exceptional circumstances, when the lack of an alternative remedy, or some other reason, may lead the court to reopen a decision to avoid a manifest injustice”. Submissions 44. Very full written and oral submissions were provided on the application. We do not intend in this judgment to go into detail on every point or nuance of argument raised: although we have borne them all in mind. 45. The over-arching submission on behalf of the applicant was to the effect that it is necessary to re-open the appeal to avoid real injustice and that the circumstances are exceptional. The arguments in support of this over-arching submission were essentially put in four ways (described as inter-related): (1) The jury had clearly been misdirected by the trial judge with the result that the applicant had been denied the verdict of the jury as to whether he had caused the death of PF. (2) The judgment of the Full Court as handed down on 18 March 2021 avoided deciding the issues raised by the appeal and thus fell into obvious error. (3) The applicant had been denied a fair hearing of his appeal. (4) The court had displayed bias in that it had let the undesirability of a re-trial prejudice it against the applicant’s case and to regard it with unfair disfavour. 46. The essence of the submissions on behalf of the respondent was that the Full Court had indeed properly addressed the issues raised on the appeal; had asked itself whether the trial judge’s directions had been correct in law and had concluded that they were, for the reasons which it gave; and that the allegations of procedural unfairness and of bias were wholly unfounded. Accordingly, this simply was not a case which properly could fall within Crim PR 36.15. In truth, it was submitted, this was really an attempt on behalf of the applicant to reargue the merits of the appeal. 47. We will deal with the principal aspects of the arguments in the discussion that follows. But we certainly accept that there can be no question of unreasonable delay in the bringing of this application. It plainly was, in this particular case, reasonable for the applicant first to wait on the decision of the Full Court as to whether to grant permission to appeal to the Supreme Court and whether to certify a point of law of general public importance. Discussion 48. It is essential to re-emphasise one point (reflected in the authorities) at the outset. The point is fundamental to the availability and application of the Crim PR 36.15 procedure. That is that the procedure cannot properly be invoked simply as a means of having a second go. Were it otherwise, it would wholly subvert the finality of judicial decisions on appeal: hence the need for exceptional circumstances if such an application is to be entertained. 49. To assert “real injustice” simply as a result of an adverse outcome on appeal therefore is nothing to the point. Many unsuccessful defendants whose appeals are rejected may say, and some may sincerely believe, that their lack of success is a grave injustice. Likewise, some advocates may choose to think that because their arguments have failed, it must be that they had not been properly understood. But parties and their advocates, with respect, are not independent or objective and cannot, as it were, self-certify in this way. And for this purpose it adds nothing, save for the insertion of a few pejorative epithets, to describe a final decision not just as “wrong” or “misconceived” but as “utterly” or “wholly” or “demonstrably” wrong or misconceived. Errors in the Judgment of the Full Court 50. On this basis, the first ground advanced on behalf of the applicant would seem to fail in limine . It in effect raises, as a ground for re-opening the determination of the Full Court, the very propositions that the Full Court had by its reserved decision rejected. On that footing, this court simply will not, on this present application, entertain an attempt to renew or recast the legal arguments previously rejected by the Full Court and will not entertain a critique of the Full Court’s factual analysis or legal reasoning. 51. At the outset of his oral argument to this court, Mr Jeremy had seemed to accept that. He stated to us that he had no intention of re-running his arguments as to why the jury directions of the trial judge were wrong. Unhappily, it very soon became apparent that he had every intention of doing so. For he went on thereafter to submit, for example, that the Full Court could not properly conclude in law that the events of that night were not capable of breaking the chain of causation (or, if they were, then the only proper course was for the matter to have been properly left to the jury); fortifying his arguments by saying that the “genesis” of the legal error on causation lay in the trial judge’s initial approach in his initial instructions to the jury in assuming that the applicant’s supply of whisky could be causative of the death, and then compounded by his further allegedly incorrect directions to the jury after receiving the jury note. But these are the core propositions advanced (and rejected) in the course of the appeal. 52. For the reasons given, we are not prepared to entertain this way of re-presenting the arguments advanced on the previous occasion before the Full Court. And we dismiss as obviously wrong the further assertion under the second ground, that the Full Court had failed to address the arguments of the applicant and had given no reasons for rejecting the applicant’s argument to the effect that the decision in Kennedy (No. 2) was indistinguishable and mandated an outcome favourable to the applicant. Demonstrably, as the text of the judgment shows, the Full Court had engaged with such matters. It had considered the decision in Kennedy (No. 2) and had explained why (in its opinion) the statements of principle by Lord Bingham at paragraph 14 of the opinion did not, on the facts and circumstances of this present case, require that the appeal should be allowed. Procedural unfairness 53. Consequently, if this application under Crim PR 36.15 is to have any basis it must in reality be grounded on the third and fourth ways in which the arguments were presented: that is to say, by reference to procedural unfairness and/or to bias. We proceed with considerable caution given that these grounds were also used as a platform for re-asserting the alleged legal errors in the Full Court’s reasoning and conclusion on the appeal. 53. In this regard, Mr Jeremy complained bitterly (as he also had under his second ground) about the use to which the Full Court had made of the “weak swimmer” example which Mr Jeremy had himself introduced in his written arguments presented to the Full Court. We rather got the impression that Mr Jeremy chastised himself for having introduced that analogy, and for having made the concession in paragraph 22 of his written argument (and as recorded in paragraph 49 of the Full Court’s Judgment), given the use that the Full Court thereafter made of it. But, as we see it, he has no reason to chastise himself. It was simply putting forward a convenient (and graphic) illustration of the underlying principles. Indeed, before us Mr Jeremy – who did not seek to withdraw the concession made in paragraph 22 of his earlier written argument – provided another convenient example, by way of analogy, from the medical context. At all events, it had not really been in dispute (and in any case the Full Court clearly had held) that an undeclared intention, depending on the circumstances, is indeed capable of bearing on the nature of the act undertaken by the postulated victim. 54. It is impossible, in our view, to see how any procedural unfairness or error arises here (let alone a “clear and undisputed” procedural error). The point as to the weak swimmer had been introduced, by way of illustration, on behalf of the applicant himself. It then was accepted and adopted by the respondent in its written argument and speaking note. The applicant in the course of written arguments, had then sought to argue why that example did not correspond to the position in the present case. That therefore became a matter for the Full Court’s decision. The Full Court took the view, in essence, that the analogy advanced illustrated a correct legal approach and illustrated that ignorance on the part of the victim, through deceit, of facts (including as to undisclosed intentions) could, depending on the circumstances, change the nature of the act performed and affect the issue of whether such act was “informed”. The Full Court went on to decide, by reference to that analogy and rejecting the applicant’s arguments to the contrary, that in the circumstances of this case the trial judge’s directions to the jury had not been legally erroneous or flawed on the issue of causation. It was thus a matter which was the subject of the Full Court’s decision, by reference to the arguments addressed to it. 55. Mr Jeremy nevertheless complained that, given the degree of reliance which he said the Full Court had placed on the weak swimmer example, at the least the Full Court should, as a matter of fairness, have cross-questioned him at the hearing about that example; or at any rate should have given him a further chance to respond on the point before the final judgment was handed down. However, we can see no reason at all why the Full Court was required to do that, in circumstances where the example had been put in play in the arguments at the appeal. Mr Jeremy in fact sought to persuade us that he would have had, and did have, a cast-iron answer to the weak swimmer analogy in this case. But since his assertions involved attempting to reargue points available to be made before the Full court, we were not impressed by this approach. 56. We would however just add, if it be relevant, that we were in any event rather puzzled as to Mr Jeremy’s apparent assumption that the weak swimmer argument was conclusively different from the present case, if only by there being in that example an express (false) representation of intention with which the giver in truth had no intention of complying. But it is elementary that representations can, depending on the circumstances, be made by implication or by conduct. And in the present case it was a central part of the entire prosecution case (and not in substance in dispute at trial) that the applicant throughout had deceitfully represented to PF that he loved and cared for and had at heart the best interests by PF, when in truth he had engaged in “gaslighting” and when his intentions were entirely otherwise. Indeed, this was the applicant’s own boast, when he described himself as a ‘snake talker’. On any view, therefore, the events of 25/26 October 2015, as the jury found them to be, had to be placed in the context of all that had gone before. The Full Court had emphasised that all the circumstances had to be taken into account. Ultimately that was a matter for the Full Court; which had made clear that the resolution of the issue would depend on the specific nature of the individual case. It is not for this court, on this application, to trespass into such matters. 57. As a variation on the theme of procedural unfairness, however, it was then sought to be argued that the Full Court should have granted a re-hearing, or given the opportunity for further representations, following the sending out of the draft judgment and in the light of the complaints raised on behalf of the applicant at the time. 58. This was, in our judgment, a matter for the Full Court. It considered the complaints raised. It made clear that it had not misunderstood the arguments. It gave a ruling (which, pace Mr Jeremy, was amply sufficient – indeed, though succinct, was perhaps rather fuller than many courts, we suspect, would have given in such circumstances) rejecting the request for a re-hearing. For obvious reasons a draft judgment sent out with a view to handing down is not to be considered simply as a negotiable document: as, indeed, the conventional instruction that corrections are to be restricted to typographical and other obvious errors makes clear. Accordingly, a request for a reconsideration or re-hearing, following receipt of a draft judgment, can only be acceded to in exceptional circumstances: see, for example, the discussion (in the civil context) and citation of authority in the Civil Procedure Rules at 40.2.1.2. Here, the Full Court had concluded, as it was fully entitled to do, that there were no such circumstances. 59. However, it continued to be maintained before us on behalf of the applicant that unfairness was manifested in the changes made to the draft judgment (which Mr Jeremy sought to categorise as “profound” changes) prior to handing down. This is an untenable submission. Some of the corrections (in the light of Mr Wakerley’s observations) adopted what had been proposed; and, whatever is now sought to be said, were not, when set in context, of any very great moment (for example, substituting “could” for “would” in paragraph 49 and the removal of the reference to a concession in the last sentence of paragraph 59). To the extent that other modifications to the draft judgment were made of the court’s own motion, that is a relatively commonplace practice and is in no way objectionable: see R (Binyan Mohammed) v Foreign Secretary [2010] EWCA Civ 158 . 60. Mr Jeremy’s particular ire was directed at the adjustment to the fourth sentence of paragraph 63 of the draft judgment (set out above). He complained that whereas the sentence originally included in the draft judgment at least corresponded to and accepted the core submissions of the respondent (albeit, as he would say, entirely wrongly) the new text, he complained, corresponded neither to the respondent’s submissions nor to the way in which the jury directions of the trial judge had left matters: and amounted to an injustice and an unwarranted distortion of the case before the Full Court. Indeed, he also relied heavily on this point to support his further allegation of bias. 61. This is not tenable either. Paragraph 63 of the judgment of the Full Court has to be read in context. That context includes what the court stated in the immediately preceding paragraphs of the judgment: not least (but not only) what was held in the first two sentences of paragraph 62. Whether PF’s consumption of the whisky was “free, deliberate and informed” had to be placed in the context, among other things, of whether he had retained autonomy and was informed (or deceived) as to the relevant circumstances on the night in question. This part of paragraph 63 of the final judgment was not purporting precisely to summarise the trial judge’s directions but was focusing on what (in the opinion of the Full Court) was the effect these directions were taken to have had. The court’s conclusion was, that in the context of the facts of this case, the trial judge’s directions were legally correct. That being so, on analysis the argument then really becomes, yet again, a means of seeking to debate the correctness or otherwise of the Full Court’s legal reasoning and conclusion as to the adequacy of the trial judge’s directions. 62. We reject all the allegations of procedural unfairness in all the various ways they are advanced. Bias 64. We turn finally to the issue of bias. To a very considerable extent, as we have indicated, the arguments here are founded on the same points advanced under the heading of procedural unfairness. Indeed, bias can of itself be taken as an exemplification of procedural unfairness. 65. In his written grounds, Mr Jeremy relied solely on apparent bias: that is, by reference to the familiar test of the informed and fair-minded observer. However, the manner of expression of some of his written arguments caused the court to ask him at the hearing whether he was alleging actual bias. He told us, as we noted it, that he had “wrestled” with that: it was “close to the line” and he left it to this court to decide. We agree with Mr Saxby’s criticism of that as an equivocal and unsatisfactory stance. 63. This Court would wish to make it clear beyond doubt that if counsel consider they can properly argue that a court has acted out of actual bias, it is their duty to do so explicitly. It is also their duty to identify with precision the grounds advanced for such argument. It is in the highest degree unsatisfactory that such an implication should be left hanging in the air, neither explicitly advanced nor explicitly disclaimed. Such an approach will often mean there has been insufficient rigour in considering the case to be advanced in the first place. 64. We propose to proceed nonetheless on the footing that it was indeed being implied that there was here actual bias, if not also apparent bias, on the part of the Full Court. We do so in view of the assertion that the Full Court was influenced against the applicant by reason of his (on any view) reprehensible conduct and thereby was motivated to dismiss his appeal; and in view of various other statements made to us in submissions from the Bar by Mr Jeremy. For example, as we noted, he stated that the judgment of the Full Court “circumvented the application of the law to the facts of the case and circumvented the core function of the court”; the judgment “bypassed the arguments of both sides”; the use of the weak swimmer argument was a “device” to enable the appeal to be dismissed; the court was “determined to dismiss the appeal”; the final judgment delivered without any re-hearing “was not concerned with getting it right but was covering up the fact that it had got it wrong”; “fairness has been a casualty of the need to protect the judgment from scrutiny”; a “court of justice” (twice repeated) should have granted a re-hearing after the draft judgment was sent out (the clear innuendo being that this was a court of injustice). Statements of this kind, not isolated but sustained, are consistent only with an implication of actual bias – indeed connote assertions of an abrogation from the required judicial obligations, in accordance with their judicial oaths, on the part of the three judges comprising the Full Court. 65. We can dispose shortly of the allegation of apparent bias. It can only get off the ground if it is to be taken that the fair-minded and informed observer would share the view that the appeal was unarguably correct and unarguably should have succeeded (Mr Jeremy’s stance). But one only has to state that proposition to see that the argument must fail. In truth, the fair-minded and informed observer would doubtless have taken the view taken by the Single Judge – that there were powerful arguments both ways, requiring resolution by a reasoned decision of the Court of Appeal. As to the arguments repeated by reference to what happened following the sending out of the draft judgment, our clear view is (reflecting what we have said above) that no conclusion of apparent bias can properly be drawn from such matters. 66. We can also dispose shortly of the suggestion of actual bias. There is in our opinion, no basis whatsoever for such a suggestion. There is no complaint that the Full Court had manifested evident hostility towards the applicant at the hearing. Consequently, actual bias can only be inferred from the judgment itself and/or from the events occurring after the draft judgment was first sent out. But, really for the reasons we have given with regard to the assertions of procedural unfairness, it is not tenable to seek to draw a conclusion of actual bias from the way in which the adjustments to the draft judgment were made and from the refusal to permit a re-hearing at that stage. Nor is it tenable to seek to draw a conclusion of actual bias from a critique of the quality and sufficiency of the reasoning in the judgment and from a critique of the conclusion to dismiss the appeal. This allegation of bias should not have been made. 67. Accordingly, we reject the submission on behalf of the applicant that the applicant “patently was not given a fair and unbiased hearing.” 68. There being, as we conclude, no procedural unfairness, no bias and no real injustice arising, that is enough to dispose of this application. But if more were needed – it is not – there is also this consideration. 69. If (as the applicant contends) the decision of the Full Court is legally flawed and profoundly wrong, then there is a potential remedy: in the form of an application to the CCRC. Mr Jeremy rightly accepted that is so, even in the absence of fresh evidence or fresh legal argument: see s. 13 (2) of the Criminal Appeal Act 1995. Of course, if such an application were to be made to the CCRC it would then be entirely a matter for the CCRC itself to decide whether to entertain it and, if so, whether to direct a reference (and this court expresses absolutely no view on such matters). But the point remains that there is such a potential remedy available to the applicant. At all events, there is no question of this court exercising any residual discretion to reopen the decision in this case, to the extent that there may be such a residual discretion as suggested in Cunningham (cited above). 70. Mr Jeremy bluntly submitted that this court should not “kick the can down the road”, in his words. But that sort of argument can only gain traction (if at all) if this court had declined to consider the allegations of unfairness and bias: and here we have considered them and rejected them. That then in effect leaves the argument that the Full Court got the decision wrong. It is not then “kicking the can down the road”, however, to leave such a matter to an application to the CCRC. On the contrary, it is the required approach, in view of the need to uphold the finality of appeal decisions; in view of the need to ensure that the Crim PR 36.15 procedure should not be allowed to be used simply as a means for having a second go before the Court of Appeal; and in view of the need to ensure that the proper use of the CCRC procedure is not circumvented. Conclusion 71. For those reasons we refuse this application. 72. We would add, for the future, some more general observations. Parties and practitioners must clearly understand that the jurisdiction conferred by Crim PR 36.15 is extremely limited and that the jurisdiction can indeed only be exercised in exceptional circumstances. Parties may disagree, even profoundly disagree, with the reasoning and conclusion of an appellate decision. But such disagreement gives no basis whatsoever for an application under this Rule. It is inappropriate and wrong to make such an application, with the ultimate aim of getting another constitution of the court to re-consider the merits of an appeal, by means of claims of procedural unfairness or of bias which have no sustainable basis. To do so will be an abuse of process. The court will be vigilant to ensure that applications under the Rule will be confined to those narrow and exceptional circumstances where the Rule is properly to be invoked.

2022_03_16-5291.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/316/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/316

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[2005] EWCA Crim 192

EWCA_Crim_192

2005-02-02

crown_court

No: 200404939/A2-200406622/A6-200406386/A4-200406378/A3 Neutral Citation Number: [2005] EWCA Crim 192 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 2nd February 2005 GUIDELINE COURT B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) LADY JUSTICE SMITH MR JUSTICE OWEN - - - - - - - R E G I N A -v- BEN CORRAN JASON CUTLER KEVIN PHILLIP HEARD ANTHONY MICHAEL WILLIAMS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wor

No: 200404939/A2-200406622/A6-200406386/A4-200406378/A3 Neutral Citation Number: [2005] EWCA Crim 192 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 2nd February 2005 GUIDELINE COURT B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) LADY JUSTICE SMITH MR JUSTICE OWEN - - - - - - - R E G I N A -v- BEN CORRAN JASON CUTLER KEVIN PHILLIP HEARD ANTHONY MICHAEL WILLIAMS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR N MASON appeared on behalf of the APPELLANT CORRAN MISS S JONES appeared on behalf of the APPLICANT CUTLER MR G JOHNSON appeared on behalf of the APPLICANT HEARD MR T CROWTHER appeared on behalf of the APPLICANT WILLIAMS - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: We have heard together four unrelated cases one appeal with leave of the Single Judge and three applications for leave to appeal referred to the Full Court by the Registrar. Each, at least in part, involves consideration of a sentence passed in relation to one or more of the new offences created by the Sexual Offences Act 2003 , which came into force on 1st May 2004. 2. These cases give this Court the opportunity to give some further, preliminary, non-prescriptive guidance to sentencers in the Crown Court confronted by the problems to which the Act gives rise. 3. Before turning to the particular cases, we make some general observations. Historically the offence of rape has consisted of intentional penetration of a woman's vagina by a man's penis, without her consent, knowing that she did not consent or reckless as to consent. The 2003 Act has greatly expanded the circumstances in which sexual penetration can give rise to an offence punishable by life imprisonment. First, by section 1 the definition of rape is extended to include intentional penile penetration of the anus or mouth, so the victim may be male. Secondly, by section 2, assault by penetration extends to intentional penetration of the vagina or anus by a part of the body or anything else, so the victim may be male or the offender female. Thirdly, in relation to children under 13, by section 5, intentional penile penetration of the vagina, anus or mouth is rape and, by section 6, intentional sexual penetration of the vagina or anus is assault by penetration regardless, in each case, of consent. 4. It is apparent that rape can now be committed in a much wider variety of circumstances than before the Act . The age of the offender is immaterial. In all cases the maximum punishment available is life imprisonment. But the level of punishment appropriate will depend on the circumstances of the particular case. 5. This Court has given guidance on sentencing in relation to rape as defined in section 1 and assault by penetration as defined in section 2, in Attorney-General's Reference No 104 of 2004 (R v Garvey) [2004] EWCA Crim 2672 , where it was concluded, in paragraph 28, that the aggravating and mitigating features identified in R v Millberry [2003] 2 Cr App R(S) 142, continue to be of assistance, though the starting point for non penile penetration should generally be lower than for penile penetration. The Court also indicated that, following Millberry , for young offenders the sentence for rape and assault by penetration should be significantly shorter than for an adult. 6. Against that background, we turn to the offence of rape of a child under 13, contrary to section 5 of the Act . We say, at once, that no precise guidance can be given. The appropriate sentence is likely to lie within a very wide bracket, depending on all the circumstances of the particular offence. There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey upon them. 7. The offence is of such seriousness that custody is likely to be called for even when the new sentencing provisions of the Criminal Justice Act 2003 come into force later this year. There will be some offences, for example where there is no question of consent, and where significant aggravating features, as identified in Millberry are present, where a long determinate sentence, or a life sentence, will be called for, in accordance with existing authority on seriousness and dangerousness, as amplified by the Sentencing guideline Council's guideline on seriousness, by reference to sections 142(1) and 143(1) of the Criminal Justice Act 2003 , when those provisions come into force. 8. Although absence of consent is not an ingredient of the offence, presence of consent is, in our judgment, material in relation to sentence, particularly in relation to young defendants. The age of the defendant, of itself and when compared with the age of the victim, is also an important factor. A very short period of custody is likely to suffice for a teenager where the other party consents. In exceptional cases, of which there is one before this Court, a non-custodial sentence may be appropriate for a young defendant. If the offender is much older than the victim a substantial term of imprisonment will usually be called for. 9. Other factors include the nature of the relationship between the two and their respective characters and maturity, the number of occasions when penetration occurred, the circumstances of the penetration, including whether contraception was used, the consequences for the victim, emotionally and physically, the degree of remorse shown by the defendant and the likelihood of repetition. A reasonable belief that the victim was 16 will also be a mitigating factor, particularly where the defendant is young. A plea of guilty will, of course, be pertinent, in accordance with the guideline issued by the Sentencing Guidelines Council. 10. Pre Act authorities such as R v Bulmer 11 Cr App R(S) 586, R v Oakley 12 Cr App R(S) 215 and R v Brough [1007] 1 Cr App R(S) 55, which indicate a sentence of the order of 15 months for a defendant in his twenties, will continue to provide assistance, particularly bearing in mind that life imprisonment was the maximum sentence for the pre-Act offence of having sexual intercourse with a girl under 13. 11. Before the coming into force of the Sexual Offences Act 2003 , sexual intercourse by a man with a girl under the age of 16 was punishable by 2 years' imprisonment, but a defendant under the age of 24 had a defence if, with reasonable cause, he believed the girl to be 16 or over and had not previously been charged with such an offence. Sexual activity other than intercourse with an under 16 year old of either sex is now a criminal offence and the penalty has been increased substantially. 12. Sections 9(1) and (2) makes it an offence punishable with up to 14 years' imprisonment to engage in penetrative sexual activity with a person under the age of 16, if the offender does not reasonably believe the other person is 16 or over, or under the age of 13. If the offender is under 18, the maximum sentence, by section 13, is 5 years on indictment. Section 10(2) contains similar provisions in relation to causing or inciting a child to engage in penetrative sexual activity. 13. These increases in the maximum penalty must be appropriately reflected in sentences imposed by the courts in relation to offenders of whatever age. The factors which we have identified in paragraphs 7,8 & as among those relevant to sentence, in relation to the rape of a child under 13, will also be relevant in relation to penetrative sexual activity, under section 9 and section 10 subject to the one obvious difference that, in section 9 and section 10 offences, where the other party is 13 or over, reasonable belief that he or she was 16 or over will afford to a defendant of any age a defence rather than, as in section 5 rape, merely mitigation. Sentencers should of course bear in mind that, as indicated by the penalties provided by Parliament, an offence contrary to section 5 will generally attract a heavier sentence than an offence, even where the victim is under 13, contrary to section 9 or section 10. The sentence for section 9 and section 10 offences is likely to be less where the victim is under 16 rather than under 13. 14. Section 7 provides a maximum of 14 years on indictment, for sexual assault on a child under 13. Section 8 provides the same penalty for inciting a child to engage in penetrative sexual activity. The age of the offender and consent by the victim are both immaterial to the definition of the offences in sections 7 and 8. The factors relevant to sentence will include the nature of the assault or penetrative activity, and the period of time it lasted, and all the other factors identified in paragraphs 7,8 & 9 relation to a section 5 offence, appropriately adjusted, in relation to section 7 offences, to apply to assault rather than penetration. 15. Pre-Act authorities will continue to be of assistance, subject to them being viewed through the prism of the increased sentence for sexual assault from 10 to 14 years. In relation to section 7 offences, the custody threshold will not always be passed. Generally speaking, despite the similar maximum penalties, section 7 offences will be less serious than offences contrary to sections 8, 9 or 10. 16. Sections 11 and 12, respectively, create offences for persons over 18, engaging in sexual activity in the presence of children either under 16 not reasonably believed to be 16 or over, or under 13, and for the purposes of sexual gratification derived from causing such a child to watch such activity. It is to be noted that the maximum penalty for these offences is 10 years on indictment. They will usually attract a lesser sentence than that appropriate for sexual activity with a child, in contravention of sections 5 , 7, 8, 9 or 10. Factors relevant to sentence will include the age and character of the defendant; the age of the child; the nature and duration of the sexual activity engaged or, in the case of section 12, depicted in the image, the number of occasions when the activity is observed, the impact on the child, the degree of remorse shown by the defendant and the likelihood of repetition. A plea of guilty will call for the appropriate discount. 17. In the light of these observations, we turn to the cases before us which, as will appear, afford examples of some of the principles which we have sought to express. 18. Corran is an exceptional case. On 13th August 2004, at Mold Crown Court, he pleaded guilty to rape, contrary to section 5 of the Act , and was sentenced by His Honour Judge Rogers QC to 2 years' detention in a young offender institution. He was, in consequence, required to comply for 10 years with the provisions of section 2 of the Sex Offenders Act 1997 . He was disqualified from working with children under section 28 of the Criminal Justice and Court Services Act 2000 indefinitely. He appeals against sentence by leave of the Single Judge. 19. The facts were these. He met the complainant, who was born in January 1992, in April 2004. She was 12, but she was in the company of girls all of whom were aged 15 or 16. The appellant, who was born in April 1984, was just 20. He stopped his car in a car park in the Boat House, near Connah's Quay. He spoke to the complainant and they exchanged telephone numbers. For the next three or four weeks they saw each other every day and, during that period, the complainant told the appellant that she was 16 years of age and, furthermore, that she was in year 11 at school which would suggest she was 16, and that she was shortly leaving school. The relationship continued. 20. In interview, later, the appellant said he would not have continued the relationship had he known her age. There is no reason to doubt that he meant that. She looked 16 to him; she smoked and she was not, as it transpired, a virgin. 21. On Friday 7th May 2004 the appellant and the complainant were alone together. She removed her clothing, and said it would be O.K. for the appellant to have sex with her. They had consensual sex. The appellant used a condom. The complainant later described the act as pleasurable. She told her mother what had happened. Her mother reported the matter to the police. On 10th May the complainant was interviewed and on 13th May the appellant was arrested. He immediately admitted having had sexual intercourse and said he would not have done so had he known her age. He felt disgusted and ashamed and felt he had been misled by the girl. 22. The learned judge, in passing sentence, pointed out that, in view of the change in the law, the appellant was now guilty of rape because the girl was under 13. He said, rightly, that the purpose of the legislation was to protect girls, but there were other factor, very much in the appellant's favour. The judge specifically referred to the guilty plea, at the very earliest opportunity, the good work record of the appellant, and the fact that he came from a respectable family. He then went on to pass the sentence to which, at the outset, we referred. 23. There was before the judge, as there is before us, a pre-sentence report indicating that the appellant was aware of the seriousness of the offence and felt misled and betrayed by the victim. But he accepted that, at her age, she had not been able to consent and there was a need for her to be protected by the law. The pre-sentence report recommended a community rehabilitation order. There were five references which spoke of the appellant as being reliable and hard working, responsible and trustworthy. 24. The submission which is made in the grounds of appeal, and supported by oral argument on behalf of the appellant by Mr Mason, is that the imposition of a custodial sentence was wrong in principle. Mr Mason stressed each of the mitigating circumstances which we have already summarised, both in relation to the apparent and asserted age of the girl, the use of a condom, the remorse, the plea of guilty at the first opportunity and the personal mitigation in relation to good character and work in relation to the appellant. 25. As it seems to us, there is, in this case, apart from the actual difference in age between the appellant and the victim, every feature of mitigation which could be imagined. In those circumstances, as we said at outset, the learned judge might very well have thought it appropriate to take the wholly exceptional course of imposing a non-custodial penalty, whether by way of a community punishment order, or otherwise. 26. The present situation is that the appellant has spent the best part of five-and-a-half months in custody. In those circumstances, what we propose to do, in allowing this appeal, is to quash the sentence of 2 years' detention imposed by the learned judge, to quash also the disqualification from working with children, under section 28 of the Criminal Justice and Court Services Act 2000 , and to substitute a conditional discharge for a period of 6 months. That period, as it runs rom the date of sentencing in the Crown Court, has now all but expired. That means that the liability of the appellant to report, in accordance with the provisions of the Sex Offenders Act in relation to sex offenders has now effectively expired. In these respects his appeal is allowed. 27. We turn to the case of Jason Cutler. On 26th October 2004, at Southampton Crown Court, he pleaded guilty before His Honour Judge Burford QC to a number of offences in two indictments. In the first indictment, count 1 was sexual intercourse with a girl under 16, and count 2 was a similar offence, contrary to section 6(1) of the Sexual Offences Act 1956 . In relation to those offences, he was sentenced to 12 months' imprisonment on each concurrently. Counts 3 and 4 were both offences of engaging in penetrative sexual activity with a child, contrary to section 9(1) and (2) of the Sexual Offences Act 2003 . In relation to those offences, he was sentenced to a term of 4 years' imprisonment, on each count concurrently, those sentences to run concurrently to the sentences imposed on counts 1 and 2. He had also pleaded guilty, on rearraignment, to count 1 of a second indictment, which charged penetrative sexual activity with a child contrary to section 9 of the 2003 Act . In relation to that he was sentenced to 2 years' imprisonment concurrently with the other sentences. 28. So far as the 4 year sentence on counts 3 and 4 is concerned, that was an extended sentence pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 , the custodial term of which was 2 years' imprisonment and the extended licence period 2 years'. The total sentence was therefore an extended sentece of 4 years. His application for leave to appeal against sentence has been referred to the Full Court by the Registrar. 29. The facts were these. The offences on the two indictments were specimen charges. The complainant, a girl to whom we shall refer as R, was born in August 1990 and was, in consequence, 13 years old at the time of all the offences. She had been living with her grandparents but, in February 2004, she moved out and stayed with a friend who was the applicant's stepdaughter. After a few months she moved back to live with her mother. A little later, the complainant's mother found a number of sexually explicit text messages sent by the applicant on the complainant's mobile telephone. These messages made it clear that the two had been involved in a sexual relationship. The mother, in consequence, went to the police. 30. The complainant admitted having had sexual intercourse with the applicant on one occasion, but refused to make a complaint as she said she loved him. The applicant was arrested and interviewed and he admitted having had oral sex and full sexual intercourse with her, but, he said, that was on one occasion, between mid-June and early July 2004. He said he was fully aware of her age and knew what had occurred had been unlawful. That incident was reflected in count 1 of the second indictment. 31. Subsequently, the complainant decided that she would make a complaint. So she was, in consequence, interviewed on video. She said that she had first had sexual intercourse with the applicant in mid-February 2004, and that formed the basis of count 1 of the first indictment. She said that, between then and July 2004, she had had sexual intercourse with the applicant between 10 and 15 times, possibly more. Counts 3 and 4, which relate, of course, to the sexual activity after 1st May, are specimen counts of that conduct. 32. The complainant said that, a few weeks before she moved back to live with her mother, the applicant had tried to have sex with her while she was getting changed. He had come into the bedroom and she had only been wearing a towel. He began to kiss and touch her and she had pushed him away, saying that she hated him. When he was interviewed a second time about these allegations, the applicant made no comment. 33. In passing sentence, the learned judge said that credit would be given for the guilty pleas and full admissions. But the judge pointed out that the applicant, compared with this 13 year old friend of his stepdaughter, was 35 years of age. By his own admission he had had fully penetrative sexual intercourse with her on between 10 and 15 occasions. Her history meant that she was a vulnerable victim. The mitigation to which the judge referred included the absence of any previous convictions, the fact that no force had been used and the fact that intercourse had been consensual. The judge also took into account that, shortly before the commission of the offences, the applicant's partner of 14 years had left him and his house was being repossessed. 34. The judge referred to Parliament having increased the maximum sentence for offences of this nature to 14 years' imprisonment. It was accepted that all five counts to which the applicant had pleaded guilty were of comparable gravity in themselves and involved the same sort of act on each occasion. But the judge said the court was obliged to take into account the increase by Parliament in the maximum sentence. 35. The judge concluded that, in order to provide protection and to preclude the applicant from committing further offences, an extended licence period was necessary and therefore, as we have said, he imposed, in relation to counts 3 and 4 the 4 year extended sentence, 2 years of which was custodial. 36. The pre-sentence report before the judge indicated that the applicant may not have realised the seriousness of his offending. Bt he posed, in the judgment of the author of that report, a high risk of re-offending and a high risk of causing harm, particularly emotional harm, to others, specifically young teenage girls. He had, in many respects, been acting in loco parentis towards the victim, so the breach of trust provided an exacerbating feature. 37. There is an addendum to that pre-sentence report, which dealt with matters after it had become apparent that the applicant had initially lied about having only committed one offence. That report also suggested that, despite his physical age of 35, he was mentally, perhaps, quite close to the complainant. The risk assessment however remained the same. 38. The grounds of appeal, supported in oral submissions before this Court by Miss Jones, contend that the sentences for the new offences charged under section 9 were excessive and/or wrong in law, having regard to the lesser sentences imposed for identical offending charged under the 1956 Act . She stressed that there had been no change in the applicant's behaviour throughout the course of his relationship with the complainant. 39. That is so but, as we have said, at an earlier stage in this judgment, the courts have to give effect to Parliament significantly increased the maximum sentence available in relation to particular forms of conduct. 40. Despite Miss Jones' able submissions, we are unpersuaded that there is in the sentence passed by the learned judge, anything to which exception can properly be taken. Accordingly leave to appeal against that sentence is refused. 41. We come to Heard. He is was born in September 1961. On 2nd June 2004, having pleaded guilty before the magistrates, he was committed to the Crown Court for sentence under the powers in section 3 of the Powers of Criminal Court (Sentencing) Act 2000 , in relation to one offence of possessing indecent photographs of children and 15 offences of making indecent photographs of children. 42. At the Nottingham Crown Court, on 23rd August 2004, before His Honour Judge Teare, the applicant pleaded guilty to all eight counts in the indictment. Counts 1 and 3 were offences of indecent assault on a female, contrary to section 14 of the Sexual Offences Act 1956 . Counts 2 and 4 were two offences of indecency with a child, contrary to section 1 of the Indecency with Children Act 1960 . Counts 5 and 7 were two offences of engaging in sexual activity with a child, contrary to section 9 of the 2003 Act , and counts 6 and 8 were two offences of causing or inciting a child to engage in sexual activity, contrary to section 10 of the 2003 Act . On 18th October he was sentenced by Judge Teare to 12 months' imprisonment concurrently on each of the offences for which he had been committed for sentence by the magistrates, to 3 years' imprisonment concurrently on counts 1 and 3 of indecent assault, to 1 year imprisonment concurrently on counts 2 and 4, of indecency with a child, and to 5 years' imprisonment concurrently on the offences contrary to sections 9 and 10 of the 2003 Act , in counts 5 to 8 inclusive. 43. The 5 year sentence imposed on counts 5 to 8 were ordered to run consecutively to the 12 month sentences imposed on the committal for sentence, making a total custodial term of 6 years' imprisonment. The judge, using his powers under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 , ordered that the total sentence should be an extended one of 8 years, the custodial term of which was 6 years, with an extended period of licence of 2 years. The judge also made a Sexual Offences Prevention Order under sections 104 and 106 of the 2003 Act preventing the applicant from contacting the complainant indefinitely. Orders were made for forfeiture and destruction of the indecent images and the computers involved in the offences to which he had pleaded guilty before the justices. A three year community rehabilitation order, imposed in April 2004 at Nottingham Crown Court, for an offence of indecent assault on a female was revoked and no order was made on the breach. The applicant was required to comply indefinitely with the provisions of Part II of the Sexual Offences Act 2003 , in relation to reporting. 44. The Registrar has referred his application for leave to appeal against sentence to this Court. We grant leave. 45. The facts in relation to the offences for which he was committed for sentence are that on 27th January 2004 the appellant's home address was searched and his computer seized. It contained more than 100 indecent images of children, which had been accessed between the end of September 2003 and the beginning of January 2004. Specimen charges were laid and the appellant pleaded guilty to one offence of possessing in excess of 100 indecent images of children and to 15 offences of making indecent images of children. 46. The images were at various levels. There were three or four at level 4, six or seven at level 3, two at level 2 and two at level 1. The applicant made full admissions in interview. This Court gave guidance as to the appropriate level of sentence in such cases in R v Oliver [2003] 2 Cr App R(S) 64 and R v Wilde [2002] 1 Cr App R(S) 156. No criticism is, or could, be made of the 12 months sentences imposed in relation to these offences in themselves. The burden of the appeal relates to the sentencing of the appellant to 5 years in relation to the section 9 and 10 offences and the order that that sentence should run consecutively to the 12 month sentence for the other offences to which he pleaded guilty before the magistrates. 47. So far as the facts giving rise to the offences on the indictment are concerned, the appellant had previously been remanded in custody in relation to an offence of indecent assault and unlawful sexual intercourse. In April 2004 he was released from custody and given a 3 year community rehabilitation order for those offences. Within a few days of his release, he re-established contact with the girl who was the complainant in relation to those offences. She was 14 at the time. The appellant was to claim, in interview, that contact was re-established at the initiation of the girl's parents. Her parents denied that that was the case. 48. The counts in the indictment all related to incidents of mutual masturbation between the appellant and the girl. Count 1 involved the appellant digitally penetrating the complainant's vagina. Count 2 involved her masturbating him. Counts 3 and 4 were a pair of offences as were counts 5 and 6 and counts 7 and 8. The offences took place from April 2004 onwards. 49. Counts 5, 6, 7 and 8 took place after 1st May 2004, and were in consequence charged under that Act . In interview, the complainant said that the offences took place in a car parked in a car park and in other public areas, often at about 8 o'clock in the morning, when the appellant was driving the complainant to school. He would drive to the top floor of a nearby car park, where there were no other cars about. The girl was to say "he changes once I make him happy and then he treats me like crap". She said, more than once, that she believed the appellant loved her and she did not want to disappoint him. He would ask for sexual favours and she might initially say "no" but would eventually agree for fear of disappointing him. On one occasion, having refused to perform oral sex on him, she asked: "Have I disappointed you?" 50. The appellant was arrested on the 23rd May 2004 and admitted the offences in interview. 51. In passing sentence the learned judge referred to the significant fact that the appellant had been sentenced earlier that year to the 3 year community rehabilitation order to which we have referred, in relation to unlawful sexual intercourse with this girl. At the time that the judge passed sentence in that case, he had said that the appellant was not a paedophile, but that it was his attitude which needed adjusting. Judge Teare said that had the earlier judge known the true facts, he would have said that the appellant is a paedophile. 52. The images in relation to which the appellant had pleaded guilty before the magistrates contained, as we have said, level 4 images, which is a high degree of seriousness. The judge pointed out that, within 10 days of being released from prison, while subject to the community rehabilitation order, The appellant had gone back to the girl and contacted her. The judge did not accept that that was at the behest of the girl's parents. The judge said that the appellant had sought her out and indulged in a sexual relationship for his own gratification. He would not go any further than she would allow. He stopped when she told him. Bt he had pressured her into going further. 53. The judge gave credit for the plea of guilty at the earliest available opportunity. He took into account that the indecent images on the computer were relatively small in number. He also took into account that the appellant had spent a month in custody in relation to the earlier offences, and had in relation to the present offences, spent 5 months in custody. 54. The judge stressed that it was irrelevant that the girl had consented to what they did together. The appellant was 40 or more, and had the responsibility for saying "no". The girl was 14 and Parliament took the matter so seriously that it had increased the maximum available sentence for such behaviour. 55. The pre-sentence report confirmed the need for children to be protected from the appellant. 56. A pre-sentence report on the appellant said that he did not feel shock or repulsion at the indecent images he had been viewing. He regarded his relationship with the girl as consensual. He was aware that his behaviour was illegal but he could not understand why, claiming "children are ready for sex when they feel they are". He felt that he and the victim communicated on an equal level and he was unable to accept that he had been, as an adult, guilty of an abuse of power. It does not seem that he ruled out the possibility of future contact with the victim. His behaviour showed that he was sexually attracted to children and strongly motivated to offend against them. The risk of harm he represented to children was significant. 57. There was a report from a psychologist, referring to the stammer from which the appellant has suffered since his youth, thereby limiting his opportunities to develop skills in sexual relationships. The psychologist refers to the death of the appellant's father, the breakdown of his marriage and the consequent excessive amount of alcohol which he consumed and was consuming prior to the commission of these offences. He was also angry at being rejected by a woman he had met over the Internet. He had always, according to the psychologist, been passive in his previous sexual relationships but gained a sense of power from his relationship with this complainant. He had taken advantage of the complainant's emotional insecurity and need for physical affection and the lack of support from her parents. He attempted to blame the complainant. He minimised his responsibility and he minimised the harm caused to the complainant. The risk of him reoffending was high. Imprisonment would allow him to complete a sex offender treatment programme. He also needed to address his misuse of alcohol. 58. On behalf of the appellant Mr Johnson submits that the judge's starting point must have been too high because the imposition of an extended sentence of 8 years suggested that, following a trial, the judge would have had in mind a sentence of 12 years. That, submits Mr Johnson, would have been plainly excessive, having regard, in particular, to the maximum available sentence of 14 years. The submission is further made that the judge did not pay such attention as she should have done to the fact that the girl consented. 59. As to first of those submission, we are sympathetic. The second of those submissions, we reject. It does seem to us that the starting point of the learned judge, despite the gravity of the appellant's conduct, was too high. 60. In those circumstances, we propose to allow this appeal in the following way: to quash the sentence of 5 years' imprisonment imposed concurrently on counts 5, 6, 7 and 8, to substitute for that 5 year custodial term a sentence of 4 years. with an extended licence period of 2 years, that is to say the total sentence on counts 5, 6, 7 and 8 will be an extended term of 6 years, the custodial term of which will be 4 years. The sentences imposed by the judge on counts 1 to 4 will as he ordered, run concurrently. The 12 month term imposed in relation to the offences before the magistrates will be ordered to run concurrently to that sentence rather than consecutively. The total sentence is therefore 6 years with a custodial term of 4 To that extent, this appeal is allowed. 61. We turn, finally, to the case of Williams. He is 52 years of age. On 6th September 2004, at Cardiff Crown Court, before the Recorder of Cardiff, his honour judge Griffith-Williams QC, he pleaded guilty to nine offences, contrary to the Sexual Offences Act 2003 and to two offences of abducting a child. The offences were as follows: in counts 16, 22 and 28, sexual assault on a child under 13, contrary to section 7(1) of the 2003 Act ; counts 17 and 23, sexual activity with a child, contrary to section 9 of the 2003 Act ; counts 18, 24 and 30, engaging in sexual activity in the presence of a child, contrary to section 11 of the 2003 Act ; counts 90 and 25, abducting a child, contrary to section 2(1) (a) of the Child Abduction Act 1984 , and count 27, assault on a child under 13 by penetration, contrary to section 6 of the 2003 Act . He was sentenced on 25th October to 6 years' imprisonment concurrently on count 16, 22 and 28; 6 years' imprisonment concurrently on counts 17 and 23; 3 years concurrently on counts 18, 24 and 30; 3 years concurrently on counts 19 and 25 and on count 27, he was sentenced to life imprisonment, with a notional determinate sentence of 9 years, and a specified minimum term of 4 years and 3 months. The total sentence was therefore life imprisonment, with a specified term to be served of 4 years and 3 months. An order was made under section 28 of the Criminal Justice (Court Services) Act 2000, disqualifying the applicant, for life, from working with children. He was also required to comply with notification provisions in relation to the sex offdners register indefinitely. There were other counts of abducting a child, rape, assault of a child under 13, sexual assault of a child under 13, sexual activity with a child and engaging in sexual activity in the presence of a child which were, following pleas of not guilty, ordered to lie on the file on the usual terms. The Registrar has referred his application for leave to appeal against sentence directly to the Full Court and we grant leave to appeal in relation to the notional determinate sentence of 9 years passed in relation to count 27. 62. The victim was a boy of 11. On 12th July 2004, he was introduced to the appellant by an 11 year old friend of his. The appellant gave the boy beer, cigarettes and money on a number of occasions. After school, between about 3.30 and 4 o'clock in the afternoon, on various dates identified in the indictment, the appellant pulled the boy into his flat and kept him there until about 7 or 8 o'clock in the evening. During that period of 3 hours or so, he sexually abused him. 63. In relation to counts 16, 17 and 18, the events occurred on 14th July 2004. The appellant took the boy into his flat and masturbated him. That gave rise to count 16. The boy's trousers and boxer shorts were pulled down and the appellant performed oral sex upon him, claiming that he wanted the boy to get a thrill. That formed the basis of count 17. Count 18 arose from the boy witnessing the appellant masturbating to ejaculation. 64. As to counts 19, 22, 23 and 24, on 15th July the appellant pulled the boy into his flat. The boy said he did not want to go there. He was scared. He had to be home at a certain time.The appellant "just would not let him go home". That formed the basis of abduction in count 19. Count 22 related to the appellant's sexual duction on the complainant at this time, count 23, to the appellant performing a further act of oral sex on the boy, and count 24 related to the appellant masturbating in the boy's presence. 65. Counts 25, 27, 28 and 30 were representative of the appellant's offending on 16th July. At about 7.00 in the morning, the boy was in a park near the appellant's flat. The appellant seized him from behind and pulled him into the flat, locking the door. He started doing things to the boy which he said he did not like. The appellant took the boy to his place of work in Cardiff. The boy displayed reluctance to go but was compelled to do so and, at the appellant's place of work, he was made to play on the computer and told he was not going home until the appellant went home. The boy was there for about 3 hours and that formed the basis of the abduction count, count 25. 66. Count 27 related to an incident in the appellant's flat when he applied cream to his little finger and inserted it into the complainant's anus. About 10.00 am on 16th July the appellant had arrived at work with the boy. He felt the boy's private parts when he was near the computer. Those incidents of sexual touching at the appellant's place of work gave rise to count 28. In the appellant's flat that day the appellant masturbated in front of the boy and that gave rise to count 30. 67. The appellant was seen later on 16th July. He denied doing anything wrong. The boy told the police "he forced me on to the bus" and the appellant was arrested, at that stage on suspicion of abduction. The boy described the various acts of the appellant towards him. The appellant said he did not know the boy's parents and the appellant was further arrested for acts of indecent assault and gross indecency with a child, to which he replied "fair enough." He made no further comment in interview. A medical examination of the boy found swelling and discolouration of the penis, together with scratch-like marks consistent with having been made by teeth. There was a deep bruise on the boy's anus, suggestive of direct blunt trauma. 68. The learned judge referred, in passing sentence, to the appellant's previous convictions as indicating he was a predatory paedophile who targets and grooms young boys. He has appeared before the court on 19 previous occasions for 50 offences. Those between 1962 and 1986 were largely for dishonesty, for which he was dealt with in a variety of ways, including approved school and borstal. 69. In 1975 he was sentenced to 12 months for four offences of indecent assault on a 5 year old boy. On 11th November 1986, he was sentenced to 5 years for three offences of indecent assault on a male and one offence of indecent assault on a female and two offences of buggery. The victims in those cases being aged between 7 and 10 years. 70. On 12th October 1990 he was sentenced to 5 years for indecent assault on a male, indecent assault on a female and gross indecency with a child, the victims in each case being age,d, respectively, 8, 12, and 4. On 16th February 1995, for indecent assault on a male under 14, he was sentenced to 3 years' imprisonment, and his licence was extended to the full term, under section 44 of the Criminal Justice Act 1991 . His last previous appearance was in July 2000, when he was given a conditional discharge for failing to notify a change of name or address while being a registered sex offender. 71. The judge, having referred to the appellant's previous convictions, spoke of his abuse of the victim in the present case, over a three day period, as having added to the problems of the boy and to his distress. 72. Counsel had submitted to the judge that the offending was not of the highest order of abuse, apart from the anal digital penetration. But the judge referred to the damage to the boy's penis resulting from the masturbation, and the aggravating feature of the abduction of the boy on two occasions. 73. The history of offending and inability to control his offending meant that the appellant was likely to commit similar offences in the future. The judge said that a longer than commensurate sentence would not be sufficient to protect young people, even if combined with the maximum period of 10 years, in relation to an extended period of licence. The judge took the pleas of guilty into account. 74. A pre-sentence report before the judge referred to the grooming behaviour of a vulnerable child by the appellant. It spoke of him presenting a high risk of reoffending and a high risk of causing harm to children and their families. He was also at a high risk of harming himself. He had apparently been sexually abused himself when a child. The report recommended that the maximum period of extended licence should be imposed by the court to manage the ongoing risk posed by the appellant. 75. A psychiatrist's report referred to the appellant's extremely unhappy childhood and difficulty in forming appropriate relationships with adults. It spoke of his difficulty in resisting the urge to act upon his fantasies, his inability to resist being severely compromised by his alcohol abuse and he had developed symptoms of Alcohol Dependency Syndrome. He did not, however, suffer from any major mental illness, but was depressed at the prospect of a further prison sentence. He presented a significant risk of re-offending for the foreseeable future. 76. In a characteristically able submissions, Mr Crowther, on behalf of the appellant, submits, first, that a life sentence was not justified in this case. He bases that submission on a contention that the offence of digital penetration of the anus ought not properly to be characterised as very serious, which is a necessary prerequisite for a life sentence, in the light of the relevant authorities (see for example R v Whittaker [1997] 1 Cr App R(S) 261 and R v Chapman [2001] Cr App R 77). Mr Crowther accepts that, so far as the necessary precondition of an offender continuing to remain a serious danger for a period which cannot be reliably estimated is concerned, that that condition is, in the case of this appellant, met. 77. We are unable to accept that the offence giving rise to count 27, in the context of repeated abduction and sexual abuse in which it occurred, cannot properly be regarded as very serious. In our judgment, it was and is, and, as it seems to us, the circumstances justifying the imposition of a life sentence were established. 78. Mr Crowther's further submission is that a 9 year notional determinate sentence, taking into account the guilty plea in relation to count 27, and therefore suggesting that, on a trial, a sentence of 12 years would have been an appropriate determinate sentence, must demonstrate too high a starting point. 79. Mr Crowther referred, in particular, to a decision of this Court in R v Wheaton [2004] EWCA Crim 2270 , where in paragraph 26 of the judgment of the Court, given by Treacy J, the argument of counsel in that case was accepted. The argument was to this effect that: "...in the fixing of a notional determinate term, the element of the sentence reflecting the need to protect the public from danger posed by the defendant should not be taken into account where a discretionary life sentence is being passed." It is, as it seem to us, apparent that a sentencing judge must avoid overlap when a life sentence is imposed in relation to the danger posed by an offender, when alighting upon the relevant notional determinate sentence. Continuing risk to the public and danger from the offender is properly to be regarded as being taken care of by the life sentence. 80. We, accordingly, accede to Mr Crowther's second submission. This appeal will be allowed to this extent only: the notional determinate sentence of 9 years will be quashed, and there will be substituted for it a notional determinate sentence of 6 years. The specified term to be served will therefore be 3 years, less a period of 3 months which the appellant had spent in custody, so the specified period to be served is one of 2 years and 9 months' imprisonment. The life sentence, for reasons which are already explained, remains.

2005_02_02-437.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/192/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/192

b0457ce94810595a2fdcd5590d0255cb5699fa739e7a4d3e749b4bf57d8720b7

[2007] EWCA Crim 3217

EWCA_Crim_3217

2007-12-11

crown_court

No: 200704751/A2 Neutral Citation Number: [2007] EWCA Crim 3217 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 11th December 2007 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE MACKAY MRS JUSTICE COX DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v PATRICK TIMLIN - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet S

No: 200704751/A2 Neutral Citation Number: [2007] EWCA Crim 3217 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 11th December 2007 B e f o r e : LORD JUSTICE THOMAS MR JUSTICE MACKAY MRS JUSTICE COX DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v PATRICK TIMLIN - - - - - - - - - - - - - - - - - - - - - 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 K Gledhill appeared on behalf of the Appellant Mr J Counsell appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - Judgement 1. LORD JUSTICE THOMAS: On 17th July 1987 in the Crown Court at Birmingham before Mars Jones J, the appellant was convicted of conspiracy to wound and a conspiracy to murder. On 29th October in the same year, at the Central Criminal Court, the appellant was convicted of a count of attempted murder, a count of murder and a count of conspiracy to murder. He was sentenced on 30th October 1987 to life imprisonment. 2. The facts can be briefly summarised. On 10th October 1985 the appellant and another man entered a shop at a service station in Derby where the victim, Sucha Singh Atwal, was the co-proprietor. The appellant was carrying a .45 loaded Webley revolver which he fired at the victim at a range of about five to six feet narrowly missing him. 3. The next victim was Sangtar Singh Sandhu who was a Sikh and a well-known supporter of the late Rajiv Ghandhi. At about 5.00 pm on 16th January 1986 he arrived home with a friend. He reversed his car into the driveway of his home as he switched off the ignition he was shot with a shotgun, from very close range, to the offside window of the car by the appellant. He sustained serious head injuries and lost the sight of his right eye. 4. The third victim was Tarsem Singh Toor, who was a shopkeeper. He was prominent in politics and associated with Sandhu. At about 9.55 on 24th January 1986 he and his assistant were alone in the shop when the appellant entered the premises. He spoke to the assistant who turned away and then produced a gun. He fired at Toor who sustained terrible injuries to his head and died within an hour of his admission to hospital. 5. The appellant had been hired by Sikh extremist terrorists to commit these offences and was paid £6,000 for the offences. The final count to which we have referred related to a conspiracy to murder a person unknown. 6. The Lord Chief Justice and the trial judge considered the minimum term and recommended a minimum term of 30 years. 7. In 1994 the then Home Secretary wrote to the appellant to tell him that the Home Secretary had set the tariff at 30 years, but said he was willing to accept written representations as to the period to be served in accordance with the statement that had been made to the House of Commons in July 1993. Representations were made which included the provision of a psychiatric report. On 6th July 2001 a revised tariff was set at 25 years. No reduction was made on the grounds of exceptional progress. As was the custom at the time, no reasons were given for the decision of the then Home Secretary. 8. With the passing of the Criminal Justice Act 2003 , those who had been sentenced by the executive to a minimum term, in those circumstances, became entitled to a review by the judiciary of that term. The appellant sought a review in accordance with section 276 and paragraph 3 of Schedule 22 of the Criminal Justice Act 2003 . The matter was referred to Wilkie J. Submissions were made that the tariff term should be reduced to 20 years. In a judgment given on 21st July 2007, Wilkie J concluded: "Applying the provisions of schedule 21 of the 2003 Act there is no doubt that the appropriate minimum term for this offender would have been significantly above 30 years. The multiplicity of the attacks, the highly organised nature of its commission and the political motivation each served to push the minimum term beyond the starting point of 30 years for someone who killed for gain. The Secretary of State was undoubtedly right in reducing his tariff from 30 years to 25 years to reflect the discrepancy in the seriousness of the involvement in these offences between, respectively, the offender and Basra but, in my judgment, the Secretary of State was correct in declining to consider that the progress made whilst in prison to be sufficiently exceptional to reduce further the tariff. There is nothing in the current representations which causes me to differ from that view. The offender's progress during sentence can be taken into account when the decision is taken whether, and if so when, to release him on licence at the end of the minimum term. I am obliged to have regard to the time spent in custody on remand awaiting trial which in this case was 12 months and 12 days. As I have indicated, the term notified by the Secretary of State is significantly less than the minimum term which now would be fixed under Schedule 21 of the 2003 Act even taking that period fully into account. I can see no reason to reduce that term still further to reflect that fact. Therefore the minimum term which I set is 25 years." 9. It is against the decision that time on remand should not count, as set out in the last paragraph of the judgment, that the appellant appeals with the leave of the Single Judge. 10. The provisions of Schedule 22 to the Criminal Justice Act provide by paragraph 3(1), that on the application of an existing prisoner [which the appellant was] “the High Court must in relation to the mandatory life sentence order the early release provisions [under s.28(5)-(8) of the Crime (Sentences) Act 1997] apply to him as soon as he has served that part of the sentence which is specified in the order, which in a case falling in paragraph 2(a) must not be greater than the notified minimum term”. 11. The judge is also obliged to have regard to the matters set out in paragraph 4, the seriousness of the offence and other matters. 12. The short point made by Mr Gledhill, on behalf of the appellant in this case, is that it was wrong of the judge to have increased the minimum term that had been notified to the appellant by in effect ordering that the time spent on remand should not count; this was contrary to the provisions of paragraph 3(1) which we have set out. 13. To examine the correctness of that submission it has been necessary to investigate and receive evidence in relation to the practice of the then Home Office, now the Ministry of Justice, in relation to the fixing of tariffs at the relevant time, that is to say back in 1987. 14. From what we have been told has been a diligent search made by the Ministry of Justice officials who now have charge of this matter, the officials are satisfied that, generally, at the time tariffs were fixed in 1987, time on remand was taken into account and the tariff ran from the date on which the offender was remanded into custody. If that is right, then to provide now that a prisoner should serve the tariff without taking into account the time on remand would be to increase the minimum term, which is not permitted by the provisions of paragraph 3. 15. There is, however, one difficulty that has emerged. It appears that the appellant was remanded into custody on 16th October 1986. Whilst on remand he was convicted of another offence on 17th July 1987. He was then a serving prisoner until he was sentenced on 30th October 1987. 16. If one looks at the whole of the period on which he was on remand, that amounts to a period of 377 days. But if one deducts the period whilst on remand, though when he was a serving prisoner, the period is 273 days. It is unfortunate that the practice of the then Home Office is somewhat obscure in relation to this. Through the diligence of Mr Gledhill, to whom we are greatly indebted for the help he has given us, he had discovered (without the assistance of the Ministry of Justice) a provision in the relevant departmental Lifer Manual which stated as follows: " Tariff for convicted serving prisoner A prisoner charged with a further offence will continue to serve the original sentence whilst awaiting trial for the new offence and is therefore not on remand. In such cases the tariff life sentence imposed must be calculated as follows: • it will run from the date of conviction for which the life sentence is awarded; • in cases where a determinate sentence prisoner reaches his or her release date before being sentenced for the new offence, and remains on remand for that offence, the tariff will be calculated from the first day of remand, ie the release date for the determinate sentence. These arrangements apply to the calculation of tariff in both mandatory and discretionary cases." 17. It is not as clear a provision as one would like, but it does appear to be the practice that, at the relevant time, the period that a prisoner would have spent in prison when convicted for another offence and not on remand for the offence for which the tariff was set, did not have the period counted during which he was serving time as a convicted prisoner. Thus, in the present case, were it not for a matter to which we will shortly refer, the position would be that the time that was to run as if 273 days had been served and not the full 377. Nonetheless, it is clear that on 14 February 2007 a letter was sent by NOMS, on behalf of the Home Office to the appellant, telling him that his release date was 16 October 2011; as he was remanded into custody on 16 October 1986, this signified the 25 year period had been calculated from 16th October 1986, with no deductions for the period during which he was a serving prisoner. 18. Bearing in mind the obscurity of the term of the paragraph we have set out from the Lifer Manual, but more particularly giving effect to the notification (even though informal) of the position to the appellant, sent to him on 14 February 2007, it seems to us that, in the particular circumstances, the judge could not have increased the length of the sentence by directing the whole of the time on remand was not to count. 19. If diligent work had been done by those at the Ministry of Justice, then the letter of 14 February 2007 would not have been written in terms in which it was, but it was. It seems to us, bearing in mind the provisions of the statute and also being fair to this appellant, Wilkie J was not entitled to decide as he did in paragraph 15 of his judgment that the time spent on remand was not to count. 20. We would merely observe that in the future it is imperative that those at the Ministry of Justice take the time and trouble to ensure that there is a proper note on the file in these old cases explaining the practice to the judge and also producing to him any relevant and material correspondence. It is obviously important in the public interest that where these reviews are carried out, the information before the learned judge is as full as is possible. 21. We are particularly grateful to Mr Gledhill for the work he has done on this case and to the assistance we have had today from Mr Counsell in relation to these historic matters. We hope the decision we have reached will clarify the matter for the future and also be fair to this appellant.

2007_12_11-1309.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3217/data.xml

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7734685f790e8aa5570b147eb7d5e85cd078528120613342dd46a3c57f26deab

[2013] EWCA Crim 647

EWCA_Crim_647

2013-04-19

crown_court

Neutral Citation Number: [2013] EWCA Crim 647 Case No. 2012/03690/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 19 April 2013 B e f o r e: LORD JUSTICE ELIAS MR JUSTICE IRWIN and MR JUSTICE SAUNDERS __________________ R E G I N A - v - JASWINDER SINGH JOHAL __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400

Neutral Citation Number: [2013] EWCA Crim 647 Case No. 2012/03690/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 19 April 2013 B e f o r e: LORD JUSTICE ELIAS MR JUSTICE IRWIN and MR JUSTICE SAUNDERS __________________ R E G I N A - v - JASWINDER SINGH JOHAL __________________ 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 S Sandhu appeared on behalf of the Appellant Mr B Linneman appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE ELIAS: I shall ask Mr Justice Irwin to give the judgment of the court. MR JUSTICE IRWIN: The Background 1. On 12 March 2009 in the Wolverhampton Crown Court before His Honour Judge Challinor the appellant pleaded guilty to one offence of possessing a controlled drug of Class A with intent. On 18 December 2009 he was sentenced to six years' imprisonment. 2. On 30 September 2011 Mr Recorder Desmond granted an application by the Crown for the confiscation hearing pursuant to the Proceeds of Crime Act 2002 to be heard outside the permitted two year period. 3. On 16 May 2012 His Honour Judge Hughes made a confiscation order whereby the appellant was ordered to pay £18,778, with six months' imprisonment to be served in default of payment. In fact the amount available to satisfy the confiscation order made by His Honour Judge Hughes was agreed. 4. The appellant appeals against the confiscation order by leave of the single judge. 5. The chronology of the case is set out in the clear ruling given by Mr Recorder Desmond. Following the plea of guilty in March 2009 there was a Newton hearing for the purpose of sentence on 20 November 2009. At that hearing a timetable was set for the purposes of the Proceeds of Crime Act proceedings. There was a direction that, by 18 December 2009, the defence should serve a statement pursuant to section 18 of the Act. 18 December was, as we have already observed, the date of sentence. 6. The defence lodged their section 18 statement on that day and the court made an order that by 15 January 2010 the prosecution were serve a section 16 statement under the Act. The defence were to respond within a fortnight, on 29 January 2010; and there was a direction that the hearing of the Proceeds of Crime Act application would take place in the first two weeks of February 2010. The prosecution served the section 16 statement two weeks late, on 29 January 2010. On 8 February the defence requested further time to respond. On 17 February the court granted an extension to 3 March 2010. On 13 May 2010 the section 17 statement was sent by the defence. 7. On 21 May, at the request of the Crown, the case was listed for mention. It had been listed for a final hearing on that date, but because of the defence's late delivery of the section 17 statement, and because of the absence of supporting documentation necessary for the testing and assessment of what the defence were saying in their response, both sides agreed that there was insufficient material available for that hearing and it was removed from the list. A fresh timetable was set. The defence was ordered to supply supporting documentation by 11 June 2010. The prosecution were to respond to it by 2 July. The hearing of the substantive proceedings was ordered to take place on the first available date after 2 July 2010. 8. On 26 May 2010 the prosecution served an amended section 16 statement. On 16 July, at the request of the defence, the matter was listed again for mention instead of for final hearing. At that stage the defence were still seeking conveyancing details relevant to the valuation of property. The substantive hearing was re-fixed for 2 December 2010. On 12 November 2010 the defence supplied the further conveyancing details. On 2 December the substantive hearing was listed. However, adverse weather conditions in the form of heavy snow prevented the appellant (then a serving prisoner following upon his six year sentence) from being taken to court. The hearing was once more adjourned. The court raised questions of law to be addressed and directed the defence to serve a skeleton argument by 16 January 2011. Again a final hearing was ordered to be listed in the week commencing 9 February 2011. All parties were aware of the two year permitted period, which ended on 11 March 2011. 9. On 6 December 2010 the court fixed the final hearing not for February, but for 11 March 2011 (the two year anniversary of the conviction and the last day within the permitted period under the legislation). 10. On 9 February the prosecution served a certificate of readiness, or in this case unreadiness: the case was not ready for hearing because no defence skeleton argument had been filed. On 14 February the defence served a certificate of readiness, stating they were ready, albeit that they were still awaiting some bank statements. 11. However, at some stage prior to 11 March 2011 the court removed the case from the list due to lack of court time and the availability of a judge to deal with the hearing which had been listed on 11 March. On that day, as we have indicated, the permitted two year period expired. 12. There has been produced to this court, as an appendix to the defence skeleton argument, a copy of a manuscript attendance note which appears to have been made on 10 March 2011. We understand that it originates from the appellant's solicitors. It indicates that on that day (10 March) there had been discussion between the Crown Court listing officer and a representative of the appellant's solicitors. It indicates that the matter was taken out of the list because of a lack of court time. Mr Sandhu for the appellant tells us that there was a discussion initiated by his instructing solicitors in which the court's attention was specifically drawn to the fact that the two year period expired on the following day, 11 March. It does not appear that that document was produced to the Recorder when he made the decision as to jurisdiction. 13. The date of 11 March 2011 is significant. It was at that point that the timetable went beyond the permitted period. As we shall see, the legislation requires that "exceptional circumstances" should exist to justify such an extension of postponement. 14. The sequence of events, as outlined by the Recorder, continued as follows. On 18 March 2011 the defence produced to the Recorder a letter which indicated that on that date there had been served a skeleton argument. The prosecution position was that they had not received such a skeleton argument at that stage; nor was such found at court. The prosecution received in on 22 July, as did the court. 15. On 22 July 2011 there was a further hearing for mention and further directions were made, including a direction that there should be a hearing on the preliminary legal issue as to whether, given the history, there was continuing jurisdiction on the part of the court to deal with the matter. That was the hearing wherein the Recorder made his ruling. Was there an application ? 16. One interesting feature of the position was that the Recorder framed the matter as an application by the Crown to extend the proceedings beyond the permitted period. At the outset of his ruling he said this: "In this application the prosecution apply for the Proceeds of Crime Act hearing in this case to be heard outside of the permitted period. Although not stated as such, the application must be pursuant to section 14(8) of the Proceeds of Crime Act 2002." In fact it does not appear to have been a prosecution application as such. The prosecution sought to rely on the decision of the court just prior to 11 March 2011. As the ruling makes clear, no reliance was placed by the Crown in their submissions, or by the Recorder in his ruling, on anything which arose later than 11 March 2011. As was observed by the single judge when giving leave, it is also to be noted that, when extending the period in early March, the court did not do so "for a specified period" as stipulated in section 14(1)(b). This was not a point raised before the Recorder, or addressed by him. The Recorder's Ruling 17. The Recorder proceeded to hear argument and to rule on the question whether "exceptional circumstances" existed, and as to how that phrase should be interpreted and applied. He was referred to authority and in particular to R v Soneji and another [2005] UKHL 49 and R v T [2010] EWCA Crim 2703 . From the speech of Lord Steyn in Soneji at [28] the Recorder concluded that it was not appropriate to adopt a very strict approach to the meaning of "exceptional circumstances"; and from the speech of Lord Rodger at [33] that "some listing difficulties could amount to 'exceptional circumstances'". 18. The Recorder then turned to the facts to consider whether they might properly be regarded as amounting to "exceptional circumstances". He emphasised that the final hearing, which had been due on 21 May 2010, had to be adjourned, because the defence statement was late and more documents were needed; that the final hearing on 16 July was vacated following a defence request for more time to obtain information on conveyancing matters; and that it took the defence four months to obtain that information. The Recorder drew attention to the fact that the hearing on 2 December 2010 did not take place because of the unusual circumstances that heavy snow prevented the appellant from attending. He emphasised the failure of the defence to comply with the directions of 2 December to serve a skeleton argument by 16 January and the surrounding facts which he had outlined. There was no record that the court had received the skeleton argument by the key date in March 2011. 19. It was at the end of that sequence of events, as the Recorder observed, that the court had to remove the case from the list on 10/11 March due to a lack of court time. On that basis the Recorder found that there were indeed "exceptional circumstances" which justified the extension of the permitted period. As we have noted, he did not consider the point as to whether there was a failure to specify a period; he was not asked to do so. The Law 20. Section 14 of the Proceeds of Crime Act 2002 represents a code for procedural matters in confiscation proceedings, and in particular for the postponement of such proceedings. The essential provisions of the section, as it applies to the circumstances of this case, are as follows. By section 14(1)(b) the court may postpone proceedings "for a specified period". Section 14(2) specifies that a period of postponement may be extended. By subsection (5) the section provides that the "permitted period" is the period of two years starting with the date of conviction (in this instance beginning 12 March 2009). Section 14(7) specifies that postponement or extension may be on application by either party or "by the court of its own motion". But subsection (3) provides: "A period of postponement (including one as extended) must not end after the permitted period ends." The effect of that is qualified by subsection (4) which provides: "But subsection (3) does not apply if there are exceptional circumstances." It is by that route that the "exceptional circumstances" test arises. Finally, section 14(11) provides: "A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement." 21. Some things are clear. First, this case was taken out of the list of the court's own motion and not in response to an application by either side. Second, the court did not postpone the matter for a "specified period" within section 14(1)(b). Third, there is no indication that, when it removed the matter from the list, the court had considered whether there were exceptional circumstances before it took the decision to remove the matter from the list. Fourth, when considering whether there were "exceptional circumstances", the Recorder took into account the whole history of the matter, not merely the immediate situation, before the court removed the case from the list. 22. A number of questions arise for answer. First, what is the proper approach to the application of the requirement for "exceptional circumstances" in the application of this section? Second, was the Recorder's conclusion open to him on these facts? Was it reasonable: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 ? Third, what is the effect, if any, of the failure to postpone for a "specified period"? The first question: What is the proper approach to the application of the requirement for "exceptional circumstances "? The Authorities 23. In Soneji the following passages from the headnote encapsulate the decision. After a recital of the facts the headnote states: "On the defendants' appeal against those orders, the Court of Appeal (Criminal Division) held that although there was a power to postpone the making of a confiscation order under section 72A of the 1988 Act, and a power to adjourn such proceedings at common law, the provision of section 72A(3) that the period of postponement was not to exceed more than six months from the date of conviction save where the court was satisfied that exceptional circumstances existed, and the failure of the judge to consider or make any such finding, had deprived him of jurisdiction to make a confiscation order. The Court of Appeal accordingly quashed the confiscation orders. .... Held, allowing the appeal, that the correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision should be invalid; that since section 71(1) of the 1988 Act as amended imposed a duty on the court when an offender had been convicted to consider confiscation proceedings, with the purpose of the sequence of such proceedings as required by section 71(1) and the postponement power under section 72A, which precluded any common law power of adjournment, being to make the sentencing process rather than the confiscation procedure as effective as possible; that the judge's failure to adhere to the requirements of section 72A(3) had caused no prejudice to the defendants in respect of their sentences and any other prejudice to them caused by the delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process; and that, accordingly, that failure would not have been intended by Parliament to invalidate the confiscation proceedings, and the confiscation orders made by the judge would stand." 24. It will be clear from that extract from the headnote that Soneji addresses precursor legislation to the 2002 Act, but legislation which, apart from the length of the specified period, is mirrored closely in the relevant provisions in the 2002 Act. 25. Lord Steyn in his speech noted the existence of section 14 in the 2002 Act. At [3] he recited some of the terms of the section and proceeded to recite a passage from the speech of the Lord Chancellor, Lord Falconer in debate when the 2002 Act came before the House of Lords. That passage is of interest in considering the purpose of section 14(11), which was said to be: "designed to stop confiscation orders from being quashed merely because some procedural error has taken place in the application of the postponement procedures. I shall, if I may, provide your Lordships with a little background on this occasion, as it is directly relevant to the amendments. As your Lordships will be aware, the Bill amends the postponement regime in the existing legislation .... It is important to understand, however, that the basic mechanics of the postponement regime envisaged by the Bill remain rather similar to those in the existing legislation. Unfortunately, it is becoming increasingly clear that the courts are finding this legislation difficult to operate. A string of appeal cases testifies to the fact that defendants regularly attempt to have the confiscation order overturned on the grounds that the postponement procedures were not applied properly by the court. Confiscation orders are being lost as a result." As identified by Lord Steyn, the legislative purpose of the additional provisions within section 14 of the 2002 Act was explicitly to avoid technical points being taken so as to defeat confiscation proceedings. 26. In [6] to [8] Lord Steyn notes the problems thrown up by a technical approach to postponement procedures. He touches on earlier attempts by the Court of Appeal to address the problem. In [14] he identifies that one of the problems is the presence within the Act of "imperative drafting by Parliament". In [15] to [16] Lord Steyn sets out extracts from the well-known case of London & Clydeside Estates v Aberdeen District Council [1980] 1 WLR 182 , where Lord Hailsham (then Lord Chancellor) advanced a legal analysis of the approach to requirements in statutes, beyond the traditional distinction between directory and mandatory provisions. He said this: "When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. .... At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for a declaration of his rights." 27. Having recited that quotation, Lord Steyn went on to say: "This was an important and influential dictum. It led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity." 28. Following a further review of authority, at [23] Lord Steyn said: "Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court [a reference to authority he had just digested] that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No 3 of 1999 ), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect." In [24] he set out a similar approach to the 1988 statute which was under consideration in Soneji , and in [25] and [26] reached the conclusion that he would allow the appeal from the Crown. 29. A like approach was taken by the other members of the House of Lords. In [30] Lord Rodger emphasised the duty placed upon the court, where appropriate, to make a confiscation order, and emphasised the importance of the court's being permitted to do so without the intervention of technical problems. In [32] with similar emphasis he analysed the legislation before the court in Soneji . He said: "When section 71(1) is engaged, it imposes a duty on the court to act as required by subsections (1A) and (1B) and, where appropriate, to make a confiscation order 'before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct'. This duty is to be contrasted with the mere power, which the court has under subsection (1C), to make such an order if it is satisfied that a victim of crime intends to take civil proceedings against the defendant." 30. In [33] Lord Rodger went on to say: "I also agree, however, that 'exceptional circumstances' in section 72A(3) should not be interpreted too narrowly. The court must comply with the six-month requirement wherever reasonably possible, even if this means that its timetable has to be adjusted accordingly. Nevertheless, I would certainly not rule out the possibility that some listing difficulties could amount to 'exceptional circumstances'. But the judge must look into the position and see what can and cannot be done." He, too, concluded that the delay in Soneji should not preclude the jurisdiction. He concluded in [42] that, subject to the question of abuse of process, even considerable delay need not affect the validity of orders made outside the timetable. 31. In his speech Lord Cullen of Whitekirk at [45] emphasised the duty placed upon the court to make confiscation orders. At [52] he concluded as follows: "Since the statute does not spell out the legal consequences for the offenders of non-compliance with subsection (3) it is necessary to work out those consequences, applying the authorities to which the noble and learned Lord Steyn has referred. The failure to comply .... has to be seen in the light of the purposes of the statutory provisions as a whole, in order to determine whether or not the failure was of such significance as to make the ensuing confiscation orders of no effect." Lord Cullen also concluded, on the facts of the case before the House, that he could not rule out jurisdiction there. 32. Similar conclusions were reached by Lord Carswell and by Lord Brown of Eaton-under-Heywood. 33. Soneji was considered in RCPO v Iqbal [2010] EWCA Crim 376 (a decision under the 2002 Act). In that case the defendant faced confiscation proceedings following his conviction on 10 January 2006. The hearing was listed on 21 May 2006. However, it was postponed by the Recorder without a date being set, in order to await a decision of the House of Lords in a case which it was thought might affect the outcome. Between May 2006 and 9 January 2008 no order was made by the court to postpone the confiscation proceedings. No application was made for such an order by either party. The next hearing appears to have been on 1 July 2009, when a judge concluded that there was no jurisdiction to make an order, because of a failure to comply with the procedure in section 14 of the 2002 Act. In its judgment the court said this at [10]: "The issue is a narrow one. Absent a court order before 10 January 2008 postponing the hearing of the application for a confiscation order, and absent any application made before that date to postpone the hearing, is there jurisdiction to entertain the application for a confiscation order?" 34. The court then analysed the section. The Crown had cited Soneji in support of its claim that there was a continuing jurisdiction, even when no order had been made at the time when the "permitted period" had expired. In its conclusions in Iqbal the Court of Appeal said: "25. Mr Farrell QC submits that the intention of Parliament was that the application for a confiscation order should be heard within two years of conviction in the absence of exceptional circumstances and that the intention of Parliament is clear: 'If there has been no application to extend the permitted period of two years before that period expired then the confiscation proceedings cannot continue'. 26. In our view the wording of section 14 (and in particular of subparagraphs (3) and (8)) makes it quite clear that Parliament intended to give prosecutors a longer period than the six months under the earlier legislation, but at the same time intended to make it clear that any application to extend a period of postponement had to be made before the permitted period expired. 27. For these reasons we dismiss the appeal." 35. It is possible that there is some tension between the approach taken in Iqbal and the approach of their Lordships in Soneji . However, the position in Iqbal was clearly distinguishable from the case before us. In that case there had been no application and no order to extend the period; it had lapsed in silence. There was no reliance upon "exceptional circumstances" to justify an extension of the "permitted period". Whether at the time of an extension or at a postponement retrospectively, no step had been taken. 36. This area of the law was revisited in R v T [2010] EWCA Crim 2703 . In that case the convicted defendant had fled the country after arrest and charge. On 19 December 2007 he was convicted, in his absence, of money laundering and sentenced to three and a half years' imprisonment. On the same day the Crown gave notice of their intention to pursue confiscation proceedings. In April 2009 the defendant was extradited from the United States. After his extradition he failed to adhere to various directions made in the confiscation proceedings. 37. The "permitted period" under section 14(5) of the 2002 Act expired on 18 December 2009. The confiscation proceedings had been adjourned on 2 October 2009, and were adjourned again on 21 December 2009. On neither occasion was the question of exceptional circumstances considered. The matter came back before the court on 5 March 2010 when His Honour Judge Ambrose concluded that he had no power to hear the confiscation proceedings because the question of exceptional circumstances had not been considered. He relied on the dictum from Iqbal at [26] (earlier quoted in this judgment) to the effect that any application to extend postponement had to be made before the "permitted period" expired. 38. In T the Court of Appeal considered the remarks by His Honour Judge Ambrose that in his view the defendant Iqbal had manipulated the system, and that there were in fact ample exceptional circumstances which could have been considered, subject to the question of jurisdiction. The court agreed on those facts, and went on to find that Judge Ambrose should not have been "inhibited .... by Hooper LJ's observation in Iqbal " so as to conclude that there was no jurisdiction. There were exceptional circumstances in the case which should and did justify an extension of the period. For that reason the court quashed the decision of Judge Ambrose and remitted the matter so that a substantive hearing could proceed. 39. Standing back from all the authorities, it is clear in our judgment that the intention of Parliament was that a broad approach should be taken to what constitutes "exceptional circumstances". Indeed, in the approach to section 14 generally, Parliament's intention must be taken to be to ensure that confiscation proceedings go ahead and are effective without technical problems of timing and timetabling acting as a bar to recovery. Adherence to the timetable is an obligation, as we shall re-emphasise later in this judgment, but the approach to strict failures to comply should reflect that intention of Parliament. The second question: Was the Recorder's conclusion open to him on the facts ? 40. Mr Sandhu submits that the accumulation of failures in the instant case which culminated in the confiscation hearing three years and two months after conviction should mean that, despite the approach in Soneji (which is not carte blanche to parties or the court), the confiscation order should be struck out. 41. Mr Linneman accepts that the prosecution were not blameless in the conduct of this case, but submits that much of the delay came from the defence. He derives his submissions from the timetable which the Recorder outlined in his ruling and we have summarised. Mr Linneman submits that the Recorder's conclusion that these amounted to exceptional circumstances was reasonable and, importantly, that there is no basis for saying that the appellant was prejudiced by the Recorder's decision. Fairness was achievable in the circumstances of this case, as evidenced by the fact that the contested confiscation proceedings were resolved by agreement as to the amount to be paid. There was no abuse of process. 42. Here, adopting the approach in Soneji , we are clear that there was a sufficient basis for the Recorder's conclusions that, reviewing events as a whole, exceptional circumstances did apply. Consideration should have been given to the question before the court postponed the proceedings beyond the permitted period; but had that consideration taken place at the right point, the conclusion would have been the same. In our judgment, taking together the sequence of delays, many of them at the hands of the appellant, and the unusual circumstances which prevented the appellant from attending the hearing, the Recorder's conclusion was well within the range of reasonable conclusions he could have reached. It is not capable of challenge. The third question: What is the effect, if any, of the failure to postpone for a "specified period "? 43. There are two possible answer to this question, or rather two routes by which the same answer will emerge. It is strongly arguable, in our judgment, that the failure to specify a period of postponement in the order itself is not merely a procedural error "connected with .... the granting of a postponement" within the meaning of section 14(11) but is a substantive (although technical) omission in the order to postpone, which taints the order itself. If that is right, the defect cannot be remedied by reliance on section 14(11). 44. Another point which arises is derived from the wording of the subsection which for present purposes it is worth repeating: "A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement." It may be right that the use of the phrase "application for or the granting of a post postponement" means by necessary implication that the subsection applies only where there has, in truth, been an application for a postponement leading to a grant by the court, and that the situation which arose in this case, where the court postpones the period of its own motion, is not covered by the saving provision in section 14(11). 45. However, setting aside section 14(11), when viewed in the context of the confiscation order itself, the omission of a specified period plainly is a procedural error. Adopting the approach laid down in Soneji , we have no doubt that the defect would not render the confiscation order itself invalid. Applying Soneji , Parliament could not have intended that the court should be deprived of its duty to make such an order for a breach which typically will not, and did not in this case, prejudice the appellant in any way. If substantial prejudice were to arise as a result of such a decision, then the remedy is in the shape of a submission that such a decision represents an abuse of process. This is not a matter where there is no remedy at the hands of someone who has suffered prejudice as a consequence of such an order. 46. If, contrary to the remarks we have just made, the better view is that such a failure is indeed procedural and does therefore fall within the ambit of section 14(11), then Parliament has stipulated that such a failure must not be the basis for quashing an otherwise valid confiscation order. 47. For all these reasons this appeal fails. 48. It is appropriate for us to add a rider. We re-emphasise the message given at [13] by this court in R v T . The fact that the courts will not wish to see the intention of Parliament defeated by technical points taken to stave off meritorious confiscation orders, does not mean that the obligations under the Act can be taken lightly. It is essential that listing officers, acting as they do on behalf of judges and discharging a judicial function delegated to them for day-to-day administration, pay close regard to the procedural steps laid down in section 14. Listing officers should be aware of the necessity to adhere to the two year limit. They should be alive to the risk that the parties may not alert them to such a problem. They should be aware of the requirement to consider whether there are exceptional circumstances before a postponement beyond two years is granted. They should be aware of the obligation not to postpone generally but to specify a date when there is to be a postponement. It would be wise for listing officers to consult the Resident Judge when any such problem is likely to arise. It would also be wise to keep a record of what was taken into consideration at the time, and in particular whether any exceptional circumstances arose which justified postponement. _____________________________

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/647/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/647

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[2003] EWCA Crim 680

EWCA_Crim_680

2003-03-19

supreme_court

Case No: 2000/02934/X3 Neutral Citation No: [2003] EWCA Crim 680 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM: THE HON. MR. JUSTICE JOWITT AND JURY IN THE CROWN COURT AT SHEFFIELD Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 th March 2003 Before : LORD JUSTICE AULD MR. JUSTICE GRAY and MR. JUSTICE CRANE - - - - - - - - - - - - - - - - - - - - - Between : REGINA The Crown - and - THOMAS SHANKS Defence - - - - - - - - - - - - - - - - - - - - -

Case No: 2000/02934/X3 Neutral Citation No: [2003] EWCA Crim 680 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM: THE HON. MR. JUSTICE JOWITT AND JURY IN THE CROWN COURT AT SHEFFIELD Royal Courts of Justice Strand, London, WC2A 2LL Date: 19 th March 2003 Before : LORD JUSTICE AULD MR. JUSTICE GRAY and MR. JUSTICE CRANE - - - - - - - - - - - - - - - - - - - - - Between : REGINA The Crown - and - THOMAS SHANKS Defence - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr T F H Cassel QC and Mr C Mendoza for the Defence Mr R Smith QC and Mr S M D Jackson for the Crown Hearing dates : Friday 7 th February 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Auld : 1. On 19 th April 2000, following a second trial before Jowitt J. and a jury in the Crown Court at Sheffield, the appellant was convicted of murder and sentenced to life imprisonment. 2. In an earlier trial before Holland J. and a jury on the same charge and on a charge arising out of the same facts of possessing a firearm with intent to endanger life, the jury could not agree on the charge of murder, but found him guilty of the firearm charge. The appellant had pleaded guilty to a third charge in the indictment of possessing a prohibited weapon, again arising out of the same facts. Jowitt J. sentenced him to 12 and 9 years imprisonment for those offences respectively, the sentences to be served concurrently. 3. The appellant, with the leave of the Full Court, appeals against the conviction of murder on two grounds, the Full Court having refused him leave to appeal on many other grounds on which he had sought to rely. 4. The brief facts giving rise to the prosecution for murder were as follows. 5. The appellant was a practising doctor and former soldier. He had had a relationship with a nurse, Victoria Fletcher, with whom he had worked in a hospital. There came a time when their relationship broke down, causing the appellant much distress. Shortly afterwards, on the evening of 7 th May 1998, the appellant cleaned and assembled a Kalashnikov AK 47 assault rifle at his home, a weapon that he had had for many years. He fed 21 rounds of ammunition into its magazine and attached the magazine to the rifle. He then put the rifle, along with an axe, a sheath knife and a baseball bat, into the boot of his car and drove to a public house to look for Miss Fletcher. She was not there. Having asked there as to her whereabouts, he drove to another public house where he found her with a new boyfriend. After a heated exchange he pushed her out into the street, and there followed a scuffle between the appellant and the boyfriend. 6. Miss Fletcher, her boyfriend and others with them moved off to the public house where the appellant had first sought her that evening. He followed them there. While he was outside Miss Fletcher went out to talk to him by his car. There was a further exchange of words and she then turned and began to walk away from him. As she did so, the appellant took the rifle from the boot of his car and fired a burst of several rounds at her, which felled her. She got up and attempted to stagger away from him. He moved forward behind her and fired another burst at her, which brought her to the ground again. He hit her in all with ten bullets, causing wounds from which she died shortly afterwards. He then drove off, taking the rifle with him. Later that evening he telephoned his former wife and told her that he had shot Miss Fletcher. At some stage he made a note in a notebook, subsequently recovered by the police, that he had shot her in “[a] moment of rage”. He also told a doctor, in response to the doctor’s comment that he had been lucky not to have hit others, that he had aimed at the middle of the target. 7. At both trials the prosecution case was that the appellant shot Miss Fletcher as she tried to flee – more particularly, that after felling her with the first burst of fire, he shot her again after she had got up and continued to move away from him. The appellant did not dispute that he shot her. His main defence at trial was that he was guilty of manslaughter, not murder, because, at the time of the killing, he had been suffering from diminished responsibility. He also advanced two other defences, neither of them in the circumstances with much force or much chance of success. They were that he had not intended to kill her or endanger her life, or even to hurt her, alternatively that if he had had any of those intents, he was guilty of manslaughter, not murder, by reason of her provocation. As to the rifle, he had admitted in the course of his examination in chief at the first trial, and again at the second trial, that he had brought it back from the Gulf many years before and had kept it with the intention of killing anyone who did him harm in the way that he had suffered in a serious stabbing attack on him in 1981. 8. The issue of diminished responsibility took up most of the trial before Jowitt J. and was the subject of a great deal of evidence. The defence case was that the appellant, at the time he killed Miss Fletcher, was suffering from an abnormality of mind contributed to by clinical depression and post-traumatic stress disorder arising from military service and exposure to neurotoxins in the Gulf War. Thus, the prime issues for the jury were the appellant’s mental state and, to a less extent, his intent at the time of the killing. 9. The only two issues for determination in this appeal arise out of directions of Jowitt J. to the jury about the appellant’s conviction in the earlier trial of possessing the rifle with intent to endanger life. The Judge had canvassed with counsel at the start of the trial whether the jury should be informed of the conviction. He took the view that, as that charge had laid the offence on the same day as of the alleged murder, it was relevant to the issue of the appellant’s intent on the latter charge and that the jury should be told about it. He added that, given the first jury’s verdict, though the appellant could not maintain that he did not have the rifle in his possession at some time on that day with intent to endanger life, it would be open to him to maintain that he had no such intent at the time he killed Miss Fletcher. 10. In the Judge’s discussion with counsel and in his ruling on this point, neither he nor they mentioned section 74 (3) of PACE, which enables previous convictions to be put in evidence in proof of guilt, nor section 78 of PACE as to the fairness of the evidence. However, it is likely that this experienced Judge had both in mind. At all events, Sir Timothy Cassel, QC, who appeared for the appellant at both trials and on this appeal, did not resist his ruling. Pursuant to it, Mr. Robert Smith, QC, counsel for the prosecution at both trials, who appears for the Crown on this appeal, informed the jury of the conviction in his opening address. Thereafter, little or no reference was made to it in the trial until the Judge mentioned it in his summing-up. 11. In his summing-up the Judge gave the jury the following directions: “Dr. Shanks was convicted in the first trial of having that gun in his possession, on the day of the killing, with the intention at some stage during the day of endangering life ; that is to say with the intention of putting someone other than himself at risk of death. Dr. Shanks denies that he ever had that intention on that day, and certainly [that] he had no intention to kill, endanger, or hurt, Vicky. “The Jury’s verdict – that is the first Jury’s verdict – does not of itself tell you whose life Dr. Shanks intended to endanger, or whether it was the life of one particular person . However, despite his denial, it is not open to him before you to challenge that verdict of the jury in the first trial. It is binding upon him, members of the jury, and it is binding upon you. Now, whether or not it assists you on the question of Dr. Shanks’ intent is for you to say, but it is part of the material that you are entitled to consider in deciding whether you are sure that when Dr. Shanks fired his gun he intended, either to kill her, or cause her serious bodily harm May I make this clear, though, in view of something that Mr. Cassel said to you this morning. The conviction was not on the basis that Dr. Shanks brought the gun back intending to use it to kill anyone who attacked him. He was convicted, as I have said, of possessing the gun with intent on the 7 th of May of endangering life .” [the Court’s emphases] 12. Sir Timothy has submitted that those directions were defective in two respects: first, that they amounted to a misdirection of the effect of the conviction at the first trial of possessing the rifle with intent to endanger life; and second, that they wrongly indicated that that conviction bound this jury. Ground 1 – suggested misdirection as to the effect of the firearm conviction on the appellant’s credibility 13. As to the first of those complaints, Sir Timothy submitted that the Judge should not have mentioned the firearms conviction to the jury. He maintained that it had no relevance to the issues of diminished responsibility or of provocation and was only marginally relevant, if at all, to the issue of intent, the weakest of the three defences as he acknowledged. And, he said, such relevance as it had on that issue was of so little probative effect that the Judge should have excluded it in the proper exercise of his discretion under section 74(3) and/or as unfair under section 78. 14. However, as Sir Timothy developed his argument, it became plain that his real concern was not about the effect of the admission of the first jury’s conviction into evidence, which he had not resisted when the Judge first raised the matter at the beginning of the trial, and which is not the subject of appeal. Nor was it about the effect of the Judge’s direction on the issue of intent, on which, as we have noted, Sir Timothy acknowledged that the defence had been weak. His complaint was that the Judge’s direction had had an unfairly prejudicial effect on the appellant’s credibility on the issue of diminished responsibility and, to a lesser extent on that of provocation. He said that the Judge wrongly told the jury that that the earlier conviction had not been on the basis that the appellant had brought the gun back from the Gulf intending to use it to kill anyone who attacked him. Sir Timothy suggested that the firearm conviction at the first trial had indeed been on that basis. 15. In so submitting, Sir Timothy relied on the fact that Holland J. had directed the first jury that, in view of the appellant’s account in that trial of why he had brought the rifle back from the Gulf and had retained it, the appellant had effectively admitted guilt of the firearm offence. As a result, Sir Timothy submitted that the only possible effect of Jowitt J’s direction that the first conviction had not been on the basis of such an admission of a continuing intent to endanger life in the event of a further similar attack was to undermine the appellant’s credibility as to his mental state on the defences of diminished responsibility and provocation. 16. We deal first with Sir Timothy’s “scene-setting” complaints as to the Judge’s admission into evidence of the previous conviction and as to his mention of it in his summing-up to the jury. Section 74(3) provides, so far as material: “(3) In any proceedings where evidence is admissible of the fact that the accused has committed an offence, in so far as that evidence is relevant to any matter in issue in the proceedings for a reason other than a tendency to show in the accused a disposition to commit the kind of offence with which he is charged, if the accused is proved to have been convicted of the offence … he shall be taken to have committed that offence unless the contrary is proved. 17. For obvious reasons, section 74(3) is not so familiar a provision as section 78. But when the prosecution resorts to it, and/or a judge considers whether such evidence should be put before a jury, he should consider under section 78 the fairness to the defence of admitting it into evidence. Section 74(3) is one of a pair of provisions in the section providing for the admissibility in similar circumstances of a previous conviction. Section 74(1) and (2) provide for the admissibility of evidence of a conviction of a person other than the accused where it is relevant to an issue in the proceedings, and provides that, if such evidence is admitted, that person shall be taken to have committed the offence unless the contrary is proved. Section 74(3) provides in similar terms for the admission of evidence of an accused’s previous conviction. 18. Most of the jurisprudence on section 74 concerns the admission into evidence of convictions of persons other than the accused under section 74(1) and (2), which was a legal innovation intended to provide in the main for charges of conspiracy and other jointly committed offences where not all the conspirators or alleged accomplices, whether charged as such or otherwise, were before the same jury. Section 74(3), on the other hand, was not, as a concept, such a newcomer to our system. The common law and individual statutes had already made provision for it, the former, for example in rules enabling the admission of proof of previous convictions where relevant to an issue in the trial under the similar fact evidence rule in Makin v. Att-Gen of New South Wales [1894] AC 57 , PC and Thompson v.R [1918] AC 221 , HL. And it is to section 74(3), rather than to section 74(1) and (2), to which the saving provisions in section 74(4) for pre-existing law are mainly directed. Section 74 provides: (4) Nothing in this section shall prejudice – (a) the admissibility in evidence of any conviction which would be admissible apart from this section; or (b) the operation of any enactment whereby a conviction or a finding of fact in any proceedings is for the purposes of any other proceedings made conclusive evidence of any fact ” 19. As Potter LJ observed, giving the judgment of the Court in R v. Harris (19 th April 2000 - unreported), at para. 21, the purpose of section 74(3) was “not to define or enlarge the circumstances in which evidence is admissible of the fact that an accused has committed an offence, but simply to assist in the mode of proof of that fact (which it does in section 75): “21. … This is made doubly clear by the words which make clear that the conviction may not be adduced simply for the purposes of proving or inferring disposition. We also consider that the requirement that the evidence should be relevant ‘to any matter in issue’ is one which falls to be read not as confined to an issue which is an essential ingredient of the offence charged, but as extending to less fundamental evidential issues arising in the course of the proceedings: cf. the decision of this court in R v. Robertson (1987) 85 Cr App R 304 in relation to the words ‘any issue in those proceedings’ as contained in s. 74(1) of PACE. ” 20. Sir Timothy submitted: first, that section 74 as a whole was a provision that should be sparingly used, as this Court said in relation to section 74(1) and (2) in R v. Roberston & Golder (1987) 85 Cr App R 304 , CA, at 312; second, that a judge, before admitting such evidence, should make a properly informed consideration of the purpose for which it is to be put before the jury; and third, that there should be a careful direction to the jury as to that purpose and its limitations, citing R v. Kempster (1990) 90 Cr App R 14 , CA, at 22; and R v. Hillier & Farrer (1993) 97 Cr App R 349 , CA, at 355-6 . 21. All of those strictures in the authorities cited by Sir Timothy clearly govern the admission into evidence of a previous conviction of someone other than the accused under section 74(1) and (2), and the second and third are logically equally applicable to the admission into evidence of an accused’s previous conviction under section 74(3). Given the pre-existing law as to the latter, there may be some scope for debate as to the applicability of the first, that it should only be sparingly used. But the scope for differentiation between the two provisions in that respect must be so narrow as to be insignificant and - since the ultimate gatekeepers are the rules as to the admissibility of similar fact evidence in R v. Clarke [1995] 2 Cr App R 425 , CA, at 433, and DPP v. P [1991] 2 AC 447 , at 460, and as to fairness in section 78 – academic. 22. Now, as we have said, Sir Timothy’s true complaint under this first ground of appeal was that Jowitt J. wrongly told the jury that the first jury’s conviction of the appellant on the firearm charge had not been on the basis that the appellant had brought the rifle back from the Gulf with the intent to use it kill anyone who attacked him. He maintained that, in so directing the jury, the Judge was wrongly attributing to the appellant something he had not said at the first or the second trial. He pointed out, as was the case, that the appellant had said just that. He suggested that the Judge’s observation was a mistake that unfairly undermined the appellant’s credibility before the second jury because it may have persuaded them that the first jury had disbelieved some of his evidence, when he had effectively admitted the firearm offence – one of a continuing nature - in evidence at the first trial. He placed much emphasis on this complaint because the appellant’s credibility was a central issue on his main defence of diminished responsibility and to a lesser extent on that of provocation. 23. As to the admissibility of the evidence of the conviction, Mr. Smith submitted, in reliance on section 74(3), that the evidence of the previous conviction was highly relevant to the issue of the appellant’s intent at the material time, an issue which, though not in the forefront of the defence case, was nevertheless a significant part of it. Indeed, the clear thrust, as Mr. Smith put it, of the appellant’s evidence was that he had no such intent on that day. He had called in support of that contention a consultant psychiatrist, Dr. Jones who had suggested that he may have been suffering from mindlessness or automatism at the time so as to deprive him of the capacity to form the requisite intent for the offence of murder. It followed, said Mr. Smith, that the facts of the conviction and that the appellant on the day of the killing had cleaned, assembled, loaded and taken the rifle in his car when he set out to find Miss Fletcher were both highly relevant to the prosecution contention that he had had the rifle at the time with intent to endanger life and to the appellant’s case that he had had no specific intent to endanger Miss Fletcher’ life. He added that, although the Judge in his initial ruling on the matter had not expressly referred to section 74(3) or, in the absence of any challenge by the defence, to section 78, the evidence was so obviously relevant and probative on the issue of intent raised by the defence, that his decision to admit it into evidence could not have been properly challenged. 24. As to Jowitt J’s. reference to the conviction in his summing-up, Mr. Smith submitted that the Judge dealt with the matter fairly, correctly identifying the precise charge of which the first jury had convicted the appellant and its relevance to the issue of the appellant’s intent when he set out to find Miss Fletcher on the day that he killed her. He also submitted that the prosecution’s case and evidence as to intent at the material time were overwhelming, instancing: the appellant’s careful and deliberate preparation of the rifle for use, his stowage of it in the boot of his car, his conduct and movements preceding his final fatal confrontation with Miss Fletcher, his deliberate and well-aimed shooting of her in two separate bursts of fire and his conduct afterwards. 25. We agree with Mr. Smith’s contentions. As Jowitt J. said, when he canvassed the matter with counsel at the start of the trial, the firearm charge of which the first jury had found the appellant guilty was not of a continuing offence. It was confined to the day of the killing of Miss Fletcher, 7 th May 1998, and clearly to the circumstances of that day leading up to and connected with the appellant’s use of the rifle to shoot her. And, as Jowitt J. pointed out at that early stage, what mattered in the context of the first jury’s conviction of that offence and of the appellant’s admission of the conviction was not what the appellant had admitted or intended to admit at the first trial. What mattered was the form of the charge, how the prosecution and Holland J. had put the case to the jury and the jury’s verdict of guilty of the offence as charged. It is plain from Holland J’s summing-up, of which the Court has a transcript that, although such an offence was capable of being charged as a continuing one, the prosecution and he focused, true to the confines of the charge in question, on the circumstances of 7 th May 1998 leading to the shooting of Miss Fletcher. 26. This is how Holland J. had dealt with the matter in his direction to the first jury, a direction that conformed with this Court’s analysis in R v. Bentham & Ors [1973] QB 357 , at 362-363, of the mischief at which that statutory offence is aimed. Having defined the offence to the jury, he said: “The Prosecution say that is the offence that Dr. Shanks committed, as it is alleged, on the 7 th of May, and they say you can be sure and satisfied about that. There are two elements to it. The first is, they say you can be sure and satisfied that he had had in his possession on that day that AK 47 rifle with a loaded magazine attached to it. And they say you can be further sure and satisfied he had the intent to endanger life with it. Now, as to that last concern, what this part of the law is aimed at has been said to be as follows, I quote, ‘The mischief at which the Section is aimed must be that of a person possessing a firearm ready for use, if and when the occasion arises, in a manner which endangers life.’ … The Prosecution say, a very clear case. First, look at the AK 47. It is, they submit, effectively a machine for killing, that is people, it has no other function. Second, on the 7 th May it was made ready for use; it was cleaned and, more importantly, the magazine with 21 rounds was attached to it. When it was in that state the only function it could conceivably have was to endanger life if and when the occasion arose. And finally they would point to certain things said by Dr. Shanks when he gave evidence to you which, they would submit, is consistent with effectively admitting the offence. …..” 27. Now, Jowitt J., in his direction to the second jury, did not misrepresent the effect of the first jury’s conviction by emphasising in the passage that we have set out that it had not been on the basis of some general admission of the appellant to a continuing offence of possessing the rifle with intent to kill anyone who might attack him. The conviction was, as he made plain to the second jury, of possession of the gun on the day he killed Miss Fletcher with intent to endanger life, whatever may have been his mental state at the time when he shot her and regardless of whatever other explanation he had given for his long-standing possession of the weapon. Nothing that Jowitt J said went to undermine the appellant’s account about the latter or could, on that account, have gone to his credibility on the issues of diminished responsibility or provocation. Accordingly, we dismiss the first ground of appeal. Ground 2 – the direction that the jury were bound by the first jury’s conviction of the firearm offence 28. Sir Timothy’s second complaint was that the second jury were not bound by the first jury’s conviction on the firearm offence as to the state of mind of the appellant at the time he killed Miss Fletcher and that the Judge should not have told them that they were. The first point to make about that submission is one that we have just made in relation to the first ground of appeal. Jowitt J. did not direct the jury that the effect of the first jury’s verdict was that at the time of the killing of Miss Fletcher he must have possessed the rifle with intent to endanger life. True to the indication that he had given when first discussing the matter with counsel, he clearly distinguished between the effect of the first jury’s verdict that, “at some stage during the day” of the killing he had had the rifle with intent to endanger life, and the issue for the jury on the charge of murder as to his intent when he shot her with it. 29. It follows, therefore, that to the extent that the Judge told the jury that they were bound by the first jury’s conviction on the firearm offence, he correctly directed them of the effect of the first jury’s verdict on the charge before them, namely that he had had the rifle at some time on the day of the killing of Miss Fletcher with intent to endanger someone’s life, not necessarily hers. Sir Timothy’s reliance on high authority, including the House of Lords’ decision in R v. Humphrys [1977] AC 1 , against importing notions of issue estoppel or res judicata into the criminal law to overcome that legal outcome, ignored the specific statutory exception to such notions introduced by section 74(3) of PACE, the provision on which Mr. Smith has relied. 30. It is true that, under that provision, the binding effect of a previous conviction properly admitted into evidence is not absolute, since section 74(3), in its concluding words, enables a defendant, if he can, to prove that he has not, despite the conviction, committed the offence. As Mr. Smith submitted, there is thus a statutory presumption of the correctness of a previous conviction unless a defendant proves to the contrary on a balance of probabilities, similar to that in the comparable provision in section 11 of the Civil Evidence Act 1968 ; see Hunter v. Chief Constable of the West Midlands [1982] AC 52 , HL, per Lord Diplock at 544. As it happens, the Judge, in giving this part of the direction about the previous conviction, did not tell the jury that it was only binding on them if the appellant did not prove to the contrary But, as we have said, that is not what the appellant sought to do here, quite the contrary. At the first trial he had effectively admitted the offence of which he was convicted, and at the second trial he admitted that conviction, whatever the basis upon which he made that admission. 31. In the result, the fact that the Judge did not inform the jury of the qualifying provision of section 74(3) is academic on the issue of intent on the charge of murder. He had correctly directed them as to the relevance and limitations of the conviction as to proof of intent to kill her, and with obvious regard to the other and more central issues of diminished responsibility and provocation. The jury clearly found against the appellant on those issues, in respect of which there is no appeal, and, on the issue of intent, in respect of which the prosecution case and evidence were, as we have said, overwhelming. Accordingly, we also dismiss the second ground of appeal. 32. The appeal against conviction of murder is, therefore, dismissed. _____________________

2003_03_19-44.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/680/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/680

245cdf495eab1e3af7f1558451665b2f968561e652a0b5f0112e3b0b1ff467ba

[2022] EWCA Crim 769

EWCA_Crim_769

2022-05-05

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 202200241/A3 [2022] EWCA Crim 769 Royal Courts of Justice Strand London WC2A 2LL Thursday 5 May 2022 Before: VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION) (LORD JUSTICE FULFORD) MR JUSTICE JAY RECORDER OF WESTMINSTER (HER HONOUR JUDGE DEBORAH TAYLOR) (Sitting as a Judge of the CACD) REGINA V JORDAN DAVID NICHOLSON __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR G STABLES appeared on behalf of the Appellant. _________ J U D G M E N T MR JUSTICE JAY: On 23 December 2021 before Mr Recorder Makepeace sitting at Great Grimsby Crown Court, following his guilty pleas and a Newton hearing, Mr Jordan Nicholson (the appellant) was sentenced to a total term of imprisonment of 6 years 6 months. The sentence was composed as follows. Count 1, offering to supply a Class A drug (cocaine), contrary to section 4(3) (a) of the Misuse of Drugs Act 1971 , 6 years' imprisonment; count 2, possessing a Class A drug (cocaine) with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971 , 6 years' imprisonment concurrent; count 5, possession of an offensive weapon (a knuckleduster), contrary to section 1 of the Prevention of Crime Act 1953 , 1 year's imprisonment concurrent; count 6, possession of offensive weapons (four knives), contrary to section 1 of the Prevention of Crime Act 1953 , 6 months' imprisonment consecutive; count 8, possession of a prohibited weapon, a MACE spray contrary to section 5(1) (b) of the Firearms Act 1968 , 1 year's imprisonment concurrent. Standard ancillary orders were made which are not the subject of appeal. The appellant appeals against sentence with the leave of the single judge. The facts were that on 17 April 2021 at around 12.50 am police officers in a marked police vehicle stopped a grey Fiat as a result of information passed over the radio. The appellant was the driver and the sole occupant of the vehicle. Having searched the vehicle officers found a jewellery bag containing snap bags containing white powder, a snap bag with white powder by the gear stick and a large amount of grip sealed bags with white substance in the passenger footwell. The powder was later identified as cocaine. There were 103 bags containing average weights of 506 milligrams of cocaine. Officers discovered a total of £2,534.43 in cash, stashed in various places around the vehicle. Officers also found four flick knives in the console, a can of MACE spray from the boot and a knuckleduster from the central console. A total of 47 grams of cocaine was found, with an estimated street value of £4,120. Officers also found several mobile phones. One of the phones contained messages that were indicative of drug supply during the period between November 2020 and 17 April 2021. The appellant was arrested and made no comment in interview. The appellant's basis of plea rejected wholesale by the Recorder was that he was acting under the direction of a man who threatened him and that he did not benefit financially. The appellant (now aged 52) was not a man of good character but his previous convictions were for unrelated matters. The Recorder had written evidence from three character witnesses and there was medical evidence that the appellant suffered from ischemic heart disease. The appellant lived with his partner and had five children, the youngest of whom was 10 years old. He was assessed as being at very low risk of reoffending. For the sentencing hearing the Crown provided a helpful note that was not disputed. For the two drugs matters these were category 3 offences significant role . The starting point under the Guideline was 4½ years with a range of 3½ to 7 years. For count 5 (the knuckleduster) this was a category C2 case, with a range of low level to high level community order. For count 6 (the four knives) this was a category A2 case with a starting point of 6 months' imprisonment and a range of up to 1 year. Finally, for the possession of the MACE spray this was a category B2 case with a starting point of 1 year and a range of up to 2 years. In his sentencing remarks the Recorder observed that in relation to the drugs offences there was a pattern of offending over a protracted period of time. This fell to be balanced against the mitigation, including the absence of similar offending, the appellant's settled family life and the fact that at least half of the sentence would be served under the Covid regime. In the Recorder's view, with a view to totality, as he put it, these factors balanced out at 6 years' imprisonment. The sentences for the offensive weapons would have been in the region of 3 years' imprisonment on a standalone basis but the Recorder said that he took into account totality, by effect adding a further 6 months to the overall sentence by imposing a consecutive sentence for the knives. The Recorder's credit for the guilty pleas notwithstanding the appellant's lies at the Newton hearing was 6 months, that is to say approximately 7%. There are eight grounds of appeal as follows. 1. There was insufficient reason for the Recorder to increase the starting point from 4½ to 6 years on counts 1 and 2. 2. There was insufficient reason for the Recorder to go outside the sentencing range of 1 year's imprisonment on count 5. 3. There was no evidence or basis for elevating harm from category 3 to 2 on count 8. 4. A sentence of 7 years before credit for plea was manifestly excessive. 5. Insufficient credit was given for the guilty pleas. 6. No reduction was made to reflect the effects of the pandemic on the appellant. (Mr Stables withdrew this ground at the start of the hearing although submitted that the knock-on consequence must be that the Recorder's adjusted starting point was even higher and wrongly so). 7. The Recorder wrongly imposed a sentence of six-and-a-half years' imprisonment instead of a sentence of around 4½ years' imprisonment and 8. The sentence was manifestly excessive in all the circumstances. Plainly there is a degree of overlap between some of these grounds. In his brief but effective oral argument, Mr Stables' headline submission was that there were no aggravating features in this case to take it effectively to the top of the sentencing range for category 3 significant role drugs matters. The Recorder, it is submitted, should have started at approximately 4½ years and then reduced the sentence further for the available mitigation. In our judgment, it was a reasonable approach to treat the offences involving offensive or prohibited weapons as part and parcel of the appellant's overall drug offending. Drug dealing is an inherently dangerous activity and weapons are often involved. The Recorder's overarching approach in treating the offensive weapons as in effect aggravating factors in relation to counts 1 and 2 was not wrong in principle. In the main, he imposed concurrent sentences for these matters. It is true that some of the concurrent sentences were too high, but in practical terms, as is accepted, that makes no difference to the outcome. Where we think the Recorder erred was in imposing a consecutive sentence on count 6 for the four knives. There was no reason for taking this hybrid approach and in doing so regard was not properly had to totality. The two drugs offences differed in as match as count 1 related to supply over the period 12 November 2020 to 17 April 2021, whereas count 2 related to what police found on this last date. Viewed in isolation from the offensive weapons these two offences warranted concurrent sentences slightly above the starting point of four-and-a-half years subject to the personal mitigation. A series of concurrent sentences ought to have been imposed for the other matters. These sentences would, as we have said, have served to aggravate the sentences imposed on the first two counts. Viewing this case in the round and having regard to totality the overall sentence on the drugs matters before credit for plea should have been 6 years' imprisonment. We reduce that by 9 months to reflect the appellant's pleas and the impact of Covid, notwithstanding the unrealistic stance that the appellant took at the Newton hearing. It follows that we allow this appeal to the following extent. On count 1, we quash the sentence of 6 years' imprisonment and substitute for it a sentence of 5 years 3 months' imprisonment. On count 2, we do likewise. We do not alter the sentences on the remaining counts save that for count 6 the sentence is 6 months' imprisonment concurrent not consecutive. The total term of imprisonment is now 5 years 3 months. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2022_05_05-5320.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/769/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/769

7b120a16b9f0dd6d28fe8319e98826efefaaad802919dc0e8b45a5d9b9cb07c7

[2019] EWCA Crim 281

EWCA_Crim_281

2019-02-19

crown_court

Neutral Citation Number: [2019] EWCA Crim 281 No: 201900055/C5 201900184/C5 201900210/C5 201900212/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 19 February 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE FARBEY DBE THE RECORDER OF LIVERPOOL HIS HONOUR JUDGE GOLDSTONE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) R E G I N A v IDRIS HAMOU EBRAHEM GOGO HOSHANK JOJO Computer Aided Transcript of the Stenograph Notes of E

Neutral Citation Number: [2019] EWCA Crim 281 No: 201900055/C5 201900184/C5 201900210/C5 201900212/C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 19 February 2019 B e f o r e : LORD JUSTICE HOLROYDE MRS JUSTICE FARBEY DBE THE RECORDER OF LIVERPOOL HIS HONOUR JUDGE GOLDSTONE QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) R E G I N A v IDRIS HAMOU EBRAHEM GOGO HOSHANK JOJO 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 C Guiloff appeared on behalf of Hamou Mr M Neofytou appeared on behalf of Gogo Mr C Meredith appeared on behalf of Jojo Mr M Hillman appeared on behalf of the Crown J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: On 17 December 2018, after a trial in the Crown Court at Canterbury before a judge and jury, these three applicants, together with a fourth man, Bogdaniel Boer, were convicted of an offence of conspiracy to assist unlawful immigration to a Member State. The particulars of the charge in the trial indictment were that the four accused: "… between the 1st day of January 2017 and the 26th day of June 2017 conspired together to do an act, namely arrange the transportation of a Syrian National into the UK, which facilitated the commission of a breach of immigration law by an individual who was not a citizen of the European Union, knowing or having reasonable cause for believing that the act facilitated the commission of a breach of immigration law by that individual, and that that individual was not a citizen of the European Union." 2. On the same date the applicants Idris Hamou and Hoshank Jojo were each sentenced to 12 months' imprisonment. The applicant Ebrahem Gogo was sentenced to 15 months' imprisonment and Bogdaniel Boer to 18 months' imprisonment. 3. The three applicants now apply for leave to appeal against their convictions. Hoshank Jojo in addition applies for leave to appeal against his sentence. Their applications have been referred to the full court by the single judge. 4. For convenience, and meaning no disrespect, we shall hereafter refer to those involved in the case by surnames only. 5. The three applicants are Syrian. At the trial, and before this court, they have been collectively referred to for convenience as "the Syrian defendants" in order to distinguish them from Boer, who is Romanian. Gogo and Jojo are brothers. They have two other brothers, Acheed and Shaya, who at the material time were living in Holland. 6. During the period covered by the indictment all four accused were living in the United Kingdom. Jojo's wife, Noorjehan Kudja was in Syria. Jojo wished her to join him in this country. The charge of conspiracy related to an attempt to bring Kudja into this country illegally. 7. The prosecution alleged that Boer was recruited to travel to Holland by car and ferry and there to collect Miss Kudja from an address written on a piece of paper recovered by the police. That was the address of Shaya, the brother of the applicants Gogo and Jojo. 8. On 25 June 2017 Boer, accompanied by Miss Kudja, intended to drive through the Channel Tunnel to this country. He was however stopped near Calais. He made an unsuccessful attempt to persuade officials that Miss Kudja was his wife, and in support of that pretence he presented the genuine identification documents of his own wife. He was arrested and brought back to the United Kingdom for questioning. Miss Kudja was returned to Calais. At a later date she flew to this country and claimed asylum. 9. When interviewed, Boer admitted that he had been trying to bring Miss Kudja into the country but said that he had been under pressure from others. He referred to his employer's brother, named as Andy Adon, who he said had introduced Boer to Miss Kudja's husband, known as Sher, and his brother Ebrahem, all of whom were Arab. It was the prosecution case that Andy Adon, Sher and Ebrahem were the applicants Hamou, Jojo and Gogo respectively. Boer went on to say in his interview that he felt compelled to do as he was asked because he wanted to maintain his work relationship with his employer and also because he was fearful of what might happen if he did not comply. 10. In the course of the police investigation, mobile phones belonging both to Boer and Miss Kudja were seized and examined. The phone log had been cleared from Miss Kudja's phone, but it was established that there were post-arrest calls from that phone to numbers attributed to Jojo and Gogo. Investigation of Boer's mobile phone showed that Jojo's phone had attempted to call him 33 times in the period of 20 hours after his arrest. Further, cell site data showed that Gogo's phone was in Kent on the afternoon of 25 June 2017. 11. There was also evidence of contact between Hamou's mobile phone and Boer's phone. On 21 June Boer's phone had sent to Hamou's phone a picture of the identity card belonging to Boer's wife. There was also text message contact in connection with the booking of a ferry ticket and multiple calls and messages both before and after Boer's arrest. 12. As a result of these investigations, both Gogo and Jojo were later arrested on dates in January and February 2018. When interviewed, Gogo answered all questions. He denied any involvement in an attempt to bring Miss Kudja into the country illegally and put forward innocent explanations for the various circumstances relied on against him. Jojo gave a prepared statement in which he denied involvement and thereafter made no comment. Hamou denied any involvement in a conspiracy to bring Miss Kudja to the United Kingdom, but said he had worked with Boer in 2014, was Facebook friends with him and had recently contacted him about renting a house. Hamou's Facebook account was in the name Andy Hamou. 13. The case put forward by the prosecution against the defendants was that there was an inescapable inference to be drawn that the three applicants and Boer were together involved in an agreement to bring Miss Kudja illegally into this country. The prosecution intended to rely on the telephone communications between the accused, the relationship between the applicants and Miss Kudja, the paper bearing the Dutch address which had been found in Boer's car and entries in Gogo's diary which contained a page headed "Horshan balance", a list of money and an entry "£5,000" crossed out next to the words "Nora's fees". 14. The case to be presented for the applicants was that they were not involved in a conspiracy to bring Miss Kudja to this country and that the evidence had been completely misinterpreted. Others may have been responsible for such an attempt, including possibly an uncle named Hamoudi or a brother named Shaya, but it was nothing to do with the applicants. 15. Before coming to events at trial, it is necessary to refer to the procedural history of this case, which is important. Following his arrest, Boer was sent for trial on his own. Indictment T20170399 charged him with a substantive offence of assisting unlawful immigration to a Member State contrary to section 25 of the Immigration Act 1971. The particulars of the charge alleged that he had committed that offence on 25 June 2017. Boer's defence to that charge was to be one of duress and he gave instructions to those representing him, including at a conference on 5 December 2017. Soon after that conference the solicitors representing him completed a certificate of readiness relating to what at that stage was expected to be a trial of Boer alone. 16. It appears however that later in 2017, and at a time before the three applicants were arrested in 2018, Boer left this country and did not thereafter return. That fact was unknown to the prosecution, to those representing the applicants and to the court for many months. 17. Following the arrest of the three applicants, they were sent for trial. Indictment T20187073 charged them with conspiracy to facilitate illegal immigration to a Member State. The particulars of that charge were that the three applicants "On or before the 25th day of June 2017 conspired together with Bogdaniel Boer to facilitate the commission of a breach of immigration law by an individual who was not a citizen of the European Union." 18. At a plea and trial preparation hearing on 20 June 2018 the applicants were arraigned on that indictment and pleaded not guilty. The judge gave directions. The court log of that hearing recorded that the prosecution intended to join the two indictments, that is to say the indictment against these applicants and the indictment against Boer alone. No objection was raised at that hearing. A note was placed on the digital case system in relation to both indictments making clear that the prosecution intended to seek joinder. 19. On 25 June 2018 there was a directions hearing in Boer's case. This was conducted with Boer's counsel attending by telephone. Neither Boer, nor any of the applicants, nor any of the applicants' representatives were present. The court log of that hearing recorded: "Now a four-handed trial. Counsel for Boer raised no objection." 20. It seems clear as a matter of inference that nothing was said to the court that day to indicate that Boer had left the country some six months earlier and had not been heard of by his representatives since then. 21. Although it was clear to everyone by that stage that the prosecution intended to seek to join the indictments so that all four accused could be tried together, no formal application was in fact made as Rule 3.21 of the Criminal Procedure Rules requires. It follows, since there was no written application by the prosecution, that there was no written response on behalf of any of the accused. We are bound to say that we think it very unfortunate that the prosecution did not make the necessary written application. The failure to do so had two consequences. First, it contributed to a later misunderstanding by the trial judge, to which we will come shortly. Secondly, it meant that minds were not focused as they should have been on precisely what application would be made and whether any defendant would object to it. Instead, the case was allowed to move towards a trial date in late November with nothing being done to address the state of the indictment. 22. When the day came for trial, on 26 November 2018, the three applicants were present and represented. Boer was absent but was represented by counsel who indicated that he was willing to continue to act. Only then did it emerge that Boer's legal representatives had had no contact with him since late 2017. Thus, nearly a year had gone by without the court being informed that Boer had fallen out of contact with his legal representatives. 23. Prosecuting counsel, noting that the two indictments had not in fact been joined as yet, made a number of applications. He sought joinder of the indictments, amendment of the joined indictment so that the particulars of offence were in the terms of the trial indictment which we quoted at the start of this judgment and trial of Boer in his absence. Counsel acting for Boer raised no objection to any of those applications. Counsel for the three applicants did. They argued against joinder. In the alternative they argued for severance and they submitted that for the three applicants to stand trial jointly with the absent Boer would result in incurable prejudice for the applicants. 24. The judge on 28 November 2018 ruled as follows. As to joinder, he held that the two indictments were properly joined. He did so primarily on the basis that the administrative hearing on 25 June 2018 had already resulted in joinder. The judge noted that no written application had been lodged but said that it was a case in which joinder was so obviously justified that in the absence of any objection the Crown could be forgiven for dispensing with superfluous documentation. As to the defence objection that they had had insufficient time to prepare to deal with this application, the judge said that he had allowed sufficient time and that there was no prejudice as a result of the breach of Rule 3.21. The judge further ruled that any issues as to prejudice would properly be considered in relation to severance rather than to joinder. 25. The judge then considered the application to amend the indictment into the form of the trial indictment. He concluded that the desired amendment created no substantial difference and so caused no unfair prejudice to the three applicants. Nor would it cause any unfair prejudice to the absent Boer, who had admitted in interview and in a defence case statement that he had been party to an agreement with others to commit the offence, albeit that he had acted under duress. Although Boer could not be arraigned on the joined and amended indictment, the judge held that this was not a bar to him being tried jointly. In this regard he relied on the decision of this court in R v Burton [2018] EWCA Crim 2485. The judge therefore permitted the amendment. 26. As to the trial of Boer in his absence, the judge concluded that Boer had waived his right to be present at his trial by voluntarily absenting himself in full knowledge of the likely consequences. The judge noted that Boer had given a full interview, had given full instructions (albeit not in respect of evidence served since he had absconded) and was represented by counsel. The judge held that there was a clear public interest in the case being tried and that Boer was a central figure in an offence which everyone agreed had been committed. Subject to the issue of severance, to which he would come, he said that separate trials of a single conspiracy were undesirable. 27. As to severance, the judge noted the argument that it was not clear from Boer's interview whether he was referring to people by nicknames or alternative names and whether he was referring to any of the applicants. The judge nonetheless held that what was said in that interview either did amount or at least might amount to a cut-throat defence as between Boer and one or more of the applicants. 28. The judge referred to the submissions of defence counsel that the indictment should be severed because joint trial would cause prejudice and embarrassment to these applicants in their defence. He referred to the alternative argument that even if severance were to be refused, evidence relating to Boer's interview should be excluded on grounds of fairness, pursuant to section 78 of the Police and Criminal Evidence Act 1984. 29. The judge then referred to a number of decided cases conveniently summarised at paragraphs 1-293 to 1-296 of the 2019 Edition of Archbold, in which it had been held for example that a defence of duress being advanced by one co-defendant would not in itself be sufficient to justify separate trials and that separate trials would not necessarily be justified where one defendant had implicated a co-accused in interview, but then did not give evidence confirming the contents of that interview. The judge accepted that what Boer said in interview was inadmissible hearsay against the applicants, but he rejected an argument that the mental gymnastics required of the jury would prove impossible. He said that although Boer was absent from the outset of proceedings rather than having absconded during the trial, that did not make a material difference. He further noted that the point had been made that whereas a defendant who refused to give evidence would be the subject of a direction which would permit the jury to draw an adverse inference from his silence, the same would not apply to a defendant who was absent altogether. The judge accepted that this was a real distinction but did not consider it to be material. 30. The judge further recognised that the account put forward by Boer in interview might be insufficient to discharge the evidential burden falling on a defendant who relied upon duress and that accordingly the defence of duress might ultimately have to be withdrawn from the jury. That however was an issue which he could not fairly assess until all the evidence had been heard. Whilst an adverse decision on that issue would clearly affect Boer, the judge said it would not affect the applicants. Finally, the judge rejected a submission that the jury might in the light of Boer's absence speculate, having regard to what Boer had said in interview, that he had been threatened by one or more of the applicants. 31. The judge went on to invite counsel for the applicants to consider whether from their point of view it was not better for Boer to be absent, rather than for him to be present and giving evidence in terms similar to those set out in his interview. Counsel argued that if Boer was present they would be able to cross-examine him and undo any damage he might seek to cause to his co-accused. The judge plainly regarded this as unlikely. Finally, the judge concluded that the interview should not be excluded pursuant to section 78 of the 1984 Act. Thus the judge permitted Boer to be tried in his absence. 32. The trial accordingly proceeded on the trial indictment against all four accused. Much of the evidence was helpfully reduced to agreed facts. The prosecution had prepared a very detailed schedule which set out relevant phone calls and contact between the accused and the only live witness called by the prosecution was an immigration officer Mr Horan who gave evidence about the matters recorded in that schedule. Mr Horan also gave evidence about the interviews of the applicants. He produced the various exhibits and explained what phone numbers could be attributed to whom. He said that he had not investigated a Syrian number recovered from Miss Kudja's phone which was said to be that of her uncle Hamoudi Kudja because he did not consider it to be necessary. 33. Mr Horan confirmed that Jojo was a man of good character and lawfully resident in the United Kingdom and that Gogo had been fully compliant upon arrest and had provided the password for his phone upon request. Mr Horan confirmed that there was no contact between Hamou's phone and either Miss Kudja's number or the relevant Dutch mobile phone, although Hamou's number did appear in Boer's phone, saved in the 'contacts' section. 34. Mr Meredith, then as now appearing on behalf of Jojo, sought in cross-examination to adduce evidence that when Miss Kudja later flew to this country and claimed asylum she was interviewed by an immigration officer and gave an account of her earlier unsuccessful attempt to enter the country in which she said that it had been her uncle Hamoudi who had organised her travel. The judge refused to permit Mr Meredith to adduce this evidence on the basis that it would clearly be hearsay evidence. The judge noted that he had been told that Miss Kudja was available to be called as a defence witness if Jojo wanted her account to go before the jury. 35. After some cross-examination by Mr Meredith before the short adjournment, the judge also warned counsel that there may come a stage when he would find it necessary to put a time limit on cross-examination because, as he saw it, counsel was failing to get to the point. He asked Mr Meredith to reflect over the short adjournment about what further topics needed to be covered and notified Mr Meredith that after the short adjournment he would ask for an indication of how much longer counsel would need. When the court sat again, counsel indicated that it was difficult to give an accurate result, but said that he was likely to take most of the afternoon. At that point the judge, referring to his case management duties under the Criminal Procedure Rules and to the overriding objective, set a time of 3 pm for the conclusion of Mr Meredith's cross-examination. That time limit was later enforced. 36. After Mr Horan's evidence had been completed and after a short break, prosecuting counsel, then as now Mr Hillman, disclosed to the applicants' counsel a document which contradicted one aspect of the evidence which Mr Horan had given. Mr Meredith applied to the judge for Mr Horan to be recalled so that this document could be put to him in cross-examination. The judge refused that oral application. He permitted Mr Meredith to make further written representations but that course was not taken. 37. Later in the course of the trial, an agreed fact was agreed between prosecution and defence which effectively embodied the contents of the disclosed document. This enabled Mr Meredith in his closing speech to comment on the contradiction between Mr Horan's oral evidence and the document, and to submit to the jury that the explanation must be that the oral evidence given by Mr Horan on this topic had been a lie. 38. Following the close of the prosecution case, the applicant Jojo gave evidence in which he put forward innocent explanations for the circumstances on which the prosecution relied. Jojo said that he had had nothing to do with his wife being at the address in Holland of his brother, nor with the giving of that address to Boer with a view to Boer collecting Miss Kudja and bringing her to this country. He said he had not told either Gogo or Hamou that he had been alerted to the fact that his wife was coming to this country, although he had spoken to them both on 25 June. He said he did not know that Hamou was also in contact with Boer at the same time. The other applicants Gogo and Hamou did not give evidence. 39. At the conclusion of all the evidence, the judge heard submissions on a number of issues. He ruled that on the evidence the defence of duress was not in law available to Boer and that he would therefore withdraw that defence from the jury. 40. Counsel for Gogo and Hamou, then as now Mr Neofytou and Miss Guiloff, applied in the light of that ruling for the jury to be discharged. Mr Meredith on behalf of Jojo made a submission to the effect that the trial indictment alleged a closed conspiracy and that evidence of any involvement on the part of Hamoudi, Shaya or anyone else would provide Jojo with a defence in law on the basis that the conspiracy would thus be shown to be a legally separate conspiracy. 41. The judge rejected those various submissions. He said that there was no defence available to any of the applicants on the basis that others may have been involved in the agreement. That did not of course affect their factual case that any conspiracy was between Boer and others but not with them. 42. The judge then gave directions of law to the jury before counsel's closing speeches. It is relevant to the issues on this appeal to note the following features of those directions. The judge explained to the jury that he had ruled as a matter of law that Boer's account of events did not amount to sufficient evidence for the defence of duress to be available to him. The judge continued at page 4C: "Accordingly, he does not seem to have any defence in this case. Nevertheless, he has pleaded not guilty and, as with all defendants in all cases, you can only find him guilty if you are sure that he is guilty." 43. The judge went on to direct the jury that they must not speculate about the reasons why Boer had left the country and was absent from his trial, adding: "It remains the case that Mr Boer pleaded not guilty." 44. The judge directed the jury that whilst Boer's account in interview was evidence in his case, that which one defendant said in interview could not be evidence against any other defendant. The judge told the jury that they could not use what Boer had said in his interview as evidence against any of the others, adding "That is an important point." The judge went on to explain what was meant by a conspiracy, saying: "A conspiracy simply means an agreement to commit a criminal offence." 45. He went on to say at page 6C to E: "Where four defendants are charged with a conspiracy, it is entirely possible that other people beyond those four may have been involved in that conspiracy as well, but in this case the prosecution must prove that each of these four defendants agreed with at least one of the other three to help bring about the illegal immigration of Noorjehan Kudja. It makes no difference whether or not anyone else agreed to play some part in the plan also; uncle Hamoudi, Shaya, Acheed or whoever. Playing a part could include, for example, actually bringing the illegal entrant into the UK, which is what Mr Boer attempted to do; recruiting the driver; going to Kent to receive the migrant when she arrived; helping with the planning; helping with communications; providing money to cover fees or expenses, or even just providing encouragement whether in person or by telephone. For each defendant, if he agreed with at least one of the others to assist in some way in the attempt to bring Ms Kudja across the Channel, then he is guilty." 46. The judge later provided the jury with a route to verdict which was to similar effect. 47. Later in the summing-up, the judge criticised Mr Meredith for having suggested in his closing speech that Mr Horan had been caught out lying under oath. The judge commented that Mr Meredith had not put it directly to the officer that he had been lying and so Mr Horan had not had an opportunity to answer that serious allegation. 48. Finally of relevance for present purposes, the judge gave directions as to the inferences which could be drawn from the silence of the two applicants who had not given evidence and he gave directions as to the good character of Boer, limited to propensity, and as to the applicant Jojo. In relation to the former, the judge's direction included the following, at page 21B: "It is up to you to what extent you find that each of these defendants' decision not to give evidence should count against him, and how likely you find it is that an innocent person might have made that decision." 49. Following the speeches of counsel, the judge summed up the evidence. The jury retired and as we have indicated ultimately returned guilty verdicts on all four accused. The judge, rejecting a submission on behalf of Jojo that there should be an adjournment to obtain a pre-sentence report, proceeded to sentence the four accused as we have indicated. 50. In their written grounds of appeal and their oral submissions, the applicants collectively challenge the judge's rulings on the issues of joinder, amendment, severance and the trial in absence of Boer. Similarly, all three challenge the judge's decision not to discharge the jury after he had decided that the defence of duress must be withdrawn in Boer's case. Other grounds of appeal are advanced by individual applicants and we will deal with those before coming to what we see as the most substantial issues. For the respondent, Mr Hillman resists all of the grounds of appeal. 51. On behalf of Gogo, Mr Neofytou submits that the judge was wrong to refer as he did to a defendant playing a part in the conspiracy by encouraging others. We are not persuaded by this submission. Under the provisions of section 1 of the Criminal Law Act 1977, the essence of the offence of conspiracy is the making of an agreement that a course of conduct will be followed which will amount to the commission of a criminal offence. The prosecution must therefore prove against each accused that he agreed to a course of conduct which one or more of the parties to the conspiracy would carry out and which would amount to an offence. But it is not necessary for the prosecution to prove against an individual accused that he intended to play an active part in that agreed course of conduct. To take the most obvious example, the criminal mastermind who organises and directs his co-conspirators, whilst keeping himself well away from any active involvement, will be guilty of conspiracy. It seems to us that the judge's reference to 'encouragement' was not happily worded and it would have been better to omit that phrase in order to avoid any risk of misunderstanding. But the direction did not undermine the judge's clear instruction to the jury that they must be satisfied that an individual defendant entered into an agreement to commit a criminal offence. The reference to the need for an active participation was, if anything, more favourable to the accused than was appropriate. 52. On behalf of Gogo and Hamou, criticism is made of the direction to which we have referred in which, when dealing with inferences from silence, the judge spoke of how likely the jury might find it to be that an innocent person might have made the decision not to give evidence. By itself, in our view, this is not a point which could cause us to regard the verdicts as unsafe. It was however a phrase which should not have been included in the direction and we keep it in mind when we consider other grounds of appeal advanced on behalf of the applicants. 53. Counsel for Gogo and Hamou also complain that the effect of the direction as to inference from silence and of the good character direction given in relation to propensity in Boer's case, but not given in relation to these applicants, added to the prejudice which they suffered by their joint trial with the absent Boer. In our view, the directions were not wrong in law and these points of criticism would not in themselves assist the applicants. We do however see some force in the point, to which we will shortly come in more detail, that the contrast between the position of the absent Boer and the applicants who were present in the dock added to the complexity of the task which confronted the jury. 54. On behalf of Jojo, Mr Meredith submits that he was denied a fair trial because the judge curtailed the length of cross-examination and so prevented counsel from exploring a number of topics. We have read the lengthy written submissions on this issue, but we are not persuaded by them. The judge was plainly correct to prevent the introduction of hearsay evidence about what Miss Kudja had said when interviewed by an immigration officer. The judge was not thereby reversing the burden of proof by obliging the defence to call her as a witness; he was merely applying the law as to hearsay and pointing out an alternative course which was available to Jojo if he wanted that evidence to be before the jury. The judge was also correct not to permit questions in cross-examination which, to put it at the lowest, ran the risk of opening a back door through which the witness Mr Horan might be led into adducing the hearsay evidence which the judge had rightly excluded. As to the imposition of a time limit, we think it unfortunate that this situation arose. Having read the transcript we understand the judge's frustration and feeling that there was a failure to get to the relevant points with reasonable speed. We would add, with respect to Mr Meredith, that at times the cross-examination appeared to be no more than a fishing expedition in which it was hoped that something might emerge which could provide some justification for alleging bad faith on the part of the prosecution. The time limit imposed by the judge was a severe one, but it did not leave counsel with insufficient time to ask those questions which properly could be asked. It is regrettable that in this way one defence counsel was treated in a manner in which others were not, but we are not persuaded that the course adopted by the judge amounted to a material irregularity or to denied Jojo a fair trial. 55. We do however take the view, with respect to the judge, that it was unfair for him in his summing-up to criticise Mr Meredith for not having put to Mr Horan an allegation which he had been unable to put because his application for further cross-examination had been refused. Again this is not a point which in itself could assist the applicant, but we take it in conjunction with other points to which we will shortly come. 56. The final subsidiary point to which we must refer is the argument advanced on behalf of Jojo in relation to the significance of the terms of the indictment. The particulars of offence limited the way in which the prosecution could put the case. The case against a particular applicant could only succeed if he was proved to have entered into an agreement with at least one of the other three. Evidence establishing only that he had entered into an agreement with someone else would not suffice. But the broader proposition for which counsel contended was misconceived, as the judge rightly concluded. 57. We now come to what we see as the substantial issues in this case. Given that the prosecution's allegation was that all four accused were parties to the same conspiracy, the usual and obviously desirable course would be for all four to stand trial together. We agree with the judge's analysis of case law showing that features such as a cut-throat defence or one defendant giving an account in interview which incriminated a co-accused but was not then supported by sworn evidence, will not necessarily provide compelling arguments in favour of an order for separate trials. We also agree with the judge's view that he should consider the issues of joinder, amendment, severance and trial in absence "in the round", because although these were discrete issues, they were in the circumstances of this case closely intertwined. The same applies to the issue of the application to discharge the jury at a late stage of the trial. 58. We have therefore considered all these matters "in the round". We sympathise with the judge, who had a difficult task, but with all respect to him we take the view that he fell into error in his rulings on these linked issues. 59. First, it seems clear that the judge was mistaken in thinking that an order for joinder of the two indictments had already been made well before the trial date by another judge. As we have indicated, an application had certainly been foreshadowed at earlier hearings but no application had in fact been made as it should have been. In itself, this mistake would not be fatal to the judge's ruling, because he sensibly added that if he was in error in this regard he would in any event order joinder on the basis of the oral application made to him at trial. But the mistake in our view appears to have contributed to a belief on the judge's part that there was no valid objection to joinder of the four accused on the amended trial indictment. 60. This leads to consideration of the second matter which concerns us. The effect of the judge's decisions was to permit the joint trial of the four accused on a charge in respect of which Boer had not been arraigned. True it is that the reason for that is that he had absconded from bail and that he had entered a not guilty plea to the charge which he initially faced. A trial may in certain circumstances proceed even though the accused has not been arraigned. But as is made clear by the decision of this court in Kepple [2007] EWCA Crim. 1339 at paragraph 17, the circumstances in which that may be done, require the court to be satisfied that the accused has waived his right to be arraigned. In the circumstances of this case, Boer cannot in our judgment be said to have waived his right to be arraigned on an indictment which did not come into existence until about a year after he had absconded, which charged him with an offence of conspiracy over a six month period rather than a substantive offence on a single date, and in circumstances where there was no evidence that Boer even knew of the existence of the amended indictment. It is, we think, a point of significance that the trial indictment was not only completely different from the indictment to which Boer had pleaded not guilty, it was also somewhat different from the indictment which the three applicants had originally faced. No doubt there will be cases in which it can properly be concluded that a defendant has waived not only his right to be arraigned on an indictment of which he was aware before he absconded or misbehaved, but also his right to be arraigned on an amended indictment which does not significantly alter the original charge. There may well be questions of fact and degree. But here, in our view, any finding of waiver would amount to a finding that by absconding from proceedings on the indictment which he originally faced, Boer waived his right to be arraigned on any charge which in any terms accused him of being involved in an attempt to bring Miss Kudja into the United Kingdom illegally. Such an approach was not in our view permissible. There was therefore a real issue, which the judge did not address, as to whether Boer could be tried on a joint indictment in the terms of the trial indictment. It follows that the issue of joinder could not be approached on the basis that no one had raised any objection when, months earlier, an intention to apply to join the indictments had been indicated in very different circumstances. 61. We would add to this point that we are troubled by the fact that in his summing-up the judge more than once told the jury that Boer had pleaded not guilty. The judge was no doubt seeking only to emphasise that it was for the jury to decide whether the prosecution had proved the case for sure against Boer. But the fact of the matter is that Boer never had entered a not guilty plea to the only charge of which the jury were aware. The statement by the judge that Boer had pleaded not guilty was incomplete without an explanation of the procedural history and was therefore inaccurate. 62. Thirdly, a similar point arises in relation to the trial of Boer in his absence on an amended indictment of which he was unaware. Although Boer's counsel did not challenge joinder on this ground, it seems to us that there was an important point which the judge needed to consider in relation to joinder. 63. Fourthly, we see considerable force in the submissions on behalf of the applicants as to why, even if the four accused were properly joined in a single amended indictment, the judge should have ordered severance so that the applicants were tried separately from the absent Boer. The decision of this court in Hayward [2001] QB 862 , approved by the House of Lords in Jones [2003] 1 AC 1 , requires a court contemplating a trial in absence to consider amongst other things the question of fairness to any co-defendant. What seems to us to be of critical importance is that there was in this case a highly unusual combination of circumstances. Boer had been caught trying to pass Miss Kudja off as his own wife. Duress apart, the case against him on the substantive charge which he had initially faced was overwhelming and the circumstantial evidence on which the Crown relied to prove that he was part of a conspiracy was very strong. His defence of duress was always highly likely to be withdrawn from the jury at some stage. The judge was correct to leave that decision as long as possible in case anything emerged which could assist Boer; but it was extremely unlikely that that would happen and therefore extremely unlikely that the jury would ever need to consider the merits of the defence of duress. There was no realistic prospect that Boer would appear during the trial and give evidence. Once duress was withdrawn, the account which Boer had given in interview amounted in effect to an admission of the ingredients of the offence of conspiracy. It could not possibly assist Boer at all. 64. There was, however, a clear risk that the effect of putting Boer's interview before the jury would be to cause prejudice to the defence of each of these applicants. Miss Guiloff on behalf of Hamou points to the fact that Hamou could not be so readily identified from Boer's references in interview as could the other two applicants who were respectively the husband and brother-in-law of Miss Kudja. It does however seem to us, given the phone contacts between the accused and the references to Kudja's husband and brother-in-law, that the jury would be likely to be sure that the men about whom Boer spoke in his interview were the three applicants. As the applicants' counsel rightly submit, the fact that Boer's account in interview was insufficient in law to support a defence of duress does not mean that the account given by Boer could not harm these applicants. 65. The judge concluded that a clear direction that the interview was not admissible evidence against anyone other than Boer would suffice. It must certainly be assumed that the jury would do their best to obey that proper direction, but we fear it would have been very difficult for the jury to do so. That difficulty was increased by the various matters we have mentioned when dealing with some of the subsidiary arguments. It was further increased because in certain ways, as counsel rightly submit, what Boer said in interview was being relied upon in relation to other accused. In opening, the prosecution actively relied on something said by Boer in his interview about "Andy" as being evidence against Hamou who has used the name "Andy". Then in cross-examination counsel for the absent Boer had used something said in Boer's interview to implicate Hamou in the sending of a relevant WhatsApp message. In closing, in the face of justifiable objection from the prosecution, the judge permitted defence counsel to point out that the applicants had not been named by Boer in his interview. 66. We agree with the submission of the applicants' counsel that points such as these made it all the harder for the jury to keep in mind that nothing which Boer said in interview could be evidence against the applicants. It is understandable that the judge felt it appropriate to let counsel for the accused point out that Boer's interview did not name the applicants, but the fact that he felt it right to do so tends in our view to indicate the risk of prejudice which existed from that interview being before the jury when Boer himself was absent. Furthermore, whilst we well understand why the judge suggested that the applicants might in truth have been better off having Boer tried in his absence, rather than having him in court with them, it was in reality a matter of speculation as to how matters would have developed if all four accused had been present together. More generally we see force in the submission advanced by Miss Guiloff to the effect that the judge in his various rulings did not sufficiently focus on the precise factual matrix which actually obtained rather than on other possible situations. 67. When we step back from these specific arguments and consider the position as a whole, we take the view that the outcome of the various decisions made by the judge was that there was a material irregularity in the course of this trial. Decisions on the sort of issues we are discussing are pre-eminently matters for a trial judge and this court will be slow to interfere with them. We are however persuaded that in the very unusual circumstances of this case, severance of these applicants from the absent Boer should have been ordered at the outset of the trial or alternatively that the jury should have been discharged once Boer's defence of duress had been withdrawn. We are fortified in that view by the consideration rightly pointed out by counsel for the applicants that unusually, perhaps, this was a case in which a separate trial of Boer could and would have been much shorter and much less complicated than a separate trial of the three applicants. 68. For those reasons, we grant leave to each of the applicants to appeal against his conviction. We have heard submissions as to what course should be taken. Mr Hillman submits that if the appeal succeeds this court should order a retrial. We have listened to the objections to that course put forward by counsel for the applicants but in our judgment the interests of justice strongly support a retrial. 69. We therefore grant leave to appeal and allow the appeal. We quash the convictions of each of these appellants (as they now are) and direct that they be retried. We direct that a fresh indictment be served in accordance with Rule 10.82 of the Criminal Procedure Rules which requires that a draft indictment must be served on the Crown Court Officer not more than 28 days after this order. We direct that each of the appellants be re-arraigned on that fresh indictment within two months. We will hear submissions shortly as to the venue for a retrial, as to whether the applicants should be held in custody or released on bail and as to whether any reporting restrictions may be desirable. 70. It follows from our decision allowing the appeals against conviction that Jojo's application for leave to appeal against his sentence falls away. 71. We would add before concluding our judgment a final observation about case management. We recognise the pressures of work on those engaged in matters in busy Crown Court centres and we recognise that we have the benefit of hindsight. We are however bound to observe that the proceedings in this case would inevitably have taken a very different course if the issue of joinder and amendment had been more clearly identified at the hearings in June 2018 and if the prosecution had at that stage been directed, as they should have been, to make a written application to which the defence could respond so that the issues could be resolved before the trial date. We also have to say that we find it extraordinary that the court, the prosecution and those representing the applicants were unaware until the day of trial that Boer's legal representatives had had no contact with him for almost a year and that his whereabouts were unknown. We have not heard the details because Boer is not represented before us and it would therefore not be fair for us to criticise any particular person. We are however told that the judge was informed at the start of the trial that those representing Boer had made repeated attempts to contact him over the preceding months but had failed. The court should have been informed of those ongoing and unsuccessful attempts at the hearing in June 2018 when the court was plainly contemplating joinder of indictments in the case of a man with whom all contact had been lost for about six months. Further, it appears from what we have been told that in connection with the joint trial only one applicant filed a certificate of readiness. Again, we have not heard full explanations and therefore cannot fairly criticise, but we find it to say the least remarkable that only one of the four parties before the court should have filed a certificate of readiness and that no action appears to have been taken to chase up the provision of that important document. Had anyone pressed the prosecution to certify readiness they would not have been able to do so without identifying the outstanding issue as to joinder. Had anyone required Boer's advisers to certify readiness, they would not have been able to do so because they had had no contact with him for many months. These several omissions led to important matters only being addressed on the day of trial, which was far too late. 72. Does anybody wish to make any submissions first of all about the venue for retrial? Is there any reason why it should not be Canterbury? 73. MR HILLMAN: My Lord, I certainly have no submissions in that regard. 74. MISS GUILOFF: It is not a proper consideration but all the defendants come from London and so that is onerous on them. Whether that is a proper consideration for this court, I doubt. 75. LORD JUSTICE HOLROYDE: We will direct that the venue for retrial be the Crown Court at Canterbury and we will direct that when the case first appears in that court, pursuant to our directions, it should be listed before the Resident Judge so that directions can be given by him as to the future conduct of the proceedings. 76. Does anyone submit that any reporting restriction is necessary in the circumstances? 77. MR HILLMAN: My Lord, no. 78. MR MEREDITH: My Lord, no. 79. MR NEOFYTOU: My Lord, no. 80. LORD JUSTICE HOLROYDE: Would reporting of this appeal cause any prejudice to anyone at the retrial? 81. MR MEREDITH: My Lord, I cannot conceive of any prejudice. 82. LORD JUSTICE HOLROYDE: It is very difficult to see how. We have been debating arguments of law and, unless anyone can point anything out, it does not seem to me that anything has been said in the course of this hearing that could cause any prejudice to the defendants at their retrial. 83. MR MEREDITH: I respectfully agree. 84. MR NEOFYTOU: Only, I suppose, in relation to the character being reported, but -- 85. LORD JUSTICE HOLROYDE: I think all we have said, Mr Neofytou is that no good character direction was given for two of the applicants. That is what the position is likely to be at the retrial. 86. MR NEOFYTOU: My Lord, yes. 87. LORD JUSTICE HOLROYDE: Finally, submissions please about where the applicants should be between now and their first appearance before the Crown Court. 88. MISS GUILOFF: My Lords and my Lady, the applicants are Syrian nationals. They were all on bail throughout the course of the proceedings, unconditional bail. The addresses the court already has on file are the same addresses which they would be receiving correspondence at and there is no reason to suppose that they have become flight risks since the proceedings so I would invite this court to grant unconditional bail until their next appearance before the Canterbury Crown Court. 89. MR NEOFYTOU: My Lord, I support that. There were no difficulties whatsoever with their bail throughout the trial I am pleased to say. 90. MR MEREDITH: Indeed it might be said on their behalves they travelled from North West London to Canterbury each day of the three week trial, so there were no difficulties. I would invite bail as before. 91. LORD JUSTICE HOLROYDE: We confidently predict that it will not be a three week trial next time. Mr Hillman, is there anything you want to say about bail? 92. MR HILLMAN: Not about bail, my Lord. 93. LORD JUSTICE HOLROYDE: Is there any other matter? 94. MR HILLMAN: The only other matter that troubles me, and my learned friend Mr Meredith mooted it earlier on, is the position in respect of Mr Boer. 95. LORD JUSTICE HOLROYDE: That will be a matter for the trial judge. Any issue as to what is admissible in relation to Boer will be a matter for the trial judge at the retrial. 96. MR HILLMAN: Forgive me, but in respect of his conviction. Mr Boer's conviction. 97. LORD JUSTICE HOLROYDE: There is no appeal before the court or application for leave to appeal before the court in relation to him. If that position ever changes he will need to make an application for leave to appeal out of time and that will have to be considered in the usual way. 98. MR HILLMAN: My Lord, thank you. 99. LORD JUSTICE HOLROYDE: We will just rise to consider the issue of bail. 100. (The court adjourned) 101. LORD JUSTICE HOLROYDE: Mr Hillman, we will address you on behalf of all counsel. Normally of course at this stage of proceedings the court would direct that any bail application be made to the Crown Court, but given the length of the sentences imposed we think we should address the issue of bail now. We are prepared to grant bail to the applicants between now and their next appearance before the Crown Court, but we propose to require them to reside at the specified addresses, which we will identify in a moment, and we would require them to surrender their passports and not to apply for any international travel documents. We assume no one makes any submissions about that? 102. MR MEREDITH: My Lord, I am just trying to cast my mind back to the question of whether they have already in fact surrendered their passports. 103. LORD JUSTICE HOLROYDE: They may have done. If they have, then they remain surrendered. We need to address the three defendants directly. Mr Interpreter are you able to hear everything I am saying? 104. THE INTERPRETER: Yes. 105. LORD JUSTICE HOLROYDE: Thank you. The three men with you will have to be retried on a similar charge. That will happen again in the Crown Court in Canterbury. They must keep in touch with solicitors to make sure they are told about the date when they must appear. 106. Mr Hamou, Mr Gogo and Mr Jojo we are going to grant you bail but there are some conditions to your bail. Mr Hamou, you must live and sleep each night at 204 Watford Way, NW4. Do you understand that Mr Hamou? 107. THE INTERPRETER: Yes. 108. LORD JUSTICE HOLROYDE: Mr Jojo, you must live and sleep each night at 101A Wheatley Close, NW4. 109. THE INTERPRETER: Okay. 110. LORD JUSTICE HOLROYDE: And Mr Gogo you must live at the same address and sleep there each night as well. 111. THE INTERPRETER: Yes, my Lord. 112. LORD JUSTICE HOLROYDE: In addition, if you have any passport which has not yet been surrendered to the police, you are required to surrender it to the police. 113. THE INTERPRETER: We have to keep our passports at the police station. 114. LORD JUSTICE HOLROYDE: And you must not apply for any other passport or other international travel document. 115. THE INTERPRETER: Yes, my Lord. 116. LORD JUSTICE HOLROYDE: I have to give you this important warning. If you do not obey the conditions of your bail you may be arrested and you are likely then to stay in custody. Do you understand? 117. THE INTERPRETER: Understood. 118. LORD JUSTICE HOLROYDE: If you fail to attend court when you should do, unless there is good reason for you to be absent that will be a separate offence. 119. THE INTERPRETER: Understood. 120. LORD JUSTICE HOLROYDE: As you have seen, the case may just proceed without you if you fail to attend. 121. THE INTERPRETER: Understood, my Lord. 122. LORD JUSTICE HOLROYDE: Thank you very much, that concludes this hearing. Thank you Mr Interpreter. 123. MISS GUILOFF: My Lord, forgive me. My Lord and my Lady I do not want to delay matters. I raise this out of an abundance of caution. What the applicants were saying, or appellants were saying, is that their passports have already been surrendered and are at the police station. I believe it has been confirmed by the officer in the case who also understands that to be the position. I only mention it as it may create a difficulty later on when they are trying to effect their bail, that those passports have already been surrendered. 124. LORD JUSTICE HOLROYDE: Yes. If that is confirmed then we will remove any condition that they surrender them, but they must remain surrendered and they must not apply for any other travel document. 125. MR MEREDITH: My Lord, the only final matter, if I may, and I have no wish to sound mercenary about this matter, but does my Lord extend the representation orders to cover the appeals made by these three applicants? 126. LORD JUSTICE HOLROYDE: I do not think it is necessary. You each have a representation order for today, do you not? 127. MR MEREDITH: Because these matters were assigned to the full court by the Registrar, this was not a case where the single judge, as it were -- 128. LORD JUSTICE HOLROYDE: No, but the Registrar granted you a representation order each for today. 129. MR MEREDITH: I am very grateful. 130. LORD JUSTICE HOLROYDE: Thank you. It is very much to your credit Mr Meredith that you are here even in blissful ignorance of that welcome news. 131. MR MEREDITH: Indeed. Thank you very much. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2019_02_19-4509.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/281/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/281

b39541d7b787b14d4c251aa3a8f69ccdca96233b2978968b7c5984e2f361f62a

[2006] EWCA Crim 3023

EWCA_Crim_3023

2006-11-07

crown_court

No: 200604608 A8 Neutral Citation Number: [2006] EWCA Crim 3023 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 7 November 2006 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE PENRY-DAVEY HIS HONOUR JUDGE LORAINE-SMITH (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- ANDREW JOHNSON - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Compa

No: 200604608 A8 Neutral Citation Number: [2006] EWCA Crim 3023 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 7 November 2006 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE PENRY-DAVEY HIS HONOUR JUDGE LORAINE-SMITH (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- ANDREW JOHNSON - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR S BRADY appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. LORD JUSTICE SCOTT BAKER: His Honour Judge Loraine-Smith will give the judgment of the court. 2. JUDGE LORAINE-SMITH: On 24th August 2006 this appellant appeared before His Honour Judge Macrae sitting at Croydon Crown Court. He had on an earlier occasion pleaded guilty to a single count of theft. He was sentenced to 15 months' imprisonment and he appeals that sentence on the ground that it is manifestly excessive. 3. The appellant worked as a postman at the Royal Mail Tottenham Delivery Office. His employers noticed that a number of postal items had gone missing, and placed his activities under surveillance. On 23rd February 2006 he was arrested and his home was searched. Three stolen Halifax credit cards on letters were found in the bin in his bedroom. Furthermore, an envelope relating to two "dummy" items which had been dispatched by Royal Mail investigators the previous day as part of the investigation, were also found in that bin. 4. When the appellant was interviewed he denied any theft. He accepted that items of post had been found in his room. He claimed he had forgotten about them but then when he found them decided to destroy them for fear he would be dismissed for delaying the mail. 5. There had been allegations about other items being stolen, but prosecuting counsel when opening the facts, said this: "Your Honour needs to deal with him in relation to the three credit cards and the associated pieces of paper that were found on his premises." The appellant is now aged 24 and has no previous convictions. He told the probation officer that he was experiencing personal, financial and emotional difficulties when he committed this offence. The judge, when sentencing, said this: "It is always a sad day when a person, a young man, loses his good character particularly in relation to a matter of dishonesty. The public place great confidence in the honesty and integrity of those who work within the postal system. They entrust items of value, whether it is monetary value or sentimental value, that they wish to have conveyed to others. The stealing of mail in transit causes undue alarm and concern. The sender does not know that the intended recipient does not know that it was ever sent." Mr Brady has submitted to this court that, in the light of this plea, his good character, the pressure he was then under and the absence of any financial gain, this sentence was too long. 6. We do not think that anything but a custodial sentence would have been appropriate in the circumstances. Thefts by postal workers involve not only a breach of the trust that their employers place in them, but also cause alarm, distress and inconvenience to members of the public whose letters are stolen. This is a particularly serious offence now when identity theft is on the increase. But the Crown put their case on a very limited basis and we do not think that that was reflected in the 15-month sentence. We think the appropriate sentence was one of nine months' imprisonment and we allow this appeal to that extent.

2006_11_07-959.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3023/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3023

5cfbaad8fad46da011b3c2fd65dea163b8ea87b69fcce4ca17da0462c7f8c723

[2019] EWCA Crim 1456

EWCA_Crim_1456

2019-08-06

crown_court

Neutral Citation Number: [2019] EWCA Crim 1456 No: 201902303/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 6 August 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GOSS MR JUSTICE KNOWLES R E G I N A v OSMAN AWAN 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 transcri

Neutral Citation Number: [2019] EWCA Crim 1456 No: 201902303/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 6 August 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GOSS MR JUSTICE KNOWLES R E G I N A v OSMAN AWAN 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 L Brown 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. LORD JUSTICE HOLROYDE: This appellant pleaded guilty before a magistrates' court to an offence of harassment, contrary to section 2 of the Protection from Harassment Act 1997 . That is a summary only offence, but the appellant committed it in breach of a suspended sentence imposed by the Crown Court. He was therefore committed for sentence to the Crown Court at Bradford. On 23 May 2019 he was sentenced to two months' imprisonment for the offence of harassment. His suspended sentence was reduced in length from nine months to six months, but activated consecutively, so that the total sentence was eight months' imprisonment. In addition, a restraining order was made. The appellant does not challenge the prison sentence, but appeals by leave of the single judge against the restraining order. 2. The appellant is now aged 36. For about 14 years he was in a relationship with Gemma McDade. There are four children of that relationship. The couple separated on 3 February 2019, at which time the children were aged nine, seven, five and eight months. 3. The suspended sentence to which we have referred was imposed on 24 November 2017 in respect of an ugly incident at the family home on 30 April 2017. Not for the first time, police were called to the house by Miss McDade. In the course of the incident the appellant struck Miss McDade, he inflicted grievous bodily harm on a police officer who fell down the stairs as the appellant struggled to resist arrest, and finally the appellant escaped from lawful custody. The appellant pleaded guilty to those offences. He had no previous convictions. He was sentenced to a total of nine months' imprisonment suspended for 18 months. He was required to perform unpaid work and a rehabilitation activity requirement was also imposed. 4. On 16 August 2018 the appellant was brought back before the Crown Court, having breached the requirements of the suspended sentence order, apparently by failing properly to perform his unpaid work. A number of additional hours of unpaid work was added to the order. 5. It appears that during the period of the suspended sentence the applicant and Miss McDade resumed cohabitation for a short time. However, the relationship then broke down again and in early February the appellant left the family home at Miss McDade's insistence. 6. The offence of harassment was committed between 12 and 27 February 2019, following the breakdown of the relationship. During that period the appellant sent about 400 text messages to Miss McDade. Their content was a mixture of abuse, expressions of love, apologies for past misconduct, pleas for a further reconciliation and self-pity. Miss McDade's replies, comparatively few in number, made it clear that she no longer wanted to live with the appellant. Nonetheless, on 24 February 2019 the appellant went to the family home and refused to leave. He stayed for about four hours until eventually the police were called. Miss McDade did not want to pursue a prosecution in that regard, but thereafter the appellant continued to call and text her. He also texted one of her sisters, Kelly McDade, saying that he wanted to kill both himself and Gemma McDade if she would not take him back. Matters were at that stage reported to the police. The appellant attended the police station voluntarily but made no comment when interviewed under caution. 7. At the sentencing hearing, the judge was assisted by a pre-sentence report. He was also provided with a victim personal statement from Miss McDade dated 17 April 2019, in which she complained that the appellant was spreading malicious lies about her amongst her family and friends, and that he was also telling lies about her to their oldest son at times when he had contact with the children. It does not appear that prior to that hearing any specific enquiries had been made of Miss McDade as to whether she sought the protection of a restraining order. Counsel then appearing for the prosecution nonetheless invited the judge to make such an order, prohibiting contact with either Miss McDade or her sister Kelly and also prohibiting the appellant from going to Miss McDade's home. 8. We understand that Miss McDade had been in contact with the social services department which was therefore aware of the situation but had not found it necessary to take any action in relation to any of the children. There were no proceedings in the family court or indeed in any civil court between the parties. Miss Brown, then (as now) appearing for the appellant, informed the court that the appellant was living with his mother and was having contact with the children, the arrangements being made through another of Miss McDade's sisters, namely Joanne Garnett. Miss Brown asked that the restraining order, if one be imposed, should be qualified so as to permit the appellant to contact Miss McDade via a third party in order to arrange contact with the children. The judge indicated that any such contact should be through the appellant's solicitor. Miss Brown responded that the existing arrangement had worked satisfactorily without the involvement of any professional and that the cost of engaging a solicitor would be a considerable burden for the appellant. Counsel then appearing for the prosecution submitted that any contact in connection with seeing the children should be made through a solicitor. 9. The judge in his sentencing remarks rightly emphasised the seriousness of persistent harassment of Miss McDade at a time when the appellant was subject to a suspended sentence for offences which included assaulting her. He imposed the prison sentences to which we have referred and against which there is no appeal. He concluded his sentencing remarks as follows: "I make the restraining order in the terms sought by the prosecution, with the addition of the words 'Save and except for the purposes of arranging contact, such contact to be through the defendant's solicitor and the solicitor acting for the complainant in this case.' You will pay the victim surcharge." 10. Miss Brown advances two grounds of appeal against the restraining order. First, she submits that the imposition of a restraining order without any limitation of time was both wrong in principle and manifestly excessive. Secondly, she submits that the judge erred in imposing a prohibition which in practice severely impedes the appellant's ability to have contact with his children. 11. In support of these grounds, which she has advanced in her oral and written submissions, Miss Brown relies upon principles set out by a constitution of this court in the case of Khellaf [2017] 1 Cr.App.R (S) 1. As to the duration of the order, she submits that the harassment took place over a period of about two weeks at the end of a 14-year relationship. She submits that the appellant has, albeit belatedly, accepted that his relationship with Miss McDade is indeed over and she submits that it is reasonable to expect that matters will settle down over a period of time. In those circumstances she submits the making of an indefinite restraining order was unnecessary. 12. As to the proviso to the restraining order intended to permit contact with the children, Miss Brown submits that the appellant cannot in practice take advantage of that proviso as he has no solicitor, and nor does Miss McDade. The order, submits Miss Brown, interferes with the right of the children to a family life, as well as interfering to a disproportionate extent with the appellant's rights. 13. For the respondent, Mr Chinweze, for whose written and oral submissions we are similarly grateful, sets out for the consideration of the court views very recently expressed by Miss McDade to the effect that she wants no contact with the appellant and wishes him to be restrained from contacting her, but that she has no objection to his being able to have contact with the children of the family. In this regard, two possible intermediaries are proposed : Miss McDade's sister Joanne Garnett, and a cousin of the appellant, namely Wajid Choudry. Mr Chinweze suggests that if the order is to be subject to a proviso permitting contact with the children, it should also contain a prohibition on the appellant approaching within 100 metres of Miss McDade's home. We see force in that suggestion, bearing in mind that the start and end of contact meetings with the children would potentially be a time when emotions between the adults might run high. We do not however think it appropriate to make an order in terms which do not specify Miss McDade's present address, because such an order would carry the risk that if there was a change of address not notified to the appellant he might unwittingly act in breach of it. Mr Chinweze acknowledges the submissions made against the indefinite duration of the order, but invites the court to consider whether it be necessary in this case. 14. The power to make a restraining order in the circumstances of this case is conferred by section 5 of the Protection from Harassment Act 1997 . By section 5(2) : "The order may, for the purpose of protecting the victim or victims of the offence, or any other person mentioned in the order, from further conduct which — (a) amounts to harassment, or (b) will cause a fear of violence, prohibit the defendant from doing anything described in the order." 15. Here, the judge was in our view entitled to find that it was appropriate to prohibit contact with the appellant and either Miss McDade or her sister Kelly in accordance with that statutory provision. The judge was also correct to say, as he did in the course of argument, that continuing contact between the appellant and the children was to be encouraged. He said: "It's not a question of restricting contact with his children; it's in restricting the circumstances in which further offences can be committed involving adults being used as a conduit for messages." 16. With respect to the judge however, we think it unfortunate that the decision as to the appropriate terms and duration of the order was made with undue haste. The decision of this court in Khellaf (to which we have referred) includes at paragraph 14 four principles. First, the court should take into account the views of the person to be protected, it being the responsibility of the prosecution to ensure that the necessary enquiries are made. Secondly, no order should be made unless the judge concludes that it is necessary in order to protect the victim. Thirdly, the terms of the order should be proportionate to the harm which it is sought to prevent. Fourthly, particular care should be taken when children are involved to ensure that the order does not make it impossible for contact to take place between a parent and a child where such contact is otherwise inappropriate. 17. Regrettably, as it seems to us, three of those principles were not observed in the present case. First, it does not appear that any proper enquiry had been made by the prosecution in advance of the hearing to ascertain the views of Miss McDade. That being so, it follows that no sufficient enquiry was made as to whether she opposed contact between the appellant and the children and, if not, what in practice could be arranged to facilitate such contact. The judge was entitled to receive significantly more assistance from the prosecution than he did in this respect. 18. Secondly, with regard to the third principle stated in Khellaf , the relevant harm was further harassment of Miss McDade by direct or indirect contact with her. The appellant had shown himself unreliable when he felt angry or distressed by Miss McDade's attitude towards him, but we can see no basis for the court to make an order preventing harassment indefinitely. The duration of the order seems not to have been fully considered. We agree with Miss Brown's simple proposition that in the circumstances of this case it was realistic to think that the relationship between the adults would settle down within a comparatively short period. 19. Lastly, and with reference to the fourth principle in Khellaf , it seems to us that quite apart from the human rights of the appellant and the children, in a case where there were no current family court or civil court proceedings, there is here a matter of commonsense. Although submissions were made by Miss Brown about the obstacles to the appellant acting through his solicitor, submissions which were dismissed somewhat peremptorily by the judge, no one appreciated at the time that the order was also premised upon Miss McDade having a solicitor, when in fact she had no solicitor acting for her in relation to any matter. 20. We are satisfied that in those circumstances the appeal must succeed. It remains necessary that there be a restraining order, but it can in our judgment be limited in time and can contain a proviso which will in practice facilitate contact between the appellant and his children. 21. We therefore quash the restraining order imposed below. We substitute for it a restraining order which for the period of five years will prohibit the appellant from doing any of the following things. First, he must not contact directly or indirectly Gemma McDade, save that contact may be made indirectly through Joanne Garnett and/or Wajid Choudry for the purposes of arranging contact between the appellant and the children of the family. Secondly, the appellant must not contact directly or indirectly Kelly McDade. Thirdly, the appellant must not approach within 100 metres of 45 Vicarage Road, Shipley, BD18 1HA. To that extent, this appeal succeeds. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2019_08_06-4694.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1456/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1456

66dec0d835d9fb1352f8b0702e0d36acb8ca11933268e267acfd8409d9330096

[2011] EWCA Crim 1175

EWCA_Crim_1175

2011-05-11

crown_court

Neutral Citation Number: [2011] EWCA Crim 1175 200806177D2; 20086176D2 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge HONE Q.C. T20077364, T200777379, T20087141 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/05/2011 Before : LORD JUSTICE LEVESON MR JUSTICE TUGENDHAT and MR JUSTICE EDER - - - - - - - - - - - - - - - - - - - - - Between : DELPHON MARVIN NICHOLAS TREVOR DENNIE Appellants - and - THE QUEEN Respon

Neutral Citation Number: [2011] EWCA Crim 1175 200806177D2; 20086176D2 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT His Honour Judge HONE Q.C. T20077364, T200777379, T20087141 Royal Courts of Justice Strand, London, WC2A 2LL Date: 11/05/2011 Before : LORD JUSTICE LEVESON MR JUSTICE TUGENDHAT and MR JUSTICE EDER - - - - - - - - - - - - - - - - - - - - - Between : DELPHON MARVIN NICHOLAS TREVOR DENNIE Appellants - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr R. Orme for the Appellant Delphon Nicholas Mr M Bromley-Martin & Mr G. Cockings for the Appellant, Trevor Dennie Mr A. A. Jafferjee Q.C. & Mr J. Evans for the Crown Hearing date : 15 April 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson: 1. On 16 October 2008, following a trial which had commenced on 1 September 2008 at the Central Criminal Court before His Honour Judge Hone Q.C. and a jury, Delphon Marvin Nicholas and Trevor Dennie were convicted of the murder of Andrew Wanogho and sentenced to life imprisonment. In each case the minimum term specified under s. 269(2) of the Criminal Justice Act 2003 was 30 years less time spent on remand (although, for good reason, that time was reduced in relation to Nicholas). Sereata Jane Barrie, Michael Williams and Erron Cato were acquitted of murder. Both Nicholas and Dennie appeal against conviction by limited leave of the single Judge. 2. At about 1.30 am on the night of 7/8 April 2006, Andrew Wanogho (“the deceased”) was murdered when he was walking towards the home of Sereata Barrie at 1a Pendrell Road, Brockley, South East London. He was killed by a single gunshot wound to the heart by a gunman who the Crown alleged was waiting for him as he approached the bottom of the steps to the house. The case advanced by the prosecution was that the appellants and the co-accused Williams all had motives to kill the deceased. Nicholas had orchestrated the execution while in custody at HMP Belmarsh with the use of an illicit mobile phone; Dennie was either the gunman or a party to the shooting. Barrie had lured the deceased to her home; Williams had been involved in an incident with the deceased earlier that evening and had been able to alert Dennie as to his whereabouts; Cato was an accomplice who was present at the shooting, supporting and encouraging it. 3. A great deal of the evidence upon which the Crown relied concerned a detailed analysis of mobile phone records said to establish contact between various participants in the events of the night and, using cell site analysis, their approximate location all against a background of what was happening at the time. In addition, in relation to Nicholas, the Crown also relied on his previous convictions in April 2002 for possessing a firearm and ammunition without a certificate. It was clear that the gun involved in that conviction had not been the one used to murder the deceased. 4. The defence case advanced on behalf of Nicholas was that he had not been involved in the murder; he was in custody at HMP Belmarsh at the time. Initially, he had contended that he had not had access to an illicit mobile “830” telephone that was attributed to him on the night of the shooting. During the course of his evidence, however, he abandoned that line and provided a new account in evidence to the effect that he was responsible for the use of that phone but that the discussions in which he was involved concerned obtaining cannabis for sale in prison. Dennie’s case was that he had been having his haircut at the time of the shooting. The telephone number which the Crown attributed to him (“025”) had been taken and used by Hishack Palmer, a friend and drug dealer partner of his who was using it specifically in order to arrange drugs deals. One of these deals had been to supply a kilo of skunk on the orders of Nicholas: this was not the same arrangement that Nicholas had spoken about. In relation to the appellants, the issue for the jury was whether or not they were sure that Nicholas had directed the shooting from prison, using the “830” telephone and whether they were sure that Dennie’s alibi for the time of the murder was false and that he also was a participant in the killing. The Facts 5. The deceased, a man with substantial previous convictions, had enemies. He had previously been shot by a man who was later murdered. The deceased was acquitted of involvement when the Crown offered no evidence against him although Sean Albert, who was driving the deceased about because he had been disqualified from driving, agreed that many still held him responsible for the death and had threatened him. He was known to the defendants and there had been issues between them. 6. In particular, in November 2005, Kara Thwaites who was the girlfriend of the deceased and the mother of his child said that the deceased had been a close friend of Dennie and Williams but, following an argument in the first place with Williams and then with Dennie’s brother, Dennie telephoned. Speaking to her, he said that he had had enough of the deceased who had gone too far. He said that the deceased was “barred” from the New Cross area and, that he had spoken to brother of the deceased and that he felt sorry that her baby “would have no father”; he repeated the threat. She later received a text message from Dennie to the effect that he and the deceased were going to meet to fight. She had not told the deceased because of the way that he had reacted when she told him about the telephone calls and had not wanted to make things worse. When cross examined, she denied that she had been pressured by the family of the deceased into making a statement: they had told her to speak to the police about what had happened in the phone call of 28 November but not what to say. 7. Further, there was evidence that there had been an incident on 14 February 2006 when Leslie Nicholas (Nicholas’ father) had been on his own, driving his car whereupon the deceased had jumped in, punched Mr Nicholas in the face, got him out of the car and driven off. A few days later, some “kids” had called him and demanded £300 for the return of the car (although it was later returned undamaged). The prosecution argued that the object of this crime was to slight (or ‘diss’) Nicholas. 8. Telephone evidence revealed that the deceased was in contact with Barrie during the evening of 7 April and, having failed to get into a cinema, he told his driver, Albert, that he wanted to be driven to a girl’s house, eventually directing him to 1a Pendrell Road: Albert’s evidence was that there was no mention of a drugs deal. Before that visit, at 00.23, the deceased was dropped at a bar in Lewisham where he was involved in an incident with Williams, whom he hit a couple of times. It was then that Albert took him to Pendrell Road but, when Albert knocked, there was no reply: this might have been because at some stage, Barrie had been taken to Camberwell to top up her gas meter card. The two men then went to the home of the deceased’s sister where, after 5-10 minutes, Albert overheard a phone call during which the deceased asked “Are you in the house” and then said he would come over. Albert drove the deceased back to Pendrell Road and watched him walk towards the house whereupon he heard and saw a number of shots being fired at the bottom of the steps; looking in the direction of the shot, he saw a person wearing a furry coat (described by another witness as a black man wearing a parka type jacket with a fur lined hood up) but Albert could not provide a description. Thereafter the deceased started to run before collapsing on the street: he was not seen to be using a mobile phone. He asked Albert to be taken to his brother’s house but when the brother was not in Albert called the emergency services. During the drive, Albert answered three calls on the deceased’s phone each of which emanated from Barrie. 9. Before leaving the evidence of Sean Albert, it is necessary to add that, when cross examined on behalf of Dennie, he said that between two and four days prior to the shooting, the deceased had met Dennie outside a shop known as the Honey Pot; they had appeared friendly. Ten days after his evidence, however, Albert returned to the witness box having told the police that he had not told the truth about the Honey Pot meeting. He explained that the previous month, while with another man, Shaun Francis, he had been approached by Dennie’s brother in an internet café; it was suggested to him that he should not attend court. After the holiday, he had received calls from numbers he did not recognise and a person with an Asian voice told him to say what he had said in his statement but to agree with what was suggested to him. The weekend before his evidence, he received a number of calls; there were no threats but, again, he was told to agree with what was suggested on behalf of Dennie and this is what he had done. 10. Albert was cross examined about this evidence on behalf of Dennie; he denied that he had been threatened by the family of the deceased. In fact, in the weeks that he had been driving the deceased, they had not visited the Honey Pot although he was not with the deceased every day. 11. There was no scientific evidence to link any perpetrator to the scene and we turn to the expert evidence of phone calls which was not itself substantially challenged: the only issue between Roger Wilkins called by the Crown and Kenneth Corker, called on behalf of Dennie was in relation to signal strength and the significance of cell sites. What was in issue, however, was the attribution of the phones, that is to say who was making or receiving the relevant calls. Thus, for the major part of the trial, Nicholas contended that the phone 830 which the Crown linked to him as being illicitly used while he was in custody was, in fact, being used by another inmate at HMP Belmarsh, namely Deon Colliard. A substantial body of evidence was called which linked to Nicholas the recipients of calls from 830 and those who made calls to the number but, as we have recounted, during the course of his cross examination, Nicholas changed his account and conceded that, at all material times, he did in fact have the use of 830: a substantial swathe of evidence thereby became irrelevant. 12. As for the 025 phone, there remained a real dispute throughout the case about whether, at the relevant time, that phone was in the possession of Dennie or, alternatively as he contended, a friend (and drugs business partner) Hishack Palmer. It was common ground that Dennie had regularly used the phone (it being admitted that on 25 March 2006, he had called the police using that number after being bitten by a dog, and when arrested on 27 May 2006 had a different SIM card, 627, but in the handset that had held the SIM card for 025). Further, there was a detailed analysis of the likely recipients of calls from Dennie and those of Palmer (although Dennie admitted in evidence that he occasionally called Palmer’s girl friend in order to locate Palmer). The Crown’s case was that a detailed consideration of the pattern and use of 025 was essential and demonstrated that this was not a ‘shared’ phone or one of which Dennie would divest himself even if it was a phone which might have been used occasionally by Palmer (or others). The defence case was that the phone was a ‘business’ phone that could equally be in Palmer’s possession and a different schedule was prepared by Dennie’s solicitors to further the defence contentions. This issue of attribution was at the forefront of Dennie’s case and one which we are told was addressed at considerable length during the course of Mr Bromley-Martin’s closing speech; it forms the gravamen of his grounds of appeal. 13. The phone evidence revealed a complex interlinking of calls between the deceased and the various defendants which it is unnecessary to rehearse in this judgment. Suffice to say that it has not been suggested on this appeal that it was not open to the jury to conclude that whoever was responsible for making or receiving the telephone calls at the time they were made, from or at the approximate locations identified by the cell site analysis, was involved in arranging and putting into effect the murder of the deceased. 14. Although following arrest both Nicholas and Dennie declined to answer questions when interviewed, both gave evidence. Nicholas initially said that Colliard had been using 830 that night and that, while in Belmarsh, he had been supplying cannabis in prison. He denied ever speaking to Palmer on the 025 phone and denied falling out with or threatening Dennie although acknowledged that the two had fought while in prison. Having been cross examined on behalf of all parties, including the Crown (when it was put to him that he would be ‘doomed’ if he accepted possession of the 830 phone on 7 April), on the following day, he then accepted that he had done so. He explained that he had lied because he had co-defendants to think about and that the type of character he was along with his personal history and the fall out he had with the deceased (when they had earlier fought over £100 and subsequently after his father’s car had been stolen) had made it a risky situation for him. 15. His account was that he had fallen out with Dennie who had wanted him to say that the contact on the 025 phone was Palmer whereas it had, in fact, been Dennie. He knew that Dennie, Palmer and the deceased were going to Barrie’s home on the night of the killing: it was in connection with the acquisition of ‘skunk’ cannabis which was also the reason for the calls. He was not close to Barrie who would get paid for producing the drug but the deal had taken a long time which was why there were so many calls. He called because he had heard there was a fight between the deceased and Williams but also made it clear that the fact that he had been speaking to Dennie on the phone did not mean that Dennie had committed the murder. 16. Dennie said that he had been friendly with the deceased until 2001 when they had drifted apart although they had committed crimes and been arrested together: he had argued with the deceased but never wanted to harm him or fought with him. They had argued in November 2005, because the deceased had threatened his brother but he had never suggested to Thwaites that her baby would have no father; he did remember that the deceased had taken him to task about what he had said and they had had a blazing row but never enough to stop being friends. The text message had been a show of bravado. He met the deceased at the Honey Pot a few days before the shooting; Albert was there (although he had not known his name). The meeting was friendly. He suggested that Albert had been ‘got at’ by the family of the deceased: he had not been involved in any approach to Albert and Francis after the shooting. 17. Early in 2006, he was involved in supplying ecstasy but did not deal much in cannabis. He supplied in conjunction with Palmer and both of them used the 025 phone to make the deals: they changed the number every few months to minimise the risk of detection. On 7 April, the family were at home. At 7.15, he had received a call from Nicholas. The call was passed by Dennie to Palmer and was about the acquisition of a kilo of skunk from Barrie. At 00.21 on 8 April, the 025 phone was detected as having moved into the vicinity of a barber’s shop: Palmer had dropped him off for a haircut and then left him, taking the 025 phone with him. The subsequent calls were made by Palmer. After his haircut, his barber had dropped him at home at about 00.50. He was only re-united to the 025 phone at about 01.50 when Palmer collected him and they went to a bar: it was then that Palmer had told him that there had been “some madness” outside Barrie’s house although he did not now what had happened to the kilo of skunk. He was later to explain that his frequent visits to the barber (having been several times in the course of a week) were because of the way that he kept his hair shaped. 18. In 2008, while in custody with Nicholas, they had argued. There had never been an agreement between them that he would give evidence that Colliard had used the 830 phone in return for Nicholas saying that Palmer was using the 025 phone although Nicholas was trying to persuade him to do so. He said that he had twice been attacked and fought with Nicholas; they had both been moved to different prisons. 19. Dwayne Bryan gave evidence in relation to the meeting between the deceased and Dennie at the Honey Pot which he said (contrary to the account of Albert) had been friendly. Following a hearsay application, similar evidence from Stuart Wilson was read and it was clear from the evidence of the Dennie’s solicitor as to the circumstances in which Wilson refused to sign the statement that he had made and his unwillingness to give evidence also created issues for the jury to consider. The solicitor also spoke of an incident between Nicholas and Dennie in the cells at the Central Criminal Court (although he had not heard what was said). The barber, Chris Frith, explained that he was frequently open until midnight or 2.00 am but was unable to recall whether Dennie had been for a haircut on that night being only contacted 8 weeks before the trial. He often dropped Dennie at home if he was the last customer. Finally, Shaun Francis gave evidence that he had been with Albert in the internet café when they had met Dennie’s brother but did not remember anything being said by the brother that could have been a threat. 20. The co-accused Barrie gave evidence to the effect that she had not been part of a plan to kill the deceased. She described her own drug dealing activities and explained that her contact with the deceased at the material time related to drugs. She said that the person to whom she spoke on the 025 number was Hishack Palmer to whom she had not spoken for at least ten years. This evidence was clearly supportive of Dennie’s case but was obviously of potentially similar status for the jury to consider as the contrary evidence of Nicholas. The Appeal of Delphon Nicholas 21. We turn to the grounds upon which Nicholas challenges the safety of his conviction. The first concerns what is contended by Mr Orme (who did not appear at the trial) to have been the wrongful admission in evidence of Nicholas’ previous conviction, in April 2002, for the offence of possession of a firearm without a certificate (which was not the firearm involved in this murder) and possession of ammunition for which he was sentenced to a total of 3½ years imprisonment. The facts summarised by the judge were that, having been stopped by the police in a motor car driven by another, Nicholas ran off with a metal object which he discarded whilst running. It was a firearm manufactured to fire blanks but which had been modified to fire live ammunition; the magazine which was also recovered contained two shells with what are described as air pellet heads. It was also recorded that the defence case in relation to this firearm was that it was owned by the driver of the car who could not run away because of a back disability. 22. The judge admitted the conviction under s. 101(1)(d) of the Criminal Justice Act 2003 as relevant to an important matter in issue between the prosecution and the defence and, in particular, relying on s. 103(1)(a) of the Act as evidence of propensity to possess a firearm. In his ruling, he said: “I really do think that there is probative force in the fact that it is capable of showing, quite properly, a propensity to possess a firearm and I acknowledge that possession in the context of this case has a wide meaning, in the sense that if Mr Nicholas did actually organise a shooting he would be jointly in possession of the firearm, if he instructed others that that was the way it was to be done. So there is the propensity established for the possession of a firearm itself and also [of] live ammunition and also more particularly [a link] to persons who would be able to provide such firearms.” 23. Mr Orme challenges the basis of the information upon which the judge reached the conclusion that he did as to the circumstances of the offences and, for our part, we agree that it would have been better had rather more detail of the circumstances been available. In the event, however, the matter was put before the jury in the form of an Admission in these terms and it was only otherwise apparently fleetingly referred to by Nicholas himself when he gave evidence: “On 22 April 2002, Delphon Nicholas was convicted of possession of a firearm without a certificate and possession of ammunition.” 24. When summing up this aspect of the case, Judge Hone explained that this type of evidence was not previously provided “because of the fear that such information would prejudice the jury against a defendant and that they would give it more weight than it deserved”. He went on: “Today such evidence is often permitted because a jury understandably want to know whether what the defendant is alleged to have done is out of character or whether he has behaved in a similar way before. … The person with bad character may be less likely to tell the truth but it obviously does not follow that he is incapable of doing so. Of course, a defendant’s previous conviction is only bad character. It does not tell whether he has committed the offence of which he is charged in this case. What really matters is the evidence that you have heard in relation to that offence. So being careful not be unfairly prejudiced [ sic ] against the defendant by what you heard about his previous conviction nor give it disproportionate importance in your discussion.” 25. Mr Jafferjee Q.C. for the Crown pointed to the basis upon which Nicholas was then defending the allegation: although he had used the 830 mobile phone, on the night in question it was in the possession of another man, Deon Colliard, and he had absolutely no communication with Dennie, or Barrie or anyone else. It was argued by the Crown that the previous conviction was relevant to the identity of the person using the 830 number and whether Nicholas had a propensity to commit offences of the kind with which he was charged. The context was a man conversant with and with access to a firearm being alleged to have orchestrated a murder with a firearm. 26. Mr Orme submits that what he describes as a fleeting possession of a firearm and ammunition for the purpose of disposal for another is not capable of showing a propensity to organise by telephone from a prison cell a murder by shooting although he does recognise that it may demonstrate a willingness by Nicholas to involve himself in firearms. The first proposition characterises the value of the evidence too narrowly. The concession, however, is all that is required to permit the evidence to be admissible if not as evidence of propensity then as evidence relevant to an important matter in issue between the defendant and the prosecution namely the association of Nicholas with firearms or, more particularly, those who have possession and control of firearms that can be made available should the need arise. It is submitted by Mr Jafferjee that the jury was entitled to have regard to the coincidence that Nicholas had a provable link to possession or control of a firearm in the past and (on the basis of the evidence, albeit then challenged although later admitted) was in telephone contact from his cell with others who were at liberty one of whom was in contact with the deceased (in respect of whom there was evidence that he had a grudge) and at least one other who was in the close proximity to the area where the deceased was shot. 27. Although we see force in the argument that the evidence of the previous convictions was not inevitably evidence of propensity to commit murder, it is unnecessary to decide whether possession on its own of a modified weapon that, essentially, could only be used to commit a crime of violence, is, in fact, sufficient because we have no doubt that it was, in fact, admissible under section 100(1)(d) of the 2003 Act . It is therefore not necessary to rely on s. 103 which only identifies what is included within the phrase “matters in issue” in s. 100(1)(d) and is not intended to limit the admissibility of other relevant material not falling within the ambit of propensity to commit the offence. Neither do we consider that the judge should have concluded, pursuant to s. 101(3) of the 2003 Act that the admission of the evidence would have such an adverse effect on the fairness of the proceedings: it was not of peripheral significance that some few years before this killing, Nicholas had been prepared to consort with (and thus had access to) a person who carried potentially lethal firearms. 28. As for the prejudice consequent upon the admission of the evidence, Mr Orme accurately points to the failure of the judge to give a full warning in accordance with Hanson [2005] 2 Cr App R 21 on the question of propensity. In fact, although the judge admitted the evidence on the grounds of propensity, the word does not appear in his summing up. Before being corrected by counsel for the Prosecution, the judge started to direct the jury on the basis that the evidence had been admitted on the ground that Nicholas had attacked the character of two of the prosecution witnesses (that is under s.101(1)(g) of the 2003 Act ). So he started to direct the jury that the evidence of Nicholas’s bad character was relevant to his credibility as a witness. After being corrected by counsel (to the effect that Nicholas had made no such attack), the judge gave the direction (quoted above) that they should not conclude that he was incapable of telling the truth, and that the previous conviction did not mean that he had committed the offence of which he was charged. He also directed them not to give disproportionate importance to the previous conviction. 29. What the judge omitted from the direction were two points referred to by this Court in Hanson . He did not direct the jury that they should take into account what Nicholas said about the previous conviction. But there is no error in that omission, because Nicholas said nothing about the previous conviction. Nor did the judge direct the jury that whether the previous conviction showed a propensity was for them to decide. This omission has to be seen against the background that when he made his ruling that the evidence was admissible, Nicholas was denying that he had the 830 telephone at all that night. He changed his case after this evidence had been admitted. It would have been better if the judge had given a fuller direction to the jury on the relevance of the previous convictions but in all the circumstances of this case, we consider adequate the warning as to significance and weight and do not believe that the limitations of the direction start to render unsafe the verdict in his case. 30. Although not pursued in argument, Mr Orme had wished to pursue an application to call fresh evidence from Mr Peter Brown, an expert in cell site analysis who considered the use of mobile phone 830 to contact mobile phone 246 between 01:13 and 01:25 on the morning of 8 April. In particular, he expressed an opinion about the data available from which inferences could be drawn from mobile phone records. Thus, in relation to a call at 01:17:57 from 830 (Nicholas’ illicit phone in his cell) to 246 (Barrie’s mobile phone) which is not matched by a record of an incoming call on 246, the call could have been an incoming roaming call that was answered by the user of 246 or could have been diverted to voicemail: the data simply cannot establish which type of event it was. He also concluded that, given potential variation in network clock times, it was possible that 246 ended that call at 01:18:07 and initiated a call to 025 (which Nicholas contends was Dennie but which it is said by Dennie and Barrie was Palmer) said to have started at 01:18:06 and ended at 01:18:22 picked up by the O2 GSM network. At 01:19:02, 830 originated a voice call of 3 minutes 1 second duration to 246, again without a matching incoming call record: again, this could either have connected to the user of 246 or to its voice mail service. For reasons which it is unnecessary to develop, Mr Orme wished to argue that this potential evidence critically affected the inferences which could be drawn about the Nicholas’ knowledge of the whereabouts of the deceased. 31. This application was not, in the event, pursued because in the last few days, Mr Brown had withdrawn his opinion having learnt that, in 2006, the relevant provider would have sent a text to the recipient of a voice mail to the effect that a voice mail had been left. As there was no such text, the possibility that the call was not answered no longer became available and the state of the evidence was as it had been at the trial. In addition, there were answered calls on either side of the calls in issue. Given the expert’s recent change of mind, however, he did seek to adjourn this aspect of what was, in any event, only an application, while further expert evidence was sought. We refused to adjourn for a number of reasons. First, this appeal has been outstanding for a considerable period of time. Second, it is difficult to see why this evidence would not have been available at the time: indeed, Mr Brown had been due to give evidence at the trial (being replaced because of his ill health by his employer, Mr Wilkins); the significance of the cell site analysis had always been clear to all. Third, for the first part of the trial, the defence of Nicholas had been that he was not involved with 830; he changed his account only when giving evidence but did not then suggest that he had left a 3 minute voice mail on Barrie’s phone (which would be a remarkable message particularly having regard to the extent to which Nicholas had been communicating with Barrie during the course of that evening). Finally, all that the expert could ever suggest was to admit of a possibility that a call had been put through to voicemail in the context of there being no evidence that such ever happened. We say no more about this potential (but now abandoned) ground of appeal. The appeal against conviction brought by Nicholas is dismissed. The Appeal of Trevor Dennie 32. In relation to Trevor Dennie, Mr Bromley-Martin Q.C. (who appeared at the trial) now puts the appeal fairly and squarely upon the basis that the judge failed adequately to sum up the evidence regarding the most significant issue in his case which was whether, at the relevant time, the Crown had proved that the mobile phone 025 was being used by Dennie (as the Crown and Nicholas had alleged) and had thereby excluded the possibility that it was being used by Hishack Palmer (as Dennie and Barrie alleged). It is also contended that the judge had wrongly refused to direct the jury that the Crown had altered its case in relation to attribution of the use of this number on the basis that it had been initially contended that Dennie had alone used the number and subsequently conceded that he and Palmer had done so and that, therefore, they must have been together. These two grounds reflect different facets of the same issue namely a direction by the judge of the competing arguments on attribution of use of 025. 33. Mr Bromley-Martin was particularly critical of the judge’s failure to summarise the respective contentions of the parties in relation to the general use of 025. He pointed out the schedule which his solicitors had prepared and identified five calls and one text message which he argues were clearly made by Palmer using 025 (although one of them requires an assumption that Palmer would turn off his own mobile if using the ‘drugs’ phone 025 which, for our part, we would not be prepared to make). 34. It is important to bear in mind the context within which the judge was directing the jury. It was not his task to prepare an analysis of the case for the benefit of someone who knows nothing about it and wants to appreciate every facet. He was providing directions of law and a summary of the facts to a jury that had spent some six weeks focussing on the detail of the evidence and the differing arguments that the Crown and each of the defendants had placed before the court. He was entitled to assume detailed understanding of the issues that had been pored over at great length. In particular, it is clear that a considerable amount of time had been spent focussing on the telephone evidence and, in particular, the schedule of calls which was Exhibit 3, such that the judge observed, without demur: “All counsel have referred in detail to evidence over a period of four days and this means that I do not need to repeat every single detail of Exhibit 3. You will now know the significant contents of the important document almost off by heart.” 35. In that regard, it is not surprising that the judge did not repeat the detail which was set out in a painstaking fashion not only in the Crown’s exhibit but also that produced by Dennie’s solicitors: he did not focus on the arguments but did refer to the evidence. Thus, the judge spent some considerable time reminding the jury of Dennie’s evidence which included reference to the use by him and Hishack Palmer of the 025 phone to deal in drugs. Dealing with the early evening of 7 April, he identified a number of calls consistent with use by Dennie but then, starting from 1935, he went through the calls in detail, identifying where it was suggested by the defence that the inference should be drawn that Palmer had the phone. Far from being unfair to Dennie, Mr Jafferjee makes the point that the judge did not invite the jury to consider that whether the use said to be by Palmer was, in truth, in relation to drugs deals. Further, having pointed out calls to the mother of one of Palmer’s girlfriends (who gave evidence that she had neither met nor spoken to Dennie), he then pointed out a call to Dennie’s sister commenting: “It is a matter for [you] to decide who was controlling that phone at the relevant time. There is nothing inconsistent with Trevor Dennie using the 025 phone on occasions if he was with Hishack Palmer in the same area. However, his case is as I remind you that he was at home …” 36. The judge went on to deal with 00.19 when the cell site activated by 025 moved in a manner consistent with Dennie going to the barber’s at which Dennie said that he was dropped by Palmer. He went on to remind the jury that Dennie said that Palmer would have been using the phone at this time when the cell site was consistent with the phone moving to the vicinity of Pendrell Road. The judge went on: “Trevor Dennie’s case is that this was Hishack Palmer on his own to deal with this weed thing (as he put it) for Delphon Nicholas. He says that he was having his hair cut and was not with the 025. The prosecution say that is untrue; that he was with the 025 phone and was the person using it quite possibly perhaps with Hishack Palmer. The prosecution also say it would be virtually unthinkable that Trevor Dennie to be in the barber shop with no phone at all to communicate with. How, for example, was he going to get picked up?” 37. The judge went on to make it clear that Dennie gave evidence that the calls 00.26 and 00.41 were made by Hishack Palmer and reminded the jury that Dennie went on to say that he was driven home by the barber|: “Hishack Palmer was the one who had the 025 phone after dropping him at the barber’s”. He also reminded the jury that Dennie had said that 025 was “primarily” his phone if Hishack Palmer was not using it and the two spent a lot of time together. 38. At this stage it is appropriate to pick up the second, linked, complaint made by Mr Bromley-Martin which concerns the judge’s failure (and, indeed, refusal) to direct the jury that the Crown had changed its case, thereby undermining his submission that this is exactly what had happened. The note of opening (a transcript of what was said not being available) asserts that “Dennie’s number was 025” and summarises the way in which the phone with that number could be established as his by reference to six features of its use and attribution to him by others including persons called, names stored and call patterns. He argues that the Crown was thereby asserting (and setting out to prove) that only Dennie used 025: “sole use” was his phrase. As we have set out above, it was common ground that Dennie generally used the phone but, during the course of the evidence, it was established not only that calls had been made from places which Dennie did not accept he had visited but which he said had been visited by Hishack Palmer whom he contended used it for the drugs business which they jointly operated but also calls to numbers associated only with Hishack Palmer (including his girl friend). By the time of the closing speech, he argued that the Crown were now saying that the sole use did not have to be proved. 39. During the course of his summing up, Judge Hone said this: “I will correct one point made by Mr Bromley-Martin in his final submissions that the prosecution opened the case saying that Trevor Dennie was in sole possession of the 025 phone and that there has been a shift in the prosecution case. My note and recollection is that the prosecution did not assert that the phone was exclusive to Trevor Dennie and so in my view there has been no shift in the prosecution case which is worthy of any adverse comment.” 40. This comment elicited complaint from Mr Bromley-Martin and, in the absence of the jury, he asked the judge to revisit this issue and to direct the jury to the effect that the note of opening demonstrated an intention to call evidence to establish that it was only Dennie that used the 025 phone and that once it was conceded that even one other person had done so, the inference that it must have been Dennie in the vicinity of the home of Barrie at 1.29, proximate to the time of the killing, disappears. He explained that he had made adverse comment in his speech because the Crown had changed its stance. 41. Mr Jafferjee did not agree: although Mr Bromley-Martin had used the phrase “sole use”, he had never suggested that but had said, simply, that it was Dennie’s phone. As to its use, he did not demur that Palmer had used the phone but as to the extent of its use, he pointed to Dennie’s evidence that he (Dennie) had called Palmer’s girlfriend to find Palmer. He submitted that Mr Bromley-Martin was deliberately putting the Crown’s case so high in order to knock it down. The judge dealt with that dispute in this way (the transcript being corrected to reflect the joint recollection of the parties): “You would not be surprised that when I made the remark about a shift in the prosecution case, we had a debate about that and the central debate is whether there was sole use of the phone or joint possession and so forth. I [have] given you what my impression was. I did not think there was a shift. That is disagreed with by Mr Bromley-Martin who says there was. I am not going to go to the stake about it. You decide if you think there was shift, that is one thing. I just happen to think there was not and actually at the end of the day, it possibly does [not] matter because it [doesn’t] matter that much. These are the things that you have to decide. So I hope in a nice way of being fair to both sides.” 42. It may be that the transcript of this remark was not perfect but is quite clear that the judge left the issue to the jury to decide. That is exactly what he should have done having, at the start of his summing up, made it abundantly clear that if he offered any view or opinion with which the jury disagreed, they “must” reject his view and follow their collective instincts. 43. It is important to put this point in context. Although Mr Bromley-Martin submitted to the judge that once it was conceded that even if one other person had used 025, the inference that it must have been Dennie in the vicinity of the home of Barrie at 1.29, proximate to the time of the killing, disappears (which, at least to us, suggests that he was arguing that the case turned entirely on that issue of fact), he did not suggest either at trial or in this court that, at the close of the prosecution case, there was no case to answer. He did not do so because, as he explained, there was the evidence of Kara Thwaites that Dennie had threatened the deceased; there was the evidence of Albert that Dennie or others acting on his behalf had tried to put pressure on him in relation to his evidence. Although not direct evidence of involvement in the murder, these features themselves created circumstances against which the use of the 025 phone (and the part that it may have played in the killing) fell to be assessed. Thus, in argument, Mr Bromley-Martin accepted that there was never a time when the jury properly directed could not conclude that the 025 mobile was in the hands of Dennie at the time of the murder; after the close of the Crown case there was, additional to the other material, the evidence of Nicholas to that effect. If it was truly the case that unless the Crown demonstrated that every call to and from 025 had been made by Dennie, the possibility that Palmer had made the relevant calls could not be excluded and therefore had to be ignored, the other features of the case could not, on their own, erect a case. 44. Mr Bromley-Martin was right to take the approach that he did not least because it clearly represents the law. In R v. Bokkum (7 March 2000, unreported) Tuckey LJ rejected, as contrary to Galbraith , the proposition that in a case dependent on circumstantial evidence, the judge would be required to withdraw the case if some inference other than guilt could reasonably be drawn from the facts proved. He should only withdraw it if he considered it unsafe for the jury to conclude that the defendant was guilty on the totality of the evidence. This approach was approved in R v. Edwards [2004] EWCA Crim 2102 (paras 83-5) and adopted in R v. Jabber [2006] EWCA Crim 2694 per Moses LJ (at para 21). In this case, the totality of the evidence was the history between the deceased and Dennie, the conclusions that the jury could reach about the evidence of Albert, the phone evidence, the evidence which Dennie and his witnesses gave and the evidence which Nicholas and Barrie gave (albeit pointing in different directions). 45. These two grounds of appeal are different facets of the same issue which concerns the judge’s approach to the view that the jury should take of the evidence of attribution of use of 025 or, to put it another way, whether the jury could be sure that Dennie was using the phone at the time of the killing. That required them to consider all the evidence, including that of Thwaites and Albert for the Crown, and the evidence of Dennie and that called on his behalf. The jury also had to consider the phone schedule together with the interlinking contacts between defendants and others (whether associated with Dennie, Palmer or others) along with the general location of the place from or at which calls were made or taken (subject to the limitations of cell site generalities). It also required them to consider the evidence of Nicholas (who said that he was speaking to Dennie albeit not about any murder) and Barrie (who said she was speaking to Palmer). Mr Bromley-Martin suggests that as the jury convicted Nicholas and acquitted Barrie, her evidence was powerful support for Dennie’s position but that is effectively to seek to advance an argument of inconsistent verdicts which was initially pursued and then, rightly, abandoned after the single judge refused leave. 46. Mr Bromley-Martin was understandably concerned that his credibility in the eyes of the jury was likely to be damaged by judicial disagreement with his proposition that the Crown had changed its case. For our part, we are not prepared to accept that the language used in paragraph 31 of the opening note ties the Crown to the proposition that is advanced and so permits of the emphatic denunciation that Mr Bromley-Martin considered appropriate; we are not in a position to go further, because we have not seen a transcript of the opening speech. In the event, the way that the judge summarised the issue was entirely appropriate. He left it to the jury 47. We have examined the two grounds of appeal individually and then taken them together to consider whether the way in which the judge left the case to the jury failed sufficiently to remind them of what was in issue and the decisions of fact that they had to reach. Other judges might have adopted a different style and examined the case issue by issue: so there is no doubt about it, we add that we express our disapproval of the rather unhelpful way that the judge addressed the evidence, witness by witness, examination followed by cross examination in each case as if by reading from his notebook which is an approach to summing up that has been deprecated for many years. Nevertheless, it is clear from those parts of the summing up to which we have referred above, he did point the jury to the correct questions and he was entitled to take the view that it was not necessary to repeat to the jury features apparent from a detailed consideration of Exhibit 3 which he commented they knew “almost off by heart”. 48. It is trite to say that the fact that counsel address the jury in such a way as makes crystal clear the nature of the case being advanced does not relieve the judge of the responsibility accurately to direct the jury as to the law and fairly to summarise the facts, leaving the jury to decide whether, to the appropriate standard, the prosecution has proved guilt. In this case, as is clear from the passages which we have set out above, the judge undeniably asked the correct fundamental questions of the jury although he did not articulate the argument which had been advanced by Mr Bromley-Martin as to the approach which they should adopt. In our judgment, that does not render the summing up unbalanced or unfair. Neither does the way that he directed the jury in relation to the submission that the prosecution had ‘shifted’ its position. . 49. In the circumstances, we do not accept the grounds specifically advanced for contending that the verdict reached by the jury in relation to Dennie is unsafe. We add that we have also considered the factual inaccuracies which Mr Bromley-Martin has incorporated from very much lengthier grounds initially advanced by Dennie in person. He did not contend that, on their own, they were sufficient to undermine the safety of the conviction but argued that they had to be taken with the errors on which he had relied as providing support for the argument that the approach of the judge was unfair and unbalanced, thereby further undermining the safety of the conviction. Given that we do not consider that Mr Bromley-Martin’s primary arguments can be sustained, these errors (which, for these purposes, we assume) are not sufficient to do so. 50. Both appeals against conviction are dismissed.

2011_05_11-2725.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1175/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1175

84d0b34afb10edac1e9c934c3d5f143602800fd2962037ddd37dd1a299b2837d

[2009] EWCA Crim 1624

EWCA_Crim_1624

2009-07-14

crown_court

No: 200901533 A9 Neutral Citation Number: [2009] EWCA Crim 1624 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 14 July 2009 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE FOSKETT MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - R E G I N A v EMILLE PREOS - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7

No: 200901533 A9 Neutral Citation Number: [2009] EWCA Crim 1624 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 14 July 2009 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE FOSKETT MR JUSTICE HICKINBOTTOM - - - - - - - - - - - - - R E G I N A v EMILLE PREOS - - - - - - - - - - - - - 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 P Crampin appeared on behalf of the Appellant Mr N Shaw appeared on behalf of the Crown - - - - - - - - - - - - - J U D G M E N T 1. LADY JUSTICE HALLETT: Hickinbottom J will give the judgment of the court. 2. MR JUSTICE HICKINBOTTOM: On 2 March 2009 in the Crown Court at Southwark before Recorder Wood, the appellant pleaded guilty to robbery on the first day of his trial, and also admitted a breach of an 18-month conditional discharge imposed on 4 June 2008 at Horseferry Road Magistrates' Court for an offence of attempted theft. He was sentenced to 21 months' imprisonment for the robbery, and three months' imprisonment consecutive for the attempted theft on the breach. That is an aggregate sentence of 24 months' imprisonment. He now appeals against that sentence with the leave of the single judge. 3. The background facts are as follows. The appellant is aged 34. The primary index offence occurred at about 4am on 22 October 2008 on the top deck of a night bus in London. Jason Robinson was on the top deck with a friend, who got off the bus leaving Mr Robinson alone. The appellant and an accomplice, seeing him alone, went and sat next to him. There was no one else on the top deck of the bus at that time. They engaged him in conversation, and at one point the appellant put his arm around Mr Robinson's shoulders and neck. When the bus came to its final stop, Mr Robinson got off and realised his mobile phone had been taken from him. The appellant's accomplice ran off with the phone. However, Mr Robinson grabbed the appellant, who became aggressive, and they began to wrestle. The appellant grabbed Mr Robinson by the neck and began to rip at his top, pulling it over his head. However, Mr Robinson eventually overpowered the appellant, who gave up struggling and sat down at the back of the bus where he talked to his accomplice who was outside the bus at the back, but who ran off before the police arrived. When they did arrive, they arrested the appellant, who gave a false name, but when his fingerprints were checked later, he was found to be Emille Preos. In interview, he did not identify his accomplice, who has never been identified, nor of course called. The appellant said that, although that friend may have committed the robbery, he (the appellant) had nothing to do with it. 4. The attempted theft, for which a conditional discharge was imposed on 4 June 2008, had some similar features. On 1 June 2008 at Leicester Square, the appellant attempted to steal items from a woman's handbag. He asked for three similar offences to be taken into consideration. That offence was committed whilst on bail for a further offence committed on public transport on 14 December 2007, and for later failing to surrender. For each of those offences he was fined £100 or one day imprisonment in lieu, which he has served. 5. In appealing against sentence now, two grounds are relied upon, both in relation to the sentence imposed for the robbery. First, Mr Crampin, for the appellant, submitted that the discount for plea given by the judge of 12 and a half per cent was in all of the circumstances too low, and in any event, the sentence for the robbery was manifestly excessive. This offence was one generally known as "hugging mugging", that is, the perpetrators did not use overt violence or threats to obtain the phone, but engaged the victim in conversation and used the familiarity that followed to engineer an opportunity to take his phone from him. Mr Robinson's statement suggested that they had shoulder-barged him, causing him to fall to the floor, either before or whilst they took his phone, but the CCTV footage showed that there was no such barge. That footage was only seen by the appellant's legal team, apparently on the morning of the trial when he plead guilty. 6. Nevertheless, in relation to the first ground of appeal, that was not pressed by Mr Crampin before us today. As the judge said in his sentencing remarks, it would have been open to the appellant to have pleaded guilty and then contested the circumstances of the robbery, if necessary, at a hearing. In the event, until the day of the trial he denied any participation in the robbery at all. The judge said, as he was bound to do following a plea, that this was a joint enterprise between the appellant and his accomplice in order to commit the robbery. In the face of the overwhelming evidence against him, including the CCTV footage, even if the appellant had pleaded guilty at the first opportunity, he would have been entitled to no more than 20 per cent discount. 7. Given the lateness of the plea and the nature of the evidence against him, we consider the judge was perfectly entitled to limit the discount for plea on the first day of the trial to 12 and a half per cent. We see nothing wrong in principle with that. 8. Nor do we consider the sentence to be manifestly excessive. Although the Sentencing Guidelines Council's Guidelines for street robbery of this type, that is those with use of minimal force, suggests a starting point of 12 months and a range up to three years, and that being based upon conviction after trial, it is based upon it being a first offence. The appellant has no antecedents for robbery, but has convictions for several offences with some similar features. Second, the appellant is 34, and therefore does not have age on his side. Third, although the level of violence used in taking the phone in this case was minimal, the judge was entitled to take into account the violence used by the appellant on Mr Robinson immediately after the theft, when Mr Robinson sought to detain him and the appellant sought to make good his escape. Fourth, this was a robbery committed by two men in concert. Fifth, this was not opportunist. The two men planned the robbery on the top deck of the bus at night on a lone victim. Sixth, having attempted to avoid "capture" by Mr Robinson, he gave a false name and sought to pervert the course of justice by avoiding the consequences of his actions. 9. In our judgment, these were seriously aggravating features, several of which are expressly referred to as aggravating features in the Guideline. In addition to that Guideline, in written submissions we were referred to the guidance in relation to mobile phone thefts in Attorney General's Reference Nos 4 and 7 of 2002 [2002] 2 Cr App R (S) 77, which indicated that the usual bracket for such offences would be 18 months to five years. 10. In the light of all of that Guidance, and in the circumstances of this case, we cannot properly say that the starting sentence used by the sentencing judge, before applying the discount for plea, that is 24 months, was manifestly excessive, or indeed excessive at all. In our judgment, it was within the proper band of sentence open to the judge for this crime in these circumstances. 11. No complaint is made in respect of the sentence for the attempted theft, either in its length or in it being made consecutive. 12. For those reasons, we dismiss this appeal. 13. LADY JUSTICE HALLETT: Thank you, Mr Crampin. Mr Shaw, the authorities know where he will be for the foreseeable future. They know where he comes from -- Algeria via France. Could you make sure they get the message? 14. MR SHAW: My Lady, I will do. 15. LADY JUSTICE HALLETT: Thank you.

2009_07_14-2015.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1624/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1624

0448e2c7b08abcb8132c4e3113f9169c34490c911dd918116a60c48715bb7743

[2016] EWCA Crim 739

EWCA_Crim_739

2016-02-04

crown_court

Neutral Citation Number: [2016] EWCA Crim 739 Case No: 201403760 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 4th February 2016 B e f o r e : LADY JUSTICE SHARP DBE MR JUSTICE EDIS HER HONOUR JUDGE MUNRO QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v LEE JAMES AITCHISON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes

Neutral Citation Number: [2016] EWCA Crim 739 Case No: 201403760 A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 4th February 2016 B e f o r e : LADY JUSTICE SHARP DBE MR JUSTICE EDIS HER HONOUR JUDGE MUNRO QC (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v LEE JAMES AITCHISON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd, trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7422 6138 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr T Baldwin appeared on behalf of the Applicant Mr A J Ailes appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LADY JUSTICE SHARP: This application for permission to appeal against sentence, for an extension of time and for leave to adduce fresh evidence, has been referred to the Full Court following the decision of this court in R (Vowles) v Secretary of State and others [2015] 1 WLR 5131 . We give leave. 2. The appellant, Lee James Aitchison, appeals against a sentence of imprisonment for public protection (IPP) with a minimum term of 24 months that was imposed by HH Judge Boggis QC at the Crown Court at Southampton on 6 June 2008. This followed his plea of guilty to a number of offences. These were inflicting grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861; possession of an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953 and common assault contrary to section 39 of the Criminal Justice Act 1988. The appellant is still in custody and is post tariff, as he remains there subject to the IPP. 3. The facts can be briefly stated. The appellant and the victim of the section 18 offence were neighbours in flats in Southampton. The relevant incident happened on 10 May 2007. The appellant was on methadone, prescribed for him, and during that day he had smoked cannabis and drunk some alcohol (about four cans of lager). The victim thought there was a noise coming from the appellant's flat at about 3 o'clock in the morning and he went on to the landing to complain. The appellant then attacked him with the blunt end of an axe, which had been wedged under his door, and pursued the victim back to his own flat, hitting him twice and causing injuries that were significant but fortunately, not life-threatening. The appellant took the axe into the street and rang for an ambulance. The police found him in the street and he was arrested. At the police station he head butted the police surgeon in the chest (the assault offence). 4. The pre-sentence report before the judge said that a disposal under section 37/41 of the Mental Health Act 1983 was not appropriate, and medical reports, including one from Dr Roberts on behalf of the Crown on the appellant's mental state whilst on remand, concluded he did not suffer from schizophrenia. It was not suggested to the judge in mitigation, that a hospital order might be appropriate; and both counsel who appear before us today, Mr Baldwin on behalf of the appellant and Mr Ailes on behalf of the Crown, emphasise that the judge could not be criticised for passing the sentence he did in the light of the information that was then available. 5. At the time of his sentence, the appellant was 45 years old and had a lengthy history of offending, comprising 24 convictions, including four offences of violence. 6. On 2 November 2011 the appellant was transferred from prison to a psychiatric unit (Ravenswood House medium secure psychiatric unit) under sections 47 and 48 of the Mental Health Act 1983, as amended. His psychiatric condition had deteriorated whilst he was in custody and he required compulsory treatment in a medium secure hospital unit. The appellant has remained in that unit since then. 7. The grounds for this appeal are these: (i) at the time he committed these offences, the appellant was suffering from a psychotic illness, namely paranoid schizophrenia; (ii) due to the atypical development and presentation of this illness, it was not properly identified at the time of sentence; (iii) had the appellant's condition been recognised, the proper disposal would have been a hospital order under section 37(1) of the Mental Health Act 1983 and consideration would have been given to the imposition of a restriction order under section 41 of the same Act. 8. Mr Baldwin submits before us that the circumstances of the offending strongly indicate that the appellant was indeed suffering from a severe mental illness at the time of the offences, albeit it was not then recognised. There was concern about the appellant's mental state from the time of his detention in custody, until sentence; and the fact of his illness then and now, is demonstrable from the medical evidence before the court, to which we now turn. 9. The fresh evidence consists of psychiatric reports from three consultant psychiatrists: Dr Roberts, Dr Stein and Dr Morton. We are satisfied it is proper to receive this evidence pursuant to section 23(2) of the Criminal Appeal Act 1968. 10. Dr Roberts was the appellant's consultant psychiatrist and his responsible physician until January 2015, when Dr Morton took over the appellant's care. Dr Roberts is now retired but has spoken recently to Dr Morton, who continues to be the responsible physician for this appellant. Dr Stein produced his report following an interview with the appellant and a review of the case papers. 11. We have before us a number of reports. Two are from Dr Roberts dated 17 June 2013 and 14 October 2014 respectively; and we have heard evidence today from Dr Roberts, supplementing what he says in those reports. We also have a report provided to the court yesterday by Dr Morton and a report from Dr Stein. 12. Dr Roberts and Dr Stein are of the opinion that the appellant has suffered from schizophrenia from about 2002, and that he was suffering from that condition at the time of commission of the index offences. 13. Dr Roberts refers to two reports before the judge on the issue of fitness to plead from a Dr Schlich, both from November 2007, which dealt with the appellant's condition at the time of the offending. There he is described as "living in a highly abnormal world of schizophrenia”, having auditory hallucinations, and as someone who would arm himself with weapons when ill. 14. Dr Roberts has explained today why the views he expressed in his report for the purposes of sentence has changed. This results from his close observation of the appellant from the date of his transfer in 2011, when he was obviously mentally ill. He says that the appellant is someone who can present fairly well superficially, and that is how he presented when Dr Roberts had the opportunity to observe him and interview him, only briefly, before sentence was passed. He says that it is now his opinion that the appellant's illness is atypical and so he presented well in that short interview, as he does from time to time, even now. 15. In Dr Stein's opinion, the appellant suffered from a severe personality disorder before 2002 which developed into schizophrenia at some point between 2002 and 2007, so that by 2008 he was obviously suffering from schizophrenia. 16. We should express our gratitude to Dr Morton, who produced his very helpful report yesterday at extremely short notice. We cite from it the following passages: i. "Mr Aitchison has a mental disorder, namely Paranoid Schizophrenia. ii. This is currently of a nature which makes it appropriate for him to be liable to be detained in a hospital for medical treatment. iii. When acutely unwell, Mr Aitchison poses a risk of serious violence to other persons. He experiences a range of psychotic symptoms such as hearing voices and feeling paranoid. iv. His illness is treatment resistant. This means that it does not respond to the maximum doses of standardised antipsychotics. He requires a drug called Clozapine to manage his illness. Although this is the 'gold standard' antipsychotic available, treatment with Clozapine comes with significant risks. It requires the patient to have regular blood testing for example and has a number of serious side effects ... v. In my opinion, the most appropriate disposal would be by way of a Hospital Order, as provided under Section 37 of the Mental Health Act 1983 ..." 17. In relation to the question whether or not the appellant could be made the subject of a section 41 restricted hospital order, Dr Morton goes on to say this: i. "Restricted patients can only be discharged by the Secretary of State or the Mental Health Tribunal. When they are discharged, they are almost always discharged with restrictions or conditions placed on them. Typically they require the patient to attend appointments with their psychiatrist and social worker and to live at a specified address. They may also include a requirement not to return to the area where the offence happened and potential victims reside, and to co-operate with urine drug screens. The purpose of these conditions is to make sure that the individual is closely supervised in the community and that at the first sign of their mental state deteriorating, and/or their risk of harm increasing, they can be recalled to hospital." 18. Dr Morton confirms that there is a bed available for the appellant at Ravenswood House hospital, where he is currently in the medium secure unit and receiving treatment. He closes his report by saying this: i. "I would argue however that [prison] is not the most appropriate disposal for somebody who is severely mentally ill. It is hard to imagine the circumstance when I would return Mr Aitchison to prison given his complex medication regime and the need for him to undertake specialist psychiatric and psychological treatment in a secure hospital setting. The sorts of specialist intervention that he requires, both to maintain stability in his mental state and reduce his risk to the public, is not available within the prison estate." 19. With those observations as is clear, both from his reports and from his oral evidence, Dr Roberts is in entire agreement. 20. There can be no question from the material before us but that the appellant is severely ill with a mental disorder, that he suffered from this disorder at the time he committed the index offences and that he was, and still is, dangerous. All three psychiatrists conclude that the most appropriate disposal would be a hospital order under section 37, and we agree. In reaching that conclusion we have considered and applied the guidance given in the case of Vowles . 21. We are also in no doubt that it is necessary and proportionate to accompany that order by a section 41 restriction, without limit of time, in order to protect the public. Dr Roberts expressly confirmed in oral evidence that in his opinion this was the most appropriate course for this appellant. 22. In those circumstances, we quash the sentence of imprisonment for public protection that was imposed and there will be an order made under section 37 of the Mental Health Act 1983. This appellant will be subject to a section 41 restriction without limit of time, as we have indicated. To that extent, this appeal is allowed.

2016_02_04-3705.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/739/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/739

e05f35ffc01cd8f5662506cfe421e596b70d6d1c1b834a0b0c3a688f52b71c28

[2017] EWCA Crim 1292

EWCA_Crim_1292

2017-08-17

crown_court

Neutral Citation Number: [2017] EWCA Crim 1292 Case No: 201700472/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 17 August 2017 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE SWEENEY MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - R E G I N A v JAMSHID PIRUZ - - - - - - - - - - - - - - - - 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: [2017] EWCA Crim 1292 Case No: 201700472/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 17 August 2017 B e f o r e : LADY JUSTICE RAFFERTY DBE MR JUSTICE SWEENEY MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - R E G I N A v JAMSHID PIRUZ - - - - - - - - - - - - - - - - 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 S Blackford appeared on behalf of the Appellant - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. MR JUSTICE HOLROYDE : On 28th November 2016, in the Crown Court at Lewes, this appellant pleaded guilty to four offences, all of which he had committed on 7th January 2016. The offences were count 1, burglary of a domestic garage and theft of tools; count 5, attempting to cause grievous bodily harm with intent; count 6, attempting to cause grievous bodily harm with intent; and count 7, affray. 2. On 13th January 2017 he was sentenced to life imprisonment on the two most serious offences (counts 5 and 6). The learned judge specified the minimum term before the appellant could be considered for release on licence as 5 years. For the other two offences, concurrent sentences of 6 months on count 1 and 9 months on count 7 were imposed. 3. The appellant applied for leave to appeal against sentence on two grounds. First, he contended that the life sentence was disproportionate and wrong. Secondly, he contended that the minimum term was too long, in particular because the learned judge had incorrectly applied the relevant Sentencing Guideline. 4. When considering the matter on the papers the single judge refused leave on the first of those grounds but granted leave on the second. The initial challenge to the correctness of the life sentence is no longer pursued. The court is therefore concerned today with the appeal against the length of the minimum term. We are grateful to Mr Blackford for his written and oral submissions on that point. 5. The appellant is now 34 years old. He was born in Afghanistan. As a child living there he had the awful experience of witnessing the murder of his parents. Subsequently he was granted asylum in Holland. He lived there for many years and acquired Dutch citizenship. 6. In 2007, aged 24, he was convicted in Holland of the murder of a young woman who was a tenant in his property. He was released from the sentence imposed by the Dutch court for that offence after some 6 years. 7. In December 2015 the appellant came to the United Kingdom in order to spend the Christmas and New Year period with family who lived in this country. Events from that point onwards, and the circumstances of the offences to which we have referred, were well summarised in the following terms by the learned judge at page 2 of the transcript: 8. "You had been visiting your family in the United Kingdom over the Christmas and New Year period and you became stressed and your behaviour began to be unpredictable. You were due to fly back to your home in Holland from London Gatwick but insisted on being taken to the airport well in advance of when your flight was due. Whilst at the airport you were arrested after an incident where you spat at an airways employee. You were clearly behaving in a bizarre fashion. You appeared at Court the following day, pleaded guilty and were ordered to pay compensation and released. You then made your way to the location where the events that I am concerned with took place. You spent the night in a garage and stole some tools from that garage. Your behaviour and interaction with members of the public was such that the police were called. The police attended and what followed is clearly depicted on the video evidence that I have seen this afternoon. For reasons that it is difficult to understand you launched a completely unprovoked attack on those police officers with a hammer. Their attempts to taser you were unsuccessful. From what I have seen and heard it is clear that this was an incident of truly terrifying violence. The officers were in fear of their lives and you had no reason to attack them whatsoever. I have heard from three officers who were at the scene who have made victim impact statements and the effect of this incident upon them was clear for all to see. You were eventually restrained and taken into custody and you have remained in custody now for a calendar year. There were obvious concerns over your mental health from the outset. I have read a series of reports from four psychiatrists prepared over the last 12 months. The final conclusion of those reports can be summarised as saying that they are not convinced that you ever suffered from a psychotic illness, although Dr Lay and Professor Fox are in agreement that you have a tendency to react to stress by having acute psychotic episodes. During those episodes you cannot control your extremely violent behaviour." 9. Adding a little to that summary, the video evidence to which the judge referred was recorded on the body-worn cameras of the officers. They found the appellant in a courtyard. He was carrying a hammer and it seems had other tools in his pockets. He came towards the officers holding the hammer. He ignored all instructions to stop. Two officers tasered him but that did not have any effect other than to anger him. He began to swing the hammer at the officers. They fell back. But one of them, a young female officer, PC Chick, became trapped. She had to dodge to and fro around a pillar, trying to fend the appellant off with her baton, as he swung blows at her with the hammer. She feared that she would be killed or would suffer brain injury if one of the blows struck her. Another officer, PC Young, who was an armed firearms officer, heard her screams. He went to assist her. He described the appellant swinging blows with great force. PC Young contemplated having to use his firearm but instead he bravely put himself between the appellant and PC Chick. He struck the appellant a number of times with a baton, to no effect. PC Young himself was hit at least three times with the hammer. Two of the blows landed on his upper chest, where his stab vest protected him. One of the blows, which must have been a glancing blow, caught him on the neck but fortunately caused no serious injury. Another officer again tasered the appellant: again, without effect. Eventually, by the combined force of a number of officers the appellant was taken to the ground and was, with great difficulty, restrained. 10. Fortunately the only physical injury caused in this terrifying episode was to PC Young, who suffered nothing worse than swelling around the area of his neck and headaches. But unsurprisingly the officers involved in the incident were in fear for their lives. They suffered symptoms of disturbed sleep and anxiety. The judge, as he indicated, heard three of them read their impact statements. One officer broke down whilst doing so. That was an officer who was later diagnosed as suffering from a post traumatic stress disorder as a result of this incident. 11. In his sentencing remarks, having explained his reasons for concluding that life imprisonment was necessary, the learned judge said this at page 5, in relation to his determination of the minimum term: "I have been referred by both counsel to the guidance from the Sentencing Guidelines Council. I assess these offences within those guidelines as inflicting lesser harm but with higher culpability. It involves attacks on two quite separate police officers with a weapon and those officers are public servants, which is an additional aggravating factor. My assessment of what the appropriate determinate sentence would have been would be a total of 12 years' imprisonment after trial but you are entitled to a discount for your guilty plea entered at the first available opportunity. In the light of the overwhelming nature of the evidence I assess the appropriate reduction as 25% making the notional appropriate determinate sentence one of 9 years' imprisonment. I reduce the recommended term by one-third to represent the time at which he would have been released had I made you the subject of an extended sentence and, as the recommendation runs from today, I also additionally take off the 1 year you have already spent in custody. The arithmetical result of that is that my recommendation of the minimum term you must serve, before you were able to even apply for release on licence, is a period of 5 years from today. That order will be concurrent on both of the attempted section 18 counts." 12. Mr Blackford submits that by assessing those offences as involving lesser harm but higher culpability, the learned judge was correctly placing them into Category 2 of the Sentencing Council's Definitive Guideline on assault cases, for which the guideline identifies a starting point of 6 years' custody and a range from 5 to 9 years. He submits that the judge was then wrong to assess the appropriate determinate sentence after trial as one of 12 years' imprisonment. He reminds us that by section 125 of the Coroners and Justice Act 2009 the court must follow any relevant sentencing guideline unless satisfied that it will be contrary to the interests of justice do so. He points out that the judge in his sentencing remarks did not give any explanation of why the guideline should not be followed in this case. He further submits that the judge was correct to impose concurrent sentences: it was a clear case for doing so, as the offences were committed in the course of a single incident of quite short duration. But, he argues, the notional determinate sentences of 12 years can only be explained if the judge in reality proceeded as if the two offences merited consecutive sentences, and thus doubled the guideline starting point from 6 years to 12 years. 13. We have considered those submissions. We think it appropriate to start by referring to section 143 of the Criminal Justice Act 2003, which provides: 14. "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." That statutory reference to intended harm is echoed in the Sentencing Guideline, which says at step 1: "The court should determine the offender's culpability and the harm caused, or intended, by reference only to the factors below..." 15. In the list of factors which follows, the following are, in our view, relevant to the sentence in this case. The factors indicating greater harm include injuries (including psychological harm) which is serious in the context of the offence, which must normally be present; and sustained assault on the same victim. The factors indicating higher culpability include use of a weapon, and intention to cause more serious harm than actually results from the offence. 16. The prosecution here submitted that the case fell within category 1, because of the sustained attack on PC Chick in particular and also because of the serious psychological harm caused to the officers concerned. The learned judge did not accept that submission, though, in our view, he would have been entitled to do so. 17. We next consider, as Mr Blackford rightly asks us to do, the Sentencing Council's Definitive Guideline on totality. The following two passages at pages 5 and 6 respectively summarise familiar principles of sentencing: "All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore concurrent sentences will ordinarily be longer than a single sentence for a single offence." And: "Where concurrent sentences are to be passed the sentence should reflect the overall criminality involved. The sentence should be appropriately aggravated by the presence of the associated offences." 18. It is important to keep those principles in mind when considering the sentencing range in a guideline which relates to a single offence. We agree with counsel, and the judge, that concurrent sentences were appropriate in this case; but that does not mean that the appropriate sentence could not exceed the guideline range for a single offence. 19. Drawing these threads together, we are unable to accept Mr Blackford's submissions. The offences charged in counts 5 and 6 were offences of attempting to cause grievous bodily harm. The arguments based on the guideline fall, we think, into the error of treating those counts as if they charged completed offences in which the harm caused was not serious in the context of a section 18 offence. In reality, these were attempts to cause very serious injury. The evidence plainly showed an intention to cause injury far more serious than that which was actually inflicted. If any one of the hammer blows had struck directly, it is likely that it would have caused injury which was serious even in the context of grievous bodily harm. Serious injury was avoided only through the actions of the officers who were attacked, by the protection afforded to PC Young by his stab test vest, and by good fortune: it was not for want of trying on the appellant's part. 20. In assessing what determinate sentence would have been appropriate if a life sentence were not passed, the judge therefore had to take into account the following features of the offences: • Two officers, each acting in the course of his or her duty in trying to apprehend a dangerous burglar, were directly attacked, and others were put at risk of injury as they tried to restrain the appellant. • A weapon was used in an attempt to cause very serious injury to each of the two officers. • The appellant was undeterred by the repeated use of a taser and a police baton, and it was with only with the greatest difficulty that he was restrained and prevented from achieving his object. • The offences were gravely aggravated by the appellant's previous conviction for murder, committed as a mature adult and resulting in a sentence from which he had been released less than 4 years before these offences. 21. So far as mitigation is concerned, the appellant had expressed his remorse in letters to the court, and the judge clearly had in mind the awful circumstances of the appellant's childhood, and the mental health issues which were documented in the reports going primarily to the issue of dangerousness. 22. Weighing those considerations, we take the view that the notional determinate sentence of 12 years' imprisonment was stiff, but was not manifestly excessive in length for this truly terrifying outburst of violence against police officers performing their public duty. Accordingly, albeit by a somewhat different route from that taken by the judge, we conclude that there can be no successful challenge to that notional determinate sentence. 23. We do however take the view, with respect to the learned judge, that he fell into error in two respects as he moved from the notional determinate sentence to the minimum term. First, he allowed credit for the guilty pleas of only one-quarter rather than one-third. He did so because of "the overwhelming nature of the evidence". Although the new Definitive Guideline on credit for guilty pleas was not in force at the time of sentencing, and the then current guidance of the Sentencing Guidelines Council permitted a reduction in the credit given for a guilty plea in such circumstances, we take the view that there was no sufficient reason to depart from the normal practice of allowing a full one-third reduction for early guilty pleas. The evidence was indeed overwhelming; but that in itself was not a guarantee that the defendant would plead guilty. 24. Secondly, when taking into account the effect of the early release provisions, the judge reduced the term by one-third, rather than by one-half, on the ground that if he had not passed a life sentence he would have imposed an extended sentence of imprisonment, from which the appellant would not have become eligible for release until he had served two-thirds of the custodial term. With respect to the judge, that approach is inconsistent with section 82A(3)(c) of the Powers of Criminal Courts (Sentencing) Act 2000, which requires the court to take into account the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003, which relates to prisoners serving determinate sentences. It is also inconsistent with the guidance given, by a constitution of this court headed by the Lord Chief Justice, in Attorney-General's Reference No 27 of 2013 (R v Burinskas) [2014] EWCA Crim 334 , [2014] 2 Cr App R(S) at paragraphs 32-37. 25. In our judgment, the minimum term must be calculated as follows. The notional determinate sentence must be reduced by one-third to give credit for the guilty pleas. The resultant term of 8 years must then be reduced by half to take account of the early release provisions which would apply to a determinate sentence. Finally, the resultant term of 4 years must be reduced by a further year to reflect the period of time when the appellant was on remand awaiting sentence. 26. We therefore allow the appeal to this extent: in relation to the life sentences imposed on counts 5 and 6, we reduce the minimum term which must expire before the appellant can be considered for release on licence from 5 years to 3 years. That minimum term will take effect from 13th January 2017, the date of sentence. In every other respect the sentences remain as before. 27. We emphasise that the reduction which we have made applies to the minimum term which must expire before the appellant can ask to be considered for release on licence. There is of course no guarantee that he would be released at that stage, or indeed for a very long time afterwards. He will only be released when the Parole Board are satisfied that he is no longer a danger to the public. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

2017_08_17-4048.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1292/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1292

870f5e1892d763eb319b6d5b604629364e097c7fd5bd9f3497e85bff374aa03f

[2005] EWCA Crim 2491

EWCA_Crim_2491

2005-10-06

crown_court

No: 200501686/A7 Neutral Citation Number: [2005] EWCA Crim 2491 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 6th October 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE GOLDRING MR JUSTICE WILKIE - - - - - - - R E G I N A -v- SARAH GEORGINA GISBORNE - - - - - - - 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 (Offic

No: 200501686/A7 Neutral Citation Number: [2005] EWCA Crim 2491 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 6th October 2005 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE GOLDRING MR JUSTICE WILKIE - - - - - - - R E G I N A -v- SARAH GEORGINA GISBORNE - - - - - - - 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 GREENE appeared on behalf of the APPELLANT MISS A RAFFERTY appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 4th February 2005 at Peterborough Crown Court, this appellant pleaded guilty and on 25th February was sentenced by His Honour Judge Coleman in respect of an offence of conspiracy to damage property. The sentence was one of six-and-a-half years' imprisonment. An anti-social behaviour order for 2 years was made to take effect on the appellant's release from prison and she was disqualified from driving for 3 years. The terms of the anti-social behaviour order, which had effectively been agreed by the defence, who did not seek to suggest that an ASBO should not be made, were that the defendant was prohibited from: "1. Going within 500 metres of any of the premises named in Schedule 1 of this document (save when travelling through the relevant county to a location outside the relevant county by motorised vehicle or public transport) or sending or attempting to send any article or transmission into any of the said premises, or 2. Knowingly or intentionally contacting, directly or indirectly, the owners, shareholders, employees or agents or members of the family of owners, shareholders, employees or agents of Huntingdon Life Sciences Ltd, Yamanouchi UK Ltd or any of the subsidiary companies of any of the said companies, or 3. Knowingly or intentionally contacting, directly or indirectly, any other company or organisation which conducts business, in any way whatsoever, with the said Huntingdon Life Sciences Ltd, the said Yamanouchi UK Ltd or any of the said subsidiary companies where the nature of the contact is intended to cause harassment, alarm or distress to any person." 2. She appeals against sentence by leave of the Single Judge. 3. The facts were these. The appellant was a prominent animal rights activist with connections with organisations which target employees and associates of Huntingdon Life Sciences Ltd (to whom we shall refer as HLS), which engaged in experimentation on animals. The tactics used included a wide spectrum of activities, some lawful, some unlawful. The appellant had a number of previous convictions to which in due course we shall come, mostly related to her involvement with the animal rights movement's campaign against HLS and similar companies. 4. On 14th July 2004 she hired, in her own name, a Ford Focus motorcar from a car hire company. Over the next two nights, she went to the houses of five individuals, in different parts of the country, and caused considerable damage to eight motorcars. Paint stripper was used on all of them. Some had their tyres punctured, and some had expanding foam placed in their exhaust pipes. In several cases slogans were sprayed on the cars and in one case a slogan was sprayed on a house and its front doorstep. The slogans included "scum", "out of HLS", "puppy killers" and "dead man". 5. The three attacks which occurred on the night of the 14th/15th July were at addresses in Hampshire and Surrey where the appellant lived. The fourth and fifth attacks, the following night, were on premises in Cambridgeshire. All the premises were occupied by people in some way indirectly involved in animal experimentation. Two of the addresses attacked on the first night were occupied by people employed by a company connected to HLS called Yamanouchi UK Ltd, one of them being a retired grandmother who had been working part-time as a telephonist at Yamanouchi. The third was the home of someone connected to a freight company which had been involved in the importation of primates into this country. 6. In the Cambridgeshire attacks, one was at the home of a person who had given evidence at a planning enquiry concerning a proposed primate testing laboratory at the university and the other was at the home of two people employed by HLS. Their family included children aged 5 and 7. That family had been the victims of violence and harassment over a period of some four-and-a-half years. That had included unwanted mail, hoax bombs and a demonstration on their son's first birthday. In consequence, they had installed a number of CCTV cameras at their home which recorded two masked women throwing paint stripper and also recorded the registration number of the hire car which they used: it was those recordings which led to this appellant. The police ascertained that the car, had been hired by the appellant in her own name and they were waiting for the appellant when she returned the car to the hire company on 15th July. She was then arrested. 7. In her bag there were clothes containing traces of paint, a substance which may have been paint stripper and an expanding foam similar to that inserted in the exhaust pipes. There was also an awl which could have been used for puncturing tyres and there were traces of expanding foam found in the car. There was a similar bag of clothing at the appellant's home. The total value of the damage caused to the vehicles and otherwise was just under £40,000. 8. The victims of these attacks made victim impact statements. One of the women victims described being overwhelmed by a feeling of having been invaded. She felt violated and completely unable to live a free life. The attacks on the cars had taken place close to where she was sleeping. 9. The lady to whom earlier we referred, who was a part-time switch board operator, did not return to work again after she had been subjected to abuse on the telephone. She wanted to sell her house because of the intrusion which she felt had occurred and her daughter was so concerned about future attacks that she was reluctant to allow her grandchildren to stay. She was effectively denied the opportunity of carrying on with the part-time job which she enjoyed. One of the victims had received a threatening letter from animal rights activists on the very evening that her car was attacked. 10. When she was interviewed, the appellant declined to comment. 11. In passing sentence, the learned judge accepted that, by the plea of guilty, the appellant had saved court time. But he commented that she had had little alternative given the evidence against her and was therefore only entitled to some credit in respect of her plea of guilty. It is common ground before us that the learned judge's attention was not drawn to the recently issued guidelines by the Sentencing Guidelines Council. The judge went onto describe this conduct as a well thought out exercise. The appellant plainly had knowledge of those she had targeted and had caused substantial damage. He also referred to the effect of the conduct on the victims and to the appellant's significant record of previous offending. His view was that a deterrent sentence had to be imposed. 12. The appellant was born in July 1965. Since the year 2000 she had previously before the courts, on some eight occasions, for offences including using disorderly and threatening behaviour, (twice) and assaulting the police (twice). In June 2002 she was sentenced to 12 months for burglary of business premises in Welwyn Garden City and theft of documents and, in December 2002, she was sentenced to 12 months for violent disorder in North Yorkshire. The victim of her attentions on that occasion was a 72 year old whose windows were broken and home damaged with paint and otherwise, for no better reason than that his brother was a Director of HLS who, at the time, was giving evidence in a Crown Court elsewhere against organisers of the Stop Huntingdon Campaign. 13. On behalf of the appellant Mr Greene advances criticisms of all three aspects of the sentence passed by the learned judge. First, he says, in relation to the six-and-a-half year term of imprisonment, that indicates either that the judge started at too high a point, bearing in mind that the maximum sentence for this offence is 10 years, or he failed to give full credit for the plea of guilty at the earliest opportunity, or both. Mr Greene submitted that the planning of these activities was not sophisticated and, in support of that proposition, he stresses the hiring of the vehicle in the appellant's own name. 14. As to the anti-social behaviour order, Mr Greene does not suggest that it was inappropriate for such an order to be made in the terms which it was, and he accepts that his criticism of the order is of lesser impact if the sentence of imprisonment is reduced. He makes the same observation in relation to the disqualification from driving. He points out that a 3 year term will not effectively disqualify the appellant from driving, because, during that period, certainly in the light of the sentence passed by the learned judge, the appellant will be in prison throughout. On the other hand, it is to be observed that, if a disqualification from driving is part of the appellant's record and appears upon her driving licence, that may well have, or be capable of having, an effect upon her ability to hire cars in the future. 15. In this country, everyone can freely hold any personal opinion or belief, however unusual, on any subject. But no one can, with impunity, seek to impose on others his or her opinions or beliefs by intimidation or by violence or threats of violence to persons or property. All those who by such conduct disrupt the ability of others lawfully to live their lives challenge the essentially peaceful fabric of our society and must expect to be severely punished. 16. In this case, the appellant's beliefs are of no consequence. What is of consequence is the misery which, with premeditation and planning, she chose deliberately and repeatedly to inflict on several victims, all of whom were law-abiding and some of whom were particularly vulnerable. As a result, substantial damage has been done, not just in monetary terms but also and, more importantly, to the well-being and sense of security of many individuals. Furthermore, as her record shows, this is by no means the first occasion on which this appellant has chosen to behave in this kind of way. If she or others continue to campaign by these means, they can expect the courts to respond within increasingly condign punishment. 17. The only substantial question on this appeal, in relation to the six-and-a-half year term of imprisonment, is whether the sentencing judge gave sufficient discount for the appellant's plea of guilty. We have concluded that he did not. The case against the appellant was utterly overwhelming as the judge recognised. But, in the light of paragraph 5.2 of the Guideline issued by the Sentencing Guidelines Council in December 2004, the strength of the prosecution case should not, in itself, be regarded as a reason for reducing the discount otherwise appropriate for a prompt plea of guilty. As this appellant pleaded guilty at the first available opportunity, she was entitled to a discount of one-third from the sentence which would have been appropriate following a trial. 18. In the light of those considerations, while endorsing the judge's view that a deterrent sentence in this case was entirely appropriate, we quash the sentence of six-and-a-half years' imprisonment and, in substitution for it, there will be a sentence of five-and-a-half years' imprisonment. So far as the anti-social behaviour order is concerned, we see no reason why that order should not have been made and it was properly made in appropriate terms. So far as the disqualification from driving is concerned, in our judgment such a penalty may be a useful tool in cases of this kind for the reason which we have already indicated. The term of that disqualification is not, in all the circumstances, susceptible to effective challenge. The appeal is however allowed to the extent which we have already indicated.

2005_10_06-603.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2491/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2491

24f66e73d7f8c790789becf5ee7027ce53b9d36db1978fc3d4fcf79cc4f82756

[2022] EWCA Crim 72

EWCA_Crim_72

2022-01-18

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. [2022] EWCA Crim 72 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202001087/B2 & 202002366/B2 Royal Courts of Justice Strand London WC2A 2LL Tuesday 18 January 2022 Before: LADY JUSTICE CARR DBE MR JUSTICE LINDEN MR JUSTICE WALL REGINA V MATTHEW SUTHERLAND MOHAMMED 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 K MITCHELL appeared on behalf of the Applicant Sutherland MR H GODFREY appeared on behalf of the Applicant Khan _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. This is the renewed application of two applicants, Matthew Sutherland ("Sutherland"), now 45, and Mohammed Khan ("Khan"), now 53, for permission to appeal against their convictions. Khan also seeks a necessary extension of time of some 174 days in which to do so. 2. Following a lengthy trial in the Crown Court at Birmingham before His Honour Judge Drew QC ("the judge") both men were convicted on 26 February 2020 of conspiracy to cheat the public revenue, contrary to section 1(1) of the Criminal Law Act 1977. In the case of Sutherland the jury was unanimous; in the case of Khan it was a majority verdict of 10 to 2. 3. On 26 November 2020 Sutherland was sentenced in his absence to nine years' imprisonment and Khan was sentenced to seven years' imprisonment. Although Sutherland remains an absconder, we are satisfied that he has given the necessary authority for this renewed application to be made. 4. Their co-accused, Mohammed Zeb Zaheer ("Zaheer") was also convicted of conspiracy to cheat the public revenue, contrary to section 1(1) of the Criminal Law Act 1977 and sentenced to five years' imprisonment. 5. On the applications we have been presented with extensive skeleton arguments, together with a very large amount of material to read, including multiple transcripts. We have considered the material carefully; despite its volume, we can keep our judgment short. The facts 6. The facts are set out in detail in the Criminal Appeal Office summary and do not need to be repeated here. In very brief overview, the conspiracy involved, amongst other companies: i) A company incorporated in September 2014 called Convergica (Clinical Information Systems) Ltd ("Convergica"). Sutherland, through a special purpose vehicle company known as Mill Capital Nominees, was Convergica's majority shareholder; ii) A company incorporated in 2005, struck off in 2006 and reinstated in 2009, called Mediatronix Ltd ("Mediatronix"). Khan was its sole shareholder; iii) A company incorporated in June 2015 called Everbright Financial Holdings Ltd ("Everbright"). Zaheer was its sole director and shareholder. 7. Amongst what were complicated arrangements was a loan agreement whereby Everbright would loan Convergica £137 million to be paid directly to Mediatronix. In this context, in May 2015 an official at a Spanish bank known as Bandenia Banca Privada ("Bandenia") sent a letter to Sutherland stating that Everbright was a verified client of the bank. 8. On 27 January 2016, Convergica submitted a Corporation Tax Return and Research and Development Tax Credit claim ("R&DTC") to HM Revenue and Customs ("HMRC") for some £29 million. It was common ground at trial that Convergica was in fact not entitled to that claim for credit. 9. The prosecution case was that Sutherland, Khan and Zaheer, each of whom had financial issues at the time, had conspired to cheat HMRC. They had dishonestly sought to induce and facilitate the Convergica Board to submit the R&DTC claim. That claim falsely represented (a) that Mediatronix had carried out work to the value of £137 million on behalf of Convergica (“representation a)”); (b) that Everbright had genuinely agreed to lend Convergica £137 million (“representation b)”); and (c) that Everbright had paid Mediatronix £137 million on behalf of Convergica (“representation c)”). Had the R&DTC claim been successful then, pursuant to the loan agreement between Everbright and Convergica, the money would have been paid to Everbright and then distributed amongst the three men. 10. The defence case on behalf of all three men, who were of good character, was that the evidence on which the prosecution sought to rely did not in fact prove their guilt at all. There were too many gaps and too many unanswered questions. There was some sort of scheme within Bandenia involving the use of Everbright, Convergica and Mediatronix as a mechanism by somebody else to launder money. The money was going to come out of the bank, go through Everbright to Mediatronix, then back to Convergica, then back to Everbright and then back to Bandenia. 11. Sutherland and Khan both gave evidence at trial. Zaheer did not. A central part of Sutherland's case, amongst other things, was that Convergica was a legitimate bona fide company. Grounds of appeal: Sutherland 12. Out of four original grounds, Mr Mitchell (for Sutherland) pursues now only two. He submits first that the conviction against Sutherland is unsafe because the judge erred in his decision to allow amendment of the indictment and in his subsequent directions to the jury. 13. It is said that the Crown's case was that Convergica was a scam company and its sole purpose was fraudulent. This was something which Sutherland was able to disprove; he was able to demonstrate that Convergica was a legitimate trading company. The judge often demonstrated irritation at this, considering it to be misleading. Ultimately, submits Mr Mitchell, it was the judge who drove the amendment to the indictment during an application on behalf of Sutherland that there was no case to answer. 14. The amended indictment, it is said, caused prejudice to Sutherland's case, alongside the subsequent directions. The defence had approached representations a), b) and c) on a conjunctive basis: all three representations needed to be established. But the directions to the jury were proceed on a disjunctive basis. Establishment of any one of the representations would suffice. The indictment and directions were unfairly tailored to suit the prosecution. 15. Mr Mitchell further submits that the lateness of the amendment caused prejudice. It came after the prosecution witnesses had been cross-examined; reliance is placed on the fact that the judge’s directions to the jury were to the effect that the question for them was whether or not there was a false claim, not whether each of the three representations had been established. 16. The second ground of appeal sought to be advanced is the suggestion that the judge erred in his interruptions and interference amounting to what was an expression of a "clear and cynical view and an irritation" of the defence case. As his high point, Mr Mitchell refers to a passage of exchanges involving questions by the judge of Sutherland in relation to drop box material on 8 January 2020. Mr Mitchell accepts that at no stage did he object to the judge's questioning but says now that he should have done so. 17. Finally, Mr Mitchell seeks to vary the grounds of appeal advanced to introduce a new ground. We indicate at the outset that no formal application to vary as required has been made, nor has there been any attempt to comply with CPR 36.14 and the clear guidance identified in R v James [2018] EWCA Crim 285, in particular at [38]. In summary, Sutherland seeks to benefit from the arguments deployed on behalf of Khan, to which we will shortly refer, based on Khan's allegedly poor legal representation. That is said to have had a prejudicial knock-on effect on the safety of Sutherland's conviction. Mr Mitchell points in particular to an alleged lack of cross-examination and adjournments during the course of Sutherland's evidence, in particular in his evidence in chief. 18. When pressed on the reasons for the delay in advancing this ground, Mr Mitchell frankly says that he did not ever think that this was a sustainable ground of appeal until Khan mounted his appeal. Mr Mitchell previously thought that the circumstances facing Sutherland at trial were simply a result of what was part and parcel of Khan's case. Grounds of appeal: Khan 19. For Khan, Mr Godfrey QC submits that Khan's legal representation was such a "shambles", not just as a result of counsel's conduct but also that of Khan's solicitors, that from “beginning to end” the trial was so unfair as to render Khan's conviction unsafe. His true case was never put. 20. There is a lengthy list of complaints relied upon, including complaint about a late change of leading junior counsel, the absence of any pretrial conferences and the fact that Khan was never asked for nor gave full and proper instructions pretrial - any conferences were only held at court. No meaningful defence statement was served until very late in the day. Had it been served earlier, the judge would have been able to control and intervene with the questioning of witnesses earlier than he did. A list of defence witnesses was overlooked. His counsel did not know what Khan's case was or what witnesses were needed. Khan had to rely on what is described as a "home-made proof". It is said that there was inadequate cross-examination of prosecution witnesses and of Sutherland as well. Complaint is also made as to the manner in which the closing speech for Khan came about, although frankly Mr Godfrey was unable to identify any substantive errors or omissions in the substance of the closing speech itself. 21. Mr Godfrey emphasises the absence in particular of any substantive defence statement until after the prosecution had closed its case and that failures properly to cross-examine witnesses were not simply cured by any adjournments. Khan's counsel was not in possession of important documents. Hundreds of documents provided by Khan to his legal team were never even considered. So it is said that the conviction of Khan is unsafe. 22. In terms of identifying specific matters not put, Mr Godfrey referred to evidence given by Khan in the witness box to the effect that there was a dishonest plan within Convergica to defraud funders and that was something which was never put to any of the prosecution witnesses. 23. Trial counsel have responded to the complaints made against them. In short they take strong issue with those complaints. Their position is that the case was thoroughly prepared in accordance with instructions. There were a number of conferences with junior junior counsel and many conferences were cancelled by Khan at short notice. A conference with leading junior counsel took place on 4 October 2019 and 21 October 2019 - on the second occasion with junior junior counsel and instructing solicitors. This was months before the trial itself commenced on 2 December 2019. Their position is that all relevant prosecution witnesses were cross-examined on the key issues, including whether Mediatronix's bid was genuine and whether Khan had played any part in the R&DTC claim. All matters were ultimately put to Sutherland. The closing speech for Khan lasted half a day and covered all matters favourable to him and undermining the case against him. This was a lengthy trial, there were daily conferences at court with Khan and time was taken to discuss all matters affecting him. Discussion and analysis: Sutherland 24. Grounds 1 and 2 are linked in the sense of the overall implied complaint of unfair dealing at the hands of the judge. In relation to the first ground, at the close of the prosecution case the indictment was amended to reflect the fact that there was no suggestion in fact that any of the defendants themselves had made the false representations to HMRC. Rather, they had induced the unwitting Board of Convergica to do so. As indicated, it is said that this late amendment created unfairness, changing the nature of the prosecution case and undermining the manner in which Sutherland's case had been presented during the course of the unfolding of the prosecution case. 25. However, what the amendment in fact did was to identify that the representation to HMRC had been made by Convergica through its Board, as opposed to by Sutherland or Khan and Zaheer personally. No formal objection was taken to the amendment at the time. That is understandable; there was no prejudice to Sutherland's position; it did not create any new or unforeseen obstacles. Mr Mitchell before us, despite being pressed on several occasions, could not identify any specific such prejudice. The judge correctly told the jury that the amendment did not change the way that the prosecution had put their case and that the amendment was required to clarify the position. The direction that he gave to the jury was agreed. The submission of no case to answer which had been mounted to Sutherland, partly based on a technical issue of corporate responsibility for the making of the claim to HMRC, was not pursued. 26. As to the argument that the prosecution case initially had been that Convergica was only ever a vehicle for fraud with no legitimate basis, that is not how the case appears from the full case summary served by the prosecution. The position there, which Mr Mitchell helpfully confirmed was repeated before the jury, was that Convergica was a "legitimate venture used for dishonest ends", not that Convergica was a scam or fraud from the outset. Rather, it was that "short of money and realising that Convergica's legitimate activities would not generate any for a long time, if ever, Sutherland resorted to fraud." Even if, as Mr Mitchell tells us, that position was expanded on orally, the prosecution's case never went as far as to suggest that Convergica was only ever a fraud with the sole purpose of acting fraudulently from the outset. 27. Accordingly, all that the judge was doing was case managing appropriately. The Crown's case was consistent. The concern was that the particulars of the conspiracy should reflect that case. Witnesses were recalled because during Sutherland's evidence it became apparent that vital aspects of his case had not been put. 28. We turn then to the suggestion of some arguable error in the judge's final written and oral directions of law to the jury. An application that the jury should only convict if an individual had participated in agreeing to all three of the individual activities the subject of the three representations was rejected by the judge. The final directions were in our judgment unimpeachable. They were not criticised at the time. Nor can there be any prejudice arising out of the timing of the final directions. Those directions were given before closing speeches. Again, when pressed, Mr Mitchell was unable to identify any specific prejudice arising out of the timing or content of the directions that were given. 29. As for the second ground, Serafin v Malkiewicz and others [2020] UKSC 23, [2020] 1 WLR 2455 is cited in support of the suggestion that Sutherland's conviction is somehow unfair due to unwarranted and inappropriate interference during the course of the evidence by the judge. Serafin was a case where the judge's approach demonstrated manifest unfairness and hostility to the defendant's case. We have looked at all of the passages upon which Sutherland relies. It is clear to us that at all times the judge was simply attempting to assist the jury in what was a complicated factual situation. His questions from time to time may have been detailed and forensic, but they were posed with a view to ensuring that he and the jury understood the evidence and Sutherland's case. The judge said in terms (in the absence of the jury) that he did not like interrupting but was keen to get to the heart of the case. It is to be noted that in relation to more than one of the passages of evidence to which objection now is taken, Sutherland's counsel observed both in the absence and presence of the jury that the judge's intervention on occasion had been "very helpful". Indeed, this remark was made in the absence of the jury in relation to the very line of questioning which Mr Mitchell now identifies as being the high point of his case on this second ground of appeal. There was no protest to the judge's questioning at any stage on behalf of Sutherland. 30. The judge did not come anywhere near to demonstrating unfairness or hostility. His questions were not badgering or hectoring in nature. He was variously seeking clarification, identifying a particular chronology, the nature of a particular document or its evidential basis and background. As he said repeatedly in front of the jury, he was merely attempting to assist the jury. He was also, as he said on occasion, intervening from time to time because he thought that fairness to Sutherland required it. Sutherland needed to have the opportunity to answer certain issues. 31. In a case of this kind, it was important that the judge ensured clarity and focus on the issues for the jury, moving matters along. It is frankly wholly unsustainable to argue that the judge here strayed too far into the arena, cross-examining Sutherland as a prosecutor. There is no proper basis on which to argue that the judge took over and conducted the prosecution, as has been submitted. 32. For these reasons, and subject to the outcome on the fresh additional ground which Sutherland seeks to raise and which we address below, an appeal by Sutherland would have no merit and we would refuse the renewed application. Discussion and analysis: Khan 33. Incompetence on the part of lawyers can only render a conviction unsafe when the incompetence has led to identifiable, serious errors or irregularities which in turn resulted in an unfair trial. An appellant must go beyond establishing incompetence and show that it led to identifiable errors or irregularities rendering the process unfair or unsafe: see for example R v Day [2003] EWCA Crim 1060 at [15], as approved in R v Ekaireb [2015] EWCA Crim 1930 at [22]. 34. The key problem in Mr Godfrey's submissions is that, whilst there has been a heavy focus on what is alleged to be gross incompetence on the part of Khan's lawyers, there has been a failure to engage with the requirement to show that there have been identified errors or irregularities such as to result in an unfair trial. There is an absence of identifiable specific prejudice. That is so despite what has been a comprehensive view by Khan's new lawyers, who have been instructed since March 2020 and whose involvement is said to provide an explanation for the lateness of the renewed application. 35. As identified above, there is a clear conflict between the account given by Khan to his new legal team and the response from trial counsel. That, as the single judge remarked, not does mean that the court cannot take a view at this stage on whether or not the proposed challenge has any real prospect of success. Amongst other things, many of the matters asserted on behalf of the applicant can be tested independently, either by the prosecution or by reference to other material available. 36. First, many topics are identified on behalf of Khan on which it is said that witnesses should have been cross-examined but were not. However, a list of prosecution witnesses whose evidence would be challenged for Khan was provided in November 2019. The prosecution's detailed analysis set out in a Respondent's Notice, which Mr Godfrey fairly does not challenge in terms of accuracy, shows in fact that the prosecution witnesses were cross-examined on the relevant issues now relied upon; and where they were not, the points in question could have had no relevance to the case against Khan. 37. As for a defence statement presented by Khan on the first day of trial, a short (and less than satisfactory) defence statement had been signed by Khan many months earlier. The 47-page document provided by him on the first day of trial was treated as a proof of evidence and then used to prepare an addendum defence statement, some 11 pages in length, served on 27 December 2019. It was not served until after the conclusion of the prosecution case but no point was taken on this and Khan cannot be shown to have suffered any detriment, as the prosecution confirms. Amongst other things it did not trigger any further disclosure and no point on lateness was taken before the jury. Witnesses were recalled as necessary. 38. As for the instruction of counsel, junior junior counsel was in place throughout. Leading junior counsel was instructed in September 2019, leaving him three months to prepare the case. Whether or not Khan met him prior to trial, he was unarguably in a position properly to represent Khan once the trial got underway. The prosecution witnesses were cross-examined appropriately. Prosecution counsel confirms that counsel obviously had a good grasp of the case as the trial progressed. 39. Complaint is made that counsel declined to call defence witnesses, but the grounds do not provide any indication of the issues to which these witnesses could have spoken but which was not otherwise covered by evidence before the jury. That is a characteristic feature of the submissions made on behalf of Khan, as already indicated. 40. Equally, no documents said to be potentially exculpatory and yet overlooked have been identified such as to demonstrate that they can be said to be sufficiently important to have rendered the conviction unsafe. The documents in question were discussed with the judge on 3 February 2020. A large part of them were said to deal with character, and the fact that Khan was a legitimate businessman involved in a wide range of businesses over many years. As the judge said, that was unlikely to be the subject of much dispute. The adducing of documentary evidence to substantiate it was unlikely to assist the jury. The judge indicated that he would not be prepared to burden the jury with such further material unless he was challenged about other business transactions or ventures in cross-examination. There was and is on renewed application no challenge to this approach. No particular document, for example, in the unused material which it is said was not properly considered has been identified as even potentially having a material effect on the safety of the conviction. 41. Beyond this, Khan himself gave full evidence in chief, including on his background, education, employment, good character, marriage, children, family property and financial situation at the time of the events in question. The prosecution witnesses were cross-examined. As for the cross-examination of Sutherland on behalf of Khan, there is no doubt that it was initially brief, something which concerned the judge. Indeed, the judge said that he was "very cross" about it. Given what appeared to be a cut-throat defence being run by Khan, many things needed to be put to Sutherland. 42. The point, however, is that following those concerns being raised, as the judge said, "not in a threatening way but with the interests of justice and all defendants and the prosecution at heart", Sutherland went on to be cross-examined fully on behalf of Khan. It is true that whilst the trial was delayed prior to that further cross-examination, Khan sought to dispense with the service of his leading junior counsel; but that problem was resolved and counsel continued with the case. Following Khan's evidence in chief, there was no suggestion that he had given evidence of matters not put appropriately to Sutherland or indeed anyone else. He gave evidence at length. It simply cannot be said that his case was not laid before the jury. 43. As for the specific complaint made that Khan's suggestion in his evidence in the witness box that Convergica was a sham from the outset designed to defraud funders had not been properly explored, the short point is that that was simply not something contained even in his amended defence case statement. 44. The closing speech on behalf of Khan was clear and comprehensive and addressed the points for and against him effectively and, as already indicated, Mr Godfrey has not been able to identify any actual error or omission within it. 45. In our judgment the matters which can be substantiated as failures on the part of Khan's lawyers do not come close to meeting the relevant threshold for establishing the conviction to be unsafe. As indicated, the question is not simply whether or not there has been incompetence, or even gross incompetence, but whether or not it can be said that any identifiable errors have arguably led to an unsafe conviction. 46. In these circumstances it is not in our judgment in the interests of justice to grant the necessary extension of time. 47. We revert to the parasitic ground of appeal sought to be raised by Sutherland. In the circumstances it falls away. In any event, any delays in the course of Sutherland's evidence in any event would not arguably have meant that the trial against him was not fair. There was no submission of resulting unfairness at the time. The judge was overseeing what was a challenging trial. He recognised the strain on Sutherland of being in the witness box for a long time. He gave Sutherland a break in order to allow him to recover from a cold and some delay, not insignificant, was caused by Sutherland himself who during the course of his evidence referred to material of which no one was aware, including his own legal team. 48. Further, there is no proper application to vary and there is no good reason, as we have indicated, for allowing Sutherland to raise a ground of appeal which, if it had any merit at all, should have been raised at the outset. 49. For all these reasons, both renewed applications will be refused and any reporting restrictions that remain in place are lifted. (After further submissions and a short adjournment) LADY JUSTICE CARR: 50. We deal first with the question of a loss of time order against Sutherland. As the Vice President of the Court of Appeal (Criminal Division) observed in R v Gray and others [2014] EWCA Crim. 2372: “The only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985." 51. The single judge indicated when refusing permission that the full court should consider making a loss of time order in relation to Sutherland. In our judgment a loss of time order is appropriate. The renewed application was wholly without merit. It has involved very significant time and court resources; the fact that Sutherland may have the means to pay for transcripts is no good reason not to make a loss of time order. We make such an order in the term of 28 days. 52. We turn then to Khan's position. As we have indicated, in our judgment the central flaw in the application was a failure to focus on prejudice and the safety of the conviction, as opposed to and discrete from the question of incompetent legal representation. However, albeit on fine balance, we are prepared not to make a loss of time order in relation to Khan, given the apparently positive advice that he has received both before and after refusal of permission by the single judge So we do not make a loss of time order in relation to Khan. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2022_01_18-5257.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/72/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/72

359f56190e9b35d8fbf3013778ea43e0f79e7f24ad0bc7075ac55b07dd02f2f9

[2013] EWCA Crim 2332

EWCA_Crim_2332

2013-12-13

crown_court

Case No: 201203786 A3 Neutral Citation Number: [2013] EWCA Crim 2332 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM HHJ WE DAVIS QC T20087218 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/12/2013 Before : LORD JUSTICE AIKENS MR JUSTICE SIMON and HIS HONOUR JUDGE MORRIS QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Jamie Daniel Fort Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201203786 A3 Neutral Citation Number: [2013] EWCA Crim 2332 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM HHJ WE DAVIS QC T20087218 Royal Courts of Justice Strand, London, WC2A 2LL Date: 13/12/2013 Before : LORD JUSTICE AIKENS MR JUSTICE SIMON and HIS HONOUR JUDGE MORRIS QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Jamie Daniel Fort Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sally Hancox (instructed by CPS ) for the Respondent Rachel Brand QC (instructed by GQS Solicitors ) for the Appellant Hearing date : 08/11/2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : I. Synopsis 1. At about 3.20 am on 28 July 2008, the appellant Jamie Fort, who was then aged 18, called the emergency services from the house where he lived with his father, mother and sister in Castle Bromwich. The appellant said that he had killed his mother. That was so. He said over the telephone to the operator: “I can’t honestly say why I’ve done it, please just get here and deal with it before I go mad”. The appellant was subsequently arrested and charged with murder. Investigations were made into the state of the appellant’s mental health and several reports were produced. The trial started on 10 August 2010 at Warwick Crown Court before HHJ Griffiths-Jones. In circumstances which we will elaborate below, the appellant was re-arraigned on 11 August and pleaded guilty to manslaughter by reason of diminished responsibility. Sentence was adjourned for further medical investigations and reports. 2. Over 18 months later and after a further 13 mental health reports had been produced by various specialists, the Recorder of Birmingham, HHJ Davis QC, passed sentence in the Crown Court at Birmingham on 22 February 2012, having heard oral evidence from Dr Rafiq Memon, consultant forensic psychiatrist. The judge sentenced the appellant to life “imprisonment”, pursuant to section 225(2) of the Criminal Justice Act 2003 as amended. In fact, given that the appellant was under 21 at the time of conviction, the correct form of that sentence should have been custody for life. Pursuant to section 82 A of the Powers of Criminal Courts (Sentencing) Act 2000 the judge set the minimum term to be served by the appellant at 4 years, less 1302 days spent on remand. The judge also certified the case as being suitable for appeal in respect of the sentence he had passed. 3. On 2 March 2012 the matter came back before the judge again. He then purported to make an order under section 45 A(1) of the Mental Health Act 1983 (as amended) (“MHA”) with the intention that the appellant be removed to and detained at the Reaside Clinic, rather than in a YOI or prison. We are satisfied, for reasons that we will explain, that both counsel were correct to accept before us that the order that HHJ Davis made under section 45 A of the MHA 2983 was unlawful and must be rescinded. 4. On the same occasion the judge withdrew his certificate of leave to appeal. However, the single judge subsequently granted leave to appeal against sentence. 5. The issue on appeal to this court is whether the judge’s sentence of custody for life was wrong in principle. It raises once again the complex relationship between custodial sentences and orders under the MHA in relation to an offender who suffers from a mental disorder. Ms Rachel Brand QC argued that HHJ Davis erred in principle and submitted that he should have made an order under section 37 of the MHA, coupled with a “restriction order” pursuant to section 41 of that Act . 6. At a directions hearing of the full court on 31 January 2013, it ordered that “medical reports addressing issues in the case” be obtained; one on behalf of the appellant and one on behalf of the Crown. At the hearing before us on 8 November 2013 we had the report dated 8 June 2013 of Dr Dinesh Maganty, consultant forensic psychiatrist at the Reaside Clinic, where the appellant is presently detained. Dr Maganty is currently the appellant’s responsible clinician and his report was produced on behalf of the appellant. We also had before us the report of Dr Philip Hopley, consultant forensic psychiatrist, which was produced on behalf of the Crown. We heard oral evidence from Dr Maganty, who is approved by the Secretary of State, pursuant to section 12 of the MHA, as having specialist experience in the diagnosis and treatment of mental disorders. Miss Sally Hancox, who appeared for the Crown, said that there was no objection from the Crown to the court receiving the evidence of Doctors Maganty and Hopley. Indeed, she did not advance any arguments contrary to those of Ms Brand. 7. At the conclusion of oral argument we reserved judgment. II. The appellant’s history and events up to and including the offence 8. The appellant’s parents were married in 1986 and the appellant was born in 1990. His father worked with the Post Office and his mother, Mrs Patricia Fort, worked as a kitchen manager at King Edward VI Grammar School, Birmingham. The appellant’s home life as a child was secure. The appellant told doctors subsequently that his relationship with his father had deteriorated in the 3 years before the offence, but his relationship with his mother was generally good. He attended primary, secondary and sixth form schools. He took 11 GCSEs at grades A to C and three A levels at Grades C, D and E. He was noted as being very quiet in his teenage years and he did not get on very well with people in his secondary school. He was bullied. There were no suspensions or expulsions from his school or any other disciplinary problems. He was interested in listening to music and playing on the computer. He did not socialise. He used to go to church with his family until the age of 15. The appellant told Dr Maganty that he stopped going to church then because he had thoughts of harming others which thoughts he could not prevent. The appellant said that going to church and praying did not stop them so he ceased going as he “did not see the point”. 9. Prior to the present offence he had had no contact with the mental health services and he did not suffer from any other medical problems. He had no drug or alcohol problems. There was no history of self-harm. He had never been arrested and he had no criminal convictions, cautions or warnings. However, the appellant subsequently told doctors that for some years before the offence he had had intrusive thoughts which were of a violent and sometimes sexual nature, although he had always previously been able to suppress them. 10. The events leading up to the offence are as follows: the appellant finished his A level exams around 11 June 2008. He stayed at home for most of the time afterwards. The appellant said that had been less and less able to sleep properly and sometimes not at all. 11. On the day before the offence the appellant had been watching his computer, having slept well the previous night. In the evening of 27/28 July 2008 the appellant read a book and, having finished it, he went downstairs to see if anyone was watching the television. His mother was lying on the sofa. They had a short conversation, then, in the appellant’s words “…that just happened”. In the descriptions of the offence given by the appellant to doctors subsequently, he stated that he could not remember exactly what happened next but he saw himself and he saw what was going on but could not stop himself and he had no feeling of what he was doing until he rang the emergency services. 12. In fact the appellant had taken a large kitchen knife and had stabbed his mother 35 times. The appellant’s father and sister were asleep upstairs during the attack. 13. After the appellant’s 999 call an ambulance and the police arrived quickly at the scene. Mrs Fort was taken to the Heartlands Hospital where she was declared dead at 4.13 am. Mrs Fort was aged 57 at her death. The pathologist who conducted the post-mortem on the afternoon of 28 July found that there were 18 wounds in Mrs Fort’s head and 17 in her chest, back and abdomen. The wounds were severe and included an incised wound to the victim’s liver and a penetration of the duodenum. The deceased died principally as a result of a catastrophic loss of blood on account of her multiple wounds. 14. The appellant was arrested on suspicion of murder. On 29 July 2008 he was interviewed by the police under caution with his solicitor present. He answered no comment to all questions. Questions to the appellant’s family revealed that he was an intelligent young man but also reclusive and socially isolated. This led to investigation into the appellant’s mental health. III. Mental health and other reports during custody prior to the trial 15. The appellant was held in custody at HMYOI Glen Parva from 29 July 2008 until June 2009, when he was removed to the Reaside Clinic in Birmingham where he remained under psychiatric care until October 2009 when he was returned to Glen Parva. He remained in custody there until the trial in August 2010 and he was returned to Glen Parva after he had pleaded guilty to manslaughter by reason of diminished responsibility. The appellant remained in custody in Glen Parva until he was made the subject of an interim hospital order by Macur J pursuant to section 38 of the MHA in July 2011, when he returned to the Reaside Clinic until sentence was passed in February and March 2012. 16. During the period of over two years between the offence and the trial the appellant was seen by a number of specialists. The first was Dr NMJ Kennedy, consultant psychiatrist, who produced a report dated 5 February 2009. He concluded that at the time of the killing the appellant was suffering from a mental state which amounted to the condition known as “grossly dissociated state”. Dr Philip Hopley, also a consultant psychiatrist, prepared a report for the CPS Coventry dated 19 February 2009. He concluded that the appellant was suffering from some form of mental disorder but its exact nature needed further assessment. He identified the possibilities as including “slowly evolving psychotic illness, a depressive disorder, which evolved into a psychotic process, abnormal personality development and a disorder on the autistic spectrum”. 17. When the appellant was admitted to the Reaside Clinic, Birmingham, in June 2009 he scored 117 on an IQ test and an MRI scan on his brain was normal. At the Reaside Clinic the appellant was seen by Dr Rafiq Memon, who became responsible for the appellant’s care there. Dr Memon prepared a report dated 12 November 2009 in which he concluded that the appellant suffered from epilepsy at the time of the offence. But in December 2009 Dr Hugh Rickards discounted this diagnosis. There were further reports on the appellant by Dr P Vesey, a neuropsychologist, in July 2010, Dr Kanu Achinivu, a consultant in development neuropsychiatry, in October 2010 and Dr Kennedy in October 2010. IV. The mental health issues at the time of the trial and the reports obtained between the trial and the sentencing hearing. 18. The appellant had always been prepared to plead guilty to manslaughter on the ground of diminished responsibility, but the prosecution had been unwilling to accept such a plea. The trial for murder started on 10 August 2010 and there were present the psychiatrist instructed by the prosecution, Dr Hopley, and the two psychiatrists instructed by the defence, Drs Kennedy and Rickards. They all had a meeting together on 11 August 2010 and as a result of it they drew up an Agreed Document which they all signed. 19. This document stated: 1. “Jamie Fort was suffering from an abnormality of mind, namely a Dissociative State, at the time of the killing. There is clear evidence of an underlying abnormal personality, probably a disorder on the Autistic Spectrum. 2. Jamie Fort’s abnormal intrusive violent thoughts are not fantasy material. They are egodystonic, which means to say they cause him distress and are extremely unpleasant. Recurrent egodystonic intrusive violent thoughts would be a sufficient psychological trauma to trigger a Dissociative State. 3. Jamie Fort’s abnormality of mind [Dissociative State] substantially impaired his mental responsibility for the killing. 4. An Autistic Spectrum Disorder underlying his Dissociative State has not been ruled out. Further assessment/investigation of this issue should be carried out prior to sentencing. We recommend either Doctor Stauffenburg [Norwich] or Doctor Kanu [Birmingham]. Both are Consultant Forensic Psychiatrists who specialise in Neuro-Developmental disorders including Autistic Spectrum Disorders.” 20. These conclusions led the prosecution to accept the plea of manslaughter by reason of diminished responsibility, so the appellant was re-arraigned and that plea taken. 21. By the time that the appellant was sentenced by HHJ Davis on 22 February 2012 a further 13 reports and letters had been obtained from various consultant psychiatrists. The following is only a very short summary of their main conclusions and the progress in the appellant’s case. In October 2010 Dr. Achinavu, a consultant neuropsychiatrist, ruled out a developmental disorder such as Asperger syndrome, or an Autistic spectrum disorder, but expressed the view that the appellant has a schizoid personality disorder. He commented that treatment of such personality disorders was extremely difficult and drug treatment did not make a significant and lasting improvement; however, long term psychotherapy might be helpful if the appellant was willing to engage with it. 22. In October 2010, Drs. Kennedy and Hopley agreed with the diagnosis of ‘schizoid personality disorder’. Dr. Kennedy suggested assessment by a forensic psychotherapist, and Dr Hopley raised the possibility of assessment for treatment at HMP Grendon Underwood, or within the independent psychiatric sector. 23. A report in January 2011(incorrectly dated 2010) requested by the defence from Dr. Judith Freedman of the Portman Clinic (consultant psychiatrist in psychotherapy) supported the dual diagnosis of ‘schizoid personality disorder’ and ‘dissociative disorder’. It also highlighted the dangers of intense psychotherapeutic treatment and expressed the view that the appellant posed such a high risk that he should be placed in one of the high security hospitals i.e. Broadmoor, Ashworth, or Rampton. We note that Dr. Freedman is not approved under section 12 of the Mental Health Act 1983 . 24. In February 2011 a letter from Dr. Memon expressed disagreement with Dr. Freedman’s conclusion that a hospital order was required. He reiterated that his diagnosis was ‘dissociative disorder’. 25. Between December 2010 and April 2011, the appellant, whilst at HMYOI Glen Parva, was under the care of the visiting consultant psychiatrist to that establishment, Dr. Halim. On 18 April 2011 Dr. Halim provided a letter, stating that he had been treating the appellant with anti-psychotic medication. He suggested that the appellant’s intrusive thoughts of violence might be obsessive/compulsive in nature, and raised the possible diagnosis of epilepsy (ruled out during earlier investigations) and the possibility of an evolving schizophrenic illness. Dr Halim expressed the view that the appellant would not receive appropriate medical assessment and treatment in a prison setting, and recommended further assessment to decide whether a section 37 hospital order would be appropriate. 26. In an order of Macur J made in April 2011, Dr Halim was asked to provide a full report and Dr Memon was asked to provide an up-to-date addendum. Dr. Halim’s full report of May 2011 gave his primary diagnosis as ‘obsessive compulsive disorder’ in relation to the intrusive thoughts of violence. However he also agreed with the diagnosis of ‘schizoid personality disorder’. He referred again to the possibility of epilepsy and recommended admission to hospital. Dr. Memon’s report in May 2011 also recommended admission to the Reaside Clinic under a section 38 interim hospital order, for further assessment. Dr. Hopley agreed in his report 3 June. After the appellant was re-admitted to the Reaside Clinic on 5 July 2011 under the care of Dr. Memon, he produced a further report in August 2011. He said that he was considering three conditions: obsessive compulsive disorder, dissociative convulsions, and epilepsy. He had referred the appellant for a further neuropsychiatric opinion from Dr. Bagary. We have not seen any such opinion. At Dr. Memon’s request, further interim hospital orders were made from August 2011 until the appellant was sentenced. 27. Three final psychiatric reports were before HHJ Davis when he sentenced the appellant on 22 February 2012. They were from Dr Memon (December 2011), Dr Kennedy (January 2012) and Dr Hopley (February 2012). The appellant had also been seen by Dr Vivier, a consultant forensic psychotherapist, whose views were related to those in Dr Memon’s report. 28. The final psychiatric reports agreed that: “ (1) The appellant was suffering from a ‘schizoid personality disorder.’ (2) He had had a long-standing history of intrusive thoughts of violence, which he recognised as abnormal and found it distressing to discuss. (3) He continued to experience episodes of ‘dissociation.’ (4) The ‘schizoid personality disorder’ and ‘dissociative disorder’ constituted mental disorders within the meaning of the Mental Health Act 1983 . (5) He had killed his mother during an episode of ‘dissociation’, and continued to present a risk of serious violence to others in the context of further periods of ‘dissociation’.” 29. In addition, Dr Memon and Dr Kennedy stated that it might be many years before any progress could be achieved by psychological and psychotherapeutic treatment. 30. In his oral evidence at the sentencing hearing Dr Memon confirmed, first, that the appellant suffered from a schizoid personality disorder that could persist for many years and could not be treated with medication but might be alleviated by maturity or psychotherapy. Secondly, he confirmed that the appellant suffered from longstanding intrusive thoughts of violence, which were “abnormal” thoughts were morbid (ie indicative of disease) but the diagnosis for them was unknown. The appellant found it very distressing to talk about them. Lastly, the appellant had experienced “dissociative episodes” but the factor that precipitated these episodes had not been identified. It was during such an episode that the appellant killed his mother, losing his normal self-control, with the result that he acted on longstanding violent thoughts, making them manifest as opposed to them being just in his mind. There had been two documented further episodes since then. The range of possible violence associated with the episodes of “disassociation” was very wide, from none to homicide. 31. Mr Christopher Hotten QC, who appeared for the prosecution at the trial, cross-examined Dr Memon, who confirmed that there was no medication to treat the dissociative episodes (page 9H of transcript); nor could psychotherapy treat them (page 10B). However, the longstanding violent thoughts, which were evidence of a mental disorder as yet unclear, could both be better treated and better managed in hospital, as opposed to in a YOI or prison (page 11B). Dr Memon stated that “with current medical knowledge and medical skills” he could not predict when the appellant might have a dissociative thought or, if he did, what the level of the consequent violence might be (page 12G). Dr Memon accepted that, in principle, if the psychotherapy treatment of the appellant’s schizoid personality disorder was successful such that all other things being equal, he did not need to be in hospital anymore, then there would be no reason to keep him in hospital. 32. There was then the following exchange between Mr Hotten and Dr Memon at page 13E to 14B of the transcript: “Q: Obviously it’s a theoretical possibility, because of all these various combinations, but it’s not only theoretical: it is a possibility, admittedly some considerable time in the future, is it not? A: Yes. I’m just looking at my opinion again. On page 7, paragraph 17 I say: “It is presently difficult to know if or when he may ever be safely discharged from hospital back to the community”, and that’s my position. Were he to improve mentally from the psychotherapist’s point of view, in terms of the schizoid personality disorder point of view, not have any further episodes of dissociation, if his morbid thoughts resolved then the situation would be very different. To be discharged from a section 37/41, that could only happen either through a mental health tribunal or via the Ministry of Justice, the Secretary of State, so I would not be able to discharge him myself. Q: No, I follow that, but the tribunal would obviously…the first port of call, assuming he was still there, would be you, the responsible clinician. A: Yes, and it’s difficult for me to visualise that far ahead to know what I might say, because this is such an unusual case I don’t have any case to compare it with.” V. The judge’s sentencing remarks. 33. The judge summed up the medical evidence as follows: (1) the reason why the appellant had killed his mother was “because he was suffering from a significant mental disorder” and the “responsibility he had for his actions was very limited”. (2) The opinion of Dr Memon in his reports and oral evidence was that there were the three aspects to the appellant’s mental disorder. We have already set those out above. (3) There had subsequently been at least one violent episode with “dissasociative thoughts” in prison, but that had not led to any criminal proceedings. (4) All the psychiatrists, Dr Memon, Dr Kennedy and Dr Hopley agreed that the appellant would be best managed in a hospital environment rather than a prison environment. (5) The psychiatrists concluded that the appellant was “very dangerous” and that he presented “ a very severe risk of significant violence to other people when affected by one of these dissociative episodes” so that he needed to be detained, but the view was that this detention “was better managed in hospital rather than in prison”. Therefore they proposed that the appellant be made the subject of an order under section 37 of the MHA 1983 . 34. The judge recognised the force of that view, but stated that he had to consider the legislative framework under which the appellant would be detained in hospital. The judge said that he was satisfied that the two preconditions for making an order under section 37 of the MHA 1983 were fulfilled in this case. He also accepted that if a section 37 order were made there would also have to be a restriction order pursuant to section 41 of that Act in this case. 35. However, the judge then expressed his concern, which he said was based on Dr Memon’s evidence to him. This was that there could come a point, perhaps far in the future, where the mental disorder from which the appellant was suffering was no longer such that it would be appropriate for him to be detained for medical treatment under the MHA sections 37 and 41. The judge continued: “…if there comes a point at which Mr Fort is no longer suffering from a mental disorder which makes it appropriate for him to be detained for medical treatment, which is available, then the Secretary of State, on the advice of the Tribunal, will be obliged to discharge him. The likelihood is, looking at the regulations that it would have to be a conditional discharge but discharge it would be. I have to try and balance the short, medium even quite long-term benefits that would result from a hospital order, with the possible risks to the public in the much longer term because if I pass sentence involving the imposition of the hospital order, even with restriction, there may well come a time on the facts if this case when –the applicant [Jamie Fort] will be discharged even though he, as a matter of fact, still presents a danger to the public. That is my analysis. …On that analysis I regret that, albeit that to some extent I agree with Miss Brand in her suggestion that it is ‘utterly wrong’ to send this man to prison, that my duty to protect the public is only achieved by imposing a sentence that means his release is on the direction of the Parole Board which has in mind, and only in mind, the protection of the public and so for those reasons, which I hope I have explained satisfactorily, at least to the lawyers in the case, I come to the conclusion, with regret and with hesitation, that the proper sentence in this case is one of life imprisonment.” 36. The judge then set the minimum term at 4 years. 37. When the matter came back before the judge on 2 March 2012, his attention had been drawn by Ms Brand to section 45 A of the MHA 1983 , which had been inserted into that Act by section 46 of the Crimes (Sentencing) Act 1997. The judge stated: “And for all the reasons I gave then, I am satisfied that it’s appropriate to impose a sentence of imprisonment, indeed, life imprisonment, but for the reasons I gave then, I am perfectly satisfied that Mr Fort is suffering from a mental disorder, which at least at the moment is appropriate for him to be detained for medical treatment and the appropriate medical treatment is available – all of that was proved last Friday – and I therefore propose, having imposed the sentence of imprisonment that I did, to give two directions. First, that he be removed to and detained in the Reaside Clinic, and second, a direction that he be subject to the special restrictions set out in s.41 of the Mental Health Act, and I give those directions on the basis of the evidence I heard last Friday, together with that today. Pending his admission to the Reaside Clinic, Mr Fort must be taken to and detained in a pace of safety, namely Birmingham Prison, and upon the Reaside Clinic notifying the prison authorities that the place is available at some point within the next 28 days, I direct that the prison authorities or their agents transport him to the Reaside Clinic.” 38. The judge also reiterated his earlier conclusion that the minimum term to be served under s.82 A of the Crimes (Sentencing) Act 1997 was to be 4 years less time spent on remand. He withdrew the certificate which he had granted on 22 February that the case was fit for appeal. VI. The medical evidence produced for the appeal and Dr Maganty’s oral evidence on appeal. 39. Dr Maganty produced a report dated 8 June 2013. It followed a mental state examination and interview on 8 June. The report reviewed in full and careful detail the history of the opinions of the specialists who have examined and treated the appellant at various times. Dr Maganty reported that the appellant had “disengaged” with the clinical team looking after him. By April 2013 he had required a period of seclusion and restraint, but the position had ameliorated when the appellant had moved to the medium secure intensive care unit, Sycamore. He had started on anti-psychotic medication and there had been a favourable response involving the cessation of the appellant’s thought insertion. There had also been an improvement in his participation with therapy activities and psychological sessions and also his emotional reactivity. 40. Dr Maganty noted the various diagnoses that had been made by other clinicians. He stated that “based on the above” a diagnosis of schizophrenia had been made in this case and the appellant had successfully begun treatment with anti-psychotic medication. However, Dr Maganty stated that it was impossible to predict whether the appellant’s mental disorder would ever improve to the extent that psychiatrists treating him might be able to recommend to the Restricted Patients Panel that he be considered for conditional discharge. Nonetheless, it was “very much possible and probable” that the appellant’s mental disorder would improve over time, although it would be likely to take “several more years”. 41. Dr Maganty was asked by the appellant’s solicitors to consider specific questions based upon the possible orders that might be made by this court. In the course of answering one of these, on the test to be applied for remitting the appellant to prison in circumstances where he was sentenced to custody for life, but was subject to a section 47/49 Mental Health Act order, Dr Maganty stated (at page 58-9 of his report): “There is a direct relationship between Mr Fort’s mental disorder and his risk to others. Mr Fort’s violence on every occasion has been directly linked to this mental disorder, i.e. his thought insertion involving violent thoughts being inserted into his mind together with in some instances passivity (his actions being controlled by an external force). These symptoms have consistently been worsened by stress, such as examinations prior to the index offence, moving prisons in a custodial setting, withdrawal of CD’s in a custodial setting and subsequently in a hospital setting (which he uses to distract himself from his thoughts). The two key features which would need to be addressed prior to any conditional discharge would be treatment and assurance that these episodes of passivity and thought insertion do not occur for a sustained period of time and he is able to face the stresses of changing situation and changing life events. This testing would require a number of years. … With regards to transfer back to prison under Section 47/49, there are significant difficulties. Stress directly precipitates psychotic episodes (thought insertion and passivity leading to violence in his case. Returning him back to prison in itself is very stressful and it is not possible to control the exposure to stress in such a setting. Furthermore, much more extensive work would need to be done to prepare him for this. It is also important to note that Mr Fort’s break down into a psychotic episode, as has occurred in a custodial setting, poses a risk to others in such a setting, including prison officers, fellow inmates and healthcare staff, as he has done in the past. Furthermore, he would also pose a serious and significant risk to himself in such a setting. Therefore the threshold for his return back to prison which is detrimental to his health would be much higher. In my opinion, it is very unlikely that Mr Fort would be returned back to prison in the foreseeable future and even should he be returned back to prison this is likely to break down very quickly with his return back to hospital, potentially with serious injuries to others or serious harm to him.” Dr Maganty also stated that such a re-transfer to prison was likely to undo a large part of the therapeutic work undertaken with Mr Fort. 42. In answer to the question: if the appellant were the subject of an order under sections 37 and 41 of the MHA, were there any circumstances where it might be said by the Restricted Patients Panel that the appellant “must be conditionally discharged at a time when he continued to present a danger to the public”, Dr Maganty stated: “Mr Fort has presented a danger to the public/others when he has suffered with inserted thoughts which have been of a violent nature with or without other passivity phenomena, such as his actions being controlled by others. These are the core features of his mental disorder. Therefore there is a direct causative link between his mental disorder and his violence. Until these core features are resolved and there is clear assurance that there would not be immediate recurrence or near term recurrence of this symptomatology together with a clear and robust plan in place to manage these risks in a community setting it is not possible for him to be conditionally discharged into a community setting. As there is a direct link between his mental disorder and his violence, management of the risk that he poses to others and reduction in these risks to an extent that would satisfy a Mental Health Review Tribunal that such a risk is not significant would be an essential part of any consideration of such a panel. In my opinion, therefore I do not foresee a situation where Mr Fort would be discharged by a Mental Health Review Tribunal into a community setting whilst he poses a risk to the public.” Dr Maganty concluded that he could not foresee a situation where a Restricted Patients Panel would order that the appellant must be conditionally discharged at a time when he would continue to represent a danger to the public (page 61). 43. Dr Maganty also made two further important points in his opinion. First, a custodial sentence would, in his view, be detrimental to the appellant’s mental health leading to a relapse and thereby posing a serious risk to himself and others in a custodial setting. Secondly, he re-iterated that in the appellant’s case, “his violence has always been directly linked to his mental disorder” and that neither prior to this offence nor subsequently was there evidence that he had been violent towards others “whilst not suffering with his mental disorder” (page 64). 44. Dr Hopley had prepared a report dated 22 May 2013 on behalf of the Crown. The report was prepared after an interview with the appellant and after Dr Hopley had discussed the appellant’s recent progress with Dr Maganty. However, Dr Hopley had, obviously, not seen Dr Maganty’s most recent report; nor had he had access to the appellant’s medical records. The same questions posed to Dr Maganty were considered by Dr Hopley. His conclusions were, in summary: (1) that the diagnosis of “Dissociative Disorder” remained valid. (2) Although there was little to suggest that the appellant’s dissociative episodes had changed over recent years, despite pharmacological and psychological treatments, the recent responses indicated that any psychotic illness may be amenable to treatment. (3) If the diagnosis were changed to one of a psychotic illness, that would imply a “chronic relapsing and remitting illness where the prospect of recovery/significant improvement is limited”. (4) Based on the information available to him he preferred a dual diagnosis of psychotic illness and dissociative disorder. (5) Whilst a diagnosis of “dissociative disorder” remained in place it carried with it a level of unpredictability such that even if the appellant were to be free from dissociative episodes for a number of years and his paranoid psychosis were in remission, the risk of an unpredictable recurrence would remain. (6) He could not contemplate any circumstances whereby the appellant (assuming he was detained and subject to an order under sections 47 and 49 of the MHA) might be recommended for conditional discharge at a time when he continued to represent a danger to the public “ as long as he was still diagnosed as suffering from mental disorder”: (Dr Hopley’s emphasis). (7) Appropriate treatment was available in hospital for both dissociative disorder (psychological therapy) and psychopathic disorder. (8) There would be a significant risk of a deterioration in the appellant’s mental state if he were to be remitted to prison. 45. When Dr Maganty gave oral evidence at the hearing before us he confirmed the opinions set out in his report. He added that the established view of the doctors on the diagnosis of the appellant was that he was suffering from schizophrenia. He said this was something which was often established in the patient’s teenage years but progresses thereafter; a firm diagnosis is difficult at an early stage and doctors are reluctant to make it then. He said that there was a direct link between the appellant’s mental disorder and violent actions by him. It was now clear to see that there was a direct link between the actual offence and the appellant’s schizophrenia, although that would not have been clear at the time of the offence. There was no evidence that the appellant had been violent in his earlier teens or that there was any other personality trait that would lead to this offence. 46. Ms Brand asked Dr Maganty about the possible prospects of the appellant being released (conditionally) and he replied that there would have to be, first, an established long period of stability without any thought insertion or other episodes and, secondly, a long period of testing over some years, eg by closed escorted leave, before release could be contemplated. That was many years away. 47. Dr Maganty reported that the appellant was being treated with anti-psychotic medication and that he had made a remarkable improvement. He was presently on an acute rehabilitation ward and his social reaction had improved also. His dissociative thoughts had been much reduced. The appellant had accepted that he has a mental illness and that it is schizophrenia. 48. Dr Maganty repeated his written view that it would be detrimental for the appellant to return to prison. He said that patients with schizophrenia “do badly” in prison because of stress and prisons are stressful places. So a return to prison could lead to a relapse. If he then returned to a hospital only to be returned again to prison, the chance of recovery would diminish further. 49. There was no cross-examination by Miss Hancox. VII. The legal framework in which the sentence was made 50. The appellant had pleaded guilty to manslaughter on the grounds of diminished responsibility, having been charged with murder. At the time that the appellant was convicted in August 2010, the provisions of Chapter 5 of Part 12 of the Criminal Justice Act 2003 , dealing with “Dangerous Offender” were those as amended by the Criminal Justice and Immigration Act 2008 . The provisions of Chapter 5 of Part 12 of the Criminal Justice Act 2003 as amended by the 2008 Act haven since been considerably re-amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 , which amendments came into force on 3 December 2012. Under those terms manslaughter is a specified violent offence under Schedule 15 of the Criminal Justice Act 2003 . The first question that the sentencing judge had to ask and answer was whether the appellant, as a person aged over 18 who had been convicted of a specified offence, constituted a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences; in short, whether he was “dangerous”. On the facts of this case the answer to that question is obvious: the appellant was “dangerous”. 51. The next question is, what, apart from the complications brought about by the appellant’s mental illness, would have been the proper sentence. As the appellant was over 18 but under 21 when convicted, under the provisions in force at the time the judge would have to decide, pursuant to section 227(1) (c) of the 2003 Act as amended, whether the court was required, by section 225(2) of the 2003 Act , to impose a sentence of imprisonment for life. 52. Section 225(2) (a) and (b) which were not amended by the 2008 Act , provide: “ (2) If— (a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and (b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, The court must impose a sentence of imprisonment for life.” Section 227(1) (a), (b) and (c), as amended by the 2008 Act , provide: “ (1) This section applies where- (a) a person aged 18 or over is convicted of a specified offence committed after the commencement of this section, and (b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences but, (c) the court is not required by section 225(2) to impose a sentence of imprisonment for life.” 53. The effect of these two provisions is that the sentencing judge had to ask whether he was required to impose on the appellant a sentence of imprisonment for life. This court has considered in a number of cases the circumstances in which a sentence of life imprisonment should be imposed when an offender has been convicted (or pleaded guilty to) manslaughter by reason of diminished responsibility, in particular in the cases of: R v Kehoe (Bridie Joanna) [2009] 1 Cr App R (S) 9 ; R v Clive Wood [2009] 1 Cr App R (S) 2 ; and R v Welsh [2011] 2 Cr App R (S) 68 . Lord Judge CJ stated in Wood, at [14], that a judge sentencing an offender for manslaughter by reason of diminished responsibility, remained bound by section 143 of the 2003 Act to assess the seriousness of the offence and the judge must do so by reference to the offender’s culpability and the harm consequent upon his actions. But those two considerations are neither the paramount nor exclusive considerations in such cases. At [18] Lord Judge stated that the fact that the case was one of manslaughter on the grounds of diminished responsibility did not preclude a sentence of imprisonment (or, we would add, custody) for life. In such cases the sentence of imprisonment for life would be reserved for “particularly grave” cases, where the defendant’s responsibility for his actions, although diminished, remained high. As Moses LJ pointed out in Welsh at [11], the “acute difficulty” in offences of manslaughter by reason of diminished responsibility where the mental illness is one such as schizophrenia is in assessing the degree of the offender’s responsibility. In Welsh the court held that the appellant retained a substantial degree of mental responsibility for the killing of the victim. 54. Ms Brand did not have a “fall back” argument that if she were wrong in her primary submission that that the judge should have imposed orders under sections 37 and 41 of the MHA, the sentence should not have been one of custody for life under section 225(2) and 227(1)(c) of the 2003 Act . However, we think it right to point out that in a case such as the present, where, in our view, it is clear from all the medical evidence that we have reviewed that the appellant did not have much, if any, mental responsibility for his actions in killing Mrs Fort, the choice of sentence facing HHJ Davis was not necessarily one between custody for life or orders under section 37 and 41 of the MHA. 55. The next consideration in the sentencing judge’s exercise is the fact that the appellant was suffering from a mental disorder. Section 37 (1A)(c) of the MHA provides that “in the case of an offence the sentence for which would otherwise fall to be imposed by section 225(2) …of the Criminal Justice Act 2003 ….nothing in [that] provision shall prevent a court from making an order” under section 37(1) of the MHA for the admission of the offender to a hospital. Therefore the next question that the sentencing judge had to ask in this case was whether the terms set out in section 37(1) , which refer to the conditions set out in section 37(2) , had been fulfilled in this case and whether the most suitable method of disposing of this case was by means of an order under section 37 , with or without a supplementary restriction order under section 41 of the MHA. 56. Section 37(1) to (2) of the MHA provide: “ (1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law,..., or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified. (1A) In the case of an offence the sentence for which would otherwise fall to be imposed— (a) under section 51 A(2) of the Firearms Act 1968 , (b) under section 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000 ,... (c) under section 225(2) or 226(2) of the Criminal Justice Act 2003 , or (d) under section 29(4) or (6) of the Violent Crime Reduction Act 2006 (minimum sentences in certain cases of using someone to mind a weapon), nothing in those provisions shall prevent a court from making an order under subsection (1) above for the admission of the offender to a hospital. (1B) References in subsection (1A) above to a sentence falling to be imposed under any of the provisions mentioned in that subsection are to be read in accordance with section 305(4) of the Criminal Justice Act 2003 . (2) The conditions referred to in subsection (1) above are that— (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either— (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act ; and (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.” 57. Section 41 of the MHA provides: “ Power of higher courts to restrict discharge from hospital. (1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section; and an order under this section shall be known as “a restriction order”. (2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2) (a) above has given evidence orally before the court. (3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows— (a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below; (aa) none of the provisions of Part II of this Act relating to community treatment orders and community patients shall apply; (b) no application shall be made to the appropriate tribunal in respect of a patient under section 66 or 69(1) below; (c) the following powers shall be exercisable only with the consent of the Secretary of State, namely— (i) power to grant leave of absence to the patient under section 17 above; (ii) power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection 3 of that section; and (iii) power to order the discharge of the patient under section 23 above; and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician ; and (d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time; and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule. (4) A hospital order shall not cease to have effect under section 40(5) above if a restriction order in respect of the patient is in force at the material time. (5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect. (6) While a person is subject to a restriction order the responsible clinician shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.” 58. There are two conditions contained in section 37 (2(a)(i). The first is that the court is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from a mental disorder which makes it appropriate for him to be detained in a hospital for medical treatment. The second is that medical treatment is available for him for the mental disorder from which the offender is suffering. Both conditions have to be satisfied before an order under section 37(1) can be made. 59. The differences between the effect of sentencing an offender to (on the one hand) either imprisonment (or custody) for life with a minimum term or a sentence for public protection under Chapter 5 of Part 12 of the 2003 Act and (on the other hand) making an order under section 37(1) of the MHA, coupled with a “restriction order” under section 41 of the MHA, are crucial. They were analysed in detail in Attorney-General’s Reference No 54 of 2011 [2012] 1 Cr App R (S) 106 in the judgement of the court given by Hughes LJ, Vice-President, as he then was, particularly at [17] – [18]. In summary he said: the detention for public protection regime and that under sections 37 /41 of the MHA have features in common. Under both, release is discretionary in the hands of the Secretary of State, effectively the Ministry of Justice. There is no absolute right to release. The test for the exercise of the discretionary decision to release is whether the offender is a danger to the public. Release is conditional and an offender is likely to be recalled. 60. Hughes LJ then emphasised the “absolutely crucial” difference between the two regimes. If a sentence for public protection is made, release is dependent upon the responsible authority being satisfied that the offender is no longer a danger to the public for any reason (Hughes LJ’s emphasis); principally the risk of relapsing into serious crime. Moreover, under this regime, a release is upon licence and those licence conditions can be designed to try and prevent a relapse eg by preventing association with dangerous criminals. That licence can be revoked if the offender shows that he remains a danger to the public from committing serious crimes. However, under the MHA regime, release is dependent on the responsible authority being satisfied that the offender no longer presents any danger which arises from his medical condition (our emphasis). In this case the release is not upon licence and so no conditions can be set. The offender can be recalled under an MHA order, but only if the medical condition of the offender relapses (our emphasis). As Hughes LJ said: “simple crime does not trigger a recall under the hospital order regime”. These differences in the conditions for release and recall under the hospital order regime were not in dispute in A-G’s Reference No 54 of 2011 because they had themselves been the subject of detailed analysis by Lord Bingham of Cornhill giving the opinion of the Appellate Committee of the House of Lords in R v Drew [2003] 1 WLR 1213 , particularly at [21]. 61. The upshot of this analysis is that in a case such as the present (in particular under the sentencing regime extant at the time this sentence was passed), the sentencing judge has to evaluate whether, given the history of the offender up to the time that the relevant offence was committed, the risk of committing further offences is one that would be triggered by virtue a relapse in the mental condition of the offender or by virtue of a relapse into a criminal lifestyle. Cases both before and subsequent to the decision in A-G’s Reference No 54 of 2011 have emphasised that if, in the opinion of the court, the offender poses a significant risk of serious harm to members of the public occasioned by the commission of serious offences, even if his mental disorder were to be cured or substantially alleviated, then the sentence to be imposed must recognise and focus on that residual risk. See: R v Welsh [2011] EWCA Crim 73 at [17]; R v Shane Jenkins [2012] EWCA Crim 2557 , [2013] 2 Cr App R(S) 15 at [24] and R v Ruby [2013] EWCA Crim 1653 at [38]. As Pitchford LJ emphasised in Ruby, at [36], “clinical advantage” is not the test as to whether the appropriate sentence is detention under section 37 of the MHA. It is the test set out by Hughes LJ in AG’s Ref No 54 of 2011 which we have reproduced above. 62. HHJ Davis appears to have reached the conclusion, at page 4G of the transcript of his sentencing remarks, that the appellant could be discharged from hospital under a section 37 /41 hospital order and still present a danger to the public. Therefore, he concluded, the proper sentence was one of life imprisonment pursuant to section 227(1) and 225(2) of the 2003 Act as amended by the 2008 Act . The question for us is whether than conclusion was correct. VIII The basis for the appeal and the “fresh evidence”. 63. In R v Ruby at [37], Pitchford LJ reiterated, in a sentence appeal where the appellant suffered from mental disorder, the well-established principle that this court will not interfere with a sentence that was appropriate at the time that it was imposed merely because the offender has made progress since then during his sentence. He emphasised that this court can only interfere with a sentence if it was unlawful, wrong in principle or manifestly excessive. 64. In R v Mohammed Mokshud Ahmed [2013] EWCA Crim 1393 , the appeal concerned a young man who had pleaded guilty to wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861 . He was sentenced to detention for public protection. On appeal it was argued that, at the time of sentence, he was suffering from a mental disorder such that the sentencing judge should have ordered that the appellant be detained pursuant to section 37 /41 MHA hospital order. The appellant was granted leave to adduce fresh psychiatric evidence on appeal. At [37] Pitchford LJ stated that the burden was upon the appellant to demonstrate that, at the time of sentence, the appellant was suffering from a mental disorder of a nature or degree that made it appropriate that he should be detained in a hospital for mental treatment under section 37 of the MHA, whether or not that order was to be coupled with one under section 41 . With respect, we agree with that analysis. 65. It must follow, therefore, that the aim of any “fresh evidence” that this appellant wishes the court to receive on appeal pursuant to section 23 of the Criminal Appeals Act 1968 (as amended) must be to assist in satisfying the burden upon him that: (i) at the time of sentence he was suffering from a mental disorder that was susceptible to treatment; (ii) the reason for the offence was the appellant’s mental disorder; (iii) the appellant does not pose a significant risk of serious harm to members of the public occasioned by the commission of serious offences if his mental disorder were to be cured or substantially alleviated, so that (iv) the sentence of custody for life was wrong in principle. 66. In the context of conviction appeals, this court has emphasised that fresh expert evidence, (which in many cases concerns the mental state of the appellant) will not automatically be received by the court pursuant to section 23 of the Criminal Appeal Act 1968 : see R v Erskine; R v Williams [2010] 1 WLR 183 . Reception will depend on the facts and circumstances of the particular case. Whilst the court must have regard to the matters set out in section 23(2) , ultimately the test is the broad one set out in section 23(1) , viz. whether this court thinks it “necessary or expedient in the interests of justice” to receive the proposed “fresh” evidence. 67. Similar flexibility must be appropriate on sentence appeals which concern the mental state of the appellant at the time of the original sentence. Thus we note that in R v Charles de Silva (1994) 15 Cr App R(S) 296, this court received fresh medical evidence on the mental condition of the appellant. It was argued, successfully, that the fresh evidence demonstrated conclusively that the previous medical view that there was no connection between the appellant’s mental illness and his offence, was wrong: see page 298. In this case the Crown does not oppose the court receiving the evidence of Dr Maganty and Dr Hopley in their reports and in the oral evidence of the former given at the hearing before us. We have concluded that it is expedient to receive all that evidence in the interests of justice in this case. However, we point out that it should not be assumed on all sentence appeals concerning an appellant who is said to suffer from a mental disorder at the time of sentence, that the reception of further expert evidence on appeal will be automatic. The appellant must satisfy the court that it is “necessary or expedient in the interests of justice” that it receives the fresh expert evidence. IX Discussion and Conclusions 68. Ms Brand advanced two arguments in support of the appeal. The first was that HHJ Davis had either misunderstood or had not properly taken account of evidence given by Dr Memon at the sentencing hearing, particularly that quoted at [32] above. Ms Brand submitted that the effect of Dr Memon’s evidence at that point in particular was that if the appellant’s schizoid personality disorder were to be sufficiently alleviated and his morbid thoughts resolved and if it were demonstrated that he did not have any further episodes of dissociation, then there would be no further significant residual danger to the public of a risk that he would commit further serious violent crimes. In short, that the evidence of Dr Memon supported a hospital order disposal upon the basis of the analysis of Hughes LJ in AG’s Ref No 54 of 2011 which we have set out above. Ms Brand submitted that the judge was therefore wrong to conclude, as she said he did at page 4G of his sentencing remarks, that the appellant could be discharged from a section 37 /41 hospital order “..even though he, as a matter of fact, still [presented] a danger to the public”, thus leading to the judge’s conclusion that a sentence of custody for life must be imposed. 69. We are not particularly impressed with this argument. In our judgment, Dr Memon did not squarely deal with the issue of whether the appellant would remain a residual danger to the public even if his mental disorders to be sufficiently resolved to enable him to be released under a section 37 /41 hospital order. Nor, in the passage of Dr Memon’s oral evidence relied on by Ms Brand, did the witness deal with the issue of whether the cause of the offence and, indeed, the cause of other violent acts by the appellant, was solely his mental disorder. By that phrase we mean the combination of his schizoid personality disorder, his morbid thoughts of violence and his episodes of dissociation. 70. Therefore, we cannot accept the argument that the judge either misunderstood or did not taken into account properly this evidence of Dr Memon. Effectively, the judge had to make that evaluation on all the evidence before him at the time. The issue is whether, in the light of the full evidence, his evaluation was wrong. 71. Ms Brand’s second argument is based on the new reports of Dr Maganty and Dr Hopley and the oral evidence of the former before us. The submission is that this evidence demonstrates conclusively that the mental state of the appellant at the time of sentence was that the risk of a violent reaction by the appellant leading to injury or worse to others is directly related to his mental disorder. Ms Brand particularly relied on the parts of Dr Maganty’s report quoted at [41] and [43] above and his oral evidence, as summarised at [45] above. Ms Brand also relied on Dr Hopley’s report, in particular the point summarised at (6) in [44] above. 72. We have to ask whether, in the light of this evidence, we are satisfied that the appellant has demonstrated that, at the time of passing sentence, the judge erred in concluding, effectively, (page 4G of his sentencing remarks) that the appellant would continue to pose a significant risk of serious harm to members of the public occasioned by the commission of serious offences, even if his mental disorder were to be cured or substantially alleviated. As we understood from Ms Hancox, the Crown accepted that if the appellant did demonstrate that the judge had erred in this respect, then it would follow that a section 37 /41 order would be appropriate and the sentence of custody for life would be wrong in principle. 73. On the evidence of Dr Maganty, which is not contradicted by anything in Dr Hopley’s report, we are satisfied that this appellant would not continue to pose a significant risk of serious harm to members of the public occasioned by the commission of serious offences once his mental disorder, in all its three manifestations , has been cured or substantially alleviated such as to enable him to be discharged (albeit conditionally) from a section 37 /41 order. 74. We are satisfied, on the oral and written evidence of Dr Maganty and the written evidence of Dr Hopley (who are both registered medical practitioners under the MHA), which we have set out above, that the appellant is suffering from mental disorder and that this mental disorder is of a nature which makes it appropriate for him to be detained in a hospital for treatment. We are also of the opinion that, having regard to all the circumstances including the nature of the offence and the character and antecedents of the appellant and to all other available methods of dealing with him, that the most suitable method of disposing with this case is by means of an order under section 37 of the MHA. On the basis of the test set out in AG’s Ref No 54 of 2011, we are satisfied that the judge did err in imposing a sentence of custody for life as opposed to a section 37 /41 hospital order. We add that Ms Brand fully accepted that an appropriate restriction order under section 41 had to be made in this case. 75. Therefore we allow the appeal against the sentence of custody for life on that basis. X The order under section 45 A of the MHA 76. As we have already noted at [3] above, it was accepted on behalf of both the appellant and the Crown that the order made by HHJ Davis on 2 March 2012 pursuant to section 45 A of the MHA was unlawful, because such an order could not be made on someone who was under 21 at the time of conviction and was thus being considered for a sentence of custody for life, as opposed to a sentence of imprisonment, as would be the case on a person over 21 at the date of conviction. The conclusion that section 45 A was not available in those circumstances was reached by this court in AG’s Ref No 54 of 2011 at [22]. Having re-examined the legislation we are, respectfully, in agreement with Hughes LJ’s conclusion. Like the court in AG’s Ref No 54 of 2011, we do not understand the policy behind this restriction. Section 45 A was introduced by the Crimes (Sentencing) Act 1997, therefore before the Powers of the Court (Sentencing) Act 2000 which contemplated that the adult prison regime would be applicable from the age of 18, so the lack of reference to “detention” is not explained by that consideration, as Hughes LJ tentatively suggested at [22]. 77. We think we should explain precisely how we respectfully agree with the conclusion of the court in AG’s Ref No 54 of 2011 . The appellant was under 21 when convicted. Therefore he could not lawfully be sentenced to a term of imprisonment even if he attained 21 by the time he was sentenced: see section 89 of the Powers of Crimnal Courts (Sentencing) Act 2000 and R v Danga (Harbeer Singh) [1992] QB 476 at 480-1. Where an offender aged between 18 and 21 is convicted of an offence for which the sentence is not fixed by law and for which, if he were over 21 he would be liable to imprisonment for life, the court “shall, if it considers that a sentence for life would be appropriate” sentence the offender to “custody for life”: section 94 of the Powers of Criminal Courts (Sentencing) Act 2000 . That is not a sentence of imprisonment, as is clear from the provisions of section 95 of the same Act which stipulates that a person who is sentenced to custody for life will be detained in a Young Offender Institution (YOI) unless the Secretary of State orders that the person is to be detained in a prison or remand centre rather than a YOI. 78. Section 45 A, which is in Part III of the MHA, provides as follows: “ Power of higher courts to direct hospital admission 45A.- (1) This section applies where, in the case of a person convicted before the Crown Court of an offence the sentence for which is not fixed by law- a) the conditions mentioned in subsection (2) below are fulfilled; and (b) the court considers making a hospital order in respect of him before deciding to impose a sentence of imprisonment (“the relevant sentence”) in respect of the offence. (2) The conditions referred to in subsection (1) above are that the court is satisfied, on the written or oral evidence of two registered medical practitioners— (a) that the offender is suffering from mental disorder; (b) that the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and (c) that appropriate medical treatment is available for him. (3) The court may give both of the following directions, namely— (a) a direction that, instead of being removed to and detained in a prison, the offender be removed to and detained in such hospital as may be specified in the direction (in this Act referred to as a “hospital direction”); and (b) a direction that the offender be subject to the special restrictions set out in section 41 above (in this Act referred to as a “limitation direction”). (4) A hospital direction and a limitation direction shall not be given in relation to an offender unless at least one of the medical practitioners whose evidence is taken into account by the court under subsection (2) above has given evidence orally before the court. (5) A hospital direction and a limitation direction shall not be given in relation to an offender unless the court is satisfied on the written or oral evidence of the approved clinician who would have overall responsibility for his case, or of some other person representing the managers of the hospital that arrangements have been made— (a) for his admission to that hospital; and (b) for his admission to it within the period of 28 days beginning with the day of the giving of such directions; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety. (6) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the hospital direction, he may give instructions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified. (7) Where such instructions are given— (a) the Secretary of State shall cause the person having the custody of the patient to be informed, and (b) the hospital direction shall have effect as if the hospital specified in the instructions were substituted for the hospital specified in the hospital direction. (8) Section 38(1) and (5) and section 39 above shall have effect as if any reference to the making of a hospital order included a reference to the giving of a hospital direction and a limitation direction. (9) A hospital direction and a limitation direction given in relation to an offender shall have effect not only as regards the relevant sentence but also (so far as applicable) as regards any other sentence of imprisonment imposed on the same or a previous occasion.” 79. Section 45 A thus gives a court which is considering the imposition of a “sentence of imprisonment” on an offender (as opposed to hospital orders under both sections 37 and 41 of the MHA) the power to sentence the offender to imprisonment but, at the same time, to give a direction for the offender’s removal to hospital for treatment together with a limitation direction which is the equivalent of a restriction order under section 41 of the MHA. Such an order can only be made if the conditions set out in section 45 A(2) are fulfilled. An order made under this section is to be contrasted with the situation where a court has imposed a sentence of imprisonment and then there is a pause and then the Secretary of State makes an order for a transfer to a hospital under section 47 of the MHA. 80. It is important to note the precise wording used in sub- section 45 A(1)(b). Thus the section applies when the court “considers making a hospital order This term is defined in section 37(3) as being “an order for the admission of an offender to a hospital”. in respect of [the offender] before deciding to impose a sentence of imprisonment…”. There is nothing in section 45 A which indicates that this phrase is to be extended to “deciding to impose a sentence of detention”. Normally, if it is the purpose of a provision to apply to both sentences of imprisonment and sentences of detention, then this will be expressly stipulated either in the relevant section itself or in an interpretation section. 81. Section 55 of the MHA provides the interpretation to be given to terms found within Part III of the Act . Section 55(6) states that: “references in this Part of this Act to persons serving a sentence of imprisonment shall be construed in accordance with section 47(5) above.” Section 47(5) states that: “references in this Part of this Act to a person serving a sentence of imprisonment include references—(a) to a person detained in pursuance of any sentence or order for detention made by a court in criminal proceedings…”. That extension of the definition does not apply to section 45 A(1)(b) because that provision is not dealing with a situation where an offender is “serving” a sentence of imprisonment; it is dealing with the position when a court is about to decide whether to impose a “sentence of imprisonment” on an offender. 82. We note that section 37(8) states that: “…for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention”. Therefore the extension of the meaning of “sentence of imprisonment” only applies to that subsection. There is no more general definition of “sentence of imprisonment” in any other section of the Act . Moreover, if it were intended that section 55(6) of the Act should apply more widely than to those “serving a sentence of imprisonment”, then the definition in section 37(8) of the Act would be redundant. We think it is clear, therefore, that the extension of the phrase “sentence of imprisonment” in section 55(6) applies only to persons who are actually “serving” a sentence. 83. Given our conclusion that the extension of the phrase “serving a sentence of imprisonment” provided for in section 55(6) cannot extend to the phrase “deciding to impose a sentence of imprisonment” in section 45 A(1)(b) so as to include “deciding to impose a sentence of detention or custody for life”, and given that the court could not lawfully impose a sentence of imprisonment on this appellant as he was under 21 upon conviction, it must follow that the judge had no power to make an order under section 45 A of the MHA. That is why that order must be rescinded. XI Disposal 84. For the reasons we have given we will: (1) allow the appeal in respect of the sentence of custody for life. That sentence will be quashed and replaced by a hospital order under section 37 and a restriction order under section 41 of the MHA; (2) we set aside the order made under section 45 A of the MHA as being unlawful.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/2332/data.xml

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[2006] EWCA Crim 287

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2006-01-19

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No: 2005/5791/A0 Neutral Citation Number: [2006] EWCA Crim 287 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 19 January 2006 B E F O R E: LADY JUSTICE HALLETT MR JUSTICE NELSON MR JUSTICE JACK - - - - - - - R E G I N A -v- ANDRE FOLKES - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

No: 2005/5791/A0 Neutral Citation Number: [2006] EWCA Crim 287 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 19 January 2006 B E F O R E: LADY JUSTICE HALLETT MR JUSTICE NELSON MR JUSTICE JACK - - - - - - - R E G I N A -v- ANDRE FOLKES - - - - - - - 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 C GILLESPIE appeared on behalf of the APPLICANT - - - - - - - J U D G M E N T 1. MR JUSTICE JACK: On 31st August 2005 at the Crown Court at Kingston-upon-Thames, the applicant, Andre Folkes, pleaded guilty to one count of robbery. On 12th October 2005 he was sentenced to life imprisonment pursuant to section 225 of the Criminal Justice Act 2003 with a minimum term of two years and 140 days. He now renews his application for leave to appeal against sentence. 2. The facts which lay behind the offence were as follows. At about 1.30pm on 19th July 2005, a Mrs Thavaharan was walking home with her shopping in Morden. She saw the applicant on the other side of the road. He appeared to be walking aimlessly. He approached her and used a number of pretexts to do so, including offering to help carry her shopping. She declined and moved on. He suddenly grabbed her by the throat with one hand. With his other hand he grabbed two gold wedding chains which were around her neck. The chains were substantial and did not break despite considerable force being used. She attempted to call for help but his grip around her throat was so tight that she could not call out. Mrs Thavaharan was pulled to the ground and the applicant continued to try and tear the chains from her neck. The force used was so great that she was pulled several feet along the pavement. Eventually he put his foot against her shoulder and pulled at the chains. This did not break the chains but he was able to pull them over her head. He then ran off with them. Mrs Thavaharan suffered severe abrasions to her neck. 3. On 21st July, two days later, police officers drove Mrs Thavaharan around the area. She saw the applicant and pointed him out. He was arrested. He made no comment in interview. In his possession was a pawnbrokers account card. It was found that he had pawned the two chains on the day of the robbery. The chains were recovered and returned to Mrs Thavaharan. 4. In a victim impact statement Mrs Thavaharan said she had scars on her neck and elbows. She had been in pain for four to five weeks after the robbery. She had difficulty sleeping. She was frightened to be in her house alone, even during the day. Since the attack she had not been out on her own. She had returned to work but only at weekends because her husband could then take her. In consequence she was earning only half of what she had earned previously and her husband had lost his Saturday overtime. She had also lost much of her independence. 5. The motive for the attack on Mrs Thavaharan was to obtain money to buy crack cocaine for which the applicant said that he had had an overpowering craving when he had awoken that morning. 6. In passing sentence the judge held that among other matters there was a risk of serious harm being occasioned in the future by the applicant. He concluded that the appropriate sentence was life imprisonment passed pursuant to section 225(2) , as we have said. He stated that the determinate sentence, giving credit for the guilty plea, would have been one of five years' imprisonment and so the minimum period to be served, taking account of the period on remand, was two years and 140 days. 7. The applicant was born on 24th December 1975 and so is now 30 years old. He has a number of previous convictions having been dealt with by the courts on 12 previous occasions. On 14th December 1992 he received a conditional discharge for assault occasioning actual bodily harm. On 29th September 1998 he was fined for possessing a bladed instrument. On 12th February 1999 he was sentenced to 12 months' imprisonment for affray. There followed a number of appearances for theft and driving whilst disqualified. On 28th June 2002 he was sentenced to four years' imprisonment for robbery and attempted robbery. Those offences were very similar to that giving rise to this appeal. The robbery occurred on 28th March 2002. He again approached a lone woman and started to follow her. He asked for some change and was told by her that she did not have any. He then grabbed her handbag and dragged her across the street and threw her against a wall. The attempted robbery occurred later on the same day. He again approached a lone female, asked her for money and attempted to grab her handbag. A violent struggle broke out and the victim was dragged along the road. A shout from a passer-by prevented the applicant from taking anything from the victim on that occasion. The motive for these offences was again to obtain money in order to purchase drugs. At that time the applicant was on leave as an informal patient at Springfield Hospital in Tooting. 8. There was a pre-sentence report before the judge but the more important report was that of Dr Barbara Pierce, a specialist in adult psychiatry approved under section 12 of the Mental Health Act 1983 . Under the heading of "background information" her report stated in respect of the appellant that: "He is unemployed and has consistently failed to engage in structured occupational or educational activities. He has a diagnosis of severe and enduring mental illness, that being Schizoaffective Disorder. His illness has been exacerbated by illicit substance misuse, principally crack cocaine." The report went on to refer to the prevalence of mental illness in the applicant's family. He himself had first been admitted to hospital in 1996. The report went through his previous psychiatric history in some detail, describing the applicant's varying mental states and the effect of his medication and of his failure on occasions to take it, also of his addiction to drugs. The report recounted how on 29th June 2001 a Mental Health Act assessment had been completed at Wimbledon Police Station. The applicant had burst into the flat of a neighbour who was not known to him and had claimed that she was pregnant with his child and had given him a disease. He had brandished a knife and threatened to kill her and her daughter. He was suffering from paranoid delusions. It took, the report stated, several weeks for his mood to settle when he was remanded in custody and treated with chloropromazine. 9. Prior to the robbery on 19th July 2005 the applicant had been seen by Dr Pierce on 6th July. He was well presented with no psychotic symptoms, although irritable and dismissive. He said that the medication he had been prescribed made him feel drowsy and demotivated and he was reluctant to continue with it. When seen in prison on 2nd August 2005, that is following the robbery: "Mr Folkes appeared elated, irritable and labile mood. His manner was over-familiar and his behaviour was disinhibited. He was preoccupied with religious events, believing there is a holy war and that he can influence this by praying. He threatened to kill all 'white people' following a racist attack in Liverpool that he had read about in the newspapers. He threatened to kill the four men that he believed raped his girlfriend, claiming to know who they were and how to find them. He threatened to kill anyone in prison who tried to impose boundaries on him and to kill his current cellmate whom he accused of smoking heroin." Under the heading of "psychiatric opinion", Dr Pierce stated: "1.1 Mr Folkes has a severe and enduring mental illness that is best classified as a Schizoaffective Disorder. This is a disorder in which both affective (mood) and schizophrenic symptoms are prominent within the same episode of illness. 1.2 This is true of Mr Folkes, as during episodes of acute illness, there is evidence both psychotic symptoms and a marked mood change. 1.3 The psychotic symptoms are typically that of delusional beliefs of a paranoid nature, beliefs that his thoughts are being interfered with and broadcast to others, and the description of auditory and visual hallucinations. 1.4 The mood changes may be of mania (elation, over-activity, impulsivity, disinhibition and grandiose ideas) or of depression (feeling sad, tearful, hopeless and at times suicidal). Both mood states are associated with insomnia and reduced appetite." Dr Pierce said that under his current medication his mood was stable with no evidence of psychosis. She stated that the relationship between substance misuse and mental illness was complex and there was a high co-morbidity in the applicant's case. His illness was exacerbated by his use of drugs, namely cannabis and crack cocaine, as to which he had only some insight. He saw that it led him to offend and not that it exacerbated his psychotic features. She said: "It has proved difficult to properly supervise Mr Folkes from a psychiatric or social perspective when he is in the community as he recurrently disengages from services and treatment. It would seem that his mental state can rapidly deteriorate when he defaults from treatment. This is compounded by his illicit substance misuse, for which he shows little consistent motivation to discontinue. During episodes of acute illness when his mental state has been severely disordered, Mr Folkes has presented a serious risk to others. He is known to have carried knives in the past. The co-occurrence of substance misuse further increases his dangerousness to others." She also stated: "At the time of the index offence, Mr Folkes was taking antipsychotic medication under supervision and his mental illness was in remission. Although he had used crack cocaine the night before the incident, it would appear that his mental state was not adversely affected by the use of this drug at the time of the offence." We would comment that it cannot be known whether in fact the applicant was taking his medication in the period in which the offence was committed. 10. Dr Pierce concluded that although the applicant suffered from a severe mental illness, Schizoaffective Disorder, he did not presently suffer to a degree or nature that made it necessary for him to be detained in hospital for medical treatment. 11. The report can perhaps be summarised in this way. The applicant has a long history of mental illness. His illness can largely be controlled by medication. He is addicted to drugs which exacerbate his condition. When he is in the community he cannot be relied upon to take his medication. When his illness is acute and his mental state severely disordered he presents a serious risk to others. 12. We turn to consider the application of section 225 of the Criminal Justice Act 2003 . For the section to apply the offence must be a serious one as defined by section 224(2). Robbery is a specified offence for the purposes of that section and is punishable with imprisonment for life. It is thus a "serious offence". Secondly, the court must be of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. In considering that question the court must apply section 229. Section 229(3) applies because the applicant has been convicted of one or more relevant offences when he committed the robbery on 19th July 2005. The subsection requires the court then to assume that there is such a risk unless it would be unreasonable to do so. Given the matters which we have set out, there can be no doubt that there is a significant risk of harm to members of the public occasioned by the commission by the applicant of further specified offences. For there is a significant risk of further robberies committed in order to obtain money for drugs. 13. The submission that has been made to us by Mr Christopher Gillespie on behalf of the applicant is whether there is shown to be a risk of "serious harm". Serious harm is defined by section 224(3) as "meaning death or serious personal injury whether physical or psychological". Although Mrs Thavaharan sustained an ugly and substantial abrasion to her neck, of which we have seen photographs, that cannot be described as a serious injury. We do not have information as to the psychological effect of the incident upon her. We have referred to how it has inhibited her life. It does not appear that the victims of the robbery and attempted robbery, for which he was sentenced on 28th June 2002, suffered any serious injury - at least that is not referred to in the limited papers which we have seen. It has to be stated, however, that if any person applies considerable force in the manner in which the applicant applied force on those three occasions in order to take a chain or a handbag or anything else of value which the victim has, there is a very real risk that the victim will be seriously injured. For example, the victim's head may be bashed against the pavement or the chain, in Mrs Thavaharan's case, might have become caught on one of her features rather than slipped off over her head when the applicant put his foot on her shoulder and pulled. The court must also here take into account the further information about the applicant which is contained in Dr Pierce's report and to which we have referred. We conclude that there is a risk of serious harm to the public from the applicant in the future and that it is significant. The assumption contained in section 229(3) is not rebutted. 14. We conclude that the judge was correct to consider that section 225 applied. Section 225(2) which provides for a sentence of imprisonment for life when the offence carries a maximum sentence of life, applies where "the court considers that the seriousness of the offence or of the offence and one or more offences associated with it is such as to justify the imposition of a sentence of imprisonment for life". Mr Gillespie submitted that that was not so in this case. The judge did not refer to this aspect in his sentencing remarks or to the alternative provided by section 225(3) - a sentence of imprisonment for public protection. We have not been addressed at any length on the effect of section 225(2) (b). Our tentative view is that it requires that the previously established criteria for a life sentence must be met where a life sentence is imposed under this section. That is also the view suggested in paragraph 8 of Lang and others [2005] EWCA Crim. 2864. One of those criteria is that the offence itself must be one which would call for a severe sentence. The cases as to that are considered in Archbold 2006 at paragraphs 5-303 and 5-304. To quote from one of the authorities cited there, Chapman [2000] 1 Cr.App.R 77 at 85: "... a sentence of life imprisonment is now the most severe sentence that the Court can impose, and it is not in our judgment one which should ever be imposed unless the circumstances are such as to call for a severe sentence based on the offence which the offender has committed." 15. We have set out the facts relating to the offence in this case. We do not consider that in the context of a possible life sentence this offence by itself did call for what is referred to as a severe sentence. We therefore conclude that section 225(2) (b) is not satisfied. We therefore conclude that for that purpose the seriousness of the robbery of Mrs Thavaharan would not justify the imposition of a life sentence. The correct sentence in these circumstances was one of imprisonment for public protection under section 225(3) . The difference is slight. We refer to paragraph 8 of the decision in Lang . 16. Mr Gillespie did not seek to reduce the minimum term set by the judge. He was right not to do so. We therefore grant leave, limited to the question whether a sentence of imprisonment for life was appropriate or a sentence of imprisonment for public protection. The sentence of imprisonment for life will be set aside and a sentence of imprisonment for public protection under section 225(3) will be substituted. The appeal is allowed accordingly. 17. MR GILLESPIE: My Lady, I am grateful. May I ask for a representation order in those circumstances? 18. LADY JUSTICE HALLETT: Of course, Mr Gillespie. Thank you for your assistance. As you know in normal circumstances on applications of this kind one would allow the appellant (as he now is) seven days if he wished to make further submissions, but as we granted the limited leave my Lord has said there can be no purpose in his attempting to make further submissions. 19. MR GILLESPIE: No, my Lady.

2006_01_19-691.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/287/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/287

f59114d9b840fbf3371766ff109eab0dfd18f470d093f08a1bb81bf3841b16d5

[2017] EWCA Crim 1347

EWCA_Crim_1347

2017-08-18

crown_court

Case No: 201701789/A2 Neutral Citation Number: [2017] EWCA Crim 1347 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 18 August 2017 B e f o r e : MR JUSTICE SWEENEY MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - R E G I N A v LEE BARRY ILLING - - - - - - - - - - - - - - - - - - - - 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:

Case No: 201701789/A2 Neutral Citation Number: [2017] EWCA Crim 1347 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 18 August 2017 B e f o r e : MR JUSTICE SWEENEY MR JUSTICE HOLROYDE - - - - - - - - - - - - - - - - - - - - R E G I N A v LEE BARRY ILLING - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. - - - - - - - - - - - - - - - - - - - - Mr P Donegan (Solicitor Advocate) appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE HOLROYDE: On 22nd March 2017, in the Crown Court at Ipswich, this appellant pleaded guilty to four offences of acting in breach of a restraining order, contrary to section 5 of the Protection from Harassment Act 1997 and one offence of failing to comply with notification requirements, contrary to section 91 of the Sexual Offences Act 2003 . The first four offences were charged on counts 1, 2, 6 and 7 of an indictment. The failure to comply with notification requirements was charged in count 3. 2. The learned judge imposed sentences of 15 months concurrent on each of counts 1, 2, 6 and 7 and 15 months consecutive on count 3. Thus the total sentence was one of 30 months' imprisonment. The appellant appeals against that sentence by leave of the single judge. 3. In order to set the offences in their proper context it is appropriate to start by referring to the appellant's previous history of offending. He began as a juvenile. As a young adult he committed a number of serious offences of dishonesty and offences of violence. Then coming to matters relevant to his attitude towards the orders of the court, we note that in October 2009 he received a short prison sentence for breach of a restraining order. In August 2012 he was convicted of a sexual offence, for which a prison sentence was imposed and he was made subject to a restraining order. On 13th February 2015 he received a sentence of 12 weeks' imprisonment for failing to comply with the notification requirements. On 30th January 2016, he again received a sentence of 12 weeks' imprisonment for a further offence of failing to comply with the notification requirements. On 20th April 2016, in circumstances which did not involve any criminal conviction, a restraining order was made, which prohibited the appellant from contacting in any way a named woman and also prohibited him from entering Colchester borough for any purpose. The restraining order is printed on a form which includes the following warning, the terms of which could hardly be simpler or clearer: "If you do not obey any part of this order you will commit an offence and may be sent to prison for up to five years. You will commit the offence if you disobey this order even once." 4. That, as we say, was in April 2016. Early in May 2016, for offences of harassment and breach of a restraining order, the appellant was made subject to suspended sentences of imprisonment totalling 10 weeks. Those sentences were suspended for the period of only 6 months, which might not be thought to be a period of challenging length. Nonetheless, the appellant committed further offences so soon thereafter that the suspended sentences were subsequently brought into effect: on 16th September 2016 the appellant was sentenced to a total of 48 weeks' imprisonment, for an offence of failing to comply with the notification requirements in July of that year, for breach of a restraining order in August of that year and for commission of the further offending during the period of suspended sentence which we have mentioned. 5. From that sentence the appellant was released on 24th January 2017. The offence charged in count 1 was committed the very next day. It was in breach of the restraining order that the appellant went to Colchester to meet a friend, Mr King. They met together and then went to Mr King's home for several hours. 6. On the next day, 26th January, the appellant again breached the order. He again went to Colchester to meet Mr King. He stayed at Mr King's home overnight. That was a breach of the restraining order charged in count 2. Moreover because he stayed for more than 12 hours at Mr King's address he committed a separate and distinct offence of breaching the notification requirements by failing to notify the police that he was at an address other than his own. 7. Then on 29th January 2017 the appellant once again visited Mr King in Colchester. He left Mr King's home in the mid-afternoon, commenting that it was too risky for him to come back. But the very next day, 30th January, he yet again went to Colchester to meet Mr King. Those breaches of the restraining order were charged in counts 6 and 7. 8. The learned judge did not think it necessary to obtain a pre-sentence report. We agree. None was necessary then and none is necessary now. 9. In his sentencing remarks the learned judge observed that the court was dealing with breaches of two quite different types of court order. First, an order requiring him to do something, namely the notification requirement which imposed a duty upon him to tell the police of any change of address. Secondly, breach of a protective order which prohibited the appellant from doing certain things. That, of course, being the restraining order. The judge went on to observe that when the appellant was released from prison, he was subject to post-sentence supervision as well as being subject to the restraining order and notification requirements. He described the appellant's conduct in late January as involving flagrant breaches of the orders of the court, with the appellant knowing what he was doing and acting deliberately. 10. So far as the breach of the notification requirement was concerned, there is no specific sentencing guideline. As to the breach of the restraining order, there is presently in force a guideline published some years ago by the Sentencing Guidelines Council. 11. The judge commented that reference to the appellant's background showed a pattern of a persistent and consistent course of conduct of the appellant simply not paying any attention to court orders. He concluded that he could properly deal with all the breaches of the restraining order by imposing concurrent sentences, treating them as arising out of substantially the same series of facts albeit over a period of some 6 days. He regarded count 3 however as a different type of offence, meriting a consecutive sentence. That offence was similarly a deliberate breach of the requirements to which the appellant knew he was subject. It was the third time he had breached notification requirements. 12. The judge, in relation to that offence, on count 3, took the view that the sentence of 20 months' imprisonment would have been appropriate after trial. He reduced that by 25% to reflect the appellant's guilty plea after the pre-trial preparation hearing. Thus the sentence on count 3 was one of 15 months. 13. In relation to the other counts the learned judge said this: "I take the view that the persistent nature of the breaches overall would entitle me to set a starting point outside the guideline starting point of 12 months, especially as in the past you have got breaches of restraining orders that go back into your history ..." 14. In relation to those offences also the judge took a sentence after trial of 20 months, reduced it by 25% to reflect the guilty pleas and so imposed the terms of 15 months' imprisonment. 15. We observe, in passing, that it is not entirely clear what prompted the learned judge to refer to "the guideline starting point of 12 months". That is not a starting point which appears at any point in the table of sentencing guidance applicable to breaches of a restraining order. 16. The grounds of appeal do not seek to argue against the 25% reduction by way of credit for guilty plea. Nor does Mr Donegan, on the appellant's behalf, seek to argue against the principle of consecutive sentencing for count 3. He submits however, that in terms of the sentencing guideline, each breach of the restraining order could properly be regarded as an offence which would be defined in the guideline as "more than one breach involving no contact". For such an offence the guideline indicates a non-custodial sentence, namely the imposition of a medium range community order. 17. Mr Donegan makes the important point that although the appellant breached the restraining order by going to Colchester, there was no allegation that he had made contact with the woman whom the order was primarily intended to protect. 18. In all those circumstances Mr Donegan submits that the concurrent sentences of 15 months for the breaches of the restraining order were in themselves excessive. He further submits that to impose a consecutive sentence of 15 months' imprisonment on count 3 resulted in too high a total sentence. 19. We are grateful to Mr Donegan for his assistance and we have reflected on his submissions. We entirely agree with the learned judge as to the clear pattern of complete disregard on this appellant's part for the orders of the court. It is relevant to note that lengthy prison sentences for past breaches have not deterred him. On the contrary, the first of the present series of the offences was committed on the very day after his release from his last sentence and was quickly followed by further deliberate breaches. 20. We accept the point that there was no allegation of contacting the woman named in the restraining order. Nonetheless, the court cannot simply ignore repeated breaches of court orders. The learned judge was right to take the view that significant custody was required for each of these offences. So far as the sentencing guidelines for breach of the restraining orders are concerned, this was, in our judgment, quite clearly a case in which the judge was entitled to conclude that it would not be in the interests of justice to follow the guideline and to deal with all or any of the breaches by a non-custodial sentence. To do so would simply be to ignore the established pattern of breaching court orders. Thus, in our judgment, a radical departure from the sentencing guideline was permissible. 21. We have reflected upon the structure of the judge's sentencing. Our focus at this stage must, as always, be on the totality of the sentence imposed rather than on the precise structure. Nonetheless we do see some force in Mr Donegan's argument that the facts of count 3 do significantly overlap with the facts of count 2. This is not a situation in which it could be said that by committing the offence in count 2 the appellant necessarily also committed the offence in count 3. He could, to put it shortly, have gone to Colchester in breach of the restraining order but stayed for less than 12 hours and therefore not breached the notification requirement. But we do see, as we have indicated, some force in Mr Donegan's submission that to impose a consecutive term of 15 months' imprisonment in those circumstances was excessive. 22. With some hesitation, we are persuaded that the total sentence here was too long. Nonetheless, we entirely agree with the overall approach of the judge to the breach of court orders and like him we think it inescapable that significant terms of custody must be imposed. 23. In our judgment, the appropriate resolution of this appeal is that the total sentence should be reduced from one of 30 months' imprisonment to one of 2 years' imprisonment. We achieve that resolution in the following way: we quash all of the sentences imposed below, and we substitute for them concurrent terms of 2 years' imprisonment on each of the offences. Thus the total term is reduced, as we have said, from 30 months to 2 years and to that extent the appeal succeeds. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

2017_08_18-4053.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1347/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1347

024fbd1b716acb1081150fdc01209ff6e3672a548bf2dfaa20865ff12efb29e8

[2011] EWCA Crim 2069

EWCA_Crim_2069

2011-09-01

crown_court

Neutral Citation Number: [2011] EWCA Crim 2069 Case No: 2010 6610 D2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES MR. RECORDER LUCAS T20100175 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/09/2011 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE HOOPER and MR JUSTICE BLAIR - - - - - - - - - - - - - - - - - - - - - Between : WAYNE PATRICK MALCOLM Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2011] EWCA Crim 2069 Case No: 2010 6610 D2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES MR. RECORDER LUCAS T20100175 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/09/2011 Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES LORD JUSTICE HOOPER and MR JUSTICE BLAIR - - - - - - - - - - - - - - - - - - - - - Between : WAYNE PATRICK MALCOLM Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MS. J. LEVINSON appeared for the Appellant MR. LEE SCHAMA appeared for the Respondent Hearing date: 30 th June 2011 - - - - - - - - - - - - - - - - - - - - - Approved Judgment I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. ............................. MR JUSTICE BLAIR Judgment Approved by the court for handing down. Wayne Patrick Malcolm Lord Justice Hooper : 1. On 19 November 2010 in the Crown Court at Kingston-upon-Thames (Mr. Recorder Lucas and a jury) the appellant was convicted unanimously of the theft “of a quantity of fixtures, fittings and furniture belonging to Warda Ltd”. He did not give evidence. He was subsequently sentenced to 21 months’ imprisonment. He appeals the conviction with the leave of Simon J. In the principal ground of appeal it is submitted that the Recorder “entered the arena and acted as an advocate and a second prosecutor.” The appellant also appeals the sentence with leave. At the conclusion of the hearing we reserved judgment. The appellant has been released from custody. 2. In February 2009 the appellant approached Kinleigh, Folkard and Hayward (“Kinleigh”) to find him a high quality furnished flat. Kinleigh did not have a suitable flat and Kinleigh approached Benham and Reeves. Kinleigh and Benham and Reeves agreed that Kinleigh could show the appellant 41 Dolphin House, Lensbury Avenue, Imperial Wharf in Fulham, West London on a shared commission basis. Kinleigh did so and the appellant agreed to take the flat. It emerged during the trial that the appellant had personal contact with only one person from Kinleigh, Davinia Tyrell. 3. Following credit checks and the appellant providing a copy of his passport, on 18 February 2009 he signed a 12 month tenancy agreement for the rental of the flat, fully furnished. The rent was £2166.66 per month payable in advance to Benham and Reeves. The lease required a security deposit of £3000 to be paid at the time of the agreement. The landlord was named as “Warda Ltd”. The letting agent was named as Benham and Reeves. Before taking possession the appellant paid £5,166 The managing agent, Mr Lugg, gives a different figure but that may be net of commission. representing one months’ rent in advance and the deposit. 4. The appellant signed the inventory, an extensive list of the many items in the flat including furniture, pictures, a mattress, pillows, sheets, cutlery, washing machine, dishwasher, an American style fridge/freezer and a microwave oven. As against each item on the inventory was the word “new”. 5. Following no further payment of rent, a warrant for the appellant’s eviction was executed on 22 October 2009. The property was found to be empty and “all the fixtures and fittings had been stolen” other than the carpets. 6. The appellant was arrested on 6 January 2010 at his new address at Blenheim House, King’s Road, Chelsea. Items from the flat at Dolphin House were found there being used. They were removed. There was no sign of many other items which were missing, such as the American fridge/freezer, washing machine and dishwasher. 7. The appellant gave a no comment interview but in a prepared statement the appellant wrote: “Wayne Malcolm will say as follows: I was a tenant of 41 Dolphin House. I had to move out and terminate the tenancy agreement signed by me soon after I moved in. This is because my financial circumstances had changed significantly, i.e. loss of business income. I requested the agents to return my deposit money and keep one month’s rent as agreed. I frankly told them I cannot pay the rent due to my change of circumstances. The agents refused to return the money. However they agreed to give me some furniture as a security towards my deposit because they advised that the landlord does not live locally so obtaining the money back from him will take some time. I was dealing with a representative of the agents all the time. This person was present when I left the property. I had planned to return these items once my deposit, subject of reasonable deduction, is repaid to me. I did not intend to deprive the owner or the agent of this property, i.e. the items listed on the next page. There was no intention to permanently deprive anyone. I did not take these dishonestly. I have been trying to contact this representative of the agent without success for under a year now. The person is a female. I do not remember her name precisely. She had told me that she had already discussed this arrangement with the other parties. I have been contacting her without success to resolve this issue without further delay. My intention is to get my money back and not to keep the items. Small two seater sofa I valued approx £450 One small chest of drawers – I valued approx £350 TV stand – I valued approx £350 Coffee table – I valued approx £400 2 side lamps valued approx £60 2 small chairs valued approx £199 each None of the above items are brand new.” 8. This statement makes clear that the person whom he was claiming to have given him permission to take away the property was a female who it would appear worked for the agency which was involved in the letting of the property to the appellant. 9. On 24 February 2010 the appellant was committed for trial by the West London Magistrates’ Court. The Court set 26 March 2010 as the date of the plea and case management hearing (“the PCMH”). The Court was informed that the appellant would plead not guilty. 10. We are missing the second page of the directions made by the Magistrates’ Court. If the usual directions had been made and there had been compliance with them, primary disclosure would have been completed before the PCMH and the defence statement would have been served before then. 11. The committal bundle included statements from Mr Lugg, the Managing Director of Matrix Maintenance Limited, a company responsible for the management and maintenance of property on behalf of Credit Suisse. He wrote that he had control of, and responsibility for, the flat “on behalf of Credit Suisse and the owner, Mr Al Sharan who lives in Kuwait”. 12. Mr Lugg described the flat and the decision to rent it. Mr Lugg continued: “I made contact with an agent at Benham and Reeves and a tenant was found for the property. I understand that the tenant was found by another agent, Kinleigh, Folkard & Hayward, who dealt with the reference checks and passed the details back to Benham and Reeves. The tenant’s references were faxed to me and the agreed tenancy began February 18 th 2009. I never met the tenant personally as this was dealt with for me by the agent .” (Emphasis added) 13. Mr Lugg described what was in the flat when the appellant took over the tenancy, what was found to be missing in October 2009 and identified various items found in the appellant’s possession as being property which had been in the flat. The total value of the items taken was some £15000-£20,000. 14. The only other statements were from police officers. 15. Mr Lugg’s statements did not deal with the appellant’s case as revealed in the statement which he gave on arrest. But Mr Lugg had named the agency, Kinleigh, which had dealt with the appellant. 16. The PCMH took place on 23 March 2010 in the Crown Court sitting at Kingston upon Thames. The appellant pleaded not guilty. The prosecution had not by then made primary disclosure (in accordance with section 3 of the Criminal Procedure and Investigations Act 1996) and was ordered to do so by 7 April 2010. The defence was ordered to serve the defence statement by 23 April 2010. The issue in the case was stated on the PCMH form to be “Intention”. The box containing the question “what further evidence is to be served by the prosecution” was left empty. The prosecution list of witnesses to be called in person contained two names: Mr Lugg and PC Uppal, the officer in the case. The Court ordered the trial to be listed in the week commencing 5 July 2010 with a time estimate of two days. 17. The defence statement was dated 26 March 2010 and was drafted by the appellant’s solicitors. Following a number of “standard” disclaimers which seem to us to be of no value, the statement read: “A. The nature of the accused’s defence in relation to the charge: The accused did not steal or intend to steal the said items as alleged. The accused also disputes that he was dishonest in his actions. The accused does not accept that he took all the items being claimed by the complainant. B. The accused takes issue with the prosecution in relation to the following matters: That he stole the items from Matrix Maintenance Ltd and that he intended to steal the said items and permanently deprive Matrix Maintenance Ltd and that he was dishonest in his actions. The accused does not accept that he took all the items being claimed by the complainant. C. The reason why the accused takes issue with the prosecution about this matter is that the allegation is untrue.” 18. By virtue of section 5(5) of the Criminal Procedure and Investigations Act 1996 where an accused has been committed for trial he “must give a defence statement to the court and the prosecutor”. 19. By virtue of section 6A a defence statement is a written statement: “(a) setting out the nature of the accused's defence, including any particular defences on which he intends to rely, (b) indicating the matters of fact on which he takes issue with the prosecution, (c) setting out, in the case of each such matter, why he takes issue with the prosecution, (ca) This was in force at the time having come into effect on 3 November 2008, see the Criminal Justice and Immigration Act 2008, s 60(1) and SI 2008/2712 . setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and (d) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.” 20. Did the defence statement fail to meet the necessary requirements? As we shall explain in more detail below, it utterly failed to meet them and was seriously defective. 21. The defence statement not having been served before the PCMH, as it should have been if the prosecution had made timeous primary disclosure, the box in the PCMH form requiring the prosecution to state whether the defence statement complied with the requirements of section 6A could not be filled in. The PCMH form also requires the parties to identify the issues if not identified in the defence statement. The entry “Intention” was quite inadequate. 22. Unfortunately the inadequacies of the defence statement were not identified by the prosecution or by the court before the actual trial, notwithstanding that, as we shall show now, the case was listed for mention or trial on at least two if not three occasions. If the inadequacies had been identified the appropriate adverse inference warnings to the appellant could and should have been given. 23. The listing for the week commencing 5 July was ineffective. 24. The case was next listed for 23 July “for mention and fix”. The prosecution attended. The appellant was not required to attend and no-one represented the appellant. The court ordered that the trial should start in the week commencing 26 July 2010. 25. The trial was listed to start on 27 July. It was called on at 10.20. The prosecution were not ready to proceed in the absence of the officer in the case. Mr Lugg was there. The prosecution applied for a short adjournment. The case resumed at 12.29 when the judge was told by the prosecuting advocate that the officer in the case was uncontactable, being on maternity leave and that she would not be able to give evidence until October. 26. Over the objections of the defence advocate, the Court adjourned the trial until 8 November. 27. At no point was anything said about the inadequacy of the defence statement or any gaps in the prosecution evidence. 28. The trial did not start on 8 November but did start on Tuesday 16 November before Mr Recorder Lucas. 29. We now turn to what happened on that day. The prosecution was represented by Mr Lee Schama and the defence by Ms Jemma Levinson. 30. The Recorder was in the middle of a summing-up and the appellant’s case was interposed during the morning in order to set the time at which the trial would start. 31. Within a short time it became clear that neither the Recorder nor Mr Schama had a copy of the defence statement, although it had been properly served. The Recorder was provided with a copy. His immediate response was: “I don’t regard this as a defence statement”, followed by “It is not worth the paper it is written on”. The Recorder through Ms Levinson warned the appellant that a failure to provide a defence statement within the terms of the Act left him open to adverse comment from both the Crown and himself. Ms Levinson said that her client’s position was that the defence statement was in line with the prepared statement (see above, para. 7). The Recorder made it clear that he was not in the least bit interested whether this was so or not. Mr Schama was shown the defence statement and accepted that the defence was not expressed as clearly as it could be and perhaps should be. Mr Schama then said that “having read the prepared statement I of course consider both in my mind together.” To this the Recorder said: “You can’t”. Ms Levinson then explained the defence and the Recorder asked “Do we know who the agent was?”. Ms Levinson replied that the defence knew the name of the agency but not the name of the individual. Having asked for the appellant’s antecedents, the Recorder asked the prosecution to explain its position in relation to the defence case. Mr Schama said that it was the prosecution’s case that it was inconceivable that the appellant would have been given the authority to remove the items and he drew the Recorder’s attention to the terms in a copy of the lease. No copy of the lease had been exhibited at the time of the committal. 32. The trial started that day with the opening. The jury were told what the defence case was and were told that the central issue in this case was dishonesty. 33. The transcript then reveals that there were difficulties with the attendance of Mr Lugg who had an operation scheduled for the next day and who had only come to court following the issue of a summons. In addition to this difficulty, a juror had an appointment at 4.45 and the recorder had a jury in retirement. 34. Mr Lugg then gave evidence. He went through the tenancy agreement. He produced the inventory signed by the appellant. He described how, when the warrant was executed in October 2009, he discovered that everything had been removed from the flat other than the carpets. In cross-examination Mr Lugg agreed that Benham and Reeves had delegated the finding of a tenant to Kinleigh. He said that he did not know the name of the person at Kinleigh dealing with the tenancy. Ms Levinson established that the copy of the tenancy agreement produced by Mr Lugg did not bear the appellant’s signature. The Recorder then asked Mr Schama to make the necessary arrangements to get a copy of the signed original from Benham and Reeves. Ms Levinson then established that Mr Lugg had gone to the appellant’s new flat and had, with the police, identified the items of property which had come from the flat- something which, so it appears, Mr Lugg had not been asked about by Mr Schama. Mr Lugg agreed that he had recovered everything missing from the flat other than the fridge freezer and the washing machine. That answer appears to have been over generous to the appellant. For example neither the dish washer nor the microwave oven were found when the warrant was executed. 35. Ms Levinson not having quite completed her cross-examination, the trial was adjourned until the next morning. 36. At 9.54 the next morning, Wednesday, the Recorder asked in the absence of the jury whether anyone had attempted to contact Kinleigh. Mr Schama said that he had come into possession of some unused material and had made a copy of a document in that material available to Ms Levinson. The Recorder then asked: “Is there a witness from” Kinleigh? Mr Schama said that: “The Crown hadn’t proposed to call one.” 37. During the course of the appeal we asked Mr Schama why he was not intending to call a witness from Kinleigh to deal with the appellant’s assertion that a female, who must have been from Kinleigh, had given him permission to take the goods. He told us that, in his opinion, the account given by the appellant that he had been given permission was so incredible that no jury would accept it. Given, for example, that the deposit could be used under the terms of the lease to meet unpaid rent, given that the appellant owed a considerable amount of rent, given that he had taken some £15,000-£20,000 of items, some of which had not been recovered, the account given by the appellant, so Mr Schama submitted, was obviously false. Mr Schama also had, so he told us, a very practical concern. This was the third day on which Mr Lugg had come to give evidence and he had come to court the day before following the issue of a summons. Mr Schama anticipated that the trial might have to be aborted if the prosecution sought time to find and then call the female to whom the appellant had referred. If the trial were to be aborted it might be very difficult to persuade Mr Lugg to attend again. Mr Lugg was a crucial witness. In short, the prosecution was ready to proceed with the evidence then available. 38. The transcript continues: “THE RECORDER: Ms Levinson, is it going to be part of your case that there were discussions between your client and Kinleigh Folkard Hayward, the absence of evidence concerning which is an advantage to your case? Because if that is your position I’m going to demand a witness from Kinleigh Folkard Hayward presents his or herself here in the course of this trial , whenever that is. MS LEVINSON: Your Honour, certainly my client’s case is that he had discussions with an individual. And Your Honour, yes, I was intending…. THE RECORDER: Yes. I’d like a witness from Kinleigh, from the appropriate branch of Kinleigh Folkard Hayward here during the duration of this trial. I’d like an explanation from you, please, as the officer, why this hasn’t been done before. Obvious step, should have been done. Gross oversight. All right? Please go off and attend to that now. Right, let’s have the jury in, please. Once the evidence of this witness [Mr Lugg] is concluded I will review with Counsel what the standing of the law of this case is, because I am very troubled about it. … I have a number of questions for Mr Malcolm himself which may or may not answer some of the propositions. We’ll see. 39. Mr Lugg’s evidence having been concluded the jury were sent out of court and the following exchange took place at 10.49, the officer in the case having done what the judge had required of her: THE RECORDER: I’ve expressed my views for your consideration with your client. Mr Schama, what’s the position? Is there a witness from Kinleigh Folkard Hayward on his way here? MR SCHAMA: May I just take instructions? (pause) MR SCHAMA: The officer says that there is a witness from Kinleigh Folkard Hayward on standby. They’ve been notified they are likely to be required today. THE RECORDER: Right. And does that witness have access to any file concerning this transaction? Yes. And has anyone taken a witness statement from Mr Nelligan at….is it something Reeves? Benham & Reeves? Is there a witness statement from Mr Nelligan? MR SCHAMA: I’ve seen records of conversation with him on the CRIS report, Your Honour, but I’ve not seen a witness statement from him. THE RECORDER: In which case the witness from Kinleigh Folkard Hayward must come straight away, as indeed must Mr Nelligan . They must both make witness statements , and Ms Levinson can then cross-examine about the discussions her client had with these witnesses in relation to the return of his deposit. Okay? So that’s – those are the directions I am going to give for the moment. I’m going to go off the bench for ten minutes to allow these arrangements to be made, and for you, Mr Schama, and you, Ms Levinson, to discuss your respective positions. Because the jury’s just – if they’re to proceed with this case they’re going to proceed with this case on a proper formal basis, and not with gaps in the evidence . Mr Schama, is ten minutes going to be long enough to make your enquiries? MR SCHAMA: Your Honour, we’ll certainly do as much as we can in that time. If there is a problem, perhaps I can notify…. THE RECORDER: Well, if there is a problem, let me know. If anything should change and you require me to give further directions or issue a witness summons I shall certainly do that .” (Emphasis added) 40. We examine below the submission by Ms Levinson that the Recorder’s direction to the prosecution to call witnesses which the prosecution was not otherwise going to call and from whom no statements had been taken rendered the trial unfair. 41. Mr Lugg then completed his evidence. We do not have a transcript of that. There is no suggestion in the summing up that the appellant was challenging the evidence of Mr Lugg as to what had been removed from the flat. 42. Some time later that day the prosecution called Ms Jane Jenrick from Kinleigh. We have been provided with a transcript of her evidence. That shows the Recorder asking a significant number of questions rather than allowing counsel to do so. We give an example from the examination-in-chief of Ms Jenrick in which the Recorder accepted that he was asking the questions which Mr Schama was going to ask anyway: “THE RECORDER: What’s your designation then within the business? A:Well, I’m the lettings manager, so I don’t on a day to day basis deal with applicants and take them out on viewings, but I still deal with all paperwork or checking of references, dealing with landlords and valuing properties. Because we are a small team I would still say that I 100 per cent know what’s going on with all our properties and the majority of our applicants. THE RECORDER: Can I write it down slowly? A:Sorry, I know I speak quickly. Sorry. THE RECORDER: So you deal with all the paperwork. A: Mmm hmm. THE RECORDER: You check references? A:Well, we have a referencing team, but I would monitor that process, yes. THE RECORDER: You monitor references. What else do you do? A:I do the valuations on new properties. THE RECORDER: Anything else? A:I deal with any problems, complaints, any issues that would come up during the tenancy. THE RECORDER: And whilst your colleague Davinia dealt with Mr Malcolm, did you in any way oversee what she was doing? A:Yes. We do that, we have a morning meeting every morning where we discuss all our applicants and what’s going on with every process of any let that is proceeding. THE RECORDER: So you oversaw Davinia’s work? A:Yes. Yes, 100 per cent. THE RECORDER: I’m sure Mr Schama’s going to ask you anyway, so I’m asking the questions. Is she still working for the business? A:She does. She doesn’t work for, she still works for us a company but not working in lettings. She now works for our sales team. THE RECORDER: Where is she at the moment? A:She still works in the Fulham office, but working in sales rather than lettings. THE RECORDER: So she’s there at the moment, is she? A:Yes. Yes, she is. Well, she’s not, as we speak this day, she’s actually away on holiday at the moment, but she works, works there, yes. THE RECORDER: When’s she back from holiday? A: Monday. THE RECORDER: Right. Where is she on holiday, do you know? A:She’s in Holland, I believe. THE RECORDER: In Holland. Do you have a contact number for her? A:I would do, yes. Yes. 43. During the course of the cross-examination of Ms Jenrick, the Recorder asked the following question: “Can I understand the case you’re putting, Ms Levinson? Are you suggesting that the person who was, who this discussion took place with was the same person as had shown your client around the flat? Is that your suggestion?” 44. Ms Levinson responded “Yes”. Ms Jenrick then told the Recorder (in the presence of the jury) that Davinia Tyrell was the person who had showed the appellant around the flat. It was then put to Ms Jenrick by Ms Levinson that the (alleged) conversation with the female had taken place shortly after the appellant had moved into the flat. 45. Ms Levinson submits that the Recorder should never have asked the question which we have set out in paragraph 43. We return to that submission below. 46. Shortly after asking this question Ms Levinson completed her cross-examination and before any re-examination the recorder asked a series of questions: “THE RECORDER: Can I ask one or two questions, please? Davinia Tyrell showed the, showed Mr Malcolm round the property. A: Mmm hmm. THE RECORDER: If, if a tenant had subsequently contacted, after a rental is arranged, subsequently contacted the negotiator to say, “Look, I’ve got a real problem,” are there standing instructions at your firm as to what if any record the negotiator should make of that contact? A:She would just pass it directly to myself, to be honest. She wouldn’t get involved herself. He or she shouldn’t get involved themselves. To be very honest though, as well … THE RECORDER: Just pause please. A: Sorry. THE RECORDER: You were saying. A:Because the property wasn’t one of our properties though we would have no contact details for a landlord. So if the tenant had, say, approached me directly and said he wanted to get out of the lease, or whatever the situation was, I would have had to refer him back to the Benham & Reeves, because we have no way of speaking to the landlord. So again, that was the only contact I would have had. And again, if he’d ever asked Davinia and she hadn’t referred back to myself, again that was the only information she would have been able to give him because we don’t even know, the company name, we have no contact details for the landlord or any way of assisting, so even if we’d really have wanted to help we couldn’t. We would have had to refer them back to the other agent. THE RECORDER: Let’s take a hypothetical situation. Davinia (sic) negotiates a tenancy with a member of the public. A: Mmm hmm. Judgment Approved by the court for handing down. THE RECORDER: He or she moves in. A little while later there’s a problem and he contacts Davinia and says, “Look, I have a real problem. My wife has left me/my husband’s left me, whatever the position might be, I’ve been sacked.” Would Davinia in those circumstances ever go to visit the tenant at the flat? A:No. Well, firstly I think she would pass it straight to myself … THE RECORDER: Just pause. I’m sorry, I don’t mean to be rude … A:No, no, no, it’s okay. THE RECORDER: … but it’s quicker to say just pause than miss the answer. MS LEVINSON: Your Honour, may I just, sorry to interrupt, but obviously this witness can only answer what she believes Davinia would or wouldn’t do rather than … THE RECORDER: Well, she can answer about what the system is in her office. MS LEVINSON: Yes, exactly … THE RECORDER: Yes. MS LEVINSON: … the system, but rather than, this witness cannot answer on behalf of Davinia as to what she did or didn’t, or would or wouldn’t have done. All this witness can say, with respect, is what she would expect to happen in those circumstances. THE RECORDER: That’s what I thought she was saying. MS LEVINSON: Well, I’m not sure that that’s, with respect the way that Your Honour asked the question. THE RECORDER: Davinia would pass it to me. MS LEVINSON: And then Your Honour asked, “Would Davinia ever go to the flat?” THE RECORDER: Isn’t that a way of asking is that part of the system that she would employ? MS LEVINSON: Well, if the question’s asked in that way then I don’t object, but … not that I would be likely to object to questions asked by Your Honour … THE RECORDER: I think it’s for me to decide if I sustain your objection or not to my own question. Please answer the question. Judgment Approved by the court for handing down. A:Our policy in the office, well first and foremost is the safety of the member of staff, so I would never dream of visiting a property to discuss something with a tenant that was in … and didn’t, hadn’t told us any, well, we weren’t aware of any tragic story, any upset. I would, I would never visit a property myself, would never want any member of my team to go and do so where there is a potential situation in a property. And we’re talking quite substantial rent arrears. Well, obviously, I don’t know what date, we don’t know what date this meeting potentially happened, but I would never visit a property, I would never want a member of my staff to do so either. For what could become quite a heated discussion, well, I would never expect it to happen. THE RECORDER: Let me understand the procedure which a member of staff is supposed to follow. So if a tenant rings up and says, “I have a genuine problem,” what would you expect that member of staff to do? A:They would pass the call straight to myself. THE RECORDER: Would you expect a member of staff to act on their own authority and go and visit the tenant in question? A: Absolutely not. THE RECORDER: Not? A:No. Definitely not. THE RECORDER: Are your members of staff, and you’re the manageress of this branch, this unit, are your members of staff, do they have the authority to authorise the termination of a tenancy? A:No, definitely not. Nobody apart from the landlord has that authorisation to make. THE RECORDER: Are they authorised to permit a tenant to clear out a flat as a security against the return of a deposit? A: Absolutely not. THE RECORDER: If for some reason you were not contactable at the time a tenant contacted a negotiator, are there any procedures within your firm as to the record a negotiator should make of the problem? A:Again, I don’t believe they would deal with it. If anyone’s on annual leave we have, we work as a pairing, so myself working in Fulham we have a pairing with our Putney office. We do it as a manager to cover valuations and we also do it our administrative purposes, that if I’m away on annual leave and there is the slightest problem they would have called the manager in our Putney office to ask for advice. And then they would have dealt with the situation. THE RECORDER: Is Davinia an experienced person or not? A:She’s actually now been with our company for about three years. She’s quite young, she’s early 20s. At the time I would say she was about 21. I wouldn’t say she’s hugely experienced, and I wouldn’t say she has the … yeah, I wouldn’t say, she’d probably been working in lettings about a year at the time, she wasn’t like myself, I’ve been doing it for ten years, and I wouldn’t say she’s the sort of person who takes it upon herself to … THE RECORDER: Sorry? A:I’m, I’m saying, I mean she’s not hugely experienced, no. And thus isn’t the sort of person that would want to get involved in an issue like this in any way. THE RECORDER: Did Davinia at any stage draw any such problem with Mr Malcolm to your attention? A:No. As I said she very shortly after this, the tenancy moved in, actually stopped working in our lettings team and transferred to work in our sales team. So whilst still in the same office, she wouldn’t pick up a lettings call. If subject, if a call came through to her it would get passed through to me, because we didn’t want to interrupt her doing her new sales job. So I think, I’ll have to double check the date, I think it was the 1 st March or April, very shortly after this, was one of the last ever lets she did for us. THE RECORDER: Now, do either Counsel have any questions arising out of my questions? Ms Levinson? No? MS LEVINSON: No.” 47. Ms Levinson complains about these questions, albeit she accepts that if they had been asked after any re-examination she would have had no complaint. 48. Mr Schama then asked a number of questions. His first question was: “If I were to say to you now that one of the negotiators on your team had authorised a tenant to remove property against a deposit, what disciplinary action if any would you recommend in respect of that person?” 49. The effect of Ms Jenrick’s answers to the Recorder and to Mr Schama was that (in her opinion) the permission claimed to have been given by the appellant in his prepared statement would never have been given and that, if someone had given permission, he or she would have been dismissed. 50. After Ms Jenrick had given evidence, the prosecution did not immediately (so it appears) ask for an adjournment to find Ms Davinia Tyrell. The recorder in the absence of the jury criticised the failure of the appellant to identify who it was from Kinleigh with whom he had had dealings. The transcript continues: “THE RECORDER: Well, that’s not the only matter I’ve raised with you, Ms Levinson. I’m being forced into the arena in this trial , much against my wishes, because at the outset I pointed out to you that your client had failed to comply with the defence statement requirements. There is no detailed explanation from him of what his defence is and what aspect of the Crown’s case he takes issue with. Having raised this with you, this has not been rectified in any way, shape or form. It seems to me that the – and I don’t say this critically – but the position the defence appears to be adopting is to seek to raise a lacunae in the Crown’s investigation to their advantage. Now in most cases that is a legitimate tactic, but equally I think part of my job here is to ensure trials are fairly conducted so that a jury, when it comes to making its decision, has the evidence available. And if those lacunae can be filled properly without causing any injustice, well then they should be. I’m sorry you don’t like it. I’m afraid that’s the way it’s going to be. And if that means my having to descend occasionally into the arena to ask questions that need to be asked, I’m afraid I will .” (Emphasis added) 51. Mr Schama said that he now realised for the first time that it was Ms Tyrell who it was being said by the defendant, had given the authorisation. 52. The transcript continues: “THE RECORDER: The whole point of a defence statement is to prevent surprise defences, which is what I get the impression this trial is all about. A wholly inadequate defence statement has been provided . The defendant refused to answer questions in interview. He has provided a prepared statement in the very most general of terms. I raised this with Ms Levinson yesterday at the beginning of this trial, and despite my raising it in very clear terms nothing has been done to remedy the position. And I have been forced in to causing enquiries to be made so that this surprise tactic would not persist . This is, I think, very much part and parcel of my job. Now… MR SCHAMA: My learned friend may well be bound by those who instruct her, and they’ll be bound by whatever instructions they’re given. THE RECORDER: If the position is that the defence refused to provide a defence statement, then so be it, but as I have said yesterday there will be consequences to that, potential consequences. MR SCHAMA: Well, Your Honour, the only point I was going to raise is the person who is alleged to have given this authorisation now has a name. It is Davinia. We understand that she is abroad until Monday. THE RECORDER: She can be contacted. She is in Holland. MR SCHAMA: Yes. THE RECORDER: Holland is not so far away. If necessary she can be here by tomorrow morning. MR SCHAMA: All I was going to say was that if it is the defence case that it was Davinia who authorised it, then that’s obviously something the Crown has to deal with. THE RECORDER: Yes. MR SCHAMA: If it’s simply an unidentified person, then I’m probably satisfied on the basis of the evidence that has been called already. But if it is being said specifically it is Davinia, then that’s obviously something that, if nothing else, she is entitled to answer. That’s all I’d say. THE RECORDER: The jury’s entitled to hear her. MR SCHAMA: Yes.” (Emphasis added) 53. Mr Schama then suggested that Ms Levinson take instructions in order to confirm whether it was the appellant’s case that it was Ms Tyrell who had given him permission. The transcript then reads: “MS LEVINSON: Your Honour, it’s a matter for my learned friend which witnesses the Crown seek to call. At the moment the only … up until the close of the prosecution case the evidence in relation to my client’s defence is what’s set out in the prepared statement, which doesn’t name Davinia. It is only the, it is the service of this witness’ statement shortly before the luncheon adjournment which has identified this witness by name, and only if this witness were in Court and my client presumably were able to see her would he confirm or not confirm that that is in fact the person that he’s referring to. THE RECORDER: Ms Levinson, we’re entirely at cross purposes. It wasn’t beyond the ability of your client or those who represent him to put in the defence statement that the person the Defendant spoke to was the person who showed him around the flat. That would have been an immediate point of identification as to who the person was. That wasn’t done. It’s not clear in this defence statement, is it? MS LEVINSON: I accept that, and there are consequences which flow from that which Your Honour will, Your Honour’s already mentioned … THE RECORDER: And one of those consequences might well be a hiatus in this trial whilst we have to wait for the arrival of that witness. This matter was never, never disclosed before. This is an ambush defence , Ms Levinson. MS LEVINSON: Your Honour, I … THE RECORDER: The Courts strongly discourage ambush defence. MS LEVINSON: Your Honour, I don’t accept that it’s an ambush defence. It certainly was not intended to be an ambush defence. THE RECORDER: Ms Levinson, I have decided it is an ambush defence whether you accept it or not. Let’s deal with what we’ve got, shall we? Now, where do we go from here? Do you want time to consider your position? MS LEVINSON: Yes, but is the question Your Honour is asking whether, whether I want the Crown to call this witness? Or … I’m not sure what … THE RECORDER: It’s not for me to tell you what discussions you have with Mr Schama or, indeed, with your client. We’ve heard from this last witness, Ms Jenrick, and she has told us that it was Davinia Tyrrell who was the negotiator who showed your client around the property. You have told us now publicly that the person your client claims to have had this negotiation with was the negotiator who showed him around the property. She’s identifiable. And so the question I need to have addressed is does it remain the contested position that this was the discussion held with that negotiator, or is there some other position that we are all to consider? And if that position does remain, what are the consequences to this trial? It’s very simple, it seems to me. If your client’s position remains the same, and you’re bound by those instructions, it seems to me we’ll have to get Ms Tyrrell here to give evidence about it .” (Emphasis added) 54. The underlined passage is a reference to what Ms Levinson had said in the presence of the jury, as to which see paragraphs 43 and 44 above. 55. The Recorder said a few moments later: “Ms Levinson. We have reached a position in the trial where the lettings manager from Kinleigh, Folkard & Hayward has said that under no circumstances was, would any of her members of staff be authorised to do that which your defence says, defence, your prepared statement says happened. The negotiator who showed your client around the flat was Ms Tyrrell, and you seem to have indicated that that was the person with whom your client came to this arrangement. Now, she is an identifiable person. We’ve been told she’s in Holland at the moment. There is a contact number for her. This jury is capable of receiving evidence from her either at very short notice, to her inconvenience, or on Monday, when it’s less inconvenient for her and more inconvenient for the rest of us. So I’d simply like to know what course, what application the parties wish to make as to how this trial should progress. That’s all.” 56. Following an adjournment, Ms Levinson told the recorder that she would not pursue as part of her client’s case that it was Davinia Tyrell who had given the permission. The transcript reads: “MS LEVINSON: Your Honour, thank you for the time. I have no application to make. It is not a, I am not pursuing that as a positive part of my client’s case, that assertion that it was in fact Davina Tyrrell. I will not submit that to the jury in closing. And so that’s the position. THE RECORDER: Why did you assert it? MS LEVINSON: Your Honour … THE RECORDER: Was that a mistake? MS LEVINSON: Your Honour, I have instructions. I am satisfied that my professional position is intact, as it were. Your Honour asked me a question and I answered the question. I don’t think I put it to the witness, I think I only, I only made the statement in response to a question from Your Honour. Obviously it’s up to my client what he positively wishes to … what his case, what he wants his case to be put, how he wants his case to be put positively. THE RECORDER: Then how are you proposing to withdraw the positive statement in the presence of the jury? MS LEVINSON: Well, I’m … I’m perfectly prepared and can say to the jury that I ought not to have positively, I ought not to have answered Your Honour’s question positively when Your Honour asked whether or not it was my client’s case positively that it was Davina Tyrrell. (pause) THE RECORDER: I’ll reflect on that. Mr Schama, what’s your position? MR SCHAMA: Your Honour, all I’ve said to my learned friend is that the Crown’s only concern is as to the submissions that be made in defence closing. If it were to be said that it was Davinia Tyrell that authorised it then of course that’s something which can’t be said unless she’s given an opportunity to comment on that. If it’s simply being said it was an unidentified female agent then I’m satisfied that anyone who ought to have had the opportunity to comment on that has now done so, either through live evidence or, as my learned friend will do, through agreed admissions. THE RECORDER: Is the last witness still here? MR SCHAMA: She is still here, Your Honour’s asked her to wait around, so she is here. So far as whatever was said in front of Judgment Approved by the court for handing down. the jury is concerned, the Crown’s position is simply that the jury will of course, are of course instructed in every trial that what Counsel says isn’t evidence, and so far as … THE RECORDER: No, can I … MR SCHAMA: … any arguments are concerned those are contained in closing speeches. THE RECORDER: The position we’ve arrived at is this. A witness has … the flat was let by Kinleigh, Folkard & Hayward (indistinct). We know the negotiator who showed Mr Malcolm the flat was from Kinleigh, Folkard & Hayward. There’s an assertion from Mr Malcolm that an agent, unspecified, unnamed, undescribed, from an agency unnamed, permitted him to remove property. We have evidence from the two agencies which were involved in this transaction. In summing up I’d be bound to say to the jury that there was the opportunity for the defence to question witnesses from each of those agencies with a view to ascertaining who the agent was, either by description, or by name, or in some other fashion, by date, by diary entry, so that the positive assertion could be put. The opportunity was there. Now, I’m simply not prepared to allow this trial to go by default on the basis that having made a positive assertion in the presence of the jury the defence be entitled to withdraw it and resort to a “I’m not commenting” basis of putting their case. It seems to me to be wholly wrong and against the principles of a fair criminal trial. So those are my thoughts on the subject. Ms Levinson, you can ask for any witness to be recalled, I give you that opportunity. You can put your case in any shape or form you wish to put it. If you don’t wish to put it then … I’d be in breach of my duty to the jury if I didn’t give them some guidance as to how this matter might be resolved will be to identify who it was your client says he spoke to. I give you every opportunity to do that, Ms Levinson. Description, age, colour of hair, time, which agency, which office. That’s all within the knowledge of your client. I don’t see that it can’t be. MS LEVINSON: Your Honour, I’ll take further instructions, but I’m, I am not putting positively who it was. And if my learned friend wants to comment, and he will in due course, I imagine, about the absence of a description or any further details, unless of course my client gives some evidence in the witness box which changes the position, but if there are no further details about that person then it will be, the position will be the same as in many cases where the Crown will rely on the absence of a, the absence of a description. THE RECORDER: No, it’s much more specific than that. Who are the people who could have spoken to your client? It’s finite, limited and identifiable. It can only have been one of two, at most three, people from the offices of Kinleigh, Folkard & Hayward, it was from there. Or a limited pool of people at the other agency, if that’s where he says the person came from. I don’t know. There are witnesses now open to you to cross-examine from each of the agencies concerned with a view to identifying who the witness is. And there’s a duty on you, it seems to me Ms Levinson, to put that if that is your case. Now, what I’d like you to do, please, is to reflect on the position overnight. I’m going to ask this last witness to be back here tomorrow morning in case you wish to put that positive case to her. If you reflect overnight that you don’t wish to because that isn’t your positive case and you wish to put it to a member of the alternative agency, then I encourage you to contact Mr Schama so that he can make those, those arrangements. MS LEVINSON: May I ask if the position is that I do not wish to positively … THE RECORDER: I will tell the jury that I gave you the opportunity of doing so and you didn’t. It’s Counsel’s duty, it seems to me Ms Levinson, to, to put the case that the jury are being invited to consider. MS LEVINSON: Your Honour, yes. But the position is that my client is arrested a year, 21 months after the event that he’s talking about. THE RECORDER: Yes. MS LEVINSON: He may or may not be in a position to take the matter further than he can, that he does in his prepared statement, which is the say, “The person is a female and I don’t remember her name precisely.” That may remain the position. THE RECORDER: That I entirely accept. What I find very difficult to accept is that he has no recollection of what she looked like, or indeed which agency he contacted with a view to obtaining her presence at his flat. MS LEVINSON: I think I’ve, I’ve put to this witness [Ms Jenrick] that it wasn’t her but it was somebody.” 57. The Recorder then received a plaintive note from the jury: “Are we allowed to know what is happening”. The jury were then sent away for the day, it now being 4.40. The jury had been told that they would be away by 4.45. The only evidence which the jury had heard that day was the last part of the evidence of Mr Lugg and Ms Jenrick’s evidence. 58. There were then further discussions during which Ms Levinson said that she was not suggesting that it was Davinia Tyrell who gave the appellant the alleged permission. Mr Schama said, a little later, that an admission which he expected the defence to make (and which was in fact made) excluded anyone from Benham and Reeves as having given permission. We have a jury note which asked whether a representative of Benham and Reeves visited the property. We note that, contrary to good practice, the note is not dated or timed (nor indeed were other notes). We remind those involved with jury trials of what another division of this Court said in Zulhayir [2010] EWCA Crim 2272 , which concerned two important undated and untimed jury notes: “17. ... Unfortunately, neither of the notes is dated and timed. This is not the first time that this court has had to grapple with jury notes which, at least in the form that they are presented to us in the Court of Appeal, are not dated and timed. We urge those responsible for the administration in Crown Courts to make sure that jury notes are dated and timed, with any other relevant details.” 59. The transcript continues: “MR SCHAMA: So far as I’m concerned I’m satisfied in the absence of an allegation against a specific individual the Crown has dealt with the issue of Kinleigh, Folkard & Hayward. The only potential other party who might be said to be an agent is Mr Lugg or any of his staff. THE RECORDER: And he’s dealt with that. MR SCHAMA: And he’s dealt with that.” 60. A little later the Recorder described what he was minded to say to the jury should the defendant not give evidence and should Ms Levinson submit to the jury, on the back of the prepared statement, that the defendant could not remember what happened but he believed that he had been given permission. The Recorder made it clear that he would make a number of comments to the effect that common sense would suggest that the defendant would know the details of the person who gave him permission: “Ms Levinson, let’s not beat about the bush and put everyone’s … let me put my cards on the table so you know what my approach to this case is. What I see happening, my impression is that an attempt will be made, no doubt very properly, to make a submission to the jury on the back of the prepared statement, say 20 minute later, “Can’t remember what happened but this is what he genuinely believed, he wasn’t being dishonest,” and there will be no evidence from the Defendant. Now if that position were to arise I would anticipate giving the jury, well consider giving the jury a direction, I’d have to give the jury a direction about his failure to give evidence. And I would have to indicate to them the sorts of issues which could have been canvassed with him had he given his evidence. And I would probably have to indicate the common sense position that if the assertion in the prepared statement were true that he had had this discussion with somebody and had spent about a year trying to contact the person, he might have somewhere the person’s name. He might have somewhere the person’s telephone number. He might be able to provide a description of the person, so that at the very least you could have put that description in cross-examination to the previous witness with a view to attempting to identify the witness, so that that witness could be brought to Court to answer questions in support of your client’s case. Now that is what, the stance I’m likely to take if the course, if the trial goes in, takes that course. I don’t think that would be in any way unfair, because that’s, those are the sorts of questions which the Defendant is likely to be asked if he gives evidence. Yes?” 61. There was then further discussion about this and also discussions about recalling Ms Jenrick. At the conclusion of the day the Recorder said that he was not going to require Ms Jenrick to be recalled and that he would leave the matter of her recall to the parties. 62. The next day, Thursday, Ms Jenrick was recalled because Ms Levinson wanted to crossexamine Ms Jenrick about her evidence that Davinia Tyrell was on holiday in Holland. Enquiries had been made by the defence and it had become clear that Davinia Tyrell was not in Holland. Ms Levinson hoped to show, in effect, that Ms Tyrell had lied about this to cover up for Ms Jendrcik. Ms Jenrick gave evidence to the effect that she had made a mistake and had wrongly presumed that Davinia was on holiday. 63. Ms Tyrell was then called, having made a statement dated that day. In examination-inchief she said that she had had no contact of any kind with the appellant after showing him around the flat and agreeing the tenancy. In cross-examination she did not accept that she had given the appellant the permission to remove the property. 64. Ms Tyrell having completed her evidence, it was by now about 4.10 in the afternoon. Although we do not have the precise timings, it appears that the jury had only been in court for a short period during the day. In addition to the evidence of Ms Jenrick and of Ms Tyrell, the jury heard the evidence of the officer in the case. We have been provided with a transcript of the interventions by the Recorder in the examination-in-chief and cross-examination of the officer. Without a whole transcript it is not possible to ascertain the ratio of the Rcorder’s questions to the questions of the advocates, although it is right to say that the Recorder did ask a significant number of questions about the procedures in the police station. 65. At the conclusion of the prosecution case, Ms Levinson in the presence of the jury asked for time. The Recorder responded. “You’ve had plenty of time both yesterday and today.” Ms Levinson said that she wished to raise a matter in the absence of the jury an the jury were asked to leave court. In the absence of the jury Ms Levinson told the Recorder that she wanted to know whether the defendant intended to give evidence and she wanted to obtain an endorsement on her brief. The Recorder suggested that 30 seconds might be enough. The transcript then reads: “MS LEVINSON: Well ... THE RECORDER: We have wasted a vast amount of time on this case. I’m not saying it’s your fault, but the fact of the matter is that’s what’s happened. Now … MS LEVINSON : I … THE RECORDER: … I will give you five minutes to get the instructions you need. I will sit again at exactly a quarter past four and I expect you to be ready. I will call upon you then, Ms Levinson, whether you’re ready or not, to tell me whether you’re going to be … MS LEVINSON: Well, Your Honour, may I now make an application for ten minutes? I don’t want to keep Your Honour waiting. I’m anxious, anxious as you are and as I’m sure my client is that this matter is dealt with swiftly. It hasn’t been the defence fault that there have been delays in this case and it wasn’t … THE RECORDER: I’m afraid in part it is due to an abject failure to deal with a defence statement properly . MS LEVINSON: Your Honour, I don’t accept that that’s the reason for the delay. THE RECORDER: Well, I don’t care whether you accept it or not, that’s my view. MS LEVINSON: The defence has not required the witnesses to be at Court, which has caused the delay. THE RECORDER: Right. Please don’t argue with me. My view is there was an abject failure at providing a proper defence statement. You may have until 20 past.” (Emphasis added) 66. At 4.20 in the presence of the jury, Ms Levinson informed the court that the defendant would not be giving or calling evidence. The jury were then sent home. 67. Closing speeches and the summing-up followed on the Friday. The jury retired at 12.21 and brought in the verdict of guilty at 12.50. 68. By the end of the trial a strong case at the beginning of the trial had become overwhelming in the light of the evidence of Ms Jenrick and Ms Tyrell and in the absence of any evidence from the appellant. On the evidence which the jury heard the conviction is undoubtedly factually safe. 69. We turn shortly to the grounds of appeal but we will first look at the question of the adequacy of the defence statement. Adequacy of the defence statement 70. Guidance about defence statements has recently been given by another Division of this Court presided over by the Vice-President, Hughes LJ, in Rochford [2010] EWCA Crim 1928 . The Court held that a failure to amend a defence statement in accordance with a direction made by the judge that it must be amended, would not be a contempt of court on the part of the defendant. We take the facts from the judgment: “2. The defendant appeared before the Crown Court on an indictment charging a single count of dangerous driving. The Crown's case was that the van in question had been followed from a petrol station and that the petrol station's CCTV showed the defendant getting into the driver's seat. According to the Crown, the van had been driven dangerously thereafter, but the pursuing police car had lost sight of it after a number of miles and it had been found later the same night some little way from where contact had been lost. The defendant was arrested about five days later after being, it was said, identified from the CCTV footage. In interview he declined to answer any questions. 3. In the normal way the case was listed before the Crown Court for a plea and case management hearing. The defendant entered a plea of not guilty. On the same day, through his solicitors, he served a defence statement. It contained the following paragraph under the heading: "General nature of the defence - section 6A(1)(a)": "The Defendant was not the driver of the vehicle in question at the material time. He accepts he may have been the person shown on the CCTV at the garage." The remainder of the defence statement does not need citation. It said, consistently with the passage which we have just cited, that the defendant took issue with the prosecution in so far as it was suggested that he was the driver of the vehicle at the material time. 4. On the morning of the trial, the judge asked counsel for the defendant what his case was. The judge said that he had read the defence statement as suggesting that the defendant was asserting that he may have been the driver of the vehicle at the petrol station, but that he was not at the material time. In that event, said the judge, why was there no mention of alibi? Was it that he was saying that he was in the vehicle but not the driver? Counsel for the defendant responded to this extent only. He told the judge that the defendant's case was that the defendant was not in the vehicle. 5. There followed a good deal of discussion which it is not necessary to recite. The judge took the view that the defence statement failed to comply with section 6A. It did not say where the defendant was at the material time if he was not in the driving seat. Having taken that view, the judge invited counsel to amend the defence statement. That invitation became, over the course of discussion, in effect a direction to amend the defence statement, although no formal order to that effect was, as it seems to us, ever explicitly made. What was undoubtedly said was that a failure to amend would be treated as a contempt of court.” 71. After further discussion and an adjournment overnight the judge took the view that in the absence of amendment the defendant was in contempt of court because he was disobeying the judge's order that the defence statement must be amended. The defendant was sentenced accordingly to 28 days' imprisonment. His appeal against the finding of contempt was allowed by the Court of Appeal. The Court held that the sanction for non-compliance is explicit in the statute in section 11 and that it is not open to the court to add an additional extra statutory sanction of punishment for contempt of court. 72. For the purposes of this appeal what the Court said about the adequacy of the defence statement is important: “16. The first question which we think we ought to address is whether there was in this case a failure to comply with section 6A [see above paragraph 19]. The answer to that is that we do not know and neither did the judge. If the defendant was going to say that he was somewhere else rather than in the driving seat then there had been a failure to comply with section 6A. If he was going to call evidence from some source other than himself that he was somewhere else other than in the driving seat then there had been a failure to comply with section 6A. If, even, the possibility that he had been somewhere else was going to be raised distinctly before the jury by way of submission or argument, that too would entail a failure to comply with section 6A. Once the issue is going to be raised in any of those manners (and there may be other ways in which it could be,) section 6A(1)(ca) and (c) would apply and would require the defendant to set out why he took issue with the Crown on his location and to give particulars of the matters of fact on which he intended to rely for that purpose. However, if the defendant was going to make no positive case at all and not raise the issue of his possible location elsewhere, and if he was simply going to sit tight and ensure that the Crown proved its case, then, as it seems to us, there would have been no failure to comply with section 6A. 17. The judge was entitled to ask, and indeed to ask insistently and trenchantly. He was not, however, entitled to require counsel to reveal his instructions if no positive case was going to be made in any of the ways which we have identified or any other. From a position of ignorance the judge was not in a position to know, any more than we are at this stage, whether there had been a breach of section 6A or not. Only time will tell as the trial, which has not yet begun, proceeds.” 73. The Court dealt with the issue of legal professional privilege, saying: “21 Do legal professional privilege and the defendant's privilege against self-incrimination survive section 6A? The answer to that is "Yes". What the defendant is required to disclose by section 6A is what is going to happen at the trial. He is not required to disclose his confidential discussions with his advocate, although of course they may bear on what is going to happen at the trial. Nor is he obliged to incriminate himself if he does not want to. Those are fundamental rights and they have certainly not been taken away by section 6A - see the reasoning in the slightly different context of the Criminal Procedure Rules in R (Kelly) v Warley Magistrates Court [2007] EWHC 1836 (Admin) , [2008] 1 WLR 2001 .” 74. The Court also gave importance guidance about the responsibilities of those giving advice to a defendant about a defence statement and guidance about the content of a defence statement when, for example, a defendant refuses to give instructions either at all or on specific points. The defence statement must then say that the defendant does not admit the offence or the relevant part of it as the case may be, and calls for the Crown to prove it. In these circumstances the defence statement must also say that the defendant advances no positive case. If he is going to advance a positive case that must appear in the defence statement and notice of it must be given (see paragraph 24). Although the Court does not expressly say so, it seems that, to this extent the defence statement in Rochford may not have been in accordance with section 6A. If the defendant was advancing no positive case, then the defence statement must make that clear to comply with the statutory requirements. 75. In our view Rochford is quite different from this case. The appellant in Rochford had said nothing in interview and was, so it appeared at this early stage of the trial, doing no more than requiring the prosecution to prove that he was the driver. That is not this case. Given the content of the prepared statement which was to be in evidence, it was clearly the intention of the appellant Malcolm to put forward a positive case about a number of matters, including a positive case that he had been given permission. 76. It follows that the defence statement was, as the Recorder said, hopelessly inadequate in the light of the requirements of section 6A. Ms Levinson did not seek to argue otherwise. To satisfy the statutory requirements, it was insufficient merely to say that the defendant did not accept that he took all the items being claimed by the complainant. The appellant was required to identify what was taken by him from the flat and to identify those items said to be stolen which he had left in the flat. If he had taken, for example, the fridge freezer and dishwasher, what had he done with them? If, as alleged, he did not intend permanently to deprive the owner of the items, what was his intention particularly in relation to those items missing from 41 Dolphin House and not found in use at his new flat? If he was alleging, as he had alleged in his prepared statement, that he had been given permission by a female agent to take items from the flat, who had given him the permission, when and in what circumstances? If he did not know her name, then he should have identified her in some other way, e.g. the female from the agency to which he had gone and who showed him round the flat. To satisfy the statutory requirements, the appellant ought also to have explained whether he accepted the value of some £15,000-£20,000 for the items taken and explained why, in his view, he was entitled him to take the items which he did take. The trial was not fair because of the Recorder’s conduct in the absence of the jury but in the presence of the defendant 77. It is submitted that by requiring the prosecutor, albeit in the absence of the jury, to call witnesses to fill what the recorder saw as a gap in the prosecution’s case, the Recorder denied the appellant a fair trial. It is also Ms Levinson’s submission that the appellant was denied a fair trial because of the manner in which the Recorder dealt with the defence statement. The effect of Ms Levinson’s submissions is that a defendant is entitled to a fair trial before an impartial judge and that in our adversarial system the judge ceases to be impartial if he takes over the running of the prosecution case as, it is submitted, this Recorder did. 78. We shall summarise first of all Ms Levinson’s submissions in relation to the witnesses. 79. As we have already said, Mr Schama, for the reasons he explained to us, was content to call only Mr Lugg and the officer in the case. It seems as if his view was shared by those who had had conduct of the prosecution’s case prior to the trial date. Before Mr Schama took over the case for the trial, the prosecution had been represented by three other counsel. The Recorder, we should add, was the fourth judge to be involved in the case, the three earlier judges being judges of considerable experience. We should add that Mr Schama was called in 2003 and, if we may say so, appeared to us to know how to prosecute a criminal trial in a proper manner. 80. The Recorder made it clear that he did not agree with Mr Schama’s approach and that he required witnesses to attend. Ms Levinson points to a number of passages from the transcript. She relies on the passages which we have underlined in paragraph 38 above. “... I’m going to demand a witness from Kinleigh Folkard Hayward presents his or herself here in the course of this trial.” “I’d like a witness from Kinleigh, from the appropriate branch of Kinleigh Folkard Hayward here during the duration of this trial.” There was then a serious criticism of the officer (“gross oversight”) followed by a direction: “Please go off and attend to that now”, i.e. get the witnesses to court. The Recorder also said: “I have a number of questions for Mr Malcolm himself which may or may not answer some of the propositions. We’ll see.” This latter comment seems to us to be unfortunate. 81. Ms Levinson relies on passages which we have underlined in paragraph 39 above. “In which case the witness from Kinleigh Folkard Hayward must come straight away, as indeed must Mr Nelligan. They must both make witness statements”. The Recorder described this as a direction, saying “[T] hose are the directions I am going to give for the moment.” “If anything should change and you require me to give further directions ... I shall certainly do that.” 82. Later he also said, in reference to filling lacunae in the prosecution’s case: “I’m afraid that’s the way it’s going to be” (paragraph 50 above) and also (paragraph 53 above): “It seems to me that we’ll have to get Ms Tyrell here to give evidence about it.” 83. In our view judges are entitled to, and should not be reluctant to, invite the prosecution (or indeed the defence) to consider putting further evidence before the jury. Such an invitation is consistent with the trial judge’s duty to ensure a fair trial. Fairness in this context does not mean just being fair to the defence. As Lord Steyn said in R. v. A . [2001] UKHL 25 ; [2002] 1 AC 45 ; [2001] 2 Cr App R 2 , the concept of what a fair trial entails involves a balancing and: “[38] ... account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play.” 84. However, none of us have come across a case in which the judge has used the kind of language used by the Recorder in this case. 85. We turn to the issue of the defence statement. We have already said that the defence statement failed by a very long way to meet the statutory requirements (paragraph 76 above). 86. The Recorder’s immediate response on first seeing the defence statement was: “I don’t regard this as a defence statement”, followed by “It is not worth the paper it is written on”. The Recorder made it clear that he was not in the least bit interested whether this defence statement was in line with the prepared statement or not. Mr Schama said that “having read the prepared statement I of course consider both in my mind together.” To this the Recorder said: “You can’t” (paragraph 31 above). The recorder was right to point out that it is the defence statement which must comply with the statutory requirements (albeit that a defence statement could expressly incorporate what had been said in interview or in a prepared statement). 87. The Recorder did warn the appellant of the adverse consequences that could flow from the failure to comply with the requirements (paragraph 31 above). He was right to do so. The time limit for serving a defence statement had passed and under the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 SI 1997/2680 there is no power to extend the time limit for the service of a defence statement after the expiry of the limit in the absence of an application before expiry. Nonetheless a late defence statement may, in certain circumstances, mitigate criticism of the defendant and the Recorder was entitled to give the defendant an opportunity to amend his defence statement. 88. On the next day, Wednesday, the Recorder had said: “I’m being forced into the arena in this trial, much against my wishes, because at the outset I pointed out to you that your client had failed to comply with the defence statement requirements.” He said that although he had raised the issue “this has not been rectified in any way, shape or form.” He continued: “ It seems to me that the – and I don’t say this critically – but the position the defence appears to be adopting is to seek to raise a lacunae in the Crown’s investigation to their advantage.” (Paragraph 50 above) 89. Shortly afterwards he said: “A wholly inadequate defence statement has been provided. The defendant refused to answer questions in interview. He has provided a prepared statement in the very most general of terms. I raised this with Ms Levinson yesterday at the beginning of this trial, and despite my raising it in very clear terms nothing has been done to remedy the position. And I have been forced in to causing enquiries to be made so that this surprise tactic would not persist.” (Paragraph 52 above) 90. A little later he characterised the defence as an ambush defence (paragraph 53 above). Later still he said: “It wasn’t beyond the ability of your client or those who represent him to put in the defence statement that the person the defendant spoke to was the person who showed him around the flat. That would have been an immediate point of identification as to who the person was. That wasn’t done.” (Paragraph 55 above) 91. As we have seen (paragraph 65 above), the Recorder referred again to the abject failure to provide a defence statement after the close of the prosecution’s case. We have also seen how he said that he would make a number of comments to the jury should the defendant not give evidence and should reliance be placed on the defence statement (paragraph 60 above). 92. Ms Levinson points out, as she did to the Recorder, that the only consequence of failing to comply with the statutory requirements is that a jury may draw an adverse inference following comments by the prosecution and a direction from the judge (another possible consequence may be an order of costs). If a defendant, as this defendant must have done, deliberately fails to comply with the statutory requirements after being reminded, as he was, by the Recorder of the consequences, then that, so Ms Levinson submits, is that. The judge should not enter the arena and become a second prosecutor. A defendant remains entitled to require the prosecution to prove its case without his assistance, notwithstanding the likely adverse consequences for the defence case if he fails to comply with the applicable statutory and procedural requirements. 93. We turn to the authorities on this topic, emphasising that all of the problems in this case, and the criticisms now advanced of the judicial conduct of the trial, arose from the hopelessly inadequate defence case statement, and the Recorder’s attempt to overcome them. 94. Ms Levinson relies particularly on the judgment of the Privy Council given by Lord Brown in Michel v The Queen [2010] 1 WLR 879 ; [2010] 1 Cr App R 24 ; [2009] UKPC 41 . The appellant had been convicted of offences of money laundering by the Inferior Number of the Royal Court of Jersey, consisting of a Commissioner and two Jurats. Jurats are elected by a special electoral college. They do not necessarily have a legal qualificat ion but are elected for their known history of sound judgment and integrity. The facts are decided by the Jurats, the Commissioner retiring with the Jurats but not joining in the fact-finding exercise unless the Jurats disagree: see Michel , paras. 19 and 3 1. His appeal against conviction had been dismissed by the Court of Appeal of Jersey and the Board concluded that the appeal should be allowed and the conviction quashed and so advised Her Majesty. 95. Lord Brown said that if “26. ... the sole touchstone of a safe conviction ... was whether the Appeal Court could be satisfied that the jury (here the Jurats) would inevitably have come to the same conclusion even without the judge's inappropriate interventions, it might be difficult to upset this verdict: the case against the appellant was in truth a formidable one.” 96. He continued: “27. ... there comes a point when, however obviously guilty an accused person may appear to be, the Appeal Court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor.” 97. Lord Brown cited a passage from the opinion of the Board given by Lord Bingham of Cornhill in Randall v R [2002] 2 Cr App R 17 ; [2002] UKPC 19 . Lord Bingham said: “28. While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.” 98. Lord Brown referred to the defendant’s “basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him.” He continued: “31. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.” 99. It is to be noted that Lord Brown, in the last sentence, refers to the requirement that the judge remain “neutral during the elicitation of the evidence”. In Michel what was found to be the unfair conduct of the case by the Commissioner took place in the presence of the Jurats. 100. The ground of appeal which we are now considering concerns the behaviour of the judge in the absence of the jury. Such behaviour can have the effect of denying a defendant a fair trial. An example can be found in Tedjame-mortty [2011] EWCA Crim 80 ; [2011] Crim. L.R. 676, with a commentary by Professor Ormerod. In that case (said by the Court to be unprecedented) the judge had behaved in such a wholly inappropriate manner towards the defendant shortly before he gave evidence that the quality of his evidence could have been affected. The conviction was quashed because “we cannot safely exclude the possibility that the appellant might have been acquitted if he had given his evidence as credibly as he may have done if the judge had dealt with the matter appropriately.” 101. Another example of judicial misbehaviour can be found in Cordingley (2007) EWCA Crim 2174 . One of the grounds of appeal was that the judge behaved oppressively towards defence counsel in the absence of the jury and in consequence the appellant did not receive a fair trial. Laws LJ said: “13. ... Whereas we entirely endorse robust case management and the importance of ensuring that all court time is used sensibly, we are bound to say we consider that the exchanges between the judge and counsel, especially on the first day, betray a rudeness and discourtesy of which the judge should be ashamed. His treatment of the issue about the appellant's change of clothes was brutal. His withdrawal of bail was at least questionable. ” 102. Allowing the appeal Laws LJ went on to say: “15. The safety of a conviction does not merely depend upon the strength of the evidence that the jury hears. It depends also on the observance of due process. In this case it seems to us inescapable that the effect of the judge's conduct must have been to inhibit the defendant in the course of his defence. He clearly felt that the judge was prejudiced against him, as Mr Smith's recollection of his client's own words demonstrate. It may well be that what the judge had said in his presence (although in the absence of the jury) affected him so as to have adverse consequences for his credibility before the jury. But whether or not that is so, it is to be remembered that every defendant, and this is no more than elementary, is entitled to be tried fairly - that is courteously and with due regard for the presumption of innocence. This appellant was not tried fairly. There was a failure of due process by reason of the judge's conduct.” 103. Cole (2008) EWCA Crim 3234 provides another example, albeit in Cole the judicial conduct of which complaint was made occurred both when the jury was in court and when the jury was out of court. Amongst other things which the judge did in Cole , was to provide defence counsel in the presence of her client with a disparaging note about her competence. The court took that into account when considering whether or not the appellant could have felt that he was getting a fair trial in front of this judge. 104. The bundle of authorities prepared for the appeal include cases concerning the judge’s powers in the face of a refusal by the prosecution to call a witness whose statement has been served as part of the prosecution’s case (or to use language no longer applicable, a witness whose name is on the back of the indictment) and whose evidence may assist the defendant. Even if a judge has the power, in the exercise of his duties to ensure a fair trial, to require the prosecution to call a witness in certain very limited circumstances (as to which see Blackstone’s Criminal Practice, 2011, para. D15.23), we do not think that this is of help in considering the issues raised by this case. We were referred to a report in the Times of the case of Baldwin , May 3 1978, and we have obtained a full transcript. The prosecution had declined to call a witness whose statement had been provided to the defence as part of what we would call to-day “unused material”. The judge had required the prosecution to call the witness. Roskill LJ said: “With respect to the learned judge, we think that the course that he took was wrong and ought not to be taken. The question who should be called to give evidence for the Crown is a matter for counsel for the Crown. ... But it is wrong, merely because it may be advantageous to a defendant that the Crown should call a witness whom counsel for the Crown is reluctant to call, that the trial judge should seek to insist on counsel for the Crown calling that witness.” 105. We turn to Grafton (1993) 96 Cr. App. R. 156; [1993] Q.B. 101 . The headnote in the Criminal Appeal Reports reads: “The appellant was charged with causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861 . At his trial a witness called by the Crown gave evidence which supported the appellant's claim that he had been acting in self-defence. The Crown decided to offer no further evidence. After a discussion with counsel the judge [HHJ Owen Stable QC] made it clear that he thought the case should proceed, but counsel for the Crown declined to take any further part. The judge called the one remaining prosecution witness. The appellant was acquitted of the offence contrary to section 18 , but was convicted of the lesser offence of causing grievous bodily harm contrary to section 20 of the Act.” 106. Taylor LJ (as he then was) giving the judgment of the Court said at the outset of the judgment: “Trials on indictment in England and Wales are adversarial. The prosecution decides who to charge and with what offences. They present the case for the Crown. Counsel for the defence presents the case for the accused. The judge is there to hold the ring impartially and to direct the jury on the law. These simple propositions are truisms, but their importance and the dangers of departing from them are highlighted by this appeal, which we allowed on March 13, 1992.” 107. After the complainant had given evidence the prosecution called a witness “E” who gave evidence which assisted the defendant (as he had done at the committal proceedings). Taylor LJ describes what then happened: “... prosecuting counsel, after consulting those instructing him, said he would offer no further evidence. This prompted an unusually animated argument between counsel and the judge, who was clearly outraged at what he expressly called the crass incompetence of the Crown Prosecution Service in serving and making part of the prosecution case a witness they knew would support the defendant and then seeking to discontinue when predictably he did just that. Expressing his view that the case should go on, the learned judge made clear that he thought [the complainant] was “a witness of truth and a very accurate and careful one,” [E] was “patently false.” He told prosecuting counsel it would be “utterly, utterly wrong to chuck your hand in at this stage.” Nevertheless, prosecuting counsel maintained his position and took no further part. The learned judge then decided that the case should not stop and that he would call a police officer who was the remaining witness for the Crown. He referred to that witness's testimony as “only a formal piece of evidence.” The officer proved the notes of the appellant's interview. Admittedly, the notes were signed by the appellant and not disputed but the evidence was necessary to link him with the assault. At the conclusion of the prosecution it may be that a submission of no case was made and rejected. Certainly, the learned judge had indicated in the earlier argument that if such a submission were made he would reject it. The appellant did not give evidence on his own behalf. We are told that his decision not to do so was influenced by his impression that the judge was hostile to him so that he was reluctant to be questioned by the judge. He signed a statement to that effect. Counsel for the defence addressed the jury and the learned judge summed-up. After a three hour retirement, the jury acquitted the appellant of the offence charged under section 18 , but convicted him of the lesser offence under section 20.” 108. A little later having referred to the report of the Farquharson Committee, Taylor LJ said: “It is well established that the judge in a criminal trial has power to call a witness. It is, however, a power which should be used most sparingly and rarely exercised (see Roberts (J.M.) (1985) 80 Cr.App.R. 89 , and the cases therein cited at p. 96). Where the power is exercised, it should be for achieving the ends of justice and fairness. Thus in Tregear (1967) 51 Cr.App.R. 280, [1967] 2 Q.B. 574, a judge's decision to call a witness at a late stage of the trial was upheld because he was ‘not seeking to supplement the prosecution.’ ” 109. Taylor LJ contrasted that decision with the decision by the judge case with which the Court of Appeal was concerned: “Here by calling the last witness, the learned judge was not only supplementing the prosecution; he was in effect taking it over. It cannot in our judgment be right that a judge can refuse to allow the prosecution to discontinue before their case is concluded if he believes the evidence already called raises a prima facie case. The effect would be that after a complainant gave evidence which the judge thought credible, if the prosecution at this point decided on due reflection to discontinue, the judge could go on to call all the remaining prosecution witnesses himself. In doing so, he would inevitably have descended into the arena in a totally unacceptable way.” Taylor LJ then referred to what might have happened if the defendant had given evidence: “the alternatives would have been either for the judge to cross-examine him or for his evidence to remain untested and unchallenged.” Taylor LJ continued: “by proceeding as he did, the learned judge was no longer holding the ring. He took over the prosecution. There was no other prosecutor. The reaction of any neutral bystander could only be that the judge had become the adversary of the defence.” 110. In that last sentence Taylor LJ refers to the neutral bystander. It is not of course suggested that the Recorder was biased against the defendant. But there remains the issue of the appearance of bias. The modern test to decide whether there has been the appearance of bias is to be found in Re Medicaments and Related Classes of Goods [2000] EWCA Civ 350 ; [2001] 1 WLR 700 , in which Lord Phillips MR gave the judgment of the Court, and in Porter v Mcgill [2002] 2 AC 357 . The test is whether, having regard to all the circumstances which have a bearing on the suggestion that the judge was biased, a fair minded and informed observer would conclude that there was a real possibility of bias. In this case the alleged bias is a bias against the defendant. 111. Mr Schama reminded us of the Criminal Procedure Rules and submitted that the judge was doing no more than actively case managing the case. We highlight that Part 1 provides that the overriding objective is to deal with cases justly and that dealing with a case justly includes acquitting the innocent and convicting the guilty. It also includes dealing with the prosecution and defence fairly and recognising the rights of the defendant, particularly under Article 6 of the European Convention on Human Rights. Amongst those rights, in effect declaratory of the common law, is the right to a trial by an impartial tribunal. Simultaneously, however, active case management by the judge is an essential feature of the modern criminal trial process. 112. The essential question which arises can be described in a number of different ways. Thus, in the context of Grafton , the question would be: "had the Recorder, who said that he had reluctantly entered the arena, done so in a 'totally unacceptable way' by forcing the prosecution to call witnesses from the estate agency in order to fill the gaps left by the defence statement?" Alternatively would a fair and minded and informed neutral bystander conclude in all the circumstances that there was a real possibility that the Recorder was biased against the defendant when the Recorder directed the prosecution to call the witnesses in the way he did and when he continued to raise the issue of the inadequacies of the defence case statement, in effect, throughout the entire trial? But dealing with it compendiously, what we are required to resolve is whether, looking at the trial process as a whole, the Recorder, albeit unintentionally, crossed the line between appropriate and inappropriate judicial conduct by adopting or appearing to adopt the role of the prosecutor. When all the authorities have been examined, in the end, this is a fact specific question. 113. We have examined it in the light of full transcripts of the evidence and exchanges which bear on these issues. Not without some reluctance we have reached the conclusion that the way in which the Recorder descended into the arena was inappropriate. It was his duty to manage the case in a direct and robust way. We should not criticise him for having done so. But here, the combined effect of his constant repetitious criticism of the inadequacies of the defence statement (when, having given the defence every opportunity to make good those deficiencies, he would have been entitled to make strong comments in his summing up) together with the directions he gave to the prosecution about witnesses who were to be called, would have created in the mind of the informed mutual observer the perception that there was a real possibility that the Recorder had become biased against the defendant. 114. It follows that the conviction is unsafe. Recorder’s intervention during the cross-examination of Ms Jenrick 115. As we have already noted, during the cross-examination of Ms Jenrick, the recorder asked this question of Ms Levinson, to which she replied “Yes”: “Can I understand the case you’re putting, Ms Levinson? Are you suggesting that the person who was, who this discussion took place with was the same person as had shown your client around the flat? Is that your suggestion?” 116. As we have seen, the affirmative answer given by Ms Levinson to the recorder caused the defence difficulties and she later sought to retract it. 117. Ms Levinson submits that this question should not have been asked. The recorder knew by now that the defendant was declining to give any further information and the recorder should not have pressed her, so she submits. 118. We see no merit in Ms Levinson’s submission particularly in the light of the prepared statement, in the light of her cross-examination of Ms Jenrick about there being four female members of staff on the lettings team, her attempts to identify those persons, questions about absences from the office and questions such as the following. “Are you sure that it was Davinia that dealt with him on that occasion [the letting]?” “And you instructed Davinia that she should be the person to deal with him?” “Assuming the system works correctly, you would assume that Davinia’s the only person dealing with Mr Malcolm.” “What Mr Malcolm says is that somebody, and he doesn’t suggest that this is you but that somebody who he believed to be an agent had given him, or had reached an agreement with him whereby he would, he was permitted to take certain items of property from the premises and whilst the situation in relation to the possible return of his deposit was discussed with the owner of the property. Now as I say, he doesn’t suggest that that was with you … .” 119. Given that the purpose of these questions must have been in some way to support the appellant’s account in his prepared statement, the recorder was certainly entitled to ask the question which he did. Judge’s questions of witnesses whilst giving evidence to the jury 120. Ms Levinson submits that the number of questions asked by the Recorder were such as to render the trial unfair. The Recorder accepted that if what he was doing “means my having to descend occasionally into the arena to ask questions that need to be asked, I’m afraid I will.” He certainly did ask a large number of questions. Given our conclusions that conviction is unsafe, we do not need to decide whether the questioning itself was such as to render the trial unfair. Conclusion 121. In conclusion we allow the appeal and quash the conviction. We invite written submissions as to whether, notwithstanding that the appellant has been released from custody, there should be a retrial.

2011_09_01-2815.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2069/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2069

08fe4fd6749d99dca79bbf8d98fa4048a34634ef5a09d39f634b6309d673d214

[2004] EWCA Crim 2530

EWCA_Crim_2530

2004-07-09

crown_court

No: 2003/0701/B4 & 2003/1974/B4 Neutral Citation Number: [2004] EWCA Crim 2530 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 9 th July 2004 B E F O R E: LORD JUSTICE CLARKE MR JUSTICE HENRIQUES MR JUSTICE BEATSON - - - - - - R E G I N A -v- ANDREW BAILEY - - - - - - 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 Writer

No: 2003/0701/B4 & 2003/1974/B4 Neutral Citation Number: [2004] EWCA Crim 2530 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Friday, 9 th July 2004 B E F O R E: LORD JUSTICE CLARKE MR JUSTICE HENRIQUES MR JUSTICE BEATSON - - - - - - R E G I N A -v- ANDREW BAILEY - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - MR R BARRADELL appeared on behalf of the APPELLANT MISS R HARRISON appeared on behalf of the Crown - - - - - - J U D G M E N T 1. LORD JUSTICE CLARKE: The appellant is Andrew Bailey, now aged 42. On 10th January 2003 in the Crown court at Sheffield, before Mr Recorder Hirst and a jury, he was convicted of theft. On 18th February 2003 he was sentenced to a community punishment order of 200 hours. He was also ordered to pay compensation of £17,929 to Western Mining Corporation and £1,200 towards the costs of the prosecution. A recovery of defence costs order was also made against the appellant in the full amount. The single judge, Gage J, refused leave to appeal against both conviction and sentence. However both applications were renewed before the full court. He now appeals against conviction by leave of the full court, Rose LJ, Owen J and Sir Charles Mantell granted on 4th May 2004. The sole ground of appeal arises out of the way the Recorder directed the jury as to the effect of the appellant's good character. The full court also referred the appellant's renewed sentence application to the court hearing the appeal against conviction. 2. It was the prosecution case that on 17th September 2001 the appellant stole four tonnes of nickel worth £17,929 belonging to the Western Mining Corporation of Australia. The metal was alleged to have been stolen from a storage and distribution facility in Rotheram owned and managed by AMA Storage and Distribution Limited ("AMA"). In the course of its business AMA stored metals for a number of companies. The background to the alleged offence was that in November 2000 the appellant made a loan of £40,000 to a man called John Sissons who was the Managing Director of Cobra Ltd, one of the companies that stored metals at AMA. The loan was secured on the metals owned by Cobra and stored at AMA. On 5th December 2000, Mr Sissons assigned all the metals stored at AMA to the appellant. The assignment was formally documented and the metals assigned were based on inventories prepared by AMA at the request of Mr Sissons. The inventory itemised 84.7 tonnes of various metals. In September 2001 the appellant went to AMA to remove the metals in question. He removed 57.8 tonnes of metal and was then informed that he had taken all that was due to him. There was therefore a shortfall of almost 30 tonnes of metal. 3. The appellant responded by taking four tonnes of nickel belonging to the Western Mining Corporation of Australia in lieu of the missing 30 tonnes. He gave a receipt for the additional four tonnes to AMA and subsequently sent a fax to AMA confirming that it had been taken. That was followed by a letter to AMA saying that if he was not compensated for the missing 30 tonnes within seven days he would sell the nickel and keep the money as part compensation for his losses. AMA did not respond but contacted the police. The police then told the appellant by telephone that the nickel belonged to the Western Mining Corporation of Australia and that he should not sell it. Despite that advice from the police, the appellant sold the nickel. 4. The appellant gave evidence that he was aged 40 and a man of good character. It was his defence that he believed that he was entitled to take the four tonnes of nickel in lieu of the missing metal, that he had a claim of right under section 2(1)(a) of the Theft Act 1968 and that he was not acting dishonestly. The central issue for the jury was whether the prosecution had proved that the appellant was acting dishonestly in taking and selling the metal belonging to the Western Mining Corporation. 5. As we have indicated, the sole ground of appeal arises out of the direction which the Recorder gave to the jury as to the appellant's good character. As we understand it, the summing-up proceeded over two days. On the first day the Recorder gave a number of detailed directions as to the law which are not in any way in dispute. He did not, however, give a good character direction. As we understand it, the fact that he had not given such a direction was brought to his attention on the morning of the second day of the summing-up. He thanked counsel and said that he would give such a direction in due course. 6. The direction which he gave was given very near the end of his summing-up and was in these terms (page 26): "Now I am going back now into my directive mode; this is the mode in which what I say is the law. Remember, the burden of proof is always on the prosecution to satisfy you, so you can be sure, that the defendant has committed the criminal offence of theft, which means in this case to be sure that he was dishonest, dishonest according to your standards, and also that he realised that what he did was dishonest, and also that he intended to treat that nickel as his own to dispose of. He is a man of no previous convictions. That does not mean to say that you automatically accept everything he says. But it is something you can take account of as favourable to him, because a person who has lived for 40 years without committing a criminal offence obviously is basically an honest person." 7. Perhaps unfortunately, counsel did not submit to the Recorder before the jury retired that that direction was inadequate. We do not blame counsel in this particular case. We are sure that no deliberate decision was made not to draw the matter to the attention of the Recorder, but we do stress that it is the duty of counsel who hear a direction which appears to be inadequate to consider the matter and, in an appropriate case, to draw the matter to the attention of the Recorder so that any defect can be cured before the jury retire to consider their verdict. 8. However, the question in this case is whether the direction was or was not inadequate. Mr Barradell submits that it was inadequate in the context of this case where a crucial question for the jury to decide was whether the appellant acted dishonestly. It is common ground that that was indeed a crucial question in the case. The Recorder made clear to the jury at page 5C that there were two essentials for the jury to decide. The first was whether the appellant acted dishonestly and the second was whether at the time he took the four tonnes of nickel he intended permanently to deprive the owner of it. The judge correctly defined the meaning of dishonesty by reference to the two limbs identified in the case of Ghosh [1982] QB 1053. Thus, he told the jury that they must be sure (1) that the appellant acted dishonestly by the ordinary standards of reasonable and honest people, and (2) that the appellant realised that what he was doing was dishonest. Here the defence relied upon section 2(1) of the Theft Act 1968 which provides: "A person's appropriation of property belonging to another is not to be regarded as dishonest- (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it..." The Recorder correctly directed the jury that the Crown must satisfy them that the appellant did not believe that he had the right in law to deprive the owner of the nickel of its property. Thus the state of mind of the appellant was central to the questions the jury had to decide. In these circumstances, it was, in our judgment, of considerable importance that the Recorder give a sufficient direction as to the appellant's good character. 9. The position is clear on the authorities. The history of the matter is discussed in some detail in Vye (1993) 97 Cr.App.R 134 , where Lord Taylor, CJ, giving the judgment of the court identified the correct approach as follows: "To summarise, in our judgment the following principles are to be applied: (1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements. (2) A direction as to the relevance of his good character to the likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre-trial answers or statements. (3) Where defendant A of good character is jointly tried with defendant B of bad character, (1) and (2) still apply." We are not of course here concerned with point (3). 10. The problem has been considered in a number of cases, including the case of Lloyd [2002] Cr.App.R 355 where the judgment of this court was given by Pill LJ. At 358 he quoted this passage from the speech of Lord Steyn in Aziz [1995] 2 Cr.App.R 478, [1996] AC 41, at pages 486 and 51 respectively: "Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and to repeated appeals. Hence there has been a shift from discretion to rules of practice. And Vye was the culmination of this development. This is the context in which the Lord Chief Justice enunciated the principles already quoted." 11. Although the facts of Lloyd were very different, it was a case like this at any rate to the extent that the issue of credibility was of the greatest importance and relevance. In Lloyd , Pill LJ expressed the court's conclusions at pages 359 to 360 as follows: "In our judgment it was most important that a plain statement be made in the summing-up as to the good character of the appellant and its effect on the proceedings. It was particularly important in this case that the jury should be told that, when considering whether his evidence was truthful, they must bear in mind that the defendant was a man of good character. The relevant sentence from the Judicial Studies Board guideline direction reads: 'This means it is a factor which you should take into account when deciding whether you believe his evidence.' It was vital in this case that such a direction was given. It was not given. Merely to ask the question: 'Is it more likely that he is telling the truth because he is a man of clean character?' was far from sufficient. This, in our judgment, is a fatal defect in this summing-up. The appellant was also entitled to a plain direction upon the second limb contemplated in Vye..." 12. Mr Barradell submits that the same is true here. The current April 2003 version of the standard JSB direction is in these terms in the case of a defendant who has given evidence: "You have heard that the defendant is a man ... of good character... Of course, good character cannot by itself prove a defence to a criminal charge, but it is evidence which you should take into account in his favour in the following way/s: 1. In the first place, the defendant has given evidence, and as with any man of good character it supports his credibility. This means it is a factor which you should take into account when deciding whether you believe his evidence. 2. In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit this crime now. I have said that these are matters to which you should have regard in the defendant's favour. It is for you to decide what weight you should give to them in this case. In doing this you are entitled to take into account everything you have heard about the defendant, including..." 13. The notes to the JSB direction of course make it clear that the precise direction to be given will depend upon the circumstances of the particular case, but they say that generally the direction should not be watered down. They also stress the desirability of the proposed direction being discussed with counsel before their closing speeches, which did not occur here. 14. Mr Barradell submits that the direction given in the present case was inadequate because it fails to distinguish between the two limbs of the good character direction. He submits that the Recorder neither used the word "credibility" nor otherwise made it clear that the jury should take the appellant's good character into account in deciding whether they believed his evidence. Nor did the Recorder make it clear that they should consider whether the fact of his good character might mean that he was less likely to have committed the offence. 15. Miss Harrison recognises that the central issue in the case was the state of mind of the appellant and in particular his honesty or dishonesty and that the Recorder did not use the standard direction, but she submits that he dealt with both its limbs in commonsense terms. She stresses that the jury were told to take the fact that the appellant had no previous convictions into account in his favour. She further submits that the conviction was not in any event unsafe. It is fair to say that it was broadly on that basis that the single judge initially refused leave to appeal on paper. 16. We recognise that there have been cases in which appeals have been dismissed notwithstanding a failure on the part of the judge to give an entirely appropriate direction. As ever, each case turns on its own facts. However, in the instant case we are persuaded that Mr Barradell's submissions are well-founded. The direction was of particular importance in this case and in our judgment it did not go far enough. It did not identify the two distinct ways in which good character is relevant, namely as to credibility and as to propensity. Although it might be said that both were wrapped up in what the Recorder said, they were not spelled out clearly. The direction was somewhat delphic. Moreover, the authorities, especially Lloyd , spell out the importance of a plain direction being given that the jury should take into account the defendant's good character (our emphasis). In the present case the Recorder merely said that they could take it into account, which in our view is to water down the direction. The direction should not have been watered down. In all these circumstances we have reached the conclusion that the direction was inadequate. 17. Was the conviction nevertheless safe? We cannot say that it was because the honesty or dishonesty of the appellant and what he believed were central to the case the jury had to consider. It follows that this appeal must be allowed. 18. We only add by way of postscript that the case highlights again the importance of giving a clear direction along the lines of the JSB guidelines and indeed the desirability of discussing the proposed direction with counsel in advance. 19. For the reasons we have given, the conviction is quashed. We will now hear submissions on whether to order a retrial. 20. MISS HARRISON: My Lord, the Crown do not seek a retrial in this case. By the time the trial was heard the offence was already of some age. Bearing in mind the fact that Mr Bailey is still of good character, now your Lordships have overturned the conviction, he has already served the sentence in terms of the community punishment order which he has completed and the compensation which he was ordered to pay has been dealt with by way of insurance settlement in any event, he would have been paying the insurance company rather than the Australia Mining Corporation direct. In those circumstances the Crown Prosecution Service consider that it is not in the public interest to seek a retrial. 21. LORD JUSTICE CLARKE: Very well. In that case we do not order a retrial. So far as we can see, without hearing any argument on the point, it is very difficult to see how the applicant would have any defence to the claim for £17,000 at the instance of Western Mining, perhaps by way of a subrogated claim by its insurers, but that is not a matter we are considering today. The result of this appeal is that it is allowed and the conviction is quashed. 22. MR BARRADELL: My Lord, there is one final matter. The appellant had the benefit of a representation order throughout proceedings at the lower court. That extended to advice on appeal to the single judge. Once the single judge refused the grounds for permission to appeal he then paid privately to renew the application. I invite your Lordships to consider awarding a Defendants Costs Order out of central funds for the out of pocket expenses of Mr Bailey. 23. LORD JUSTICE CLARKE: He has a representation order for the purposes of the appeal? 24. MR BARRADELL: He has for the purposes of the appeal. 25. LORD JUSTICE CLARKE: But not the application for leave? 26. MR BARRADELL: My Lord, what happened was that when I appeared before the full court and the full court gave permission to appeal, they then granted a representation order for my attendance on that day. But Mr Bailey by then had first of all paid for his solicitors to attend here at the renewed application and I had accepted that brief on a privately paid basis. 27. LORD JUSTICE CLARKE: You are asking for a Defence Costs Order, if that is the right expression, out of central funds in relation to the costs relating to the application for permission. 28. MR BARRADELL: Yes, and also his out of pocket expenses to bring himself here on two occasions and effectively at the outcome of -- 29. LORD JUSTICE CLARKE: We will make a Defence Costs Order in relation to the application for permission. What such an order covers is really a matter for whoever determines these questions. Thank you for your assistance.

2004_07_09-286.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2530/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2530

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[2019] EWCA Crim 1933

EWCA_Crim_1933

2019-10-10

crown_court

Neutral Citation Number: [2019] EWCA Crim 1933 No: 201902682/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 10 October 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES MRS JUSTICE CUTTS DBE R E G I N A v JAKE ANTHONY WHITHAM 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

Neutral Citation Number: [2019] EWCA Crim 1933 No: 201902682/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 10 October 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE JULIAN KNOWLES MRS JUSTICE CUTTS DBE R E G I N A v JAKE ANTHONY WHITHAM 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 F Edusei appeared on behalf of the Appellant Mr T Savage appeared on behalf of the Crown J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: The appellant pleaded guilty, on the day fixed for his trial, to a number of offences against his former partner, Ms Goodwin, and her mother, Ms Carnall. He was sentenced to terms of imprisonment which, together with the activation of a suspended sentence, amounted in total to 43 months. He appeals against his total sentence by leave of the single judge. 2. The appellant began a relationship with Ms Goodwin in January 2018. For a short time, all was well between them. In April 2018 he committed an offence of driving whilst disqualified. Around that time, he began to behave abusively towards Ms Goodwin. In August 2018 he committed an offence contrary to sections 2 and 4 of the Criminal Damage Act 1971, by making a threat to Ms Carnall that he would burn down her home. In September 2018 he committed an offence of common assault against Ms Goodwin. On 23 October 2018 he was dealt with by a magistrates' court for those three offences. A suspended sentence order was made comprising a total of 18 weeks' imprisonment suspended for 12 months with rehabilitation activity and unpaid work requirements. The total of 18 weeks comprised 6 weeks for the offence against Ms Carnall, 12 weeks consecutive for the offence against Ms Goodwin and 8 weeks concurrent for the disqualified driving. The magistrates' court also made a restraining order prohibiting the appellant from contacting Ms Goodwin directly or indirectly and from entering the property. 3. Despite that order, the appellant in November 2018 persuaded Ms Goodwin that he had changed for the better, and she allowed him to move back in with her. Once again, within a short time the appellant's behaviour towards her became abusive. 4. On 13 December 2018 Ms Goodwin went to her mother's house and asked to stay for a few days. Ms Carnall received a series of text messages from the appellant which were threatening and abusive towards both her and her daughter. 5. On the morning of 22 December 2018 the appellant and Ms Goodwin argued. He ordered her not to leave the bedroom. She was frightened, and texted her mother, asking her to visit. Ms Carnall contacted the police, who in turn contacted Ms Goodwin. However, with the appellant sitting beside her, and in fear of the consequences if she told the truth, she told the police that she did not need any help. After the call had ended, the appellant smashed her expensive mobile phone. He punched a hole into the bedroom door, threw a stool at Ms Goodwin causing bruising, and hit her across the face with the back of his hand causing a swollen lip. He told her to lie down and when she refused he seized her by the throat and pinned her to the floor. She managed to placate him, but for the rest of the day he continued to intimidate her by shouting at her. When she asked later in the day why he had wanted to lie down, he said it was because he had wanted to kill her. Unsurprisingly, Ms Goodwin was very frightened and did not feel able to report the matter to the police. 6. On 31 December, a day when Ms Goodwin's 7-year-old niece was staying in the flat (albeit she was not a witness to the events), the appellant told Ms Goodwin that she was not to leave the flat. When Ms Goodwin objected, he grabbed her and pushed her into a wall. He eventually permitted her to leave the flat but required her to surrender her keys before she did so. He gave her a mobile phone which had no credit on it, so that she could not make any calls, and rang her repeatedly throughout the day to ask where she was and who she was with. She was in fact with her mother. 7. This course of conduct was charged in count 1 of indictment T20190042 (to which we shall refer for convenience as "count 1") as an offence of controlling or coercive behaviour in an intimate or family relationship, contrary to section 76 of the Serious Crime Act 2015. 8. As we have said, Ms Goodwin went on 31 December to join her mother. Having learned what had happened earlier that day, Ms Carnall set off to see the appellant. Before she got there, she received a call from him in which he threatened to batter her. She reported this to the police, who told her not to go to the appellant's address. Ms Carnall and Ms Goodwin then attended a police station to report matters. Whilst they were doing so, the appellant - using a mobile phone which he had confiscated from Ms Goodwin - sent to Ms Carnall a photograph of a burning flat. He followed that up with a series of over 60 messages to the effect that he had done nothing wrong. He used abusive language towards Ms Carnall, said that he was on his way to her house and would see her soon, and referred to both women as "dirty grasses", saying that Ms Goodwin had been warned what would happen next time. Ms Goodwin resorted to leaving the area for a time. 9. The appellant's conduct towards Ms Carnall was charged in count 4 of indictment T20190042 ("count 4") as an offence of putting a person in fear of violence by harassment, contrary to section 4 of the Protection from Harassment Act 1997. 10. The appellant was arrested on 3 January 2019. He became argumentative and aggressive with the two female officers who were dealing with him. His behaviour was such that other officers had to intervene. In the course of a struggle, one officer sustained an injury to his forehead. In relation to this incident, which was charged in count 2 of indictment T20190046 ("count 2"), the appellant ultimately pleaded guilty to an offence of using threatening behaviour with intent to cause fear of violence, contrary to section 4 of the Public Order Act 1986. 11. When interviewed under caution, the appellant denied all the offences, saying that he had not left the hostel at which he was living and had neither contacted nor visited either Ms Goodwin or Ms Carnall. 12. Counts 1 and 4 were listed for trial, together with other charges, on 20 June 2019. The appellant pleaded guilty to them, and entered an acceptable plea to an alternative offence in relation to count 2. 13. He was sentenced on 27 June 2019 by His Honour Judge Dixon. No pre-sentence report was thought to be necessary, it being conceded that immediate imprisonment was inevitable, and we are satisfied that no report is necessary at this stage. 14. The appellant was 24 at the time of these offences. He is now 25. He had been sentenced on 13 previous occasions for a total of 19 offences including offences of robbery, violence and damage. 15. Ms Goodwin had made a victim personal statement on 20 June 2019 indicating that since these offences she had suffered with anxiety and depression. She had felt suicidal, and in February 2019 had self-harmed. She had lost her self-confidence, did not trust anyone, suffered from nightmares about the appellant and had isolated herself within her home because she feared being hurt again. She had recently been signed off work sick. She had received counselling for her depression, and was prescribed medication for that depression. She did not feel safe at her present home, was constantly in fear of what might happen, felt she must move home and was worried that the offending would impact on her life forever. 16. The judge in his sentencing remarks observed that the appellant's behaviour showed that he had "a real problem with women" and resorted to the threat or use of violence if his wishes were not obeyed by a woman. The judge further observed that the appellant had taken no notice of the warning given to him by the suspended sentence order. He urged the appellant to use his time in custody to seek help with his problem, commenting that if he did not do so, the appellant was on course to become a dangerous offender. We respectfully agree with each of those observations. 17. Having considered submissions as to the appropriate categorisation of the offences, under the relevant Definitive Sentencing Guidelines, and having indicated that the guideline starting points must be increased to reflect the appellant's previous convictions, the judge concluded that the appropriate sentence on count 1, after trial, would have been 30 months' imprisonment. He reduced that to 27 months to give credit for the late guilty plea. The appropriate sentence after trial on count 4 would have been 15 months' imprisonment. The judge reduced that to 12 months because of the guilty plea, and ordered it to run consecutively to the sentence on count 1. He imposed a further consecutive sentence of 1 month's imprisonment on count 2, indicating that he had reduced that sentence in the interests of totality. He said, in relation to the suspended sentence, "that 3 months will be activated in full". Thus the total sentence was 43 months’ imprisonment. 18. With respect to the judge, it appears that he fell into error in relation to the suspended sentence. It is not clear whether, in saying that he was activating in full "that 3 months", he was purporting to activate only the suspended sentence of 12 weeks' imprisonment in relation to the common assault on Ms Goodwin, or whether he had overlooked or misunderstood the fact that the suspended sentence order related to three separate offences, with a total term of 18 weeks' imprisonment. Be that as it may, the legal position is clear. When the magistrates' court dealt with those three offences on 23 October 2018, it imposed what was in law a single custodial term of 18 weeks' imprisonment, suspended for 12 months. It is not permissible for a subsequent court, dealing with offending in breach of the suspended sentence order, to activate only one of the individual sentences which collectively constitute the single term of imprisonment which is suspended. This is clear from the decision of this court in R v Bostan [2018] EWCA Crim 494 ; [2018] 2 Cr App R(S) 15. The factual situation in that case was different from the present, but we agree with prosecuting counsel Mr Savage that the principle applies in the present case. The consequence is that the order made by the judge in relation to the suspended sentence must, in law, be treated as the activation of the total term, but with its length reduced from 18 weeks to 12 weeks. It further follows that the record must be corrected to show the correct position. 19. We are, as always, grateful for the vigilance of the lawyers in the Criminal Appeals Office, who identified this error and arranged for submissions to be made about it by counsel on both sides. We are also grateful both to Mr Savage and to Mr Edusei, who represents the appellant today as he did below, for their submissions on the point. 20. The grounds of appeal advanced by Mr Edusei in helpfully focused submissions are that the total sentence was manifestly excessive. In particular, it is submitted that the judge was wrong to impose consecutive sentences in respect of counts 1 and 4, because the relevant events occurred "more or less concurrently" and there was at no stage any physical confrontation between the appellant and Ms Carnall. It is further submitted that the judge took starting points which were too high in all the circumstances of the case and that he failed to make an appropriate reduction for the guilty plea. Finally, it is submitted that insufficient consideration was given to the principle of totality. 21. In developing these submissions Mr Edusei particularly focused upon the consecutive term of 12 months' imprisonment imposed on count 4. He acknowledges that the offence might have been categorised as 2B rather than 2C under the relevant guideline but says that in all the circumstances the judge took too high a notional sentence after trial. Moreover, submits Mr Edusei, count 4 might properly have been dealt with by a concurrent rather than a consecutive sentence. If that submission be incorrect, Mr Edusei submits that nonetheless the total sentence became manifestly excessive. 22. In his response to the oral submissions Mr Savage draws attention to the fact that the category 2B category range for the offence charged in count 4 carries a range which goes up to 18 months' custody. Thus, submits Mr Savage, the judge passed a sentence which was within the category range and was entitled to go above the guideline starting point, both because of the appellant's previous convictions and because of the serious aggravating feature of sending Ms Carnall a picture of a burning flat. 23. We have reflected upon these submissions. Notwithstanding the care with which Mr Edusei has presented the appellant's case, we are quite unable to accept his submissions. This was serious offending by the appellant, who took no notice of either the suspended sentence order, imposed in large part for offences against the same victims, or the restraining order, specifically designed to protect the victims. It is apparent from Ms Goodwin's personal statement that the harm caused to her has been serious. A substantial total sentence was, in our view, inevitable. The guidelines applicable to the offences charged in counts 1 and 4 both make clear that where the offence is committed in a domestic context (as it was here) the court should also refer to the guidelines setting out Overarching Principles in cases of domestic abuse. One of those overarching principles, set out in paragraph 7 of the guideline, is that: i. "The domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship." 24. Of course, a judge dealing with matters of this nature must be careful to avoid unfair double counting. But the domestic context in which the offences against Ms Goodwin were committed is a relevant aggravating factor. 25. In our judgment, the offence in count 1 fell within category 1B of the relevant guideline, for which there is a starting point of 1 year's custody and a range from 26 weeks to 2 years 6 months. The judge was plainly entitled to move to the top of that range having regard to the circumstances of the offending, the harm caused, the appellant's relevant previous convictions and the commission of the offence in breach both of the suspended sentence order and the restraining order. Count 4 was an offence which, in our judgment, fell within category 2B of the applicable guideline, with a starting point of 36 weeks' imprisonment and a range from 12 weeks to 18 months. Again, the judge was entitled in the circumstances of this case to move to a point high in the range. There was no error of principle in ordering that sentence to run consecutively to the sentence in count 1, but in any event the court's focus at this stage must be on the total sentence rather than its structure. Even if concurrent sentences had been imposed, the overall length would still have had to reflect the overall seriousness of the offending. The judge plainly had totality well in mind when he imposed a consecutive sentence of only 1 month's imprisonment for the offence charged in count 2. The judge was correct to activate the suspended sentence, and for the reason which we have given he made an error in the appellant's favour when he made an order which had the effect of ordering the suspended sentence to take effect with the total term reduced in length. 26. We are therefore satisfied that the total sentence was neither wrong in principle nor manifestly excessive in length. The appeal against sentence accordingly fails and is dismissed. We direct that the record of proceedings in the Crown Court be corrected to make clear that the suspended sentence of 18 weeks' imprisonment was activated consecutively to the other sentences but reduced in length to 12 weeks. 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_10_10-4733.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1933/data.xml

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da98b366410599bb798312254ac304f31d798adab20ef3a485d68d8fb2401241

[2018] EWCA Crim 788

EWCA_Crim_788

2018-03-20

crown_court

Neutral Citation Number: [2018] EWCA Crim 788 Case No: 201700111 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 20 March 2018 B e f o r e : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION ( SIR BRIAN LEVESON ) MR JUSTICE SWEENEY MR JUSTICE LEWIS - - - - - - - - - - - - - - - - R E G I N A v PIOTR OLEJARCZYK - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Fle

Neutral Citation Number: [2018] EWCA Crim 788 Case No: 201700111 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 20 March 2018 B e f o r e : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION ( SIR BRIAN LEVESON ) MR JUSTICE SWEENEY MR JUSTICE LEWIS - - - - - - - - - - - - - - - - R E G I N A v PIOTR OLEJARCZYK - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd 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 NJ Lumley QC appeared on behalf of the Appellant Mr A Thomas QC and Mr P Dobson appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. SIR BRIAN LEVESON: On 22 December 2016 in the Crown Court at Manchester before the Recorder of Manchester, HHJ Stockdale QC, and a jury this applicant, who is now aged 30, was convicted of murder by majority verdict, eleven to one. On the following day he was sentenced to imprisonment for life, with the period specified as a minimum term pursuant to section 269(2) of the Criminal Justice Act 2003 of twenty-one years less time spent on remand. 2. On that day one of the jurors passed a note to the sentencing judge concerning the conduct of the foreman of the jury. As a result of that note the foreman was himself arrested and the subject of a police investigation. He later pleaded guilty to two offences contrary to the Juries Act 1974 as amended, that is to say offences of conducting research in relation to the case which he was then trying and thereafter communicating that research to another or other jurors. On 13 September 2017 the foreman of the jury was sentenced to a term of four months' imprisonment. It is in those circumstances initiated by the note passed by the juror to the sentencing judge that this applicant applies for leave to appeal against conviction, which application has been referred to the full court by the Registrar. 3. It is important to know something of the facts of the alleged murder. The applicant and Jakub Gorski (the deceased) were both Polish nationals and were known to one another. On the evening of 9 June 2016 they had a disagreement at the applicant's home in Salford, whereupon the applicant threatened and chased the deceased with a knife. On the following day the deceased and his brother went looking for the applicant at his address. Coincidentally they saw him in Hope Street, Salford, whereupon the deceased shouted angrily in Polish and the applicant went into his friend's house at 2A Hope Street, armed himself with a kitchen knife and returned. In the confrontation which followed the deceased sustained a single stab wound to the chest which fatally penetrated his heart. The blade passed between the ribs and penetrated to a depth of about 12 centimetres, passing through the heart and out the other side. 4. Paramedics were called and the deceased was conveyed to hospital where emergency surgery was not effective, such that at 2.30 am on 11 June the deceased died. Meanwhile, the applicant had fled the scene but 24 hours thereafter he handed himself in to the police and was arrested. 5. He was interviewed on 12 June on a number of occasions. In the first interview he said that he had defended himself as the deceased and his brother had tried to rob him. The deceased had struck and kicked him and the deceased's brother had taken his phone, which he had dropped. He said that he had the knife on him as he used it at work to cut sandwiches. He said that he used the knife to scare the deceased off, had no intention of hurting anyone and had wanted to get back to his friend's house and wait for the deceased to go away. The day before the fatal incident the deceased had asked him to get some cocaine. He had said it would take 20 minutes and the deceased had hit him. He had told the deceased to leave his home. 6. In the second interview the applicant essentially amplified the account that he had given. He had stated the deceased lunged at him and had stabbed himself on the knife. In the third interview the applicant was told that there was evidence that he had obtained the knife from his friend's address. The applicant then asked to consult with his solicitor, and in the fourth interview he admitted that he had been lying about the knife and said that he had done so because he was scared. He said that he had obtained the knife in order to scare the men so that they would let him go home. 7. The prosecution case was that the applicant murdered the deceased by deliberately stabbing him to the chest with a forward thrust of the knife. The applicant's conduct, it was argued by the Crown, had not been reasonable. He had been in a place of safety (namely his friend's home) and was not in imminent danger when he returned to the scene armed with a knife seeking out a confrontation with a man unarmed who had been 100 to 150 metres down the road. 8. The evidence that the prosecution relied upon consisted of CCTV which captured the applicant chasing the deceased on 9 June, the evidence of the deceased's brother describing the fatal blow as deliberate, the evidence of two residents in Hope Street: the first spoke of "the applicant attending his home and asking for a knife before going to the kitchen and then leaving the address"; the second who acknowledged a statement which he had made to the effect that there was "an agitated man in the street shouting and swearing about being threatened with a knife by the applicant". 9. A taxi driver said that he had "witnessed one man with a knife attempting to 'hit the other guy with the knife, he was basically attacking him.' The other man was defending himself." Another eyewitness who was unavailable to attend saw the deceased and the applicant shouting at each other, whereupon the deceased attacked the applicant. This evidence was not agreed. There were other witnesses whose evidence was not agreed but read to the jury. 10. The applicant admitted lying in his police interview in respect of the source of the knife and in respect of his visit to his friend's home after the first confrontation to collect the knife. That also was evidence relied upon, as was the evidence of the pathologist who confirmed the death as consequent upon blood loss and cardiac arrest caused by a stab wound which had required mild to moderate force. The pathologist observed the knife would have had to have been held very firmly for the deceased to have tripped and fallen onto it. 11. The defence case was that the applicant had acted in lawful self-defence and lacked the requisite intent. The deceased and his brother had been waiting in the street and the applicant had retreated to his friend's house and armed himself to scare the men so he could return home. He had pointed the knife at the deceased and backed away when the deceased lunged forward and stumbled or tripped onto the knife, causing injuries which were fatal. 12. The issue for the jury therefore was whether they were sure the applicant had deliberately stabbed and killed the deceased other than in lawful self-defence, with the requisite intention. It is clear from what subsequently emerged that there was no doubt that the jury rejected both the defences of accident and self-defence. The issue therefore turned upon the intention of the applicant when he deliberately injured the deceased with the knife. 13. The jury retired after a summing-up in respect of which no complaint whatsoever is made. They twice returned with notes to the effect that they had not reached unanimity, although it is clear from the language used by the judge that they had indeed revealed material which he could not impart to the jury. Ultimately the judge provided a majority verdict direction. After a further 21 minutes had elapsed the jury returned to convict the applicant of murder by a majority verdict of eleven to one. 14. What happened thereafter was that one of the jurors (who was the dissenting juror) passed a note to the sentencing judge in these terms: "During the last session before the Jury came down with the verdict one of the jury told me he had previous (sic) read about this case in a newspaper report about June, this year. Should he have mentioned this at the time he was selected to go on the Jury?! During our deliberations, he made strong suggestions 'I have a Hunch' that the accused was a violent person, that knew how to handle a knife or may have been in the army. These comments POSSIBLE (sic) affected some of the other jury member's decision." The police were alerted and the relevant juror, who had been the foreman, was spoken to by the police under caution. Seized from his possession were his mobile phone, his laptop and his iPad. 15. The investigation revealed that towards the end of the trial the foreman had conducted internet research to find out about compulsory military service in Poland. An article was revealed (which we have seen) which identified that military service in Poland ended in 2008. That search was repeated after the deliberations had begun. An investigation conducted with the authority of the Registrar revealed that no other juror remembered a conversation about national service, although the one juror who reported the matter had speculated that the applicant "may have been in the army". 16. The juror, during the course of his interviews under caution, accepted that he had made some comment to another juror about Poland and national service. He also accepted, as had been the complaint, that he had asserted that the applicant was a nasty man who knew how to handle himself, but he said that had been based on the evidence he had heard during the trial. 17. We observe that all members of the jury were approached as a result of the authority granted by the Registrar. Only two jurors were prepared to make statements. The first said nothing at all about the question of national service. The second observed that the foreman had said that he knew how to use a knife, but observed he thought this was his opinion, not based on something he knew about personally. 18. The offences of which the juror was convicted do not, of course, require that the information obtained undermines or may undermine the trial. It is sufficient to be guilty of an offence under the Juries Act as amended that the research is undertaken, contrary to the strictest instructions provided by the judge not merely at the beginning of the trial but consistently throughout it. 19. In this court Mr Lumley has argued that the foreman will have exercised a degree of authority with others potentially turning to him for advice and direction, with the result that he wielded unfair power having regard to the information which he had found out. That information, as was observed, was no more than that national service in Poland had ceased in 2008. He argues that although that is all the information that is known about the juror's researches, this court cannot be sure about what is unknown of his researches, and that having ignored the judge's direction in one regard it is inappropriate to assume that he did not disregard it in any other fashion. In our judgment, there is no basis for that contention in the light of the investigation conducted by the police with the authority of the Registrar. 20. It is against that background that we consider the law and the general principle that investigation of what takes place in a jury room is entirely forbidden save only where extraneous material is produced or the jury have demonstrated that they have totally repudiated their oaths in the way in which they conduct their deliberations (see, for example, the famous case concerning the ouija board, R v Young [1995] 2 Cr App R 379 ). The position in relation to extraneous material has been the subject of considerable discussion in the authorities. In Thompson [2010] 2 Cr App R 27 , Lord Judge Chief Justice, citing McDonnell [2011] 1 Cr App R 28 said at paragraph 11: "Just as it would in any other instance where it was satisfied that extraneous material had been introduced, the approach of this court is to make inquiries into the material. If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe ... If the material does not affect the safety of the conviction, the appeal will fail." That case was followed in R v Deny [2013] EWCA Crim 481 in which it was made clear by Mitting J at paragraph 45: "[We wish to emphasise] there is no rule that because material has been introduced to the jury after retirement a conviction must be quashed as unsafe." 21. It is against that background that we return to the issues which were left for the jury in this case. The issue effectively for the jury from the outset was first to decide accident; second, self-defence; and third, whether the intention to cause really serious harm had been proved. In our judgment, whether or not military service in Poland had been abolished, irrespective of the unasked question whether this applicant had ever undertaken military service, does not assist the jury in the context of their deliberations in this particular case. In our judgment, following entirely the approach identified by Lord Judge in Thompson , we do not accept that the material affects the safety of the conviction. In those circumstances, this application is refused.

2018_03_20-4227.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/788/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/788

4cf99b598271dc2d52ea446f39606142fb82d892661d7d4e4da3436dcf16f1f4

[2008] EWCA Crim 3129

EWCA_Crim_3129

2008-12-04

crown_court

Case No: 200704171/B3 Neutral Citation Number: [2008] EWCA Crim 3129 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 4 December 2008 B e f o r e : LORD JUSTICE HOOPER MRS JUSTICE RAFFERTY DBE MR JUSTICE SWEENEY - - - - - - - R E G I N A v DAVID JOHN SUTTON - - - - - - - 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

Case No: 200704171/B3 Neutral Citation Number: [2008] EWCA Crim 3129 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 4 December 2008 B e f o r e : LORD JUSTICE HOOPER MRS JUSTICE RAFFERTY DBE MR JUSTICE SWEENEY - - - - - - - R E G I N A v DAVID JOHN SUTTON - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - Mr G Cooke appeared on behalf of the Appellant Mr H French appeared on behalf of the Crown - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: On 11 July, in the Crown Court at Woolwich before Deputy Circuit Judge Hubert Dunn QC and a jury, the appellant was convicted by a majority of ten to two of theft contrary to section 1(1) of the Theft Act 1968 . 2. He appeals against his conviction with the leave of the Full Court. 3. The theft alleged against the appellant was one of theft by shoplifting in WH Smith's. The appellant was a serving police officer at the time. On 31 January of 2006 he was seen by a store detective to select a number of magazines, and, on the store detective's evidence, conceal them inside his jacket before exiting the shop without paying. When challenged outside the store, he returned. He offered to pay for the items, which had a value of £43.17. It was found that he had £200 in cash in his possession at the time. There is evidence that other police officers were concerned about the appellant's mental state following his arrest. 4. The defence case was that the appellant was suffering from psychiatric problems at the material time, such that he did not know what he was doing. He was not acting dishonestly and had no intention of permanently depriving the store of the goods. 5. A psychiatrist, Dr Wood, had prepared a very lengthy report. He concluded that the appellant was suffering from sleep deprivation as a result of spending a large amount of time on night work. Secondly, he said that the appellant was suffering from a mild depression, and, thirdly, that he was taking too many analgesics. 6. There are a number of grounds of appeal, but we resolve this case having considered only the first ground of appeal. Mr French who appeared for the respondent did not conduct the trial on behalf of the prosecution. 7. On Monday 9 July 2007 Mr Cooke, appearing for the appellant, asked for the trial listed for that day to be adjourned because Dr Wood was only available to give evidence on that day and it would not be possible for the appellant to give evidence on that day, having regard to the number of prosecution witnesses. 8. On Friday 6 July Mr Cooke had appeared before His Honour Judge Dunn and asked that the case could be listed during the latter part of the following week so that Dr Wood could hear the evidence of the appellant and then, in the normal way, give his expert evidence thereafter. Dr Wood was only available on the Monday or on the Thursday and Friday. That application was refused. That application having been refused on the Friday, it is perhaps not surprising that when it was renewed again on the Monday it was refused again. 9. Thus Mr Cooke was left in the position that the judge was ordering the trial to start on Monday 9 July, knowing that Dr Wood was available on the Monday and would not be available until the Thursday. The judge then, in effect, required Mr Cooke to call Dr Wood first. If he was not called first, he would not be called at all. Thus, after Miss Ball for the prosecution had opened the case, the first witness was the defence expert, Dr Wood. 10. In her opening, Miss Ball summarised the facts of the case and told the jury that the defendant was saying that he had no memory of what had occurred in WH Smith's and was, therefore, himself unable to give an account of the immediate events that led to him being charged with shoplifting. 11. Dr Wood having been called, he was examined in-chief for about an hour. He was then cross-examined. The rest of the prosecution's case was called. The defendant gave evidence and called other evidence in support of his positive good character. The matter was summed up to the jury on Wednesday and the jury convicted on that day. 12. Inevitably, because Dr Wood was called first, he had to explain to the jury what it was that the appellant had said to him about various matters, matters which enabled Dr Wood to reach the conclusions to which we have referred. 13. Somewhat extraordinarily, in our view, when the judge came to sum up the case to the jury he said this: "Now, members of the jury, a great deal of what [Dr Wood] told you came from the defendant, and whether it adds anything to this case or not you will have to ask yourselves ..." 14. A little later he said this about Dr Wood's evidence: "Well, members of the jury, how useful all that was took a great deal of time, namely repeating what the defendant had told him, you may wonder, and in particular his medical condition throughout 2006, which was after this incident, but if you find it helpful, by all means take it into account." 15. We say "somewhat extraordinarily" because it is difficult to see how the psychiatrist could have given evidence at the outset of the trial without describing what the defendant had told him about the various background matters which underpinned his opinion. 16. In our view, requiring the expert to give evidence first deprived the appellant of a fair trial. It must have been extremely difficult for the jury to follow the evidence of the psychiatrist. Mr French rightly points out that they knew something about the case from the opening. But they were having to listen to evidence describing the expert's view as to the defendant's mental state without having had the benefit of seeing the defendant, hearing his account, not only of the day but of the important background to that day. 17. Without suggesting that defence witnesses can never be called out of order, in our view this was not the right approach to adopt in this case. What the jury needed to hear was, first, what the prosecution witnesses were saying about the events in question on the day, secondly what the defendant was saying about the day and his personal history and thirdly the evidence given by the expert. If the right order had been followed, Mr Cooke would have been able to invite Dr Wood to comment on the evidence that had been given particularly by the defendant and ask him to draw conclusions from it. 18. For these reasons alone we would allow the appeal. We have other concerns about the safety of the conviction. We mention them only briefly because we did not invite Mr French to address us about them. 19. Over and over again in his summing-up the judge told the jury that the evidence of the store detective was unchallenged and undisputed. In fact, Mr Cooke had been able to establish that the store detective's evidence that the appellant was looking around him at the time of the alleged theft, was something that was not said to the officers in the first place but was later included in the statement. 20. The judge himself recognised the importance of the store detective's evidence when he said at page 10 of the summing-up: "According to him [the store detective], now this is fact for you, the defendant says he doesn't remember what happened, but he was constantly looking over his shoulders to see if anybody was looking at him. Well, is that important, is that not important? Fact for you." 21. When Mr Cooke objected at the conclusion of the summing-up that the judge had said on more than one occasion the evidence was unchallenged, when in fact it had been challenged, the judge made a correction, but arguably it was not one which would cure what had gone wrong. 22. As we say, we do not quash the conviction on that ground. We merely express our concern about the way in which the judge dealt with the important challenge to the store detective's evidence. 23. MR COOKE: My Lord, so be it. I have two applications to do with costs. Mr Sutton was not legally aided. 24. LORD JUSTICE HOOPER: Costs out of central funds. 25. MR COOKE: Please. Also his individual costs. I happen to know from my solicitor what the costs are; they are not small. I don't know if it is something that your Lordship and the court can consider, saying, yes, that's granted, or leave it to taxation. 26. LORD JUSTICE HOOPER: Are you going to give us the schedule of all the costs? 27. MR COOKE: Of the lawyer's costs, yes, my Lord. 28. LORD JUSTICE HOOPER: That just goes to taxation. Show us what you have got and then we will decide whether it goes to taxation or whether we make a lump sum. (_ Handed ) 29. MR COOKE: My solicitor is saying that it must go to taxation. ( Pause ) 30. LORD JUSTICE HOOPER: It goes to assessment in the normal way. 31. Mr French, any more help we can give you? I hope you get through. 32. MR MOORE: Yes. ( Short Adjournment ) 33. LORD JUSTICE HOOPER: Mr French. 34. MR FRENCH: Can I start by thanking your Lordships for giving me the time to take instructions from the Crown Prosecution Service. I have done that, my Lord, and I have spoken to a representative from the Crown Prosecution Service and I am instructed to ask for leave to seek a retrial in respect of Mr Sutton, and in making that application can I put forward three reasons, please. 35. Firstly, that the differences between the accounts given by Mr Osho, the security officer, of course are an important defence point, but they do not undermine the evidential sufficiency of the case. In relation to that, it is right that an initial summary was given by Mr Osho at the time and that that was signed and later that day he gave a more detailed witness statement in which he gave a far more and more detailed account of what had happened in the store. And, of course, as there always would be in a more full account, there were several differences, but most importantly Mr Sutton relies on two differences. 36. Firstly, the fact that he says that Mr Osho said in his witness statement that Mr Sutton was looking around, or looking over his shoulder. Secondly, and I do not think it came out until cross-examination of Mr Osho, Mr Osho says, and here I am relying on the transcript of the summing-up rather than the evidence, "I am very sure that he [Mr Sutton] did not want to come back in." 37. So, my Lords, either Mr Osho has embellished his account in order to firm up his evidence, if I may use that phrase, or, of course, the first account was simply a summary and he has just given a more detailed version. Whichever of those two ways, it is, in the Crown's respectful submission, a matter for the jury as a finding of fact in relation to the case. 38. My second reason, my Lords, is in relation to the public interest. At the time of this offence, and I understand also now, Mr Sutton is a serving police officer. Although this is, of course, a minor offence, the Crown would say that the public interest demands that public servants be prosecuted even for minor offences, particularly in circumstances where dishonesty is alleged. 39. Thirdly, my Lord, I would say that the case alleged against Mr Sutton remains a strong case and in saying that I rely on the reasons set out at paragraph 4.5 of my skeleton argument. 40. LORD JUSTICE HOOPER: If he had not been a police officer, would you be asking for a new trial? Is there some special principle that applies to the police officers? 41. MR FRENCH: My Lord, I imagine it is just one feature in considering the public interest. 42. MR JUSTICE SWEENEY: Is there any Crown Prosecution Service published policy which deals with this? 43. MR FRENCH: My Lord, none that I have seen. 44. MR JUSTICE SWEENEY: Is it in the prosecuting standards? 45. MRS JUSTICE RAFFERTY: Code for Crown Prosecutors, anything like that? 46. MR FRENCH: When my learned friend addresses your Lordships, if you would allow me to check that. 47. LORD JUSTICE HOOPER: What about the failure on the part of counsel for the prosecution, not you, to actually make sure that this was a fair trial. In other words, telling the judge, I think Mr Cooke is right, I think this is not the proper way of going about this case. I think Mr Cooke tried. 48. MR FRENCH: I think the difficulty, and here it is a supposition, the difficulty that trial counsel may have faced is that your Lordship would have seen in the transcript and heard in the tape that the trial judge seemed to come to his conclusions very quickly without having heard argument. 49. LORD JUSTICE HOOPER: Yes, right. 50. MR FRENCH: And in those circumstances it is difficult perhaps to know what approach you would have taken. 51. LORD JUSTICE HOOPER: Thank you very much. Now, Mr Cooke, tell us about today. What is the situation with Mr Sutton today? 52. MR COOKE: He is 52 and a serving police officer of 30 years. 53. LORD JUSTICE HOOPER: Is he still a sergeant? 54. MR COOKE: Yes. 55. LORD JUSTICE HOOPER: Is he working? 56. MR COOKE: Yes, but he is on lighter duties. He has certainly not been on night duty. 57. LORD JUSTICE HOOPER: So what are his duties at the moment? 58. MR COOKE: My Lord, I haven't got the detail. 59. LORD JUSTICE HOOPER: Ask him. 60. MR COOKE: My Lord, can I correct my learned friend's interpretation of Mr Osho's evidence. It can be summarised thus and I hope correctly. In his statement signed with the police at the beginning, he alleged that -- he didn't -- first of all, he didn't say anything about looking around and that was in his evidence later. My argument is well-known to the court, namely it is an important issue going to dishonesty and you are an experienced store detective and if you had seen that you would have put that in your first account. 61. MRS JUSTICE RAFFERTY: First account? Oral first account? 62. MR COOKE: Yes, and signed by him, so we have the document with the signature on. 63. So far as the going out and then coming back in or not -- 64. LORD JUSTICE HOOPER: Speaking for myself, that is not decisive of the case. Someone could be reluctant to come back even if completely innocent. 65. MR COOKE: Yes, but it goes to -- because he changed his account and it is a contradictory account. In other words, in his note to the officer -- 66. MR JUSTICE SWEENEY: He changed it to a more culpable allegation. 67. MR COOKE: Which went with the "sexing up", dare I put it that way, of his account. 68. LORD JUSTICE HOOPER: Yes. 69. MR COOKE: It is for the Crown Prosecution Service, of course, to decide whether they meet the evidential requirement. Public interest and all that comes second. Does it meet the threshold of likely to achieve a conviction? If your Lordships want my view I expect you know what I would say. Those are important factors and I have to say this, and my learned friend has got the wrong end of that stick and also the sharp end of something, he didn't understand that that was the crux of Mr Osho's evidence and therefore the Crown Prosecution Service, who, of course, did not apply their minds to the potential defence available, even though it came within the unused document, namely the police officer's notebook. 70. LORD JUSTICE HOOPER: Let us move on to him today. 52, still a sergeant. ( Pause ) 71. MR COOKE: Operational sergeant, responsible for logistics and other things at Croydon. So it's more of a desk job. Certainly not patrolling streets. And negotiating, I am told, with contractors and suppliers and so on. 72. LORD JUSTICE HOOPER: Have there been disciplinary hearings at all? 73. MR COOKE: No, my Lord. My Lord, what happened was the police -- the relevant police officer attended the last day of trial and heard the balance of the summing-up -- my speech and the summing-up, and took his own opinion back to the Metropolitan Police. Whilst the normal course of events, I am told, is that somebody is suspended at that point pending an appeal, the Metropolitan Police took the view that they would not suspend him until the outcome of the appeal. And I am aware that that officer who took the report back had, of course, seen a lot of what we have been discussing, namely my speech and the summing-up. 74. LORD JUSTICE HOOPER: So in one sense, it is suspensory. If ultimately there were to be a retrial and if he were to be convicted, then all of this might lead to steps being taken against him. 75. MR COOKE: Yes. 76. LORD JUSTICE HOOPER: I see. 77. MR COOKE: The particular aspect of which I can speak personally is the strain that he has been under. I met him, of course, in the first appearance in the Crown Court and I have seen him in conference many times since. He really has been under enormous strain. He burst into tears when the verdict was returned. Now, that may not say a lot, but he has been a man who apart from his own illnesses, if I can call that them that, or conditions, was, in fact, badly treated by the police, and this has is my own input. That the police had been told do not put him on night duties because of the problems that come. I did hand up to the court a copy which I see is just being selected out. There is a copy for each member. (_ Handed ). This featured in the trial as evidence and used effectively by the Crown, in both senses of the word, to show that he did not say he was depressed in January 2006, a few weeks before the event. One will see his own handwritten qualifications to that. The reality is that anyone who says they are depressed gets taken off all sorts of things. So the pressure from the job point of view is to say, I am all right. Of course he said, I am all right, but. 78. So, my Lord, it is much more in the area of the punishment that litigation makes, the effect it has, and, my Lady, the relevant part concerning retrials is at paragraph 7-112. 79. MRS JUSTICE RAFFERTY: I will look into that, thank you. 80. LORD JUSTICE HOOPER: What does it say? 81. MR COOKE: The test is the interests of justice. 82. LORD JUSTICE HOOPER: I think we know that. 83. MR COOKE: There is a little commentary beneath it. I cannot pretend this is not such a minor matter that it shouldn't be litigated. That would be flying in the face of the facts. But there must be some general interest in police officers, lawyers, judges, in fact having cases tried because of the importance of their integrity. But what I do say, which is unusual in this case, is that the stress from the very moment of arrest in January 06, which is nearly three years ago, is of such a character and the impact on him has been such that in the interests of justice there should not be a retrial. 84. LORD JUSTICE HOOPER: Thank you very much, Mr Cooke. Do you want to say anything in reply? 85. MR FRENCH: My Lord, no. Could I just return to the questions that were put to me in relation to the code for Crown prosecutors. At 5.9E it mentions the defendant being in a position of authority or trust. I think that really goes to offences that are committed by someone being in a position of authority or trust. And so, of course, there is no policy any differently in respect of police officers. It is just one matter to be considered in the public interest, and, as I said, where the allegation is one of dishonesty, where, perhaps, there might be a greater need to prosecute is otherwise what were perhaps to avoid the danger that there may be somebody in a public role where the question of their probity and honesty is in question. 86. LORD JUSTICE HOOPER: Thank you very much. 87. MR JUSTICE SWEENEY: I imagine that you would just like in fairness to bring our attention to 5.10G, would you not? ( Pause ) 88. MR FRENCH: Yes, I am very grateful, my Lord. 89. LORD JUSTICE HOOPER: We will retire. ( Short Adjournment ) 90. LORD JUSTICE HOOPER: We unanimously take the view that it is not in the public interest to order a retrial. Thank you both for all your help.

2008_12_04-1746.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/3129/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/3129

c0b0fd663af66a2f4e747023b965cfd743668ef67c181a2e463bc801986e4183

[2010] EWCA Crim 549

EWCA_Crim_549

2010-03-24

crown_court

Neutral Citation Number: [2010] EWCA Crim 549 Case No: 2009/01282/B2 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT OXFORD HIS HONOUR JUDGE ECCLES QC T20077265 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/03/2010 Before : LORD JUSTICE THOMAS MR JUSTICE KITCHIN and SIR GEOFFREY GRIGSON - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mel Broughton Appellant - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2010] EWCA Crim 549 Case No: 2009/01282/B2 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT OXFORD HIS HONOUR JUDGE ECCLES QC T20077265 Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/03/2010 Before : LORD JUSTICE THOMAS MR JUSTICE KITCHIN and SIR GEOFFREY GRIGSON - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mel Broughton Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr D Bentley & Mr P Lownds for the Appellant Mr N P Moore for the Respondent Hearing dates: 25 February 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Thomas : 1. This is the judgment of the Court. 2. After a retrial of some 12 days, the appellant was convicted at the Crown Court at Oxford on 13 February 2009 before HH Judge Eccles QC and a jury of conspiracy to commit arson. He was subsequently sentenced to 10 years imprisonment less time on remand. He appeals against conviction by leave of the Single Judge and by leave from us on three matters: i) The admission of Low Template DNA (LTDNA) evidence where the quantity was at the very bottom of the scale where a DNA profile could be reliably analyzed. ii) The direction the judge gave on the status of the DNA evidence if the jury were to conclude that that they could not accept the evidence given by the Crown in relation to the interpretation of the components of the DNA profile. iii) The judge’s refusal to discharge a juror on the ground of apparent bias. He seeks leave to appeal on a further matter. iv) The judge’s refusal to exclude evidence in relation to sparklers found at the appellant’s premises when he was arrested. The facts and the respective cases 3. The facts can be briefly summarised. The sports pavilion at Queen’s College, Oxford was set on fire in November 2006. An attempt was made to set fire to a portacabin at Templeton College, Oxford in February 2007. Both incidents involved incendiary devices with sparklers used to act as fuses. 4. It was common ground that the attacks were planned and devices planted by animal rights activists as a centre was being built at Oxford University for scientific research using live animals. The attacks were publicised on an American website called Bite Back. The campaign totalled 10 attacks but only in these two were sparklers used as fuses. 5. It was the Crown’s case that the appellant had been responsible for planning or causing each of the fires at Queen’s and Templeton. They relied upon the following facts: i) The appellant was a spokesman for an animal rights group known as SPEAK. ii) In 2000 he had pleaded guilty to an offence of conspiracy to cause an explosion; he had admitted then that he and another planned to plant incendiary devices on lorries contracted to take animals for slaughter. iii) After his release from prison he had continued to protest in respect of animal rights and was actively engaged in demonstrations in Oxford. iv) A scenes of crime investigation after the fire at Queen’s College uncovered 12 sparkler rods. They had formed part of the incendiary device which had been placed in the roof of the pavilion and the remainder of that device had been destroyed by the fire. v) At Templeton College, the devices found were bottles filled with petrol with sparklers, matches and firelighters laid on towels to act as fuses. vi) The devices discovered at Templeton were taken away and examined at Fort Halstead. a) On the stalks of some of the matches a minute quantity of DNA was found and analysed by LGC Forensics using a LTDNA process shared by them and Cellmark for enhancing the amplified DNA. The Crown contended that the probability of obtaining the match between the profiles so generated and the profile of the appellant if in fact the DNA did not originate from him was less than 1 in 1 billion. b) A minute quantity of DNA was also found on the caps of the bottles. This was subjected to both enhancement and the Low Copy Number (LCN) process described by this court in Reed & Reed [2009] EWCA Crim 2698 . Although this permitted the calculation of a match probability, it was common ground this was insufficient to link the appellant to the attack. vii) Upon the appellant’s arrest and a search of his accommodation, officers found 14 or 15 packets of sparklers in a disused water tank. One packet was missing two sparklers. No tests were carried out to see if they were of the same chemical composition as those found at Templeton; they were of a similar length but when lit they gave off an effect of a different colour to those at Templeton. There were also found at his property lists of companies and individuals linked to animal research. 6. It was the appellant’s case at trial that he was not involved, that since his conviction he had decided that he could play a more valuable role as a spokesman and not engage in arson. The DNA evidence was insufficiently reliable to be admitted. 7. Although there was strong suspicion that the appellant had committed these attacks, the LTDNA evidence was central to the Crown’s case. The preliminary ruling by the judge 8. At the first trial in October and November 2008, the appellant was charged with conspiracy to commit arson, possession of an article with intent to destroy property and possession of an explosive substance with intent - the sparklers. A submission was made on behalf of the appellant that the DNA evidence which the Crown sought to adduce was insufficiently reliable for it to be admitted into evidence. It was agreed that the judge should consider the evidence submitted on paper alone and then should hear oral argument. 9. The essence of the case on behalf of the appellant on reliability and admissibility was that the quantity of DNA recovered from the stalks of the matches was so small, namely less than 100 picograms (pg), and the method of its analysis developed by LGC Forensics insufficiently validated for the profiles to be reliable and admissible. Before the first hearing, the appellant relied primarily upon the evidence of Professor Jamieson who gave evidence before this Court in Reed & Reed , (see paragraphs 104-112) and Dr Scott Bader. The Crown relied upon the evidence of Ms Rosalyn Hammond, the forensic scientist who had carried out the analysis at LGC Forensics, Dr James Walker of LGC, Dr Paul Debenham of LGC, Mr Matthew Greenhalgh of Cellmark Forensic Services (Cellmark) and Dr Linacre of Strathclyde University. Dr Linacre had been a member of the review carried out by Professor Caddy into LTDNA to which reference is made at paragraphs 71 and 72 of the judgment in Reed & Reed and to which we refer at paragraph 33 below. 10. After a full review of the law, the judge concluded in a written ruling on 31 October 2008 that the test that a judge should apply was whether there appeared to be a risk that the evidence might be unreliable so that it would potentially mislead the jury rather than help them. Applying that test to the full review he made of the reports, he concluded that the evidence should be admitted. 11. The trial took place immediately thereafter. The jury were unable to reach a verdict in relation to the count of conspiracy to commit arson or the count of possession of an article with intent to destroy property, but acquitted him on the count relating to the sparklers. A retrial was ordered on the conspiracy to commit arson or possession with intent counts for January 2009. 12. By the time of the commencement of the second trial, the appellant had instructed Dr Daniel Krane, a professor of biological science at Wright State University, Dayton, Ohio who had given evidence in the Northern Ireland case of R v Sean Hoey [2007] NICC 49 and to whom reference was made at paragraph 6 of the judgment in Reed & Reed . The judge was asked to reconsider his ruling on admissibility in the light of the further evidence contained in the report of Dr Krane. The judge concluded that the DNA evidence was admissible. 13. Dr Krane subsequently gave evidence before the jury, as did Professor Jamieson and Dr Bader and those on behalf of the Crown to whom we have referred at paragraph 8 above. 14. Although the evidence called on behalf of the appellant was directed at matters which were the legitimate subject of disagreement for reasons we shall explain, an attack was made on behalf of the appellant on the integrity of LGC Forensics; it was alleged that their commercial interests and influence over their case workers had tainted their professionalism and objectivity. LGC Forensics were underestimating the problems which were associated with LTDNA and promoting its viability for financial reasons. 15. The summary by the judge in his summing up of the respective scientific cases of the appellant and the Crown is accepted by counsel for the appellant to have been accurate. We would ourselves characterise it as clear, concise and very helpful to the jury. The judge also referred to one further matter which is of great importance to this appeal - the fact that Ms Hammond accepted that, if her opinion was wrong on the interpretation of one of the DNA profiles, then her random match probability statistics were also wrong and she was not in a position to put forward any others. Issues (i) and (ii): The DNA evidence 16. There are two issues before us in relation to the DNA evidence: i) whether the judge should have excluded the DNA evidence on the basis that the quantities of DNA were so low that no reliable DNA profile could be obtained; ii) whether the jury should have been directed to disregard the DNA evidence if they concluded that that they could not accept the evidence given by the Crown in relation to the interpretation of the components of the DNA profile, as there were no random match probability statistics in that eventuality. 17. We shall address each of these issues in turn but before doing so we must begin with a brief description of the technique used to carry out the LTDNA profiling analyses relied upon by the Crown (as used by LGC Forensics) which is in some respects different to the LCN process described in Reed & Reed and of the results obtained. (a) LTDNA profiling methodology 18. The work was carried out by or under the supervision of Ms Hammond at LGC Forensics, with the assistance of other forensic scientists at Cellmark. Ms Hammond has a degree in Natural Sciences from Cambridge University and some 20 years experience of DNA profiling. After the stalks of some of the matches around one of the devices (referred to as CDR 4/5) recovered from Templeton College were swabbed at Fort Halstead, the DNA was extracted by conventional means. It was then suspended in about 60 microlitres (µl) of fluid. An attempt was made to quantify the amount of DNA present but this proved unsuccessful because the amount of DNA present was below the limit of detection of the apparatus used. This is a matter of some importance. It revealed the concentration of DNA was no greater (and possibly rather less) than 10 picograms (pg) per µl. 19. Ms Hammond then carried out a series of conventional PCR profiling analyses, each involving a standard 28 cycle amplification of the DNA contained in 10µl of fluid. Ms Hammond confirmed what necessarily followed from the quantification test, namely that each sample therefore contained no more than 100pg of DNA, equating to the DNA contained in about 15 human cells. Four amplifications were carried out; two using the familiar SGM-Plus technique which amplifies 10 Short Tandem Repeat (STR) loci and two using a similar technique called Identifiler which amplifies 15 STR loci (comprising the 10 STR loci amplified by SGM-Plus and five additional ones). 20. The products of these four amplifications were then profiled twice. First a standard profile was prepared. Then, in each case, the product of the amplification was enhanced or, as Ms Hammond put it, “cleaned up” and another profile prepared. As will be seen, this markedly improved the results in that significantly more alleles were detected. These could then be compared to a reference profile derived from the appellant. 21. A total of about 40µl of the original fluid was used in Ms Hammond’s experiments, leaving about 20µl which was, we understand, offered to the defence to carry out such repeats or other experiments they considered appropriate. That offer was not accepted. (b) The profiling results 22. The results of the profiling so obtained were presented to the jury in the form of two tables, providing, in a conventional way, a numerical representation of the number of STRs, which is to say the alleles, measured at each locus. 23. The standard profiles revealed so few alleles that no reliance was placed upon them. The Crown case therefore rested on the profiles produced from the four enhanced samples. These were analysed by Ms Hammond using the consensus approach, that is to say, she only included an allele for the purpose of calculating a random match probability if it appeared twice in separate profiles. This was described by the judge in his summing up as a conservative approach. 24. She initially applied this approach to the profiles generated from the products of each of the amplification techniques. Hence the two profiles generated using the enhanced products of the SGM-Plus amplifications were condensed into one set of consensus profile data and the two profiles generated using the enhanced products of the Identifiler amplifications were condensed into another set of consensus profile data. 25. The enhanced SGM-Plus consensus profile revealed eight alleles, all being alleles in common with the appellant’s reference profile, generating a random match probability of approximately 1 in 2,300. The enhanced Identifiler consensus profile revealed 10 alleles, again all being alleles in common with the appellant’s reference profile, generating a random match probability of approximately 1 in 32,000. 26. Ms Hammond then produced two sets of additional data, being what she called “combined enhanced results from both Identifiler and SGM-Plus”. In the first she drew together all the alleles which appeared in either of the SGM-Plus or the Identifiler consensus profiles. This profile now contained 15 alleles, all in common with the appellant’s reference profile, generating a random match probability of approximately 1 in 12 million. In the second, she went back to the original four enhanced profiles and drew together all the alleles which appeared in any two of them. This profile now contained 20 alleles, all in common with the appellant’s reference profile, generating a random match probability of less than 1 in 1 billion. 27. As will be apparent from the foregoing, the consensus approach did not reveal any alleles which were different from the alleles in the appellant’s reference profile. However, two such alleles did appear in the profile generated from the enhanced product of the first SGM-Plus run. At locus D2, three putative alleles were detected, namely 17 and 23, both in common with the appellant’s reference profile, and 25, which was not. Similarly, at locus D18, three putative alleles were again detected, namely 14 and 19, both in common with the appellant’s reference profile, and 13, which was not. 28. Ms Hammond attributed the putative allele 25 at locus D2 to contamination and the putative allele 13 at locus D18 to stutter. Importantly, she did not consider either to be evidence of a mixed profile. In relation to putative allele 25 at locus D2, she based her opinion upon three matters – (1) that it does not occur again in any of the other enhanced runs, (2) that there are three other loci which amplify more effectively and where one would expect to find evidence of other alleles in the case of a mixed profile and (3) that generally the overall consistency of the data was such she could not imagine there being any likelihood of them being derived from a mixed profile. As for putative allele 13 at D18, Ms Hammond explained this was in a typical stutter position and the underlying graph revealed an imbalance characteristic of this artefact. (c) The appellant’s case 29. The thrust of the evidence of Professor Jamieson and Dr Krane and Dr Bader was that the consensus approach was flawed in that it was overly subjective; that the quantity of DNA recovered was so low as to be below the stochastic threshold; and that when dealing with such low levels of DNA, stochastic effects become very much more common, as confirmed by the data generated by Ms Hammond and her co-workers in this case which show a significant number of drop-outs from run to run. Further, in these circumstances it was very difficult to establish whether something was a stutter or a genuine allele because the relevant peaks become very difficult to distinguish. Overall, Dr Bader thought that the DNA recovered from CDR 4/5 probably came from two contributors. Dr Krane thought that the safest course was to treat the results as inconclusive. (d) Admissibility of the DNA evidence 30. The appellant’s contention was that the judge erred in declining to exclude the DNA evidence altogether, alternatively that he erred in leaving to the jury the existence or otherwise of the stochastic threshold, and that he insufficiently emphasised the unreliability of DNA profiling techniques when dealing with DNA below quantifiable levels. It was argued that in the light of the decision of this court in Reed & Reed which, it is said, recognises the existence of a stochastic threshold of between about 100 and 200pg of DNA and, by implication, the inherent unreliability, and hence inadmissibility, of profiling evidence derived from the analysis of any smaller quantity of DNA. 31. The appellant’s submission is, we conclude, founded upon a misunderstanding of the decision in Reed & Reed . This court recognised that in the current state of technology there is a stochastic threshold between 100 and 200 pg above which LTDNA techniques, including the LCN process used by the Forensic Science Service (FSS), can be used to obtain profiles capable of reliable interpretation. Specifically, the court observed that above this threshold a challenge to the validity of the method of analysing LTDNA by the LCN process should not be permitted in the absence of new scientific evidence. However, the court did not hold or make any observation to the effect that below the stochastic threshold DNA evidence is not admissible. To the contrary, the court explained at paragraph 48: “… Above that threshold (often called the stochastic threshold), the stochastic effect should not affect the reliability of the DNA profile obtained. Below the stochastic threshold the electrophoretograms may be capable of producing a reliable profile, if for example there is reproducibility between the two runs.” 32. It was therefore necessary to apply the relevant principles relating to the admissibility of expert evidence in cases of this kind which are set out in Reed & Reed at paragraphs 111 to 113. Although the Courts of England and Wales have adopted a more flexible approach in admitting expert evidence than some jurisdictions, a court must consider whether the subject matter of the evidence is part of a body of knowledge or experience which is sufficiently well organised or recognised to be accepted as a reliable body of knowledge or experience. If the field is sufficiently well established to pass the ordinary tests of reliability and relevance, then that is sufficient. The weight of the evidence should then be established by our familiar adversarial forensic techniques. As we have set out at paragraph 9 above, the judge set out a different test; it was too low. 33. We must therefore examine the evidence in the light of the correct principles. We consider the following points to be material. i) Professor Caddy’s review of April 2008 (conducted with Dr Linacre and Dr Taylor of Cancer Research UK), which is referred to extensively in Reed & Reed , observes in its executive summary that the science supporting the delivery of LTDNA analysis is sound and that the three companies (the FSS, LGC Forensics and Cellmark) providing this service have validated their processes in accordance with accepted scientific principles concerning both 28 and 34 PCR cycles for extracts containing less than 200pg of DNA. Professor Caddy recognised that, at these levels, stochastic and inhibition effects have an impact on the DNA profiles produced but continued that all those involved have established guidelines for profile interpretation. At paragraph 1.7 of his report, Professor Caddy makes clear that his review has encompassed the particular techniques employed in this case: “Standard DNA profiling which uses 28 cycles works effectively with identifiable traces of body fluids but there are times when no identifiable body fluid is present. The amount of DNA in these samples may be present at very low levels perhaps corresponding to one or more human cells. Some of these samples are sometimes referred to as ‘touch DNA’ and may be present at levels similar to incidental DNA or that of low level contamination that would not normally be detected using standard DNA profiling. Modifications to obtain an STR profile from less than 200 picograms (pg) include: optimisation of the electrophoresis system, increasing the number of amplification steps from 28 to 34 cycles [6] and/or purification of the PCR product from a 28 cycles process. Any of these modifications results in an increase in the sensitivity of the test but may also increase the stochastic effects and the opportunity for detecting DNA not related to the alleged incident (either incidental or due to contamination). The stochastic effects include allelic “drop out”, random allelic “drop-in” and an increase in stutter products. These processes confuse the outcome of such DNA profiling and are usually dealt with by repeating the process a small number of times, usually twice is sufficient. The stochastic effects are not limited to increased cycle number but occur even with 28 cycles when using low template DNA…” ii) As this court also noted in Reed & Reed , the Forensic Science Regulator broadly accepted the conclusions of Professor Caddy’s review in his response dated 7 May 2008. He concluded: “4.1.1 Having considered the Review and discussed its conclusions with the FSAC and stakeholders. I am content that the science underpinning the LTDNA analytical services, as provided to the CJS, is sound and that the three forensic science suppliers offering such services have properly validated their processes. There is no flaw inherent in the process which prevents its use within the CJS. 4.1.2. The recommendations set out in the Review, and points raised by members of the FSAC and stakeholder organisations, demonstrate that there are areas where the current processes can be improved. LTDNA services can be separated into three sections: collection, analysis and interpretation. I believe the key areas where improvements can be made are the collection of and, probably most importantly, the interpretation of the evidence. I have, within this Response, set out the way in which I wish to achieve these improvements. 4.1.3. The ability to improve on the current approach does not mean that the approach should not be employed within the CJS. As long as the scientist reporting the results of LTDNA analysis complies with the duties and obligations placed on expert witnesses the CJS will appreciate the nature and value of the evidence provided.” iii) Dr Linacre, who had some 15 years experience in the field of forensic DNA analysis, explained in his evidence that in conducting the Caddy review he and his colleagues carried out an extensive investigation of the processes of protocol design and review used by the three principal service providers and of the data they had generated using their LTDNA procedures. He also observed that all three organisations are accredited (or in the process of securing accreditation) under ISO 17025, the standard to which analytical science laboratories the world over seek to adhere, and which requires their procedures to have been tested and verified. He was firmly of the view that they conduct their LTDNA procedures in a reliable and robust manner. iv) These matters were confirmed by Dr Matthew Greenhalgh and Dr Paul Debenham. v) Dr Krane expressed concern that, as of early 2007, LTDNA techniques had not been adequately validated and that, at least in the USA, LTDNA results are treated with great caution. Overall, he believed that the results derived from the very low quantities of DNA analysed by Ms Hammond should be treated as inconclusive. We have no doubt that Dr Krane’s opinions were honestly held. But it is to be noted that in expressing his concerns about adequate validation, Dr Krane was considering the position at a time before the Caddy review and the response to it from the Forensic Science Regulator. 34. It is apparent from the foregoing that there is now a considerable body of opinion from respected independent scientists and the Forensic Science Regulator that LTDNA techniques, including those used to generate the profiles relied upon by the Crown in this case, are well understood, have been properly validated and are accepted to be capable of generating reliable and valuable evidence. At these very low levels of DNA, the dangers presented by the possibility of stochastic effects, including allelic drop-out, drop-in and stutter are very real and must be fully appreciated, but they may often be addressed by repeating the process a number of times, as Professor Caddy recognised. 35. There will of course be occasions where profiles generated from less than 200pg are wholly and obviously unreliable. We anticipate that the Crown would never seek to adduce such profiles in evidence. If it put forward such a profile, then the unreliability would be pointed out in the report of the defence expert and, if not accepted by the Crown’s expert in the exchange that must take place under Part 34 of the Criminal Procedure Rules, the judge would have to consider the dispute; if they were unreliable, he would exclude them. 36. There will be other occasions where the probative value of the profiles is more debatable. In such cases the evidence may properly be adduced and it must then be addressed and its weight established by adversarial forensic techniques. But we do not accept that these are reasons for ruling out LTDNA evidence altogether. In our judgment, the science of LTDNA is sufficiently well established to pass the ordinary tests of reliability and relevance and it would be wrong wholly to deprive the justice system of the benefits to be gained from the new techniques and advances which it embodies, in cases where there is clear evidence (adduced in the manner discussed) that the profiles are sufficiently reliable. 37. In the context of the present appeal, we have also reached the conclusion, applying a higher test than that applied by the judge, that the judge’s conclusion was correct and they were admissible in evidence as sufficiently reliable. We recognise that the profiles were derived from unquantified samples of DNA of less than 100pg and that this raised entirely legitimate grounds for scientific dispute which the appellant was right in testing before the judge. However, the Identifiler and SGM-Plus techniques used by Ms Hammond and her co-workers are well established and were used in an entirely conventional way with a standard 28 cycle amplification followed by purification of the PCR product. The process was repeated four times, which may be considered rather generous in the light of Professor Caddy’s review. The profiles which were generated revealed a large number of alleles which for the most part did not require subjective interpretation (being above 50 relative fluorescence units). It is right to record that there is evidence of drop-out from run to run, but this is hardly unexpected given the low quantity of DNA analysed. On the other hand, the consensus data relied upon by the Crown show what may be considered a remarkable consistency in that all of the consensus alleles match those in the appellant’s profile. In other words, the consensus profiles do not suggest the procedures suffered from drop-in or stutter such as to render the results inherently unreliable. Indeed, this is reflected in the statistics derived from the consensus profiles to which we have referred and about which there was no dispute. At their most powerful and when derived from all duplicated components, these give rise to the match probability of less than 1 in 1 billion. We believe that these were all matters properly admitted in evidence. 38. We cannot leave this aspect of the case without commenting on the attack made on the integrity of the LGC Forensics and, by implication, Cellmark. Whatever may be the position in other jurisdictions, it is the duty of an advocate and an expert in this jurisdiction not to embark upon an attack on the integrity of other experts unless there is an evidential basis for doing so. There was none in this case. The attack made on the integrity of LGC Forensics and Cellmark was without foundation and should never have been made. As we made clear in Reed & Reed at paragraph 74(v) there can well be a difference of opinion between experts on LTDNA, but there should be no question of the good faith of those involved in LTDNA being put in issue. This is a case where there is a proper disagreement between experts but the course taken by those giving evidence on behalf of the appellant went into matters for which there was no foundation. Not only was the attack on the good faith of the Crown’s witness wholly deplorable and unwarranted, but it also was a great disservice to the appellant’s case. (e) The direction to the jury: their course of action if they did not accept the Crown’s case on the interpretation of the profile 39. We turn therefore to the second ground of the appeal – whether the jury should have been directed to disregard the DNA evidence if they concluded that they could not accept the evidence given by the Crown in relation to the interpretation of the components of the DNA profile. 40. This ground of appeal is founded upon the detection in the first run of the putative alleles 25 at locus D2 and 13 at D16, neither of which matched the profile of the appellant. It will be recalled (as we have set out at paragraph 27 above) that Ms Hammond attributed these to contamination and stutter respectively. The defence experts, on the other hand, considered they were inconclusive or, in the case of Dr Bader, evidence of a mixed profile. If the latter were correct, there was no dispute that the match probability statistics could no longer be relied upon. 41. The judge first directed the jury in relation to this issue as follows: “So far as the consensus approach is concerned in general terms, members of the jury, Rosalyn Hammond explained it to you, but the important thing that she was saying, and the prosecution invite you to consider in this way, is that there are two parts to the consensus approach. The first is that you decide from all the results that you have whether you have a single or a mixed profile or whether you have a single profile plus contamination. She says that somebody with experience is best placed to decide that on all the information that you have. So that includes whether part of the information is looking at three particular components which you were told about that she says would amplify more readily than others and so would be expected to show if there was a mixed profile, and you will remember the debate about those three components at D3, 8 and 19. So once you have done that, that where a component appears twice at least then you include that for statistical purposes in working out the match probability otherwise you leave it out on a conservative basis. I am sure you understand by now the meaning of the match probability. She agrees that if the judgment about the components is wrong then the statistics are wrong, and so in this case if it was your conclusion that any of her evidence about a specific component was wrong or may be wrong then of course that would affect the statistics that appear in the right hand column of the match probability and there you don’t have alternative statistics on that basis. You are still invited to look at the evidence as a whole but you must bear in mind then you would have to be cautious because you would not have any precise figure to put on the match probability. She accepted that there is an element of subjective judgment but no more than anywhere else in forensic science. She agrees that there is, as I say, subjective judgment and what she agreed was that somebody else might hold a contrary view to hers and that you may not be able to say who was right and who was wrong. In other words, there is no, as it were, answer at the back of the book. There is no independent machine if people hold contrary views to tell you in these circumstances who is right and who is wrong. It is a question of expert evidence and scientific judgment, and indeed that is, the prosecution say, why forensic scientists give evidence and other experts give evidence.” 42. Importantly, the judge recognised and directed the jury that if Ms Hammond’s judgment about the components of the profile was wrong then the statistics were wrong and no alternatives were provided. Nevertheless, the jury were still invited to look at the evidence as a whole, but cautiously because they would not have any precise figure to put upon any match probability. 43. Shortly afterwards, and in the absence of the jury, the appellant submitted that, absent reliable statistics, the jury should be directed to disregard the DNA evidence altogether. The judge rejected that submission, but gave the jury the following further direction: “Finally this, members of the jury, that I said that if it should be your conclusion that in calling some component Miss Hammond may have been wrong in the conclusion that she arrived at about a particular component, that that would therefore destroy the statistical figure that has been given as a match probability, and I should emphasise that if you reach that point, although the evidence is available for you to reach your own conclusions about looking at the evidence as a whole and looking at the range of match probabilities which are given at lower levels, depending on where you say an error might have occurred if it occurred, you would have to be very careful indeed to arrive at firm conclusions and have to exercise caution because you would not have a statistical figure to put on it and you could not put your own figure on it because you are not experts. So that is a word of caution. But I have identified for you I hope sufficiently the various areas where there is need for caution in the interpretation of this evidence.” 44. The appellant submitted that this too was an inadequate direction, as it gave the jury no proper guidance as to the weight they should put upon the DNA evidence in the event that they did not accept Ms Hammond’s evidence as to the components of the DNA profile. It was submitted that the judge ought to have directed to the jury to disregard the DNA evidence entirely 45. In R v Doheny; R v Adams [1997] 1 Cr.App.R. 369, Phillips L.J., giving the judgment of the court, said in relation to the summing up of DNA evidence: “When the judge comes to sum-up, the jury are likely to need careful directions in respect of any issues of expert evidence and guidance to dispel any obfuscation that may have been engendered in relation to areas of expert evidence where no real issue exists. The judge should explain to the jury the relevance of the random occurrence ratio in arriving at their verdict and draw attention to the extraneous evidence which provides the context which gives that ratio its significance, and that which conflicts with the conclusion that the defendant was responsible for the crime stain.” 46. Similarly, in R v Bates [2006] EWCA Crim 1395 , this court was concerned with the problem of partial profiles and, in particular, whether DNA evidence should be excluded on the basis that it is impossible to ascribe any statistical value to the potential exculpatory effect of the voids in a partial profile. In the particular circumstances of that case the trial judge declined to exclude the evidence and, on appeal, the court concluded that he was entirely right to have taken that course. It explained at paragraphs 29 and 30 that such evidence nevertheless remained probative and admissible provided that the jury are given a sufficient explanation to enable them to evaluate it: “29. …It is important to understand that the results of the testing procedure and the statistical analysis based on them indicate what proportion of the population has the reported alleles at the relevant loci. In the case of the samples taken from areas 2 and 4 it is one person in 610,000 in each case, or a total of roughly one hundred persons in a population of 60 million. That would remain the case even though there might be an allele in one of the voids which exculpated the appellant. If, on the other hand, a “missing” allele matched the appellant's profile, the match probability would be reduced and the chances that the sample had been contributed by the appellant increased accordingly. 30. We consider that the judge's approach to the question was entirely correct. We can see no reason why partial profile DNA evidence should not be admissible provided that the jury are made aware of its inherent limitations and are given a sufficient explanation to enable them to evaluate it….... In many cases there is a possibility (at least in theory) that evidence exists which would assist the accused and perhaps even exculpate him altogether, but that does not provide grounds for excluding relevant evidence that is available and otherwise admissible, though it does make it important to ensure that the jury are given sufficient information to enable them to evaluate that evidence properly.” 47. Applying the approach in Doheny and Bates , the dangers inherent in evidence founded upon the analysis of less than 100 to 200pg of DNA make it particularly important that the jury are given sufficient guidance to enable them fully and properly to evaluate the evidence in relation to the components of the DNA profile where there is a disagreement about them. In this case the judge properly directed the jury that if they did not accept Ms Hammond’s evidence as to the putative alleles 25 at locus D2 and 13 at D16, then that would, as he put it, destroy the match probability statistics relied upon by the Crown. 48. However, in our judgment the judge then fell into error in directing the jury that, in those circumstances, they could reach their own conclusions on the DNA evidence. It is fair to say that the judge urged the jury to exercise caution and be very careful in arriving at firm conclusions because they were not experts in statistics. However, we believe that only served to emphasise the void in which they were left. They had no guidance from the experts and no guidance from the court to enable them to conduct an evaluation of the evidence for themselves. In this court, counsel for the Crown put the position graphically; if the jury rejected the interpretation of the components of the profile put forward by Ms Hammond, “the statistics provided went out of the window”. But although the Crown appreciated this consequence, the Crown had not provided any alternative statistics in the event the jury did not accept Ms Hammond’s evidence. It followed in our view, that if the jury did not accept her evidence on the interpretation of the components of the profile, then the jury should have been told to acquit, as there was no basis on which they could assess the match probabilities themselves. Of course, if there had been alternative statistics, then these would have been left to the jury and the jury been directed accordingly. 49. We reach this conclusion with considerable regret. In his otherwise admirable summing up, the judge expertly addressed all the evidence and the complex issues in clear terms about which no complaint has (or could possibly be made) been made. However, the judge ought to have directed the jury that if Ms Hammond was wrong in her conclusion that the DNA profiles were single rather than mixed, then on the only evidence before the court at the trial the DNA evidence must be disregarded. The judge having failed to do so, the jury may well have embarked upon a task of evaluation for which they were not equipped. This means their verdict cannot be regarded as safe. 50. In the light of that conclusion we can deal with the remaining two grounds of the appeal more shortly. Issue (iii): Should the judge have discharged a juror on the ground of apparent bias? 51. In accordance with practice for a case of this kind, the jury were asked at the outset of the trial whether they were in any way connected with Oxford University or animal rights activists. The jury were thereafter sworn in. 52. As we have explained, as part of the evidence called to validate the enhancement process developed by LGC Forensics for Low Template DNA, the Crown called Mr Matthew Greenhalgh, Director of Forensic Science at Cellmark. Prior to his giving evidence and while Ms Hammond of LGC Forensics was giving her evidence, a juror sent a note to the judge in which she disclosed that she worked for Cellmark. 53. The juror in question was asked into Court and she confirmed that she had worked as a clerical officer in the Returns Department of Cellmark since January 2009. She confirmed that she had not heard of Mr Greenhalgh. 54. The appellant applied for the discharge of that juror, arguing that a critical issue for the defence was the science of LTDNA and, in particular, the nature of the work being done by companies such as Cellmark and LGC Forensics who were prioritising commercial interests over evidential reliability. 55. In a very clear ruling, the judge rejected the submission. He concluded that the juror had a clerical job involving no scientific knowledge. It was accepted that she was not personally biased. The issue related to the question as to whether a fair minded and fair observer would conclude that there was a real possibility that she would be perceived as being subject to a level of partiality in deciding whether or not to accept the evidence of Mr Greenhalgh. He concluded that he had to have regard to the fact that she did not know Mr Greenhalgh and had a very low position, that an informed observer could not and would not anticipate that she would do anything other than carry out her duties conscientiously. 56. The legal principles are not in dispute. They are set out in Re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700 and R v Khan [2008] EWCA Crim 531 , [2008] 2 Cr App R 13 . It was submitted on behalf of the appellant that the judge’s decision was wrong. The attack being made on Cellmark was an attack on its good faith which, if it succeeded, would mean that Cellmark might suffer commercially; in a time of recession, a person who had secured even a clerical job, would wish to be sure that the company did not suffer adversely. It was also important to note that Cellmark was a relatively small company and, although she did not know Mr Greenhalgh, she would be very concerned for the company’s future. On behalf of the Crown it was submitted that the judge had reached the correct decision in view of the fact that she had a clerical job, was not concerned with the science, did not know Mr Greenhalgh and his evidence was only one part of that relied upon by the Crown. 57. We are entirely sure that the judge was right in the conclusion he reached. The judge carefully weighed the competing considerations but was right to attach decisive importance to the fact that the juror had a clerical position, did not know the director concerned and that the director concerned was one of many experts being called by the Crown. This ground of appeal fails. Issue (iv): The judge’s exercise of his discretion in respect of the evidence about sparklers 58. As we have explained, the jury at the first trial in October and November 2008 had acquitted the appellant on the count of keeping explosives with the intent to endanger life or property which related to the sparklers found hidden in the water tank. At the retrial objection was made to the admission of the evidence in relation to sparklers on the basis that its probative value was considerably outweighed by the prejudice that would be introduced. It was asserted that there was no evidence that the sparklers had been purchased prior to the fires at Queen’s and Templeton, the evidence to support the assertion that the missing sparklers were used in the Templeton devices was thin and there was no evidence to support the theory that he had used the missing sparklers to test the fuse mechanism used in the devices. On the other hand the prejudice was great. The judge refused to exercise his discretion under s.78 of PACE to exclude the evidence. 59. In our judgement he was entirely right to do so. The evidence did have a clear probative value and it would have been wrong to exclude it from the evidence put before the jury. The Single Judge refused leave to appeal on this point and the matter was not argued before us in the oral argument. We agree with the decision of the Single Judge and Mr Bentley was right not to argue the point before us. We refuse leave on this ground.

2010_03_24-2338.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/549/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/549

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[2003] EWCA Crim 271

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2003-02-13

supreme_court

Neutral Citation No: [2003] EWCA Crim 271 Case No: 2002/1858/Y5 & 2002/1589/Y4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 th February 2003 Before : LORD JUSTICE KENNEDY MR JUSTICE MCCOMBE and MR JUSTICE TREACY - - - - - - - - - - - - - - - - - - - - - Between : R - v - Ian John Lawless and Gary John Lawson - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Lawson QC appe

Neutral Citation No: [2003] EWCA Crim 271 Case No: 2002/1858/Y5 & 2002/1589/Y4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 13 th February 2003 Before : LORD JUSTICE KENNEDY MR JUSTICE MCCOMBE and MR JUSTICE TREACY - - - - - - - - - - - - - - - - - - - - - Between : R - v - Ian John Lawless and Gary John Lawson - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Michael Lawson QC appeared for Ian Lawless Mark Bury appeared for Gary Lawson John Milmo QC appeared for the Crown Hearing dates: 5 th February 2003 - - - - - - - - - - - - - - - - - - - - - Lord Justice Kennedy: 1. In February 2002 in the Crown Court at Hull these appellants were convicted of murder, and in March 2002 each was sentenced to life imprisonment. Lawson was also convicted of conspiracy to cause grievous bodily harm, and for that received a sentence of 4 years imprisonment concurrent. They now appeal against conviction by leave of the single judge. 2. The victim of the murder was Alfred Wilkins, aged 67, who on 2 nd November 2000 at Grimsby Crown Court was acquitted of indecent assault on an 8 year old girl. He lived at 6 Arundel Walk, Yarborough Estate, Grimsby, and it is clear that some of his neighbours did not agree with the verdict. He was harassed, the windows of his home were smashed, and graffiti were daubed on that building. 3. On 1 st February 2001 two intruders broke into his home and attacked him. Early on 9 th February 2001 accelerant was poured through the letterbox of his home and ignited. As a result of the smoke from that fire both Wilkins and his dog died. They were found at about 6 am. 4. A man named Gary Fairbanks and his son Dean lived near to Alfred Wilkins. The appellant Gary Lawson often visited the Fairbanks home and Chantelle Day was Gary Lawson’s girlfriend. The appellant Ian Lawless was also a friend of Fairbanks. In the indictment all five were charged. Count one alleged that Lawson, Day and Dean Fairbanks, prior to 2 nd February 2001, conspired to cause grievous bodily harm to Wilkins. Lawson and Day were convicted of that offence. Dean Fairbanks was acquitted on the direction of the trial judge. Counts 2 and 3 alleged that Gary Fairbanks had incited Lawson to cause grievous bodily harm and to murder. Gary Fairbanks was acquitted of both offences. Counts 4 and 5 alleged that prior to 9 th February 2001 Chantelle Day had incited Lawson to murder Wilkins and to set fire to his home. Following a submission made during the trial she was acquitted of those offences on the direction of the trial judge. Count 6 charged Lawless and Lawson with murder. Counts 7 to 9 related only to Gary Fairbanks and concerned events some time after the fire, so we need say nothing further about those counts. The Prosecution case. 5. The prosecution case against Lawless, who was named only in count 6, was that after the murder he admitted participation as a look-out to a large number of people, including ultimately a fellow prisoner, David Gough, and behaved in a way that was consistent with those admissions being true. 6. The case against Lawson also depended on what he was alleged to have said to others, but in his case there were, it was alleged, threats made before 9 th February as well as claims of responsibility afterwards. 7. There was no forensic evidence to link either appellant with the fire in which Wilkins died, nor did anyone purport to have seen anything relevant on the night when the fire was started. The appeal of Lawless. 8. On behalf of Lawless Mr Michael Lawson QC, who did not appear at the trial, advances two separate but to some extent related grounds of appeal. 9. First, he points out that although Lawless did admit participation to a number of people he never admitted to being more than a look-out, and that left for consideration the extent of his participation. In particular, did he know that the others who were involved were going to do more than frighten Wilkins, because if he did not know of the more serious intent he should not have been convicted of murder, but only of manslaughter. Many of those to whom Lawless confessed regarded him as unreliable, the sort of person who might well claim responsibility for criminality in which he was not involved, and that Mr Lawson submits, is relevant when considering his first ground of appeal. But, as Mr Lawson accepts, all of the points which could be made about the reliability of the confessions made by Lawless were made at the trial, and featured in the summing-up, so they must have been considered by the jury. As to whether if the confession evidence was accepted the offence proved could be more than manslaughter the judge gave careful directions to the jury upon which Mr Milmo QC for the Crown now relies. Mr Lawson does not criticise those directions, nor could he, and, as Mr Milmo submits, they do have to be read against the factual background of this case. If Lawless was the look-out he must in reality have known that his fellow criminals were armed with the accelerant which was used to start the fire. The house of Wilkins had been attacked and was boarded up, as Lawless knew, with Wilkins inside. If Lawless knew that the fire was to be started in that dwelling, he must also have recognised and intended that the occupant would suffer serious injury, if not death. We accept that submission made on behalf of the Crown, and in our judgment there is no substance in Mr Lawson’s first ground of appeal considered on its own. 10. Mr Lawson’s second ground of appeal arises of what is said to have happened very soon after the conclusion of the trial at Hull. Chantelle Day, having been convicted on count 1, was sentenced to three years detention. Whilst detained in a Young Offenders Institution she is alleged to have admitted to a fellow inmate that she was worried about her boy friend Gary Lawson, because she was involved in pouring the accelerant into the home of the deceased yet he was taking all of the blame. She was so upset that the fellow inmate persuaded her to repeat what she had said to female prison officers. She did so. She was clearly admitting her own involvement, and indicating that she was not alone. She seems to have been inconsistent as to whether or not her boyfriend was there, but she did say words to the effect that there was another bloke also in prison who had been bragging about being a look-out, but who wasn’t even there. He, she suggested, told people he had been involved to get some form of notoriety on the estate where they lived. The prison officers referred Chantelle Day to the psychiatric nurse, and thus she spoke first to a nurse and then to a trainee psychologist, to each of whom she is alleged to have given a similar account, save that there was no reference to Lawless. In reliance upon the admissions she is alleged to have made Chantelle Day has been charged with murder, and is now awaiting trial, a Presiding Judge having ordered that her trial take place after the conclusion of this appeal. 11. The account which we have just given as to the admissions allegedly made by Chantelle Day is derived from statements taken from those to whom she is said to have spoken. The statements have been served together with forms W indicating that the appellant Lawless seeks leave call the makers of the statements as witnesses before this court. We do have power under section 23 of the Criminal Appeal Act 1968 to receive fresh evidence in certain circumstances, and in due course we must look carefully at that power, but it is, we think, helpful to start by considering whether the evidence now sought to be relied upon could ever have been admissible in the trial from which this appeal lies. At first sight it offends the rule against the admission of hearsay evidence, and Mr Milmo has drawn our attention to the decision of the House of Lords in Blastland [1986] AC 41 . In that case the appellant was charged with buggery and the murder of a twelve year old boy. He claimed that after attempting to bugger the boy he desisted. He then saw another man, Mark, nearby, and wanted to call a witness to say that before the boy’s body was discovered Mark had said that the boy had been murdered. That evidence was excluded by the trial judge, and in the Court of Appeal and the House of Lords that decision was upheld. Lord Bridge at 52H said that “it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule.” At 54A he recognised that hearsay evidence may be potentially probative, and continued – “The rationale of excluding it as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any, weight can properly be given to a statement by a person whom the jury have not seen or heard and which has not been subject to any test of reliability by cross-examination.” Lord Bridge then recognised at 54D that – “Statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made.” In that case the statements sought to be relied on were held not to meet that test. Lord Bridge then said – “The statements which it was sought to prove that Mark made, indicating his knowledge of the murder, provided no rational basis whatever on which the jury could be invited to draw an inference as to the source of that knowledge. To do so would have been mere speculation. Thus, to allow this evidence of what Mark said to be put before the jury as supporting the conclusion that he, rather than the appellant, may have been the murderer seems to me, in the light of the principles on which the inclusion of hearsay depends, to be open to still graver objections than allowing evidence that he had directly admitted the crime. If the latter is excluded as evidence to which no probative value can safely be attributed, the same objection applies a fortiori to the admission of the former.” 12. However, as Mr Lawson points out, we also have the assistance of the later decision of the House of Lords in Myers [1998] AC 124 . In that case the appellant, a co-defendant Quartey and a fifteen year old girl hired a mini cab the driver of which was later found fatally stabbed. Whilst in custody the appellant said in conversation that although she had the knife and did stab the driver they had only intended to rob him and not to kill him. The Crown did not seek to lead that evidence, but the judge allowed it to be adduced by counsel for Quartey to assist his defence. The appellant was convicted of murder and Quartey of manslaughter. In the Court of Appeal and in the House of Lords the decision of the trial judge was upheld, but the reasoning is not easy to follow. At 136D Lord Slynn, with whom Lords Steyn and Hutton agreed, said – “Accepting Lord Bridge’s view in R v Blastland that statements by third persons are not admissible there is a long line of authorities showing that a defendant must be allowed to cross-examine a co-defendant as to a previous inconsistent confession so long as the material is relevant to the defendant’s own defence. In my opinion a defendant should also be allowed to put a co-defendant’s confession to witnesses to whom the confession was made so long as the confession is relevant to the defendant’s defence and so long as it appears that the confession was not obtained in a manner which would have made it inadmissible at the insistence of the Crown under section 76(2) of the Act of 1984. There may be doubt as to whether the co-defendant will be called (so that it may not be possible to put the confession to the co-defendant directly) and not to allow the defendant to introduce it by way of cross-examination of prosecution witnesses could lead to great unfairness.” If relevance is the only test in relation to a confession properly obtained it is difficult in a situation such as that which arose in Myers , to see what is left of the hearsay rule, as explained and applied in Blastland , and if in order to avoid unfairness a co-defendant’s confession has to be admitted even when he does not give evidence, why is such unfairness acceptable if the co-defendant is tried separately, or not tried at all? 13. Lord Hope, with whom Lord Mustill agreed, recognised the relevance of the hearsay rule, saying at 140E – “The hearsay rule … has to be considered because the contents of the statement made to the police by a third party are hearsay evidence as to the truth of those contents. If the evidence is admissible, it must be by way of an exception to the hearsay rule.” As to Blastland Lord Hope said at 142A – “The situation in the present case is however not the same as that in R v Blastland . The statements which counsel for the appellant’s co-defendant was allowed to lead in evidence from the police witnesses were statements by his co-defendant, not by a person who could properly be described as a third party because he was not a party to the trial. There was no other way of eliciting this evidence because the maker of the statements was not a compellable witness for the co-defendant.” So clearly if the evidence is to be admitted it is critical that the person alleged to have spoken is a co-defendant, and a justification for admitting the evidence seems to be that otherwise there is no other way to elicit it. Lord Hope says at 143C that in Scotland one of the reasons commonly given for admitting such evidence is that it is relevant to the defence of a co-defendant “where only one of them could have committed the crime.” 14. Mr Lawson submits that we should proceed upon the basis that if the evidence from the statements had been available at the time of the trial it would have formed part of the prosecution case against Chantelle Day, and Lawless would then have been able to rely on it. But that, as it seems to us, is to postulate an event which has yet to take place, namely the trial of Chantelle Day on a count of murder. In the context of the trial which did take place, and from which this appeal lies, the evidence from the statements, other than that which refers directly to the conviction of the appellant Lawless, has no real part to play. It all relates to Chantelle Day’s own position. As Mr Milmo points out, this is not a case where the crime must have been committed by one of two people. If Chantelle Day was involved in the arson that fact does not of itself cast doubt upon the conviction of either of the present appellants. That can be contrasted with the situation in Myers where, in reality, it seemed that only one of two people could have stabbed the driver of the mini cab. As to what Chantelle Day is alleged to have said about the appellant Lawless that could only be adduced, as Mr Lawson recognises, if the evidence were to come directly from Chantelle Day. Otherwise it falls foul of the rule in relation to hearsay, and even if she were to give that evidence she would be unlikely to be regarded as a witness whose testimony would carry much weight. 15. With those considerations in mind we turn to our powers under section 23 of the 1968 Act . We may, if we think it necessary or expedient in the interests of justice, receive any evidence which was not adduced in the proceedings from which the appeal lies, but in considering whether to receive any evidence we must 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.” For present purposes we are prepared to accept that the information in the statements is capable of belief in so far that it reports what Chantelle Day is alleged to have said, but save for the passages which bear directly upon the conviction of the appellant Lawless that information does not appear to us to afford any ground for allowing the appeal. The limited information which we regard as relevant would have been admissible in the proceedings from which the appeal lies, in that Chantelle Day could have said in those proceedings that Lawless played no part and, so far as Lawless is concerned, there is a reasonable explanation for his failure to adduce that evidence in those proceedings because it was not then available to him, but he is still in no position to adduce it in a acceptable form, that is to say directly from Chantelle Day. Accordingly there is no fresh evidence for us to receive and without fresh evidence Mr Lawson’s second ground of appeal fails. This Court can only exercise its powers under section 2 of the 1968 Act on the basis of material properly laid before it, either coming from the court below or coming direct to this court by way of fresh evidence, agreement or concession. 16. There was briefly canvassed in argument before us the possibility of using the provisions of sections 24 to 26 of the Criminal Justice Act 1988 to introduce into evidence before this court the statements to which we have referred, but the statements were not admissible by that route because they did not meet the requirements of section 24(4) . The Appeal of Lawson. 17. On behalf of the appellant Lawson Mr Bury drew attention to the notebook or diary entry apparently made by Chantelle Day after the first attack on the home of Alfred Wilkins and before the fire. It read – “Everytime I hear Alf’s name (that’s the nonce on the Yarbrer who lives in the flat’s next door to Owen) I just want to brake into his flat and sallertape his hands behind his back, sallertape his legs together, put some sock’s in his mouth with some sallaertape over it, take all of his money, pour petrol allover his flat and allover him then set him on fire then his flat to make sour it all blows up with him in it….” That entry was used by Mr Milmo when opening the case for the Crown. He referred to it as a blue print for what was to occur. It was suggested that it must have been shown to Gary Lawson, but Lawson denied ever seeing it. 18. When the judge ruled that there must be verdicts of not guilty returned in relation to Chantelle Day on counts 4 and 5, leading counsel for Gary Lawson submitted that because of the prejudicial effect of the diary entry the jury should be discharged and Chantelle Day should be tried separately on count 1. The judge rejected that submission, and Mr Bury’s first ground of appeal is that he was wrong to do so. In our judgment that decision of the trial judge is unassailable. It was a matter for his discretion, and the discretion was properly exercised. A jury properly directed was perfectly well able to deal with the prejudicial effect. Furthermore, when telling the jury what their verdicts must be on counts 4 and 5 the judge said of the diary entry – “The Crown, as you know, relied upon the entry in her diary. The entry itself is entirely personal, and so far as Gary Lawson is referred to it is simply incidentally. There is not the slightest evidence that she ever showed it to him, not the slightest evidence that he was incited one way or the other, so that is why those counts have to go.” The diary entry was left with the jury because although it was made after the break-in which was the subject matter of count1, it was evidence of a hostile animus on the part of Chantelle Day, and that was relevant in relation to count 1 so far as she was concerned. Clearly the judge intended to give the jury careful and specific directions about the limited way in which the diary could be used, but by an oversight he omitted to include such directions in the main body of the summing-up, and a curious feature of the case is that when the point was raised as a result of a question from the jury after they had retired the judge and all counsel were satisfied that the directions had been given. In the course of his careful summing-up the judge did give other directions which were relevant. He said at 7B of the transcript – “Chantelle Day did not give evidence. What she said in interview was not in the presence of other defendants, they did not have the opportunity to cross-examine her about what she had said, and in those circumstances what she says in interview is evidence for or against her, and only her. It is not to be taken into account when you consider any other defendant’s case.” On the next page, when dealing with lies, the judge said – You may reject Chantelle Day’s explanation for her diary entry relating to Mr Wilkins.” Much later on, when dealing with the evidence of Gary Lawson, the judge said at 105G - “He had never seen Channie’s notebook, there had never been an occasion when she was writing in it in his presence during a conversation, to his recollection.” Then, after the jury had retired, they asked for samples of each defendant’s handwriting. That request was, of course, refused, the evidence having been concluded, but the judge went on to say to the jury – “Can I just remind you, there are two matters really. One is that the only document in manuscript that you have got is Miss Day’s diary, and the undisputed evidence is that she wrote the whole of that, and again, as I directed you, that is only evidence for or against her. The only other handwriting that we have been able to identify is the writing on the boards or doors at Mr Wilkins flat. Again there is no evidence that that is attributable to any of the defendants. There was a suggestion that Johnson had been responsible, but he denied it, so that is as far as we can take that.” 19. Mr Bury’s second ground of appeal is that the Judge’s direction as to the diary entry being evidence only for or against Chantelle Day was too little and it came too late. We disagree. It is certainly regrettable that the diary entry was not dealt with earlier, but in the end the jury did receive the direction that was required, and it can even be argued that a direction given at a very late stage will certainly be memorable. Mr Bury submits that more needed to be said about the limited relevance of the diary in relation to count 1, but again we do not agree. By the end of the case the relevance of the diary in relation to that count was clear. It came into existence after the attack on 1 st February 2001. It was plainly in Chantelle Day’s handwriting, and there was no evidence that it was shown to Gary Lawson who denied seeing it. It could therefore only be relevant in relation to her state of mind. 20. That conclusion in relation to the directions which the jury received makes it unnecessary for us to consider the strength of the case against Gary Lawson because, as Mr Bury accepts, there plainly was evidence upon which a jury properly directed could convict on both counts. The witnesses on whom the Crown relied were vulnerable, but their weaknesses were fully explored, and there was no evidence of collaboration. Conclusion. 21. For those reasons both appeals against conviction are dismissed.

2003_02_13-18.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/271/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/271

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[2009] EWCA Crim 1627

EWCA_Crim_1627

2009-07-30

supreme_court

Neutral Citation Number: [2009] EWCA Crim 1627 Case No: 2007/00559 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Crown Court sitting at Birmingham The Recorder of Birmingham, HHJ Saunders QC 20037868 Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/07/2009 Before: LORD JUSTICE HOOPER MR JUSTICE LLOYD JONES and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between: Shamus Iqbal Appellant - and - The Queen Respondent - - - - - - -

Neutral Citation Number: [2009] EWCA Crim 1627 Case No: 2007/00559 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Crown Court sitting at Birmingham The Recorder of Birmingham, HHJ Saunders QC 20037868 Royal Courts of Justice Strand, London, WC2A 2LL Date: 30/07/2009 Before: LORD JUSTICE HOOPER MR JUSTICE LLOYD JONES and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between: Shamus Iqbal Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Louise Blackwell QC and Ms Alison Gerry (instructed by Abbey Solicitors) for the Appellant Mr Rex Tedd QC and Mr Timothy Harrington (instructed by CPS Birmingham) for the Respondent Hearing dates: 4, 5 and 6 February 2009, 6 March 2009 and 24 July 2009 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE HOOPER: 1. On 14 th April 2005 in the Crown Court at Birmingham (The Recorder of Birmingham, H.H.J.Saunders QC) after a re-trial the appellant was convicted of attempted murder (count 1) and possessing a firearm with intent to endanger life (count 3). He appeals with the leave of Grigson J. It is submitted that fresh evidence concerning the cell site evidence about which the jury heard at the trial makes the conviction unsafe. 2. At the conclusion of the hearing over three long days in February we adjourned to give counsel an opportunity to prepare written final submissions. We then had a further oral hearing on 24 July and on that day we announced that the appeal would be dismissed. We now give our reasons for that conclusion. 3. We should say at the outset how grateful we are to counsel for the quality of their oral and written presentations. 4. It is only necessary to set out the facts briefly. On Saturday 28 th June 2003 at about mid day, a group of about 7 men, dressed in dark clothing and wearing balaclavas, armed with weapons which included a shotgun, hand gun, machete and knife, over a prolonged period attacked and shot at the victim, Mohammed Javed aged 21, in the vicinity of Witton road, Aston, Birmingham. The victim miraculously survived the shooting. He spent 14 days in intensive care and he remained in hospital until 15 th July. The attack took place between 12.24 and 12.26, during which time there was no cell phone traffic between the attackers. 5. It was the prosecution case that the attack was set against a background of rivalry between two groups. Javed was said to be a member of the Topside Crew: the accused were said to be members of the Lamb Gang. It was alleged that the attack was carried out by members of the Lamb Gang using three cars and that the appellant was one of the participants. The appellant was identified by a witness as being the driver of one of the cars, the Almera, later to be abandoned and destroyed by fire. After the events the first four named on the indictment, including the appellant, went into hiding in the Gainsborough Hotel, Kidderminster, assisted by the co-defendant Zafran Rashid, who also arranged accommodation for them at the hotel. 6. Whilst in hiding they were alleged to have used a television service which broadcast text messages, to communicate with their family and friends and to boast about what they had done. 7. Naveed Mohammed (the appellant’s uncle), Qadeem Mohammed and Naseem Mohammed (brothers and the appellant’s cousins) were convicted on the same counts as the appellant. Zafran Rashid, a solicitor’s clerk, was convicted of assisting an offender and attempting to pervert the course of justice. Zafar Iqbal was convicted of attempting to pervert the course of justice. 8. The only issue which we have to resolve is whether the jury’s finding that the appellant was at the scene of the attempted murder is safe. The fresh evidence upon which the appellant relies comes largely from a Mr Campbell who holds himself out as an expert in cell site evidence and who gave evidence before us. That evidence is said to undermine the evidence upon which the jury came to the conclusion that the appellant was at the scene of the attempted murder. The issue which we have to resolve is whether the fresh evidence, if capable of belief, may afford a ground for allowing the appeal. It will not do if the conviction is safe. 9. At our invitation, the appellant gave evidence before us and told us, contrary to what he had said at the trial, that at the time of the attack he was in a gym in Digbeth not far from the centre of Birmingham. He gave a similar account of his whereabouts in his police interview (albeit that there were significant differences). If he was or may have been in the gym, then he would not be guilty of the offences. We invited the appellant to give evidence, having been told that the account which he gave at the trial of being in the vicinity of the attack was not the true account and that he had abandoned the alibi of being in the gym when faced with a report from an expert instructed by the defence for the trial, a Mr Clues. His report confirmed the accuracy of the prosecution cell site evidence which flatly contradicted his account of being in the gym. Mr Clues was not called in evidence at the trial. In evidence to us the appellant explained that he felt that he had to abandon his true defence, namely that he was in the gym, given what the expert was saying. We shall have to consider whether he was abandoning a true alibi or abandoning a false alibi, the falsity of which had been proved. The appellant relies on the evidence of Mr Campbell the effect of which is that the prosecution cell site evidence was so unreliable that it could not contradict the appellant’s account of being in the gym. 10. In addition to inviting the appellant to give evidence, we made it a requirement of his continuing with the appeal that he waived privilege. It was very important to see his solicitor’s files to see why he had changed his story and what story or stories he had given to his legal advisers. 11. We made it clear at an early stage to Miss Blackwell QC, who appears for the appellant on the appeal but did not appear for him at the trial, that it was our view that if we were sure that that the appellant was not telling the truth when he told us that he was at the gym at the time of the attack, then we should dismiss the appeal. Notwithstanding that Miss Blackwell accepted that at the time, she submitted on 24 July that we should consider all the evidence as to the safety of the conviction even if we were sure that the appellant was lying. We take the view that the appeal must be dismissed if we are sure that the appellant is not telling the truth about being in the gym. Whilst at trial the fact that a jury finds that an alibi is false will not normally without more lead to a conviction, the situation now is very different. The appellant’s case at trial (unsupported by evidence from him) was that he was in the vicinity of the killing although not involved. He now says (as he had said to the police) that he was in the gym at the time of the killing and that he presented a false case at trial. The conviction on the facts of this case cannot be unsafe if we are sure that he is lying when he says that he was at the gym. 12. We have no doubt at all that he is lying when he says that he was at the gym and we now give our reasons for that conclusion. 13. The cell site evidence relied upon by the prosecution shows that the appellant’s phone, whilst in the vicinity of the gym the night before the attack and on the morning of the attack was not in the vicinity of the gym at or around the time of the attack. The appellant accepts that he was in the vicinity of the gym the night before, having spent time with his girlfriend who happens to live near the gym. The appellant accepted, with some prevarication, that he was in possession of the phone at and around the time of the killing and thereafter and was using the phone. (He had to accept that the phone was his because of evidence that he had telephoned his trial solicitor on the day of the attack). It follows that if the cell site evidence is accurate, then he was not in the gym. 14. The appellant submits, relying on the evidence of Mr Campbell, that the method used to extract the cell phone data from the T-Mobile original data records, themselves accepted to be accurate, is so unsatisfactory that no reliance can be placed upon the extracted material. Mr Campbell points to the first attempt to extract the data when the records of the outgoing calls from the appellant’s phone were clearly wrong in that they placed the appellant in an area where, it is agreed, he could not have been. That was recognised by the police who called for a second extraction. 15. Unfortunately the email showing that the first extraction was faulty was not disclosed and, so Mr Campbell says, if the defence expert, Mr Clues, had known about it he would have been able to attack the accuracy of the later extraction. Counsel for the appellant also attacks “the respondent’s failure not to disclose the inbuilt problem with the programme to extract that data from the T-mobile computer”. The material which was made available to the defence would have disclosed the problem, as would also the undisclosed email. If the email had been disclosed there could have been no complaint about any further non-disclosure. 16. The method of extracting the data from the original data required the operator on the screen manually to extract some of the data produced by the request in order to give the police the information which was being requested. That manual operation carried with it, so Mr Campbell argues, the risk of errors creeping in and that is demonstrated by the first extraction which was clearly wrong in so far as outgoing calls were concerned. He cannot say that the data relied on at trial was unreliable only that it may be. Miss Blackwell puts it this way: The data was held by T-mobile on their Oscar database, and in order to extract any data a call data record query (CDRQ) must be made. The system deployed by T-mobile to make such queries was programmed to access two types of data, not merely one. It extracted both the incoming data and the outgoing data for each telephone call. Thus for every single telephone call requested, data was produced for the mobile making the call and the mobile receiving the call. The reason that this is so important is that this error requires the T-mobile operator to “ manipulate ” the data to remove the unwanted information about the mobile receiving the call. I use the word “ manipulate ” in the same sense as Mr Campbell, namely that the T-mobile operator must manually examine and remove certain parts of it by asking the computer to perform further tasks. With this knowledge it is possible to understand the nature of the concerns in the reliability of the data. What Mr Campbell cannot say and does not say is that there is material upon which it is possible to state that the Appellant’s alibi is demonstrably true. What Mr Campbell can and does say is that there are grounds for not accepting that T-mobile’s data can be relied upon, to base an expert opinion. And therefore this should have been brought to the attention of the jury for them to decide the factual issue of the reliability of the T-mobile data. 17. It is further submitted on behalf of the appellant that some of the post attack cell site data involving the appellant’s phone must be unreliable in that it is physically impossible in the time available to move from the area in which he is said to have made or received a call to the area in which he is said to have made or received a further call. That shows, so the appellant submits, that the data had been incorrectly extracted and therefore cast doubt on the data which, on the face of it, showed that the appellant was not in the gym. 18. We start by examining the evidence of the appellant that he was in the gym at the time of the shooting. 19. The appellant accepted that he had the phone (called the lime -811 phone at the trial) with him at all material times, that he had sent incriminating text messages after the shooting and that members of his family planned to beat up the victim and actually carried out the attack. These admissions are consistent with the convictions of the other defendants, and the guilt of the absent brother Shamrez Nabi. One of the text messages read: “The Ferrari Crew [a name given to the appellant’s group] frm Aston Shamus Nav Butch Kib and Sheg U lot runnin the area frm Southal boyz wid U al D way”. According to the respondent the appellant was using the nicknames of those involved in the shooting and was demonstrating (so the jury could infer) their control of the area by shooting Mohammed Javed, and because of this were now “running the area”. 20. In his prepared statement handed to the police during a largely no comment interview on 30 July (just over a month after the shooting) he said: As far as I’m concerned I was not involved in the incident in any way. I don’t know any person that was involved in the incident . .. I have alibi witnesses that confirm that I was Flex and Fitness gym between 11.45 am and 2.00 pm. The following persons can confirm my presence at the gym, SAL who is the owner of the gym, Bret, works at the gym, a member called Mickey who was training at the gym. I think the gym has CCTV cameras. This is also evidence of my presence at the gym. I was accompanied by my brother Shamrez Nabi ... I am surprised and shocked that I am a suspect together with my extended family . (Italics added) 21. The italicized passages are now known not to be true. As to his alleged surprise and shock he told us that he knew before the attack that his family planned to attack the victim, and knew immediately afterwards that they had done so, having received that information on his phone. The appellant now says that his brother was not with him. He falsely claimed that “I don’t know any other person that was involved in the incident” pretending that his family were wrongly accused, and that the true culprits were “West Indian Caribbeans”. 22. His solicitor’s files show that on 7 th April 2004 (i.e. shortly before the abortive trial before Hunt J. was due to start), he repeated the “Digbeth gym” account, giving further details of the exercises he did (contrast his oral evidence, in which he says he did not exercise). He claimed to have gone from the gym to his cousin’s house in Small Heath (identified in subsequent documents as Aubrey Road, Small Heath). The “Small Heath visit” account has now been abandoned. 23. On 7 th April 2004, the appellant’s defence statement repeated the account given in police interview 24. In a Proof of Evidence, signed by the Appellant and dated 21 st May 2004 , he stated that:- (a) he slept the previous night at home [52 Brantley Road]. (b) he went from home to the gym, with his brother [Shamrez], leaving home at about 11:15 and arriving at 11:40. There “we went through our training programme”. (c) after training, while still at the gym having a protein drink, two “Asian lads” arrived, talking about the shooting and saying that “Fat Jav” had been shot. (d) the Appellant and Shamrez left the gym, and went to 23 Aubrey Road, Small Heath, the home of his cousin Safraz Mohammed, where they spent 1½ -2 hrs, leaving at about 4 p.m. (e) they then went home [52 Brantley Road] and spent about an hour there (f) the Appellant [but not Shamrez] then went by taxi from 52 Brantley Road to Kidderminster, leaving at about 6:15 p.m., and reaching the hotel at about 7 p.m. 25. Paragraphs (a), (e) and the reference to Brantley Road in (f) are demonstrably false, being contradicted by surveillance evidence of his home. The description given in (c) of going to Small Heath is untrue. The reference in (f) to the taxi is untrue 26. The alibi was supported by witness statements in the solicitor’s files from:- (a) Safraz Mohammed (b) Ali Akbar, the proprietor of Midland Radio Cars, purporting to give details of the taxi “pick up”, and producing a work sheet on which the relevant entry was misplaced in time order (c) Mohammed Saleem Raza, the proprietor of the gym, supporting the Appellant’s account of his presence and training there, as well as the arrival of the Asian youths with news of the shooting. 27. None of those witnesses gave evidence before us. The work sheet in (b) was demonstrably a forgery. It is difficult to believe that the appellant was unaware of the forgery, albeit he denies knowledge of it. 28. In another version of the alibi found on the solicitor’s files the Appellant gave instructions that he was “at gym from 12 - 2. At 2ish heard of incident and didn‘t want to return to Aston. Went to snooker club … left snooker club at 4-4:15 and returned home”. The reference to the snooker club (also supported by a statement from a witness) is believed by the respondent to relate to the Snow Hill Snooker Club, Fazeley Street, no great distance from the Digbeth gym. The assertion that he had stayed at the gym to 14.00 hours has now been abandoned, as well as the trip to the snooker club and the return home. He now says that he learnt about the shooting very shortly after it had occurred. 29. When it became clear that the cell site evidence did not support the gym alibi, the files show that the appellant changed his story on a number of occasions. 30. In one draft the appellant stated that (i) he had spent the night of 27 th June 2003, i.e. the night before the offence, at a flat in the Digbeth area with “Sonia”, and (ii) at about 11 a.m. the next day, he left the flat and went to the Flex and Fitness Gym “near the Digbeth Coach Station” and (iii) at around midday he travelled along Lichfield Road from the Digbeth area in a Toyota Carina “travelling to my house”. He stated further that, by telephone, he arranged to meet Zafran Rashid at the Gainsborough Hotel, Kidderminster. “I then drove from Aston along Birchfield Road, onto Walsall Road and then onto the motorway to Kidderminster”. This account put the defendant in Aston at 12:36, i.e. within no more than 6 minutes after the shooting. In the files there was another version of the route taken. 31. In another typewritten draft the appellant was saying Zafran “told me to meet him near his house, (b) I then drove from the Aston area to Handsworth and (c) at 12:45 I called Zafran as he was not near/outside his home address. He told me to go round the corner…”. This passage was later crossed out. We return to this later. The cell site evidence shows that there was a call to Rashid at 12.45.47, lasting 11 seconds. 32. In evidence before us he said that he had spent the night with a girlfriend in the Digbeth area. That is corroborated by the cell site evidence. At about 11.30 the next morning he went to the gym. At the gym he received a call from Naveed asking him to come and join him and others to beat up Javed (the victim of the attempted murder). At 12.27 he received a call from his brother telling him that Javed had been attacked. Thinking that his brother was involved he phoned Zafran Rashid right away. That call was at 12.31. On Zafran’s instructions he went to the hotel in Kidderminster, leaving the gym almost immediately after that call. The account of being in the gym for two and a half hours was abandoned. He told us that he had changed his account having been told by his lawyers that the cell site evidence showed that he was not at the gym. Although at one point he suggested that he had been bullied by counsel to change his account, he did not maintain that position. 33. We have to say that even if there was no other evidence, we are convinced that the appellant did not tell us the truth when he said that he was at the gym. Looking at the many different accounts which he gave from his original police interview to the account he gave us, the discrepancies are such that the final account is not credible. If he was at the gym then we do not accept that he would have given up his account of being at the gym so easily. He would have strongly protested to his lawyers that there must be an error in the cell site evidence. We know that much of what he has said about his movements is false. 34. We turn to the cell site evidence. During the period when the appellant says now that he was at the gym, that is 11.30 to about 12.32, there were about 17 calls, the majority of which were to or from persons involved in the attack. (If he had maintained his original account of being in the gym to 14.00 then there were another 15 calls between 12.32 and 13.00). The cell site evidence relating to these calls did not place him even once within the coverage of the antennae covering the gym. The only calls which showed that he was in this area were earlier during the night and in the morning when he was staying with his girlfriend near the gym. There were some 8 of those. Furthermore each one of the incoming and outgoing calls is matched with the data from the other phone in so far as the number of that phone is concerned, the start time of the calls and the duration of the calls. 35. We turn to the extraction of the data from the T mobile records. Mr Tedd QC writes: The first sets of data for lime -811 were extracted and provided by T-Mobile on 29 th November 2003. The resultant material is at AB5/Tab 4 . The important points as to the process of extraction are:- (a) the T-Mobile database remains unaltered [this is unchallenged]. (b) the incoming and outgoing data is extracted separately . (c) both incoming and outgoing data initially include material which is not required for the purpose of response to the police request (i.e. essentially data relating to the other mobile telephones with which lime -811 was connected while making/receiving each call). (d) the surplus data is “trimmed off” by manual keyboard operation. 20. The keyboard process in respect of the outgoing data was incorrectly carried out. In consequence, the outgoing data [ AB5/Tab 4/pages 7-9 ] provided to the police on 29 th November 2003 was flawed. The evidence of Tracey Wilmott [in the Court of Appeal] is that the flaws resulted from the keyboard process, although it is not possible to tell precisely what error was made. 21. The important points are that:- (a) the fact that the outgoing data was flawed was obvious to any experienced eye, and swiftly spotted by Ms Grange, the police intelligence analyst [see email dated 3 rd December 2003, whose text is in Final Grounds of Appeal, paragraph 31 [ AB1/Tab 1 ] . (b) the flawed outgoing data shows a series of different IMEI numbers [i.e. handsets] whereas the incoming data shows only one [-950]. (c) various entries purportedly show the mobile telephone as connected successively with cell sites in widely differing locations [i.e. essentially sometimes in Birmingham, and sometimes at Malvern House/Coniston House, Kidderminster]. (d) it appears obvious that the incorrect outgoing data contains some material which relates to the other connecting mobile telephones. (e) [not mentioned in oral evidence, but apparent upon analysis] the outgoing data is inconsistent with the incoming data [see e.g. outgoing call 14:15:51, lasting 40 seconds, and incoming call 14:16:09 - i.e. apparently starting before the outgoing call had finished]. (f) the incoming data does not exhibit the same peculiar features. 22. On 5 th December 2003, in response to the police request to check the flawed data, a second set of both incoming and outgoing data for lime -811 was provided [ AB5/Tab 6 ] . The important points are:- (a) this data was obtained by two extractions [i.e. incoming and outgoing data extracted separately] made separately from, and subsequent to, the original extractions. (b) the second incoming data was consistent with the original incoming data. (c) the second outgoing data differed markedly from the original outgoing data. The second set had only one IMEI [handset] number throughout. The errors in the original set did not appear in the second set. (d) the first 8 entries showed the use of central Birmingham cell sites, both in the midnight/2:00 a.m. period and in the 10:00 a.m. - 11:30 a.m. period - i.e. consistent with the Appellant staying overnight with a girlfriend at an address in/near Digbeth. 23. Billing records for lime -811 were prepared, again on a separate occasion, and by a separate extraction. Billing records (a) relate only to outgoing calls and (b) contain only information relevant to financial charging, and thus not any information relating to cell sites. 24. Subject to those limitations, billing records provide a further check as to the second outgoing call data provided on 5 th December 2003. The important points are that:- (a) billing records have a very high degree of accuracy. (b) Mr Clues audited [i.e. checked] the billing records against the second outgoing call data. See his report at AB4/Tab 4/pages 8-9 and Respondent’s Skeleton Argument [3] at AB1/Tab 3/paras 75-79 . (c) Mr Clues concluded that, save for “ explainable exceptions”, the data in the CDRs [i.e. the second set of outgoing call data] “matched that in the billing records” - see para 3.1.4 of Mr Clues’ report. (d) Mr Campbell, in his second and third reports, both compiled after he had seen Mr Clues’ report, simply ignores Mr Clues’ analysis and conclusions. (e) in contrast, Mr Clues, who had been instructed specifically to consider the “raw data” for lime -811, tested that data and by inference concluded that it was accurate. 25. The fourth extraction of data was made by Tracey Wilmott on 17 th December 2003, when she extracted the data which forms Exhibits TW1 and TW2 [ AB5/Tabs 9-10 ]. Again, the incoming and outgoing data was extracted by two separate processes. Both incoming and outgoing data match the second sets extracted on 5 th December 2003, and used by Mr Uglow as the basis for his analysis. 36. Miss Blackwell points out that the use of the expression “billing records” is wrong because the relevant phones were pay as you go. That criticism, even if well placed, is irrelevant. She also seems to suggest that there are no records from which this information could have come. We do not follow that. 37. Miss Blackwell submits that there is no way of knowing whether the later extractions were inaccurate. We do not agree. The original T-Mobile data base remains unaltered. There has never been a reason to doubt the validity of the incoming data other than because of the risk of an error during the manual sorting process. The risk of that error having occurred is virtually eliminated by repeated independent sortings producing the same result. None of the seven incoming calls between 12.00 and 12.31 put the appellant in the area of the gym. As far as the outgoing data is concerned after one false extraction, all the other independent extractions produced the same result and thus the risk of error is virtually eliminated. The so-called billing records do no more than add a further check, albeit a limited one. 38. We reject the attack on the accuracy of the cell-site evidence in so far as it shows that the appellant was not at the gym. To the extent that there was a failure to disclose, it cannot affect the safety of the conviction. 39. We turn finally to the later calls. We asked Miss Blackwell to choose the best sequence of calls to make her point. 40. Before we look at those calls we should examine call 16 separately. That call was an incoming call from Zafran Rashid 12.32.31, following the outgoing call to him a minute before. The jury knew that the relevant antenna was on the Johnson Hotel to the West of the M5. The evidence before the jury as to the strength of the signal enabled counsel for the appellant to argue to the jury that it would have been impossible in the time available to get to the area covered by that antenna after the shooting. Notwithstanding that submission, the jury convicted the appellant, thus refusing to accept that submission. They were right not to accept it. We now know that the survey work carried out Mr Clues before the trial showed that signals from that antenna could be picked up by a phone over a large area including the M5 and M6 junction and along the M6 to the East of that junction. It is ironic that at trial the appellant’s case at trial was that he was in the area covered by the Howard Johnson Hotel antenna and could not have been at the scene of the killing, whereas he is now saying that he was in or near the gym leaving for Kidderminster and the cell cite data is inaccurate in that it is not putting him in the gym area. 41. It is the respondent’s case that the appellant went into an area to the East of the M5 where Zafran Rashi lives, an area which we called for convenience the golf course area. Support for that can be found in the passage in a draft proof to which we referred (paragraph 31 above). Miss Blackwell asks us to treat that passage with caution because we do not know its precise date and because it was later crossed out. In our view it is of importance- it is inconceivable that the solicitors would have written that down if it had not come from their client. The time of the call referred in the passage is 12.45.37 and was picked up by the Simoco Tower 0º azimuth, outside the range of that antenna according to Mr Campbell. 42. We take the first of the pair of calls upon which Miss Blackwell relies. 43. She wrote: The ... pair of relevant calls are call 16 ..., starting at 12.32.31 using the Howard Johnson north cell and the call at 12.34.27 using Simoco Tower north ( which call can be seen at App Bundle 7 Tab 16 page 16/2 as call 17, and is not shown on any of Mr Uglow’s exhibits PMU 30 to 33). The distance to be travelled to access coverage to this cell is 3.8 miles, the time available is 116 seconds and thus the average speed necessary to travel this distance in the time available is 118 miles per hour. Again, it must be remembered that this is during the day and is in a built up area of Birmingham. 44. This is only right if the survey conducted by Mr Campbell accurately plotted the total relevant coverage and if there has been no change since the time of the attack. Mr Campbell’s survey was conducted in December 2005. We learnt on the last day of the hearing that there has been a wholesale change of channel use, some time after January 2005, but before Mr Campbell’s survey in December 2005. When channels are changed, according to Mr Campbell: Timeliness . Network operators can and do change their networks frequently by adding new cells, changing power levels and frequencies, and/or by changing or re-allocating cell identities. Network Operations and maintenance centres maintain a continuous watch on traffic conditions on their network and can change the performance of any station on command, in response either to faults or unusual traffic. It follows that it is more likely than not that a network will have changed between the time records were made and the time when experts are in the field checking and interpreting the data”. 45. It is of course right that T-Mobile may not have changed all or some of the power levels. We just do not know. 46. The first call was, as we have just seen, an incoming call from Zafran Rashid, whom the appellant had called a minute before and five minutes after the shooting. The second call was at 12.34.27 to the appellant’s brother. That call was picked up by the Simoco Tower 0º azimuth, the same antenna that picked up the 12.45 call said, as we have seen, in one draft proof to have been made near the home of Zafran Rashid. 47. In addition to the complications identified in paragraph 44 and 45 above, we have the additional complication that the Simoco Tower is a very high one and likely to cover a significant area (notwithstanding what Mr Campbell says), that none of the experts have surveyed the golf course area near Zafran Rashid’s house to see whether a phone could connect to the Simoco Tower antenna and that we have no reliable evidence from the appellant as to where he was at this time. Miss Blackwell tells us that none of the other phones used by associates used the Simoco Tower antenna. The relevance of that must depend upon precisely where they were. 48. Miss Blackwell took us to the second pair: The next pair of relevant calls start with call 17 as above, at 12.34.27 using Simoco Tower north cell, and the call at 12.35.47 [to the person described during the trial as the Chief] using Pia Rayat House north cell ( which call can be seen at App Bundle 7 Tab 16 page 16/2 call 20 and is not plotted by Mr Uglow in his exhibits PMU 30 to 33) . The distance to be travelled to access coverage to this second cell is 4.8 miles, the time available to travel this distance is 80 seconds and thus the average speed necessary to cover this distance in the time available is 216 miles per hour. For this pair of calls it has now become impossible for this journey to have been made. This in itself calls into question the reliability of the data supplied by T-mobile. 49. Given the uncertainties around call 17, this example takes us no further. The account of the 12:45 call explains why the cell site analysis is consistent with his presence within easy range of Zafran Rashid’s home. The use of the Pia Rayat House north cell is consistent with being in the area of the golf course. 50. The third pair takes us no further. In Miss Blackwell’s words: The next pair of relevant calls starts at 12.36.42 [call no 23 to Zafran Rashid] using Pia Rayat House north cell ( which call can be seen at App Bundle 7 Tab 16 page 16/2 call 23 and is not plotted by Mr Uglow in his exhibits PMU 30 to 33) and the call at 12.38.54 [incoming call number 24 from an unknown person], using Simoco Tower east cell [azimuth 120º] ( which call can be seen at App Bundle 7 Tab 16 page 16/2 call 24 and is not plotted by Mr Uglow in his exhibits PMU 30 to 33). The distance to be travelled to access coverage for this second cell is 4.8 miles and the time available to cover this distance is 132 seconds. Thus the average speed necessary to travel this distance in the time available is 131 miles per hour. This it is submitted in extremely unlikely given the time of day and the area in question. 51. In our view none of the data relating to these calls undermines the accuracy of the data which shows that the appellant was not at the gym. 52. For these reasons the appeal is dismissed.

2009_07_30-2042.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/1627/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/1627

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[2023] EWCA Crim 666

EWCA_Crim_666

2023-05-18

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 666 No. 202300979 A2 Royal Courts of Justice Thursday, 18 May 2023 Before: LORD JUSTICE POPPLEWELL MR JUSTICE JEREMY BAKER MR JUSTICE PICKEN A REFERENCE BY HIS MAJESTY’S SOLICITOR GENERAL UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 REX V JCW REPORTING RESTRICTIONS APPLY Sexual Offences (Amendment) Act 1992 __________ Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd. Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 CACD.ACO@opus2.digital _________ MR R QUAIFE appeared on behalf of the Applicant. MS J FAURE-WALKER appeared on behalf of the Crown. _________ JUDGMENT LORD JUSTICE POPPLEWELL: 1 The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to the victim shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as a victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . We shall refer to the victim as V. Because the victim is the offender’s son, it has been necessary to anonymise the name of the offender in order to protect V’s anonymity. 2 On the first day of his trial in the Crown Court at Exeter the offender pleaded guilty to five counts of historic sexual offending committed between 1976 and 1981. The victim V is the offender's son. He was then aged between 11 and 15. Each of the counts reflected multiple offending over the course of a year. Counts 1, 2 and 3 charged indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960 , reflecting offending when V was aged 11, 12, and 13 respectively. Counts 4 and 5 charged indecent assault on a male, contrary to section 15 of the Sexual Offences Act 1956 , reflecting offending when V was aged 14 and 15 respectively. 3 On 23 February 2023 he was sentenced (as varied by a subsequent amendment under the slip rule) as follows. Count 1, one year's imprisonment with a further licence period of one year under section 278 of the Sentencing Act 2020 ; Count 2, one year's imprisonment with a further licence period of one year under section 278 of the Sentencing Act 2020 ; Count 3, 18 months' imprisonment; Count 4, two years' imprisonment; Count 5, two years' imprisonment. All sentences ran consecutively. The total sentence was, therefore, one for a custodial term of seven-and-a-half years' imprisonment with a further aggregate licence period of two years. 4 His Majesty’s Attorney General applies pursuant to section 36 of the Criminal Justice Act 1988 for leave to refer the sentence as unduly lenient. The Offending 5 The offender is now 87 years of age. At the time of the offences he was in his mid- to late-40s. V was the youngest of three siblings. The offender was a domineering man. The family, including the mother, was scared of him. When V was aged 11 the offender moved him from the bedroom he had shared with a brother and placed him in an area downstairs where he was to sleep alone. The offender had converted a small space under the stairs for this purpose, in which he put a single bed enclosed with a curtain. 6 The offender made it his habit to wait until the rest of the family had gone to bed and then visit V. He would open the curtain and enter. He would be wearing only a pair of shorts through which his erect penis was obvious or he would already have his penis exposed as he approached V. He would rub his penis against V's body and kiss him all over, including on his bottom. V would have to suck the offender's penis until he ejaculated, sometimes into V's mouth. At other times the offender would suck V's penis. During such activity, once V was mature enough, he ejaculated into the offender's mouth. The offender always had a handkerchief with him to clean up. Before leaving, he would often kiss V on the lips, penis or testicles. 7 The abuse occurred several times a week and sometimes daily over the whole five years of the indictment period. 8 Counts 1 to 3 reflected the offender putting his penis in V's mouth. Counts 4 and 5 reflected the offender making V put V's penis in his mouth. Although these were charged as being the first kind of offending when V was aged 11 to 13, and the second when aged 14 and 15, in fact, both types of abuse occurred throughout the period of the indictment. 9 Reflecting on the behaviour, V stated that the offender "guided me to be sexually active and guided me on how to pleasure him before I could experience this myself." He said that on turning 15, he was "able to feel sexual pleasure myself and I would get an erection in anticipation of him coming into my room in the evening. The anticipation of him coming into my room was because of the repeated and continual sexual abuse and interactions in the manner in which he had groomed me." 10 Other aspects of the offender's behaviour, both when V was a child and subsequently, are relevant. When V tried to invite friends to his house, the offender refused to allow anyone to visit again. This caused V to become a loner in order to avoid his father's disapproval. The offender insisted on cutting V's hair, as a child, and would press his crotch against him as he did so. V did not like the style of cut and was left feeling like a small child. 11 The sexual activity and the controlling behaviour continued after the indictment period. When aged 16, V went out, accompanied by his sister, but his father was so distraught about this that V had to promise him never to go out again. When V was aged 18, he wanted to go to university some distance away but the offender chose one nearer to home for him. Once at university, the offender frequently sent him letters, sometimes more than once a day, in which he expressed how much he missed and loved him. The offender asked V to keep a detailed journal of his daily activities to share with him which V duly did. V had to telephone the offender every evening at 6 p.m. to relay what he had done in the previous 24 hours and what he planned to do in the next, to be told by the offender what he had done wrong, whom he should not meet and whom he could not trust. The emotional manipulation discouraged V from socialising with others, leading him to be socially withdrawn and not attending the communal dining room. Every Friday, the offender collected V from university for the weekend, and the sexual conduct continued. The offender changed job and rented a cottage nearer to V's university and had V move in with him. 12 In 1989, when V was aged 23, he told the offender he wanted the sexual activity to stop. He continued, however, to live at the family home for a time in order to try to keep his parents together. In fact, when V eventually moved out six years later his mother left shortly afterwards. 13 V had what he describes as a "suicidal episode" in 2000 and began counselling the following year. He ceased contact with the offender at that stage. However, 18 years later, in 2019, he sought out the offender by social media. In 2020 he directly challenged the offender about what had happened and told him about the impact it had had on him. The offender did not deny it, but rather said it was his fault and expressed regret. The Proceedings 14 Police officers visited the offender at his home address in August 2021. When told that an allegation had been made, he said, "I know what I've done is bad," and went on to admit that there had been sexual touching of V in his early teenage years for which he said he was sorry. He also said that it would never go to trial as he would "jump off a cliff". 15 In October 2021, the offender was interviewed under caution. He told officers, "I did it. Whatever [V] says I did, I did." When parts of V's statement were read to him, he said he could not recall events, blaming poor memory. He accepted that V would have been 11 or 12 when the abuse started. He said, "Everything was fine until [V] was 11 and started secondary school." When asked how many times sexual activity took place, he replied, "Innumerable from 12 until he went to university," agreeing that it happened several times a week. 16 The offender was charged on 2 March 2022 and made his first appearance at the Magistrates' Court on 30 March 2022. He did not indicate a guilty plea. At a plea and trial preparation hearing on 28 April 2022, he pleaded not guilty to all counts. A trial date was fixed for 9 January 2023. No positive defence was advanced. 17 Due to V's declining health, the prosecution applied to admit his statement as hearsay. That application was listed to be heard on the first day of the trial. On that day, 9 January 2023, the offender did not attend. A warrant was issued, and he was produced later in the day. Before the hearsay application was heard he indicated a desire to change his plea. He was re-arraigned and pleaded guilty to all counts. Sentencing was adjourned. No pre-sentence reports were ordered or produced. Victim Impact 18 V made two victim personal statements, one in March 2022 and the other in January 2023. He had dealt with a great deal of shame and self-blame. Excessive drinking was his way to overcome the thoughts and to help him interact with other people. Throughout adulthood he had experienced intense mood swings from deep depression to highs of positivity, as well as anxiety, self-hatred, three suicide attempts and addictions. He was unable to build wholesome relationships at work, or to network. He had had a breakdown in January 2018, leading to several months off work. His previous coping strategy of blocking out his childhood memories had crumbled. He had seen many specialists over the course of 28 years. 19 There was a report from a consultant clinical psychologist, Professor Roberts, who assessed V in 2022 and concluded that he was probably suffering from complex post-traumatic stress disorder and depression with dissociation, consistent with it having been caused by traumatic childhood abuse. Sentencing 20 The offender has no convictions or cautions for any other offending before or since. 21 When passing sentence, the judge referred to R v Forbes [2016] EWCA Crim 1388 , [2016] 2 Cr App R (S) 44 , and the need to make measured reference to modern day equivalent offence guidelines, bearing in mind the difference in maximum sentences which he correctly identified. Counsel had agreed that the equivalent modern offences were: for Counts 1 and 2, rape of a child under 13 contrary to section 5 of the Sexual Offences Act 2003 ; for Count 3, rape contrary to section 1 of that Act ; and, for Counts 4 and 5, causing a child to engage in sexual activity contrary to section 10 of that Act . 22 The judge identified that the starting point under the section 5 guideline for the first two counts was the Category 1A starting point at 16 years. It was Category 1A because it caused extreme lifelong psychological harm and involved an abuse of trust. For similar reasons the starting point under the section 1 guideline for the Count 3 offence was 15 years. For the Counts 4 and 5 offences, he identified the modern equivalent starting point as being in each case five years. Those starting points were for a single offence in each case. The judge said that the total sentence under the guidelines for the equivalent modern offences, allowing for totality, would likely have been beyond the 20-year mark. However, he said he was constrained by the very much lower maximum sentences for the offences under the law applicable at the time they were committed. Taking that into account, he took a starting point of two years on each of Counts 1 to 3 and five years on Counts 4 and 5. Although he did not spell out this calculation, that would have given a total of 16 years. 23 The judge identified the aggravating features of ejaculation, the subsequent controlling and domineering conduct and the location being in the family home. He said that that would take the total sentence up to 17 years before considering mitigation. That 17-year period, the judge said, would not be unjust or disproportionate given the offender's very high culpability and the extreme harm caused to the victim. 24 The judge then referred to R v Clifford [2014] EWCA Crim 2245 , [2015] Cr App R (S) 32, and said that he was aware that the gravity of offending by modern standards could properly be reflected by passing consecutive sentences even where the sentencing powers are constrained by the maximum sentences available, providing that the overall sentence is just and proportionate to the overall seriousness of the offending. 25 The judge then said that there had to be a significant reduction applied for the mitigation available. He identified that mitigation as the absence of convictions; the offender's advanced age and associated ill-health; and his guilty plea. As to age and ill health, he referred to R v Clarke [2017] EWCA Crim 393 , [2017] 2 Cr App R (S) 18 , and said that it required him to treat those as significant mitigating factors. He rejected the submission that the offender was remorseful in the light of his not guilty pleas until the day of trial. He acknowledged that there were positive features to the offender's character and the life he led both before and after the extended period of offending, but observed that such good character should not normally be given significant weight in cases of this kind. For all the mitigation, other than the late plea, he reduced the sentence from 17 years by half to one of eight-and-a-half years. He then reduced it further by one year to reflect credit for plea of about 10 per cent. He distributed the seven-and-a-half years equally amongst the counts, imposing an 18-month consecutive sentence on each. 26 The parties subsequently realised that the provisions of section 278 of the Sentencing Act 2020 , requiring a special sentence for certain offenders of particular concern, applied to Counts 1 and 2. On 29 March 2023 the matter was listed under the slip rule. The custodial terms on Counts 1 and 2 were reduced from 18 months to 12 months so as not to exceed the maximum penalty, taking into account the further one-year licence periods. The custodial terms on Count 4 and 5 were increased from 18 months to two years to achieve the same overall custodial term as had been indicated before. Submissions 27 On behalf of the Solicitor General, Ms Faure-Walker submits, first, that the appropriate guideline for the modern equivalent of the Count 4 and Count 5 offences would have been that for the offence of sexual activity with a family member, contrary to section 25 of the 2023 Act, which would have produced a starting point of several years above the point taken for each of the Count 4 and Count 5 offences. She further submits that the judge's reduction from a sentence of 17 years for age and other factors was so excessive as to lead to a sentence outside the range reasonably open to a judge. She relies on what was said in R v Clarke to the effect that ill health should not be assumed in the absence of a report (para. 22) and that age and ill health afforded some but limited mitigation (para. 25) because it is to be presumed, in the absence of contrary evidence, that the prison system can make appropriate provision for them (para. 23) and they must be balanced against the gravity of the offending and the effect on the victim (para. 25). 28 As to the absence of convictions, Ms Faure-Walker reminds us of the Sentencing Council guidelines for serious sexual offences which include the following guidance (at the end of Step 2): "Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence." 29 That guidance appears in the guidelines for the modern equivalents of all the offences with which we are concerned. 30 On behalf of the offender, Mr Quaife submits that the judge was entitled to take the 17-year starting point and to make the reductions he did for the mitigation available. He submits that the judge was entitled to treat the offender as of ill health, despite the absence of a report, on the basis of his submissions, of the judge's ability to observe him in the dock when sentencing and the fact that at a previous hearing the prison had asked that the offender attend by video link due to what were described as "mobility issues". We asked Mr Quaife what could be observed of the offender in the dock so far as ill health was concerned and were told that he had appeared with crutches. Mr Quaife also reminds us of the familiar statement of Lord Lane CJ in Attorney General's Reference (No 4 of 1989) [1990] 1 WLR 41 , p.46A, that a sentence will only be unduly lenient "where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate"; and to what Lord Lane went on to say in that case about tempering justice with mercy. Analysis and Conclusions 31 The applicable principles for historic sex offending by adults are set out in the Sentencing Council guidelines which provide: "When sentencing sexual offences under the Sexual Offences Act 1956 , or other legislation pre-dating the 2003 Act , the court should apply the following principles: 1 The offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence. Under sections 57 and 63 of Sentencing Code the court must have regard to the statutory purposes of sentencing and must base the sentencing exercise on its assessment of the seriousness of the offence ... 2 The sentence is limited to the maximum sentence available at the date of the commission of the offence ... 3 The court should sentence by measured reference to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003 ... 4 The seriousness of the offence, assessed by the culpability of the offender and the harm caused or intended, is the main consideration for the court. The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence. 5 When assessing the culpability of the offender, the court should have regard to relevant culpability factors set out in any applicable guideline. 6 The court must assess carefully the harm done to the victim based on the facts available to it, having regard to relevant harm factors set out in any applicable guideline ... " 32 The reference in 3 to making measured reference to the sentencing guidelines for the equivalent is to be interpreted in accordance with the principles identified in R v Clifford , R v Forbes and R v DL [2020] EWCA Crim 881 . Taken together with the principles identified in 4 and 5, that requires the sentence to give effect to modern attitudes for the purposes of assessing the harm to the victim and the culpability of the offender, and to the sentence lengths which the guidelines reflect for those factors. That is subject to the constraints imposed by maximum sentences at the time the offences were committed. The exercise is not, in the case of adults at the time of the offending, one of seeking to determine what sentence would have been imposed had the offender been sentenced at the time of the commission of the offences or reflecting attitudes at that time. 33 The judge was right to approach the sentencing task by seeking to fix upon an appropriate overall sentence, having regard to totality, and then to distribute it amongst the offences to achieve the correct overall result. The appropriate total sentence should be imposed even if, as a result of the maximum sentence available on individual counts, it results in consecutive sentences and sentences on other counts which are greater than those which would have been imposed on those other counts had they constituted the whole of the offending. That is in accordance with the approach in R v Clifford and R v Griffiths [2020] EWCA Crim 732 , [2020] 2 Cr App R (S) 54 . 34 The judge was also right to say that under the guidelines for the equivalent modern offences a total sentence would have attracted a starting point in excess of 20 years for what would properly be characterised as including a campaign of rape. 35 Where, in our judgment, the judge first fell into error is in feeling constrained to take a lower figure than that of 20 years by reason of the maximum sentences for the offences charged, which led to him to treat an appropriate sentence after trial as one of 17 years for all the offending before taking account of personal mitigation. The maximum total sentence available for the offences charged was one of 26 years, which gave ample scope for sentencing in accordance with the guidelines for the equivalent modern offences so as to reflect modern attitudes. He was not constrained to pass sentences on Counts 4 and 5 which were no greater than those which would have been imposed had that offending stood alone. 36 Moreover, he was entitled to have regard not merely to the maximum sentences for the offences charged but to the maximum sentences for the offending which they reflected. These were multiple offence counts and could just as easily have been charged as a number of specimen counts in addition to multiple counts for both types of offending over the whole period which would have made a far greater total maximum sentence available. Sentences at or approaching the maximum would not, therefore, have been wrong in principle on any of the counts if justified by the overall offending as a matter of totality. 37 The maximum sentences available did not, therefore, in our view, provide any constraint on the judge sentencing for the totality of the offending in line with the guidelines for the equivalent modern offences. 38 The judge's second error, in our view, was to give far too great a reduction for the offender's personal mitigation. In truth, the mitigation was not very substantial. We are prepared to accept that the judge was entitled to assume some element of ill health from the circumstances in which the offender had wanted to be sentenced remotely and by observing him being on crutches in the dock. That was not such as to attract a very substantial degree of mitigation in the absence of any report or of any detailed information about the nature of the ill health or any prognosis. The offender's age, now 87, provides real mitigation but applying R v Clarke is not such as to warrant a lengthy reduction in a case of this severity: compare R v Forbes (paras. 80-81); and, R v F [2017] EWCA Crim 481 , para.10, (7 April 2017 case ref. 201700784/A4, which reference we also give because the case is not easily found in the online reports from its neutral citation number), where a reduction for old age of about four years from a 20-year sentence was considered appropriate for an 80 year old, where there was in that case also remorse. Prisons are generally able to make provision for the elderly, and there was no evidence or suggestion to the contrary in this case. Similarly, the absence of convictions is not a significant mitigating factor in sexual offending of this nature where the offences are so serious and the effect on the victim has been so traumatic. The judge's reduction of one half for these factors is simply much too much. 39 We think that an appropriate total sentence, taking account of all available mitigation, would have been not less than 17 years after a trial which, with a discount of about 10 per cent for the plea, would become one of 15 years three months. 40 We will accordingly grant leave and adjust the individual sentences as follows. We will leave in place the sentences on Counts 1 and 2, that is to say a one-year custodial term and a one-year additional licence period pursuant to section 278 of the Sentencing Act 2020 on each count. We will quash the sentence on Count 3 and increase it to two years. We will quash the sentence on Count 4 and increase it to six years. We will quash the sentence on Count 5 and increase it to five years and three months. The sentences on all counts will continue to run consecutively. The total sentence will, therefore, involve a custodial term of 15 years three months with a further licence period of two years in the aggregate. __________

2023_05_18-5679.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/666/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/666

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[2021] EWCA Crim 134

EWCA_Crim_134

2021-02-05

crown_court

Neutral Citation Number: [2021] EWCA Crim 134 Case No: 201900777B1 and 201902028C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTER His Honour Judge Rudland AND ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON Mr Recorder Del Fabro Royal Courts of Justice Strand, London, WC2A 2LL Date: 05.02.2021 Before : LADY JUSTICE THIRLWALL MR JUSTICE HOLGATE MR JUSTICE JOHNSON - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - (1) CS (2) LUONG LE - - - - -

Neutral Citation Number: [2021] EWCA Crim 134 Case No: 201900777B1 and 201902028C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT MANCHESTER His Honour Judge Rudland AND ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON Mr Recorder Del Fabro Royal Courts of Justice Strand, London, WC2A 2LL Date: 05.02.2021 Before : LADY JUSTICE THIRLWALL MR JUSTICE HOLGATE MR JUSTICE JOHNSON - - - - - - - - - - - - - - - - - - - - - Between : REGINA - v - (1) CS (2) LUONG LE - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Henry Blaxland QC and Shahida Begum appeared for the Applicants Benjamin Douglas-Jones QC and Andrew Johnson appeared for the Respondent Hearing date: 10 November 2020 - - - - - - - - - - - - - - - - - - - - - Approved Judgment ............................. Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am on Friday, 5 February 2021. Lady Justice Thirlwall: 1. This is the judgment of the court to which we have all contributed. 2. These separate and otherwise unconnected applications for permission to rely on fresh evidence, and permission to appeal against conviction and sentence, have been heard together because they raise similar issues in relation to the prosecution of victims of trafficking. Those issues include the availability of the statutory defence under section 45 Modern Slavery Act 2015 in respect of the alleged commission of offences before the section came into force. 3. In each case the Applicant pleaded guilty after the coming into force of the 2015 Act to offences allegedly committed before that date. Each Applicant submits:- i) that the defence under Section 45 is available to a defendant from the date on which the section came into force, irrespective of when the offence to which the defence relates occurred; alternatively ii) that the prosecution should not have been commenced having regard to the systems that were in place before the introduction of the statutory scheme to protect victims of trafficking; and iii) the sentence imposed was manifestly excessive and did not sufficiently take account of the mitigating impact of being a victim of trafficking. 4. In CS’s case a separate issue arises as to the jurisdiction of the Court of Appeal (Criminal Division) to entertain an application for permission to appeal against a conviction in the Magistrates’ Court. 5. An application for anonymity has been made by each Applicant. All the applications have been referred to the full court by the Registrar. Jurisdiction to appeal to Court of Appeal (Criminal Division) against a conviction imposed by the Magistrates’ Court 6. Section 1 Criminal Appeal Act 1968 provides: “…a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.” 7. CS’s convictions in the Magistrates’ Court were not imposed on indictment. CS was committed for sentence to the Crown Court. She relies on section 5(1) Powers of Criminal Courts (Sentencing) Act 2000. That provides: “Where an offender is committed by a magistrates’ court for sentence under section 3 or 4 above, the Crown Court shall inquire into the circumstances of the case and may deal with the offender in any way in which it could deal with him if he had just been convicted of the offence on indictment before the court.” 8. This meant that the Crown Court had the sentencing powers that would have been available if CS had been convicted on indictment. It does not, however, mean that CS was convicted on indictment, or that she is to be treated as having been convicted on indictment for the purpose of section 1 of the 1968 Act. It follows that there is no jurisdiction to entertain CS’s application for permission to appeal against the convictions in the Magistrates’ Court. CS’s remedy is to appeal against conviction to the Crown Court, or to appeal by way of case stated to the Divisional Court, or to seek judicial review of the convictions. 9. CS contends that, in the event that there is no jurisdiction to entertain an appeal against conviction, it would be appropriate for the members of this Court to sit as a Divisional Court and, on an application for judicial review, to quash the convictions imposed in the Magistrates’ Court. CS’s case: background facts 10. On 28 June 2015 CS pleaded guilty in the Magistrates’ Court to two offences of possession of a class A drug (crack cocaine and heroin) with intent to supply. She also pleaded guilty to offences of driving with no insurance and driving with no licence. The case was committed to the Crown Court for sentence. On 30 November 2015, in the Crown Court at Manchester, CS pleaded guilty to 6 further offences of supplying a class A drug (crack cocaine and heroin). 11. On 15 January 2016 His Honour Judge Rudland sentenced CS to a total of 2 years’ imprisonment, the same term being imposed on each of the drugs counts to be served concurrently. Her driving licence was endorsed with 6 penalty points for the offence of driving with no insurance. No separate penalty was imposed for driving with no licence. Offences of possession of a bladed article and possession of offensive weapons were ordered to lie on the file. 12. The facts giving rise to the convictions were as follows. In May/June 2015, the police conducted an undercover operation into the supply of Class A drugs in the Salford area of Manchester. The police had obtained telephone numbers for various drug supply lines, including the line known as “the black girl’s line”. Officers used the “black girl’s line” to obtain drugs via the use of undercover officers known as Test Purchase Officers (“TPO”). 13. The “black girl’s line” was being run by CS. She would answer the telephone and set up meetings for the supply of drugs (crack cocaine and heroin) to take place. She supplied drugs to TPOs on five occasions in May and June 2015. On four occasions she drove to the meeting place. 14. On 28 June 2015, officers approached CS, who was parked in Eccles town centre. She had driven there. The police identified themselves as police officers. CS appeared uneasy and distressed. She was searched. Two mobile phones were found in her possession. She only had a provisional licence and was not therefore insured to drive. Following her arrest, during a strip search at the police station, CS informed officers that she had drugs concealed in her underwear. Officers seized 51 wraps of crack cocaine and 21 wraps of heroin with an estimated street value of approximately £1,400. 15. CS pleaded guilty in the Magistrates’ Court to the offences committed on 28 June. She was committed to the Crown Court for sentence. Prior to sentence, she was charged with further offences for the incidents between 24 May and 25 June 2015. She pleaded guilty to the further offences at the first opportunity in the Crown Court. Her case was that she had been under exceptional financial pressure at the time of the offence and had 5 dependent children. She borrowed money from a friend. When she was unable to pay the debt back on demand, the friend told her she would need to sell drugs to settle the debt. She was provided with a car and the drugs, and made a return trip of 400 miles across the country on several occasions to sell the drugs. 16. The sentencing Judge found that the offences fell between the Sentencing Guidelines for those who perform a significant and a lesser role. The starting point for a lesser role is 3 years’ imprisonment. The starting point for a significant role is 4½ years (with a range of 3½ - 7 years). The Judge observed “[t]he duress, as it were, if that be the right word, that you were experiencing was the terrible financial pressure you had been put under and the needs of your children, all of which is enforced by the fact that you are not a lady who has any previous convictions.” He imposed what he recognised was a lenient sentence of 2 years’ imprisonment for each drugs offence, all to run concurrently with each other. 17. At the point at which CS would otherwise have been released, she was detained under immigration powers pending deportation. After taking advice from new legal representatives she was referred to the National Referral Mechanism (“NRM”). The Competent Authority assessed her case and concluded that she was a victim of trafficking (or, more strictly, slavery, servitude or forced/compulsory labour) because: “You borrowed money because you had little money to support yourself and your children. The children’s father was not providing for them. You were therefore in a position of vulnerability. You borrowed money from a friend… and stated that you would pay it back when you had a job. However, two weeks later the friend threatened you and told you that the people who gave you the money required that you repay the money you borrowed by participation in supplying drugs… You were intimidated by [your friend] and her colleagues… You didn’t feel that you could leave the flat you were staying in, even though you were not locked up, because it was known where you and your family live… You were too scared to tell the police.” 18. The application for permission to appeal against conviction is advanced on the basis that neither the court nor the prosecution sufficiently considered the trafficking issues that were apparent, and the decision to prosecute did not take account of the necessary considerations that arise in this context. CS was not advised as to the protections available to her. In particular, she was not made aware of the defence available under section 45 of the Modern Slavery Act 2015. Accordingly, it is said, CS has been deprived of a “legal process to which she was entitled or to which she has a legitimate expectation” to her detriment. She seeks to rely on fresh evidence, including the conclusive grounds decision. There is a dispute between CS and her former representatives as to the instructions that she had given. We have not considered it necessary to resolve that dispute. We proceed on the assumed basis of CS’s account in that respect, without making any finding that is critical of her former representatives. Application to set aside Court’s direction that CS should give evidence 19. A direction was made by a different constitution of this court at an earlier hearing, that CS should give evidence. At the outset of this hearing, Mr Blaxland QC sought to argue that it was not necessary for CS to give evidence. He pointed out that a finding had already been made that CS was a victim of trafficking. She had a history of depression. The issues were whether CS had a credible defence under section 45 of the Modern Slavery Act 2015 and whether it was in the public interest to prosecute. It was, he said, not clear that anything would be achieved by CS giving evidence, and there was a question as to whether it was in the public interest for her to be called. In response to the Court’s question Mr Blaxland confirmed that there was no medical evidence to suggest that CS was medically unfit to testify. 20. We rejected the suggestion that the Court’s earlier direction should be set aside. Even if it were to be accepted that CS is a victim of trafficking that does not, in itself, establish a defence under section 45 of the 2015 Act. The defence is only established where all the conditions in section 45(1) are satisfied. That includes that a reasonable person in the same situation as the defendant, and having the defendant’s relevant characteristics, would have no realistic alternative to doing that act – see section 45(1)(d) of the 2015 Act. This Court’s earlier direction envisaged that it would be necessary for CS to give evidence before the Court could reliably conclude that she had a credible defence under section 45. There is no reason to depart from that view. CS’s evidence 21. We summarise the oral evidence given by CS as follows. 22. In 2015 CS was living with her partner and her 4 children. Her fifth child was born on 1 May 2015. Her partner was abusive and controlling. He collected all the benefits to which she was entitled. CS was desperate for money to provide for her children. She borrowed £3,000 from a friend, K. She was unable to repay the debt. K put pressure on CS to repay, saying that it had not been K’s money in the first place. K came to CS’s flat with a man. They drove CS to Manchester. She stayed in Manchester for about a week. She went out in the car. K gave CS a parcel. Somebody would come to the car window and CS would pass the parcel to them. CS returned to London shortly before the birth of her baby. She was taken to Manchester a second time, shortly after the birth. She took the baby with her. They stayed in Manchester for a month but the baby was with CS for about a week. It was unclear how the baby returned to London. CS went out in the car as before. She did not report the matter to the police because she was afraid of what “they” might do to her. 23. When CS was arrested a saw and hammer were found in the car. CS’s evidence to us was that she had not known about the hammer. She had told the officers in interview that she had the hammer to put up curtains. Her explanation for the difference was that the solicitor representative who had seen her at the police station, who was not herself a solicitor, had told her that anything she said might be reported back to K, and that she should therefore say “no comment.” It is apparent that she did not follow that advice. 24. After being shown her solicitor’s brief to counsel, CS accepted that she had given instructions to her solicitor to the effect that she had agreed to supply drugs because she was desperate for money, and did not say that she had been threatened. She said she had been foolish. She agreed she could have not supplied the drugs and that, instead, she could have gone to the police. 25. The brief to counsel indicated that CS had said that she was to be paid £200 for the drug supply on the occasion she was stopped. She denied having said that, and said that she had done it because she owed £3,000. She denied the suggestion in the instructions that she had agreed to be a courier, or that she had said that the occasion on which she had been stopped by the police was the first occasion on which she had supplied drugs. 26. In an earlier written statement CS had said that she had borrowed the money from K because she needed it to pay for an immigration application for one of her children. In evidence to us she denied that was the case, and said that she had needed the money to provide for her children. She did not explain why such a large sum was necessary at that time. 27. CS said that it was not long after K had lent her the money that she asked for it back – it had been about 5 days later. It was about a month later that K had made threats. She denied an account recorded in immigration documentation that she had said it was about 2 weeks later. She also denied an account that she had given in a previous statement that it was about 6 months later that the threats had been made. She recognised the differences in these accounts and said it had now been a long time since the events in question and it had been traumatic, making it difficult to remember the precise sequence of events. 28. The handwritten notes of a probation officer’s interview of CS, for the purpose of writing a pre-sentence report, record CS as having said “I wasn’t forced or threatened”. CS said that that was not a “word for word” record of what she had said, and that she had “never said that,” albeit she was not accusing the probation officer of lying. CS said that she did tell the probation officer about the threats. In the presentence report itself the record of CS’s account of the offence records that CS had said that she had supplied the drugs in order to repay a debt – there was no mention of threats. In answer to the question “[w]hy did the offence(s) occur” the author recorded: “The defendant advised that she was unable to provide for her children and was coerced into her actions… [Her partner’s] behaviour was noted to be very controlling including financial control. It would seem that [CS’s] partner although claiming funds for the children was not giving her the money to provide for them. [CS] has since indicated that should such a situation arise again she would contact children’s services and speak to them, but when the offence occurred she was concerned that her children would be taken away from her and resorted to ill advised methods of funding her living expenses.” 29. In re-examination on her evidence that she could have not supplied the drugs and could instead have gone to the police she said “I think if I had gone to the police I would not be standing here.” She felt that she had no option. K had verbally threatened her saying that K needed to pay the money back or else something would happen to her. K never said what would happen. In the event nothing has happened to her. Luong Le’s case: background facts 30. On 14 October 2015, in the Crown Court at Wolverhampton, Mr Le pleaded guilty to the offence of producing a controlled drug of class B (cannabis). 31. On 17 November 2015, Recorder Del Fabro imposed a sentence of 16 months’ detention in a YOI. 32. Mr Le had been arrested on 22 April 2015. During the early hours of that day, police were called to a suspected burglary. On arrival, Mr Le and a co-accused were seen running away from the scene. The police gave chase and both were arrested shortly afterwards, trying to hide from the police behind a parked van. Both smelt strongly of cannabis. 33. The prosecution case was that they had fled shop premises that were being used as a commercial scale cannabis growing factory. 562 plants at various stages of growth were seized from seven rooms within the premises, along with sophisticated cultivation equipment. The street value was estimated to be in the hundreds of thousands of pounds. Items in the name of Mr Le, and a small amount of cash, were recovered from the premises. He was found to be in possession of a mobile phone. 34. Initially, Mr Le gave a false name and date of birth. In interview, he accepted being involved in growing the plants at the premises. 35. Mr Le initially pleaded not guilty in the Crown Court, but was re-arraigned on the day of trial and pleaded guilty. 36. Mr Le’s case was that he was an orphan who had come to the United Kingdom at the age of 17, travelling through various other countries on route. When he arrived in the United Kingdom, a man told him that he could find work for him. He was taken to the premises and told to look after the plants. He was paid £4,000 and the money was transferred directly to his family in Vietnam. He was locked in the premises and was not allowed to leave. 37. Mr Le had been referred to the NRM for assessment of whether he was a victim of trafficking. On 9 July 2015 the Competent Authority decided that there were reasonable grounds to suspect that Mr Le was a victim of trafficking. However, on 3 September 2015 the Competent Authority made a conclusive grounds decision that, on the balance of probabilities, Mr Le was not a victim of trafficking or modern slavery. This was because his account was not considered to meet the required standard of proof: Mr Le had not given any information as to how he had ended up in the house, and the police had said that there was insufficient information to enable them to investigate. 38. The recorder observed that Mr Le “was a gardener in a sophisticated set-up, growing staggered crops of cannabis for commercial sale, which may have provided drugs with a street value of many hundreds of thousands of pounds.” He considered that Mr Le’s motives (wishing to provide for his family) were “admirable” but that his actions were not. The recorder considered that the Applicant had a lesser role in the enterprise. The applicable Sentencing Council guideline provided a starting point of 1 year custody and a category range of 26 weeks’ - 3 years custody. The quantity of drugs fell towards the top of the guideline bracket. The recorder adopted a starting point of 18 months custody (by which he meant the provisional sentence before reduction for the plea of guilty). Allowing (slightly more than) a one tenth reduction to reflect the guilty plea, a 16 month sentence was imposed. 39. Mr Le sought judicial review of the decision that he was not a victim of trafficking. The Competent Authority agreed to reconsider the case. On 23 February 2018 the Competent Authority decided that, on the balance of probabilities, Mr Le was a victim of trafficking. That was because: “It is considered that you have given a number of contradictory accounts as to the events that have occurred.… However, it is considered likely, given the available country evidence, that you borrowed a sum of money from loan sharks to facilitate your journey to the UK. Equally, you have given a number of differing accounts following your release from police custody following your arrival in the UK. Given these inconsistencies, it is not accepted that these events occurred as you claim. However, it is accepted that, on the balance of probabilities, you were recruited whilst in the UK to work in a cannabis factory. It would appear consistent that you were threatened whilst in the cannabis factory and that you were forced to do this work against your will. It is accepted that this was for the purposes of forced criminality. Consequently, it is accepted that you are a victim of trafficking.” 40. Mr Le contends that his conviction is unsafe because the indictment should have been stayed as an abuse of process. He says there is now evidence available that establishes that he was a victim of trafficking at the time of his arrest and prosecution. The offence was committed as a direct consequence of the trafficking. This was not properly investigated at the time. He was not advised as to the protections available to him and in particular, was not made aware of the available defence under section 45 Modern Slavery Act 2015. Accordingly, as in the case of CS, so too in the case of Mr Le, it is said that he has been deprived of a “legal process to which he was entitled or to which he has a legitimate expectation” to his detriment. He seeks to rely on fresh evidence, including the conclusive grounds decision. He did not provide any witness statement in support of his appeal nor give any oral evidence at the hearing. Instead, he relied upon the statement produced by his immigration solicitors. Protection from prosecution/conviction for victims of trafficking Protection from prosecution for victims of trafficking before the Modern Slavery Act 2015 41. The approach that should be taken to the protection from prosecution of victims of trafficking is described in many decisions of this court, including in particular R v LM [2010] EWCA Crim 2327 , R v N, R v Le [2012] EWCA Crim 189 , R v L [2013] EWCA Crim 991 , R v VSJ [2017] EWCA Crim 36 , R v EK [2018] EWCA Crim 296 , R v O and N [2019] EWCA Crim 752 , R v O [2019] EWCA Crim 1389 and R v DS [2020] EWCA Crim 285 . 42. Article 4 of the European Convention on Human Rights prohibits slavery and forced labour. The Council of Europe Convention on Action Against Trafficking in Human Beings 2005 (“the Convention”) has, as one of its purposes (see article 1(1)(b)) the protection of “the human rights of the victims of trafficking” and “a comprehensive framework for the protection and assistance of [such] victims.” EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (“the Directive”) introduces common provisions for the protection of trafficking victims (see article 1). 43. Article 26 of the Convention states: “Non-punishment provision Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.” 44. Article 8 of the Directive states: “Non-prosecution or non-application of penalties to the victim Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.” 45. Prior to the 2015 Act, these international obligations were not reflected in domestic legislation. Instead, effect was given to them principally by means of CPS guidance as to the circumstances in which a prosecution should be brought, the common law defence of duress, and the abuse of process jurisdiction – see DS per Lord Burnett CJ at [6]-[7]: “6. Prior to the enactment of the 2015 Act, there was no domestic statutory reflection of the United Kingdom's obligations under the Convention and the Directive. As such, the UK's obligations in this respect were adhered to by means of – (i) relevant CPS guidance, which indicated the capacity of, and the circumstances in which, a prosecutor could decline to proceed against an individual suspected of being a victim of trafficking; (ii) where available, the common law of duress, and (iii) the court’s abuse of process jurisdiction, whereby it could review the CPS' prosecutorial decision, and, in certain cases, refuse to entertain proceedings. The 2015 Act changed this landscape by placing this system on a concrete domestic footing. 7. The policy of the CPS (2015) in respect of those not within the scope of the 2015 Act required the prosecutor to consider three broad questions where the defence of duress did not arise on the evidence. First, was there credible evidence that the defendant fell within the definition of trafficking in Annex 11 to the UN Convention against Transnational Organised Crime (the Palermo Protocol) and Directive 2011/36; secondly, was there a nexus between the crime committed and the trafficking; and thirdly, was it in the public interest to prosecute?” 46. In DS this Court held that in the light of the 2015 Act (where it applies) it is no longer necessary to give effect to the Convention and Directive by means of the abuse of process jurisdiction – see per Lord Burnett at [40]: “…the result of the enactment of the 2015 Act and the section 45 statutory defence is that the responsibility for deciding the facts relevant to the status of DS as a Victim of Trafficking is unquestionably that of the jury. Formerly, there was a lacuna in that regard, which the courts sought to fill by expanding somewhat the notion of abuse of process, which required the Judge to make relevant decisions of fact. That is no longer necessary, and cases to which the 2015 Act applies should proceed on the basis that they will be stayed if, but only if, an abuse of process as conventionally defined is found. By way of summary only, this involves two categories of abuse, as is well known. The first is that a fair trial is not possible and the second is that it would be wrong to try the defendant because of some misconduct by the state in bringing about the prosecution.” 47. However, where the 2015 Act does not apply, it remains appropriate to give effect to the Convention and Directive in the way explained in the earlier authorities. In R v GS [2018] EWCA Crim 1824 the Court, at [76], included the following amongst its summary of the relevant principles: “(iv)…factors obviously impacting on the discretion to prosecute go to the nexus between the crime committed by the defendant and the trafficking. If there is no reasonable nexus between the offence and the trafficking then, generally, there is no reason why (on trafficking grounds) the prosecution should not proceed. If there is a nexus, in some cases the levels of compulsion will be such that it will not be in the public interest for the prosecution to proceed. In other cases, it will be necessary to consider whether the compulsion was continuing and what, if any, reasonable alternatives were available to the VOT. There will be cases where a decision to prosecute will be justified but due allowance can be made for mitigating factors at the sentencing stage. The matter was most helpfully summarised by Lord Judge CJ, in LC , at [33], as follows: “…the distinct question for decision, once it is found that the defendant is a victim of trafficking is the extent to which the offences with which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that, in reality, culpability was extinguished. If so, when such cases are prosecuted, an abuse of process submission is likely to succeed…… In other cases….culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.” (v) As always, the question for this Court goes to the safety of the conviction. However, in the present context, that inquiry translates into a question of whether in the light of the law as it now is (this being a rare change in law case) and the facts now known as to the Applicant (having regard to the admission of fresh evidence) the trial court should have stayed the proceedings as an abuse of process had an application been made. This question can be formulated indistinguishably in one of two ways which emerge from the authorities: was this a case where either: (1) the dominant force of compulsion, in the context of a very serious offence, was sufficient to reduce the Applicant's criminality or culpability to or below a point where it was not in the Public Interest for her to be prosecuted? or (2) the Applicant would or might well not have been prosecuted in the Public Interest? If yes, then the proper course would be to quash the conviction. …” The Modern Slavery Act 2015 48. The Modern Slavery Act 2015 makes provision for the protection of victims of slavery, servitude and forced or compulsory labour, and human trafficking. It gives domestic statutory effect to provisions in the Convention and the Directive, including (by section 45) to article 26 of the Convention and article 8 of the Directive. 49. Sections 1 and 2 create offences of slavery, servitude and forced or compulsory labour and human trafficking. 50. Section 45 provides a defence for slavery or trafficking victims who commit an offence. It states: “ 45 Defence for slavery or trafficking victims who commit an offence (1) A person is not guilty of an offence if— (a) the person is aged 18 or over when the person does the act which constitutes the offence, (b) the person does that act because the person is compelled to do it, (c) the compulsion is attributable to slavery or to relevant exploitation, and (d) a reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act. (2) A person may be compelled to do something by another person or by the person's circumstances. (3) Compulsion is attributable to slavery or to relevant exploitation only if— (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation. (4) A person is not guilty of an offence if— (a) the person is under the age of 18 when the person does the act which constitutes the offence, (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person's relevant characteristics would do that act. (5) For the purposes of this section— “relevant characteristics” means age, sex and any physical or mental illness or disability; “relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking. (6) In this section references to an act include an omission. (7) Subsections (1) and (4) do not apply to an offence listed in Schedule 4.” 51. Schedule 4 to the Act lists the offences to which section 45(1)-(4) does not apply – see section 45(7). 52. Section 56 makes it clear that a person is to be regarded as a victim of slavery or trafficking if the person is the victim of conduct which would have amounted to an offence of slavery or trafficking if it had occurred after sections 1 and 2 had come into force. 53. Section 45, along with most of the Act, came into force on 31 July 2015 – see section 61, and regulation 2 of the Modern Slavery Act (commencement No 1, Saving and Transitional Provisions) Regulations 2015. Regulation 3 of the 2015 Regulations states: “ Saving and transitional provisions 3. The amendments and repeals made by the following provisions of the 2015 Act do not apply in relation to offences committed wholly or partly before 31st July 2015— (a) section 7(3); (b) section 46; (c) in Schedule 5— (i)paragraph 1; (ii)paragraph 5(2); (iii)paragraph 5(4), insofar as it relates to section 46(2) of the Sexual Offences Act 2003(2); (iv)paragraph 6(2), (3) and (4)(a); (v)paragraph 8; and (vi)paragraph 9.” Does section 45 apply to offences committed before 31 July 2015? 54. The argument on behalf of the Applicants is that once section 45 came into force it had general application: a defendant who could satisfy the conditions prescribed by section 45 was entitled to the benefit of the provision, even if the events in question took place before 31 July 2015. This argument involves interpreting section 45 as having retrospective effect. That is because at the time of the conduct the statutory defence was not available. If the section does not have retrospective effect, CS’s criminal liability would turn on the application of common law principles identified by Lord Burnett CJ in DS at [6] (see paragraph 45 above). The argument that is advanced by the Applicants, if correct, would mean that the legal consequences of actions that occurred before 31 July 2015 were altered with effect from 31 July 2015. That approach involves interpreting the statutory provision as having retrospective effect – see Granada UK Rental and Retail Ltd v Pensions Regulator [2018] UKUT 164 (TCC) at [198], approving the principle of retrospectivity given in (now) Bennion on Statutory Interpretation (Seventh Edition, March 2019) at 5.12. 55. There is no doubt that Parliament has power to create a defence with retrospective effect. The question is whether it did so when it enacted section 45. The presumption, unless the contrary intention appears, is that Parliament does not intend a statutory provision to have retrospective effect – see Wainwright v Home Office [2002] QB 1334 per Lord Woolf CJ at [27]. 56. The presumption is rooted in fairness – see L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 per Lord Mustill at 525. The potential for unfairness is at its most acute where a retrospective penalty or obligation is imposed, rather than where (as here) the provision in question creates a defence. It may be that a court will more readily find that the presumption is rebutted in the latter case, but the presumption still operates: there is no authority to support an approach that limits the application of the presumption only to certain types of statutory provision. 57. Mr Blaxland QC, on behalf of the Applicants, relies on five features of the legislation in support of his contention that it can be inferred that Parliament intended section 45 to apply to offences committed before 31 July 2015. 58. First, the heading to the section does not indicate that it only has prospective effect. We are prepared to accept this, even though the use of the present tense (“who commit an offence”) more naturally accommodates the commission of an offence after the section comes into force (as opposed to “who have committed an offence” or “who commit or have committed an offence”). At best, however, the point is neutral and so insufficient to rebut the presumption. It is necessary to identify some factor which positively indicates that Parliament intended section 45 to operate in respect of offences which predate the Act. Otherwise, the presumption cannot be rebutted. The heading to the section does not suffice. 59. Second, reliance is placed on the interpretation provision, section 56. That provides that the definition of a victim of slavery or human trafficking applies to conduct before the Act came into force. That does involve a degree of express retrospection. It also affects the application of section 45, because it means that if a person is a victim of trafficking before the Act comes into force, and then (after it comes into force) commits an offence, he is not prevented from relying on the defence merely because he was trafficked before July 2015. It does not, however, show that section 45 was intended to have retrospective effect in the sense of providing a defence to an offence committed before the Act came into force. On the contrary, the fact that specific provision was made in respect of the application of the definitions of slavery and trafficking to pre-enactment events, but no provision was made for the defence to have pre-enactment effect, undermines the Applicants’ argument. 60. Third, the Applicants point to the fact that regulation 3 of the 2015 Regulations specifies the amendments and repeals which are not to have effect in respect of offences committed before 31 July. The argument is that because provision was made for those amendments and repeals not to have retrospective effect, it can be inferred that section 45 (which was not the subject of any such provision) was intended to have retrospective effect. 61. Assuming that the 2015 Regulations may be used as a legitimate aid to the interpretation of the substantive legislation, they do not assist the Applicant’s argument here. The purpose of regulation 3 is to address what would otherwise have been a lacuna if amendments and repeals made by the 2015 Act took effect from the date of enactment. That is because, in respect of pre-enactment events, the repealed and pre-amended legislation would not apply (because the repeals and amendments would take effect from the date of enactment) and the 2015 Act would not apply (precisely because it is not retrospective). There would be a legislative gap. It was necessary to fill that gap by way of transitional provisions. The fact that this provision was made therefore tends to support the presumption that Parliament did not intend the 2015 Act to have retrospective effect (save to the extent that it made explicit provision). Again, it undermines, rather than supports, the Applicants’ arguments. 62. Fourth, it is said that if Parliament had intended section 45 not to act retrospectively then it would have said so. There are examples of Parliament doing precisely that. The partial defence to murder of loss of control does not apply “in relation to offences committed wholly or partly before the commencement of the provision in question” – see section 54 and paragraph 7(1) of schedule 2 to the Coroners and Justice Act 2009. The statutory modification to the common law on self-defence to benefit householders “does not apply in respect of force used before the amendment comes into force” – see section 76(5A) Criminal Justice and Immigration Act 2008 read with section 43(6) Crime and Courts Act 2013. The assertion that Parliament would make explicit provision if it had intended a defence not to operate retrospectively is inconsistent with the presumption. The logic of this argument is that the presumption against retrospective effect should be reconsidered in the light of the approach taken to modern statutory drafting, although it was not put like that in argument. We do not accept that the provisions above have the effect of removing the presumption against retrospectivity. 63. Fifth, the Applicants say that if the defence is not retrospective then there will be difficulties where there is uncertainty about the date of the offence, or where the indictment straddles 31 July 2015. But that is not an aid to interpretation: the same could be said about any statutory provision that impacts on criminal liability. Again, the effect of the argument is to deny the existence of the presumption. 64. More generally, the Applicants’ argument is that (1) a defendant in criminal proceedings should be entitled to rely on any statutory defence that is in force at the time that their criminal liability is being determined, subject to any express or implied statutory restriction on the availability of the defence, (2) there is nothing in the 2015 Act to limit the application of section 45 to post commencement events, and (3) if Parliament had intended to prevent a defendant from relying on section 45 in respect of pre-commencement events then it could and would have said so. The argument is internally valid, but it ignores the presumption against retrospectivity. The presumption means that the true question is whether there is any positive indication that Parliament intended to give section 45 retrospective effect. The Applicants’ approach turns the true question on its head. 65. For the reasons we have given we do not consider that there is any positive indication that Parliament intended to give section 45 retrospective effect. Accordingly, we do not consider that the Applicants have rebutted the presumption that section 45 applies only to offences committed after it was enacted. 66. There are further reasons which we consider show that Parliament did not intend section 45 to operate in the manner in which the Applicants suggest. 67. First, the defence is not universal. Some offences fall outside its ambit. They are listed in schedule 4. They include some common law offences (like murder). They also include many statutory offences. However, all of the statutory offences in schedule 4 were in force at the time of the 2015 Act: schedule 4 does not include any repealed statutory offences. So, for example, it includes rape contrary to section 1 Sexual Offences Act 2003. But it does not include rape contrary to section 1 Sexual Offences Act 1956. If Parliament had intended the defence to have retrospective effect it would have had to deal with (for example) historical sex offences. Otherwise, the effect would be that section 45 would be available as a defence to a historical rape allegation, but not to a recent rape allegation. That would not be a coherent approach to the legislative scheme. 68. Second, the Applicants’ argument would apply not just to cases like the present where criminal proceedings had started before 31 July 2015 but carried on afterwards. It would also apply whenever an offence was committed before 31 July unless (they accept) there was also a conviction before that date. The language of the statute does not support the drawing of these distinctions. 69. Third, the Applicants’ argument has the effect of substituting retrospectively section 45 for the abuse of process principles for (some) offences committed before 31 July 2015. Again, this would not promote a coherent approach to the legislative scheme. The situation is analogous to section 16 of the Interpretation Act 1978. A repeal of a statutory offence does not have retrospective effect (so the earlier legislation continues to apply to offences already committed under that earlier legislation), unless the contrary intention appears – see, for example, R v W London Stipendiary ex parte Simeon [1983] AC 234 . 70. This Court has not previously determined the question that is raised on these applications. It has, however, consistently proceeded on the understanding of the operation of section 45 which we consider to be correct – see: (1) VSJ at [4]: “as the 2015 Act was not drafted to provide retrospective protection, the regime developed by the courts will…continue to apply to those not within the scope of the Act who face charges, but who claim there is a nexus between the crime with which they are charged and their status as victims of trafficking for the purposes of exploitation”; (2) VSJ at [28]: “Parliament enacted section 45 without providing for retrospective protection”; (3) GS at [59]: “Section 45…provides an express (though not retrospective) defence to VOTs compelled to commit an offence”; (4) O and N [2019] EWCA Crim 752 at [64]: “Since these offences preceded [the enactment of section 45], the jury would not have been able to consider the defence afforded by section 45”; (5) O [2019] EWCA Crim 1389 at [27]: ‘Section 45…came into force on 31 July 2015. This new approach is not retrospective in effect.” 71. In R v Joseph [2017] EWCA Crim 36 ; [2017] 1 WLR 3153 the appellants argued that the common law defence of duress should be expanded (for offences committed before the 2015 Act came into force) so as to reflect section 45. The submission was limited to victims of trafficking (see at [25]). It was only advanced because section 45 is not retrospective. This Court rejected that submission and held that the common law, as applied to events before the 2015 Act came into force, satisfied the requirements of the Convention (see at [27]). If section 45 were to be given retrospective effect, then it would mean that Joseph was decided on a false basis. The result would be that section 45 overlies the common law in respect of events that predate the 2015 Act. There is nothing to indicate that Parliament intended to bring about such a muddled outcome. 72. Accordingly, we reject the Applicants’ primary ground of appeal. 73. We heard some brief argument about the test to be applied in determining an appeal against conviction on the basis of overlooked evidence. Mr Douglas- Jones QC relied on the decision of this court in R v Boal [1992] 1 QB 591. In that case the appellant who worked in a bookshop had pleaded guilty to failing to comply with a premises fire certificate. He had been advised that he was undoubtedly the manager of the shop so as to bring him within the scope of the offence. In fact he was not the manager of the shop. His appeal against conviction was allowed. 74. The court added a “short paragraph of warning” at the end of its decision – see Simon Brown J at 599H “This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often.” 75. The test has been followed on a number of occasions since then. Mr Blaxland submits that it is fundamentally wrong in principle and adds an unwarranted and impermissible gloss to the statute. 76. This issue only achieved prominence in the course of oral submissions. It was not clearly the focus of any ground of appeal, and was not fully developed in either the written or oral argument. We permitted, and received, short notes from the parties following the hearing (in the Respondent’s case limited to a list of 5 authorities). It would be unsatisfactory for an issue of this nature to be determined on the basis of argument that has developed in this way, and which may still be incomplete. Given our decision in respect of the existence of the defence in this case it neither necessary nor desirable to determine this issue. Should the prosecutions have been stayed as an abuse of process? 77. The Applicants’ alternative argument is that their convictions are unsafe and that the prosecutions should have been stayed as an abuse of process. 78. In the light of our decision that section 45 of the 2015 Act does not apply to the Applicants’ cases, it follows that the pre-2015 regime of protection (see paragraphs 41 – 47) does apply. It would have been open to each of the Applicants to argue that they should not have been charged and/or that their prosecution was an abuse of process. It is, in principle (subject to the applications to rely on fresh evidence and to seek to appeal out of time) open to them now to appeal against their convictions on the grounds that they are unsafe because the proceedings should have been stayed as an abuse of the court’s process. 79. We have considered the fresh evidence adduced by each Applicant de bene esse in order to assess whether it provides arguable grounds for contending that their convictions are unsafe. 80. CS’s case: In CS’s case no consideration was given to the question of whether she was trafficked. The Competent Authority subsequently determined that she was a victim of trafficking. There are many inconsistencies in her evidence. Mr Blaxland rightly points out that this is a common feature in trafficking cases, and is a consequence of the trafficking and the consequential psychological impact: inconsistencies, in this context, are not necessarily an indicator that the core underlying account is untruthful. Mr Douglas-Jones accepted that point in principle, but contended that the gross inconsistency over the period of time that passed before threats were made (varying between 2 weeks and 6 months), something that CS might have been expected to recall with some clarity, together with her account to the probation officer, did indicate that her evidence was untruthful. 81. We do not consider it necessary to make a final finding in relation to this, or to depart from the Competent Authority’s finding that CS is a victim of trafficking (but nor do we endorse that finding). We therefore proceed on the basis that she was a victim of trafficking. On that basis, we are also prepared to accept that there was a clear nexus between the trafficking and her offending. She was not, however, powerless to act. She was able to seek the assistance of the authorities when in need. Her offending spanned 6 occasions over a period of a month. She accepted that she could have decided not to supply the drugs and instead gone to the police. We assume that her account that if she had done that she would not have been “standing here now” means that she would have been subject to some form of reprisal. However, she did not provide any detailed account of threats that had been made, or the background circumstances. 82. We do not therefore consider that it is arguable that her culpability is extinguished by the trafficking such that the prosecution was, arguably, an abuse of process. To the extent that CS contends otherwise (by reference to threats) we do not consider that her evidence is capable of belief. The evidence is too vague and inconsistent credibly to indicate that CS was prevented from seeking assistance from the police. 83. Mr Le’s case: Consideration was given, before Mr Le was convicted, to the question of whether he was a victim of trafficking. His case was referred to the NRM. The NRM concluded that he was not a victim of trafficking. If the NRM conclusion is accepted at face value then there was no basis to apply the pre-2015 Act protection regime. There was no public interest ground against prosecution, and no basis for contending that the prosecution amounted to an abuse of process. The fact that the Competent Authority subsequently agreed to reconsider its decision, and that it then reached the opposite conclusion, does not, in itself, show that its original decision was flawed. Far less does it show that there was any error in the prosecution process. Even if it could be said that it should have been appreciated at the time of conviction that Mr Le was a victim of trafficking, it does not follow that the conviction was unsafe. On his own evidence, he made a free and informed choice to come to the United Kingdom. He made a free choice to go to the property where he cultivated the cannabis. He secured significant financial rewards from the enterprise. The events of the early hours of 22 April 2015 show that he was physically able to leave the property. Accepting his case at its highest, he nonetheless bore substantial culpability for his offending. As with CS’s case, to the extent that he contends otherwise (and he has not even given evidence to support his account) that is not capable of belief. This is far removed from the type of case where culpability is extinguished as a result of trafficking, such that a prosecution is properly to be regarded as an abuse of process. Application for leave to appeal against sentence: CS’s case 84. There were eight offences of supplying (or possessing with intent to supply) a class A drug. The Judge considered that CS’s role was between lesser and significant. The guideline starting point for the former is a custodial term of 3 years. For the latter it is 4½ years with a range of 3½ to 7 years. The Judge’s starting point of 3 years was very significantly below that which would have been appropriate without significant mitigation. He referred to “duress”. Although he had in mind CS’s financial circumstances, the net effect is that he was sentencing CS on the basis that she had felt compelled by the circumstances she was in to resort to the supply of class A drugs. He could not have known what would subsequently be revealed by the conclusive grounds decision, but the sentence that he imposed was so reduced that it amply accommodated the mitigation that would have been available to CS if the Competent Authority’s later decision had been available. We do not therefore consider that the sentence was arguably manifestly excessive. Application for leave to appeal against sentence: Mr Le’s case 85. In Mr Le’s case there was no reduction in sentence to reflect that he was a victim of trafficking or that he was acting under a degree of duress falling short of the common law defence. This was a Category 2 case, the recorder considered (perhaps somewhat generously) that his role was a lesser one. The starting point therefore was 12 months’ imprisonment with a range of 26 weeks’ to 3 years’ custody. Taking account of the quantity of plants and the large scale production, of which the Applicant was aware, the recorder was bound to move up very significantly from the starting point towards the upper end of the range. There was little mitigation known at the time but the judge nonetheless reached a provisional sentence of 18 months before the 10% reduction for the guilty plea and the sentence of 16 months. 86. Taking account of the finding of the Competent Authority that Mr Le was subject to a degree of force, given the scale of the operation we do not consider that a sentence of 16 months could be said to be arguably manifestly excessive. On the contrary it properly reflects the level of culpability in his case. Anonymity 87. An interim order was made so that the Applicants’ names were anonymised for this hearing. 88. We have considered the guidance of the Vice President of the Court of Appeal (Criminal Division) at [9] to [15] of R v L and R v N [2017] EWCA Crim 2129 . In particular the starting point is the importance of the principle of open justice, and anonymity orders can only be justified when they are strictly necessary. 89. We do not accept the submission advanced on behalf of the Applicants that there is no public interest in the publication of their identities. The requirement for open justice includes the names of parties to court proceedings being public. However, in the circumstances of this case, the incursion into the open justice principle by a grant of anonymity is small. The proceedings in the Crown Court took place without any order for anonymity or any reporting restriction with no adverse consequences but it has not been suggested that the public understanding of this case would be appreciably enhanced by knowledge of the Applicants’ identities. There has been no submission on the part of the press, or anyone else, that their identities should be revealed. None of that is, in itself, sufficient to warrant a grant of anonymity. However, each Applicant has been found to be a victim of trafficking. In CS’s case she has named those involved and given evidence about their participation in criminal offending. We are prepared to accept that this gives rise to a potential risk to her sufficient to justify a grant of anonymity. Accordingly, we shall direct that there will be no reporting of CS’s name or any detail of the proceedings which might tend to reveal her identity. 90. In Mr Le’s case he has not given evidence. We have not been shown any evidence that the revelation of his identity would give rise to any risk to him. Accordingly, we refuse the application for anonymity in his case. Conclusion 91. The defence created by section 45 Modern Slavery Act 2015 does not apply to offences committed before 31 July 2015 when that section came into force. It is not arguable that the conviction of either CS or Mr Le is unsafe, or that the sentence imposed in either case was manifestly excessive. 92. All the applications for leave to appeal are refused. It is not necessary to consider further in the case of CS whether this court should reconstitute itself as a Divisional Court.

2021_02_05-5089.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/134/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/134

984d69520503296a70d45fdc6568bb00b2e779ea36e5bf185042fc29dafa0199

[2005] EWCA Crim 1269

EWCA_Crim_1269

2005-05-10

crown_court

No: 04/6920/C4 Neutral Citation Number: [2005] EWCA Crim 1269 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 10 May 2005 B E F O R E: LORD JUSTICE GAGE MR JUSTICE HEDLEY MR JUSTICE FULFORD - - - - - - - R E G I N A -v- RYAN DUNNE - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - -

No: 04/6920/C4 Neutral Citation Number: [2005] EWCA Crim 1269 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 10 May 2005 B E F O R E: LORD JUSTICE GAGE MR JUSTICE HEDLEY MR JUSTICE FULFORD - - - - - - - R E G I N A -v- RYAN DUNNE - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR MARK BUTLER (a solicitor advocate) appeared on behalf of the APPELLANT MR JONATHAN N DAVIES appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE FULFORD: On 15th October 2004 at the Crown Court at Guildford the appellant, who has just turned 18, was convicted of causing death by dangerous driving and thereafter he pleaded guilty on rearraignment to aggravated vehicle taking whereby death was caused. He also pleaded guilty to offences of driving without a licence, failing to report an accident and using a vehicle without insurance, which were committed to the Crown Court pursuant to section 41 of the Criminal Justice Act 1988 . 2. On 9th November 2004 he was sentenced by Judge Crocker to four years' detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for causing death by dangerous driving, and he was disqualified from driving for eight years and until he passes an extended retest. No separate penalty was imposed as regards any of the other offences. The appellant appeals against both elements of the sentence by leave of the single judge. 3. The car accident that left one of his friends dead and another seriously and permanently injured occurred in the following circumstances. Between 6 and 7 pm on 11th September 2003 the appellant drove to a fair in Ashford with three others, Nathan Young and Joe Lane, who both sat in the back seat of the car that he was driving, and Nicholas Llewellyn, the deceased, who sat in the front passenger seat. None of the four were wearing seat belts. The appellant had taken his grandmother's motorcar without her permission, and, moreover, as we have just indicated, he was driving without a licence or insurance. Whilst driving along a road called Long Lane he accelerated and overtook a Rover motorcar as it turned left into Short Lane. Simultaneously another car came out of Short Lane, but the appellant managed to drive past it without incident. Following the junction with Short Lane there is a bend in the road to the right. Young thought the appellant was approaching that bend too fast and he told him not to brake because he feared that, because of the speed that the vehicle was travelling at, the appellant would lose control of the vehicle. The speed limit on Long Lane was 30 mph. The police collision investigator estimated that the speed of the vehicle as it entered the bend was in the region of 50 mph. The road was in reasonable condition, although there were some minor potholes and there had been several repairs. It was established that there was no mechanical failure on the part of the vehicle and there was no evidence that any other person or vehicle was involved in the loss of control of the car. The rear nearside wheel touched the kerb and the car veered across the carriageway. The appellant tried to correct this, and the car swerved back towards the nearside and then rolled over twice, before coming to a stop. 4. Nicholas Llewellyn was thrown through the passenger window. Lane went through the front driver's vehicle. Young and the appellant got out of the car when it came to a stop. The appellant asked Young what he should do and Young said "Just go". The appellant left the scene before the police arrived. He went home. His family then took him to an address in Chiswick, where he remained until his arrest three days later. 5. The deceased, Nicholas Llewellyn, died as a result of blunt head trauma sustained in the accident causing brain injury. Lane sustained serious head injuries. He remained in hospital for some time, and a metal plate was inserted into his head. He has subsequently developed epilepsy and poor memory. Young and the appellant both sustained minor injuries only. 6. The appellant, following his arrest, made no comment in the interview with the police but submitted a prepared statement in which he stated that as he approached the bend there was an oncoming car. He developed this account during the course of the trial, and in evidence he was to say that this car had been driving over the white lines and on to his side of the road. However, no other witnesses mentioned such an oncoming car, and the jury's verdict means that they must have rejected that account as being untrue. 7. The appellant's grandfather gave evidence that he had taught the appellant to drive on private land; and he said that the appellant was good enough to pass his driving test. Moreover, he said that he had taken the appellant to an address in Chiswick after the incident as he did not think he was in a fit state to be questioned by the police. 8. We observe that there was a moving impact statement from the parents of the deceased before the court below which demonstrated clearly that the appellant had shown little or no remorse after the incident and that he had failed to take the opportunities that were made available to him to apologise to the family of Nicholas Llewellyn. 9. Against that failure, by the time the reports to which we will turn in a moment were prepared, the appellant had expressed regret for the results of his actions, although he did not and has not at any stage acknowledged that he in fact did anything wrong. 10. In passing sentence the judge observed that this case showed the tragic results that flow when young people drive illegally and that no sentence could compensate for the death of a son. 11. The appellant was aged 16 at the time of the crash. He was uninsured and was not legally entitled to drive. He arrogantly claimed he was a good driver, and tragically, as the judge observed, events demonstrated that this was wrong. Instead the judge considered, as he observed in passing sentence, that the appellant was showing off and was driving very fast for the conditions. In the view of the judge the only real mitigation was the appellant's age. But, he observed, it had to be made clear to others that the courts took a very serious view of people who drove when unqualified. Furthermore, the appellant's good character and the contents of a psychological report were taken into account by the judge, who expressly reduced the sentence he would have passed otherwise in the light of the appellant's age. The judge concluded that a detention and training order was not appropriate in this case, no doubt because the maximum available term - that of two years - was too short in all the circumstances. 12. There were two reports before the court below that we have considered with care. 13. In the pre-sentence report the appellant did not accept that his driving had been dangerous, although he admitted having previously driven illegally. He said that he felt remorse at the death of his friend. The author of the report indicated that his father had a number of criminal convictions and a bad drug habit, which would have made family life stressful. The appellant had demonstrated significant educational, emotional and behavioural difficulties at school. The risk of him reoffending and causing harm to the public was estimated as being low, although it was recognised that the offence was so serious that no alternative to custody was realistic and that a sentence of detention pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 would not be disproportionate. However, in the view of the probation officer, the most appropriate sentence would have been a detention and training order. 14. In the psychological report, Dr Ghadiali indicated the appellant's intellectual functioning is at an abnormally and significantly low level and he has long-standing learning difficulties. His emotional and behavioural problems were, in the view of the psychologist, probably caused by an abnormal family life. His father is addicted to crack cocaine, and the appellant had apparently witnessed many scenes of domestic violence. Perhaps unsurprisingly, he has suffered from a psychological adjustment disorder as a result of the accident and he demonstrated features of post traumatic stress disorder. It was stressed that he requires long-term support and supervision. 15. In support of this appeal Mr Butler, the appellant's solicitor, has succinctly advanced the following matters. First, it is submitted that both the period of four years' imprisonment and the period of eight years' disqualification were separately manifestly excessive. Second, it is contended that the judge failed sufficiently or at all to take into account the following matters: the appellant's age, his previous good character and his timely guilty plea as regards the offence of aggravated vehicle taking. Third, it is suggested that the judge wrongly, and against the weight of the evidence, concluded that the appellant had been showing off at the time of the accident. Fourth, it is argued that in any event this sentence was out of line with the guidelines set out in R v Cooksley [2003] EWCA Crim 996 ; [2004] 1 Cr App R (S) 1 . Mr Butler has suggested that in the case of an adult following a trial, the range of sentence available to the judge was no higher than two to three years and that from that figure there should have been deducted an element to reflect the principal elements of the appellant's mitigation. 16. Turning to those various submissions, it is clear from the sentencing remarks that the judge very much had in mind the defendant's youth, his good character and the conclusions of the authors of both of the reports. The issue, in our view, is not that the judge failed to take those matters into account, as Mr Butler, as we have indicated, has argued, but whether the overall sentence passed was excessive in light of all the available mitigation. 17. The suggested timely plea as regards the aggravated vehicle taking is, in the view of this court, of little moment. No additional sentence was imposed in any event for that offence, and, moreover, following the jury's verdict on causing death by dangerous driving, the plea to that count became essentially inevitable. 18. Having presided over the trial the judge was well placed to determine whether or not the appellant had been showing off; and we do not see any reason to interfere with his conclusions in that regard. At the very least, at the time of the accident he was travelling significantly over the speed limit whilst going round a bend and the engine of the car was heard to have been revving in a high way at the time. 19. The real argument of merit that arises on this appeal is whether, bearing in mind the guidelines laid down in Cooksley , this sentence in both of its elements was manifestly excessive. 20. We agree that this case falls into what the court then described as being the category of intermediate culpability, in that the facts as we have described them demonstrate that this terrible crash was the result of either a momentary and dangerous error of judgment or it followed a short period of bad driving. However, we do not accept the suggestion that the appropriate starting bracket for the custodial term was a sentence of two to three years following a trial. The offence was aggravated by the fact that not only was one person killed but another was left seriously and permanently injured. Furthermore, we are of the view that the appellant's attempt to avoid justice was an aggravating feature, as was the fact that he was driving without insurance and without a licence. 21. The court in Cooksley expressly made it clear that if, for instance, two deaths were to result from an instance of driving of this kind the sentence following a trial could be of the order of five years. In the instant case, although only Nicholas Llewellyn died, as we have just observed, Joe Lane suffered very bad and lasting injuries. In those circumstances a custodial sentence following a trial of four years cannot be said to be, as a matter of principle, manifestly excessive. 22. The real issue is whether the mitigation in this case, when set alongside the aggravating factors, makes this a sentence with which this court should interfere. 23. What impresses us is the overall strength of the mitigation available to this appellant. Weighing his intellectual and educational deficits, his troubled and disturbing home life, his good character and youth, and the sense of remorse he eventually came, apparently genuinely, to feel for his actions as against the terrible consequences of this offence, we are of the view that this sentence, solely on the grounds of that particular personal mitigation, was somewhat too long. We consider that the 24-month maximum that is available for a term of detention and training would be an insufficient penalty for this offence and therefore we propose to reduce the custodial term imposed under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 by twelve months, making the overall length three years. 24. We stress that we are keenly aware of both the views and the anguish of the family of the deceased and the consequences for Joe Lane. As Mr and Mrs Llewellyn recognise in their statement, a custodial sentence will never change or reverse what has happened and imprisonment serves only to make the appellant accountable for what he did. This reduction in sentence is not in any sense meant to detract from the great loss to that family or to diminish the tragedy of the death of their excellent and highly valued young son. It is rather to ensure that, grave though this offence was, this appellant, bearing in mind the particular and powerful mitigation that we have highlighted, should only serve by way of a custodial term a sentence that comes within the guidelines that have been very carefully laid down for offences of this kind. We would stress that if this appellant had not had this particular mitigation or if he had been older, we would have had no hesitation in upholding the sentence imposed by the judge. 25. As for the period of disqualification, we consider that a period of eight years is significantly out of line with the guidelines again laid down in Cooksley . For dangerous driving of this kind when the offender has a previous unblemished driving record, the ban should be of the order of two years or so. However, with this appellant, by his own admission, he had driven illegally on earlier occasions and accordingly has demonstrated a clear tendency to disregard the rules of the road. He was driving without a licence and insurance, and in a car he had taken without the owner's consent. Those are important factors which raise the appropriate length of the period of disqualification from the starting point of in the region of two years. Accordingly, we consider that a period of five years' disqualification is appropriate in this case bearing in mind all of the circumstances. 26. In the result the period of custody is reduced by twelve months to three years; the period of disqualification is reduced to five years and the appellant will take an extended retest. To that limited extent this appeal is allowed.

2005_05_10-510.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1269/data.xml

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24bfa303f9d08918fe959b8f7feb41fae5a1695b276f024c6907b90eb69041dd

[2023] EWCA Crim 1645

EWCA_Crim_1645

2023-12-13

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2023/02419/A5 [2023] EWCA Crim 1645 Royal Courts of Justice The Strand London WC2A 2LL Wednesday 13 th December 2023 B e f o r e: VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION ( Lord Justice Holroyde ) MR JUSTICE TURNER SIR ROBIN SPENCER ____________________ R E X - v - CHRIS WARREN ____________________ 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 D Harris appeared on behalf of the Appellant ____________________ J U D G M E N T Wednesday 13 th December 2023 LORD JUSTICE HOLROYDE: I shall ask Mr Justice Turner to give the judgment of the court. MR JUSTICE TURNER: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act . 2. On 26 th June 2023, in the Crown Court at Sheffield, the appellant was sentenced for two offences of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003 , having earlier pleaded on 2 nd December 2022. He was sentenced by the judge to four years' imprisonment on each count, to run concurrently with each other. 3. The appellant appeals against that sentence with the leave of the single judge. 4. The facts are these. The appellant was 27 years old at the time of the offences. He and his victim first met on a night out on 22 nd February 2019. Both had drunk a lot of alcohol. In the early hours they took a taxi back to the appellant's shared accommodation. They engaged in consensual sexual intercourse, during the course of which the appellant digitally penetrated his victim's anus, without her consent. He continued, despite her asking him to stop, and started to hit her bottom with considerable force. They again had consensual sexual intercourse, but the appellant had some difficulty in maintaining an erection and told his victim that if she did not help him, he would put his fingers in her bottom again. He digitally penetrated her anus for a second time, again without consent. The appellant then stood up and vomited as a result of his intoxication. The victim dressed, but the appellant asked her not to leave, and they again had consensual sexual intercourse. 5. At some time the victim became aware that the appellant was not wearing a condom and became angry. She left shortly after. 6. In the early hours of the morning the victim contacted a friend, told her what had happened and described being in pain, Her friend, in turn, contacted a sexual assault referral clinic and they went there together later that morning. 7. The victim was examined and found to have petechial bruising, an abrasion on her bottom, a bruise to the perianal area, and a half centimetre linear abrasion at the entrance to the anus. 8. Later that same day, the appellant texted his victim and apologised, saying that he had been in a drunken mess and that she had every right to be annoyed with him. He told her that he would buy her some drinks if he saw her again. 9. The victim eventually found the strength to report the incident to the police about two years later. 10. The appellant was interviewed in May 2021. He admitted being intoxicated and said that he should have taken more care when putting on a condom. The appellant denied penetrating his victim's anus and said that he could not remember parts of the evening owing to the amount of alcohol he had consumed. When he was told about her account, he was shocked and said that he would have stopped if asked. He now accepts that his level of intoxication was such that he had rendered himself incapable of appreciating that his victim was clearly not consenting to either act of anal penetration. 11. In her Victim Personal Statement the victim described the dramatic and deleterious consequences of the appellant's offending over the years, which included: insomnia, intrusive frequent nightmares, anxiety and repeated re-living of the ordeal. The impact upon her was so severe as to lead to her taking significant time off from university. 12. A central ground of this appeal is based upon the contention that the judge ought not to have categorised the injuries sustained by the victim as severe. The point is made that the tone of the Victim Personal Statement is emotive and that there could be some doubt about which features of the events were directly causative of the significant impact which she described. 13. Nevertheless, despite these features, we are satisfied that the essential picture presented is one which justifies the conclusion that the psychological harm in particular was severe. Accordingly, the judge was entitled to take a reference starting point of six years' imprisonment by the application of category 2B in the sexual offences guideline. 14. An early indication from the prosecution that the offending may have fallen within category 3B was premature and proved to be unsustainable. The judge further indicated, however, that in the circumstances of the offending, an operative starting point of six years would have been too high, although he did not indicate by what margin. 15. We do not consider that there is any merit in the suggestion that the judge departed from the basis of plea in his identification of the factual matrix upon which his sentence was founded. There were some differences between the defence basis and the prosecution stance, but the judge decided that a Newton hearing would not be necessary and made express reference to this in his sentencing remarks. There is no indication that he went on to deviate from this course. 16. What the judge ought to have gone on to do is to weigh in the balance all of the relevant aggravating and mitigating features in order to determine whether to move from the starting point and, if so, in what direction and how far. 17. The exercise carried out by the judge, however, departed from this approach, to the extent that he took account of only some, but not all, of the mitigating factors at this stage. He properly identified the appellant's intoxication as a relevant aggravating feature, particularly since this was the factor which, on his own admission, had blinded him from realising that his victim was expressly and repeatedly withholding her consent. We are not, however, satisfied that he was right to proceed as he did, to conclude that the fact the assault took place at the appellant's flat was in the circumstances of this case an additional and significantly aggravating feature. The victim went there voluntarily, with the intention of having consensual sex. 18. The judge then put in the balance the mitigating factors of the appellant's good character and remorse, before concluding that the aggravating and mitigating factors balanced each other out, so as to justify no movement from the six year starting point. 19. The judge went on to postpone consideration of the further mitigating features, comprising the appellant's long history of mental health problems and the passage of time between the offending and the matter coming to court. Instead, he proceeded at that stage to apply a discount of 25 per cent to the six year assessment, to reflect the appellant's guilty pleas. The level of discount is uncontroversial, but the timing of its application was wrong, because the judge then went on to reduce the sentence further by six months, to reflect the mental health and delay aspects of mitigation. The same end point would have been achieved had a correct sequence of analysis been applied, by taking a gross sentence length of five years and four months, before deduction for the guilty plea. 20. We consider that a greater departure from the starting point was called for in the particular circumstances of this appeal on a fair balance of the mitigating features, which we have identified, and the aggravating feature of intoxication and the fact that two, rather than one, offences had been carried out. We take the view that a reduced point of four years and six months would have been appropriate. When discounted by 25 per cent, and modestly rounded down, this affords a sentence of three years and four months' imprisonment. To this extent the appeal is allowed. 21. The judge also imposed an open-ended restriction order forbidding the appellant to make contact with his victim until further order. Bearing in mind that the offending in question was carried out on one occasion and that there was no evidence of any deliberately intrusive contact on the part of the appellant thereafter, we consider that a fixed term order of five years would have met the justice of the case. The order will therefore be amended so as to expire on 28 th June 2028.

2023_12_13-5955.xml

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8d23081327fbd116f4511f1ed89840416c0e615722440b3117e9a46e6014334d

[2005] EWCA Crim 493

EWCA_Crim_493

2005-03-03

supreme_court

Neutral Citation Number: [2005] EWCA Crim 493 Case No: 2003/06621/D2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT LEICESTER HIS HONOUR JUDGE DE MILLE AND A JURY Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/03/2005 Before : LORD JUSTICE JUDGE DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES THE HON MR JUSTICE CURTIS and THE HON MR JUSTICE MCCOMBE - - - - - - - - - - - - - - - - - - - - - Between : R - v - RODERICK FLINT - - - - - - - -

Neutral Citation Number: [2005] EWCA Crim 493 Case No: 2003/06621/D2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT LEICESTER HIS HONOUR JUDGE DE MILLE AND A JURY Royal Courts of Justice Strand, London, WC2A 2LL Date: 03/03/2005 Before : LORD JUSTICE JUDGE DEPUTY CHIEF JUSTICE OF ENGLAND AND WALES THE HON MR JUSTICE CURTIS and THE HON MR JUSTICE MCCOMBE - - - - - - - - - - - - - - - - - - - - - Between : R - v - RODERICK FLINT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sir Jonah Walker-Smith for the Appellant Mr Robert Brown for the Crown Hearing dates: 8th February 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Judge: 1. On 31st October 2003 in the Crown Court at Leicester, before His Honour Judge de Mille and a jury, Roderick Flint was convicted by a majority verdict (10:2) of 3 specimen counts of rape, and two specimen counts of gross indecency with a child. He was sentenced to a total of 14 years’ imprisonment. 2. At the conclusion of the hearing on 8th February, we allowed the appeal, quashed the conviction, and ordered a new trial. 3. The complainant in this case was the appellant’s step-daughter. Her mother met the appellant when she was aged between 5 and 6 years old. He was some 13 years older than she was. They all lived together in a three-bedroomed house. According to the complainant, she was subjected to systematic sexual abuse and repeatedly raped by the appellant from 1979 to 1988, starting when she was about 7 years old, and continuing throughout her childhood and puberty until she was 16. She was abused in her bedroom, in the car, indeed virtually everywhere, including the attic. The sexual abuse extended to organising the complainant to play sexual games, with a little friend, while he spied on them from a hole he had made in the attic. 4. Grounds of appeal relating to the attic, and the space available in it, and possible further evidence from the complainant’s then childhood friend were raised before us. In the result we did not have to deal with them. The critical issue in the appeal arose from the judge’s decision that s 41 of the Youth Justice and Criminal Evidence Act 1999 precluded the admission of evidence or cross-examination of the complainant about part of her sexual history. 5. S 41 provides: “(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court— ” (a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant. (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied— (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case. (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either— (a) that issue is not an issue of consent; or …. (4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness. (5) This subsection applies if the evidence or question— (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and (b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused. (6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).” 6. We must begin by putting the judge’s decision into its factual context, basing ourselves on his ruling that part of that history could be adduced in evidence. 7. The complaint was long delayed. It was not made until early 2002, shortly before the complainant’s thirtieth birthday. When it was investigated, and later at trial, when he gave evidence, the appellant consistently denied that any form of sexual activity had taken place during the complainant’s childhood or her adolescence. The unusual feature of the case, agreed by them both, was that between about 1991 and 1995/6 when the complainant was aged between 18 or 19 and 24 years, and the appellant between 30 and 36 years, they lived together and shared a full consensual sexual relationship. Essentially, the complainant replaced her mother in the appellant’s bed, and her mother slept in the bedroom vacated by the complainant’s brother. Thereafter the two of them went on holiday together, sending postcards to the complainant’s mother, as full partners. 8. At trial, the complainant described how her mother was informed of the exchange. She said: “Rod [the appellant] wanted me to tell her that we had a relationship. I remember going into the kitchen … and trying to tell her and then I couldn’t. So I ran upstairs crying and I think then Rod must have told her. All I said was: “There’s something going on”, that was all the words I could get out, and my mum came up to me and she said: “What?”. I don’t know if I told her at that point or Rod had told her at that point but she said: “Do you love him?” and I said: “Yes”, she says: “Well, as long as you’re happy, I’m happy” and that was how it went.” 9. Counsel for the Crown returned to the moment when the complainant had said to her mother that she loved the appellant. He asked: “… You said that you said to your mum, in answer to a question, yes, you loved him, is that right, you did say that? A: Yes. Q. And was that true? A. Yes, in a way, not sexually but I did love him … Q. Can you explain what you mean? A. He protected me. I felt protected. I felt safe. I never wanted anything sexual to happen.” 10. In answer to the defence contention that the complainant would not have entered into a long consensual sexual relationship with the appellant, living with him as his partner, when he had so dreadfully abused her as a child, the Crown’s response was that her behaviour was consequential on “grooming”. This adult sexual relationship followed the pattern of childhood abuse, when the complainant did what she was instructed or pressurised to do. Sexual activity with the appellant had been part of her life for so long that she submitted to his control. She was passive. In cross-examination she was asked why she continued to live with the appellant when she was aged between 20 and 24, and what had stopped her leaving him at any time. She replied: “I was just scared. Q. You were just scared. A. Yes. Q. Scared of Rod? A. Scared of what he might do. Q. Scared of what he might do. And so the whole time, until aged 24 you were living under his domination? A. Yes. Q. Unwillingly? A. Yes. Q. Unhappily? A. Yes.” 11. She reiterated that until the age of 24 she was the victim of a sexual abuser, and that she was unhappy and was reluctant to engage in sexual activity with him. In the context of the adult relationship she was asked in terms whether the appellant was her lover or her abuser, and she replied, “He was always my abuser”. She insisted that she did not want to have sex with him and only did so because she was scared. 12. The appellant asserted that the complainant had initiated the sexual relationship between them when she was about 18 or 19 years old. Her complaints were false, motivated by a desire for revenge after he had brought the relationship to an end. He was asked whether he dominated her, or whether it was an equal partnership between a man and woman. He replied: “It was equal partnership. She was with me, well she was with me when she wanted to be with me.” He did not pressurise her onto a variety of different holidays with him. The attraction between them was mutual. Sexual intercourse took place regularly between them. He was asked: “Did she ever show any disinclination at all to engage in sex with you? A. Not in the slightest.” 13. When he was cross-examined, the appellant denied that he was totally to blame for the adult relationship, or that he had groomed or dominated her. He described the complainant as his partner at the time, a grown woman, with whom he had a shared relationship. 14. The importance of this conflict of evidence is readily appreciated. If the complainant enjoyed a full and happy adult relationship with the appellant, neither being raped nor dutifully submitting to his dominant control, although not amounting to positive proof that she had not been abused as a child, the relationship would have called into question how she could ever have brought herself into enthusiastic participation for a number of years with her former abuser. If the jury accepted that the adult relationship was mutually pleasing, and in particular pleasing to the complainant, then that provided evidence which might serve (depending on the jury’s view) to support his denial that there had been an abusive relationship between them when she was a child. If on the other hand, after replacing her mother, the complainant had done no more than submit to the appellant, because she was “scared” of and dominated by him, then the adult relationship was consistent with her complaint and represented no more than the logical extension of years of abuse. On this basis it would have been astonishing if her complaint had been motivated by a desire to revenge herself on the appellant because he had brought their relationship to an end. It would have come as a relief that he had. 15. We must now examine the judge’s ruling, sought by counsel for the appellant before the start of the trial and before the complainant was asked any questions about the adult relationship. He suggested that it was relevant in two ways. First, an adult sexual relationship based on mutual attraction was inconsistent with the complaint of childhood abuse, and second, the ending of that relationship by the appellant motivated what he asserted was a false complaint of childhood abuse. After examining s 41 of the Youth Justice and Criminal Evidence Act 1999 , and considering the decision of the House of Lords in R v A (No. 2) [2002] 1 AC 45 , the judge concluded that the fact of the adult relationship could be adduced before the jury. He appeared to focus on what he described as a “cornerstone” of the appellant’s case, that the complainant’s false allegations were motivated by malice, following his decision to end their relationship. He concluded that if the appellant were prevented from asking questions about the adult relationship, he would be unable to advance this crucial element of his defence. Any conclusion by the jury on this issue adverse to him when they were ignorant of the adult relationship would be “unsafe”. We agree with the judge, although we are not entirely sure whether his ruling expressly addressed the full extent of the potential relevance of this evidence. 16. Before us, Mr Robert Brown for the Crown, in a thoughtful and helpful submission, accepted that the judge’s ruling was right. Without this evidence the jury would have had to approach their decision as if the childhood abuse had somehow come to an end in a wholly unexplained way, and that the complainant had then, again inexplicably, delayed 14 years to make her complaint. At the same time, they would have been ignorant of the appellant’s case that the complainant had a specific motive deriving from the ending of the adult relationship for making a false allegation. 17. In his ruling however, the judge refused to allow evidence to be adduced or questions asked of the complainant about some photographs and two video tapes in the appellant’s possession. The video tapes were self-made by the complainant as an adult, apparently using a video camera. They were divided into twelve parts, some showing the complainant, in effect stripping for the appellant, for use in their lovemaking, and some pornographic, showing among other things, the complainant masturbating, with an accompanying soundtrack in which her voice can be heard suggesting in coarse language how much she would prefer to be having sexual intercourse with the appellant. Sir Jonah Walker-Smith for the appellant suggested that the complainant is entirely happy during the strip tease parts of the video, and thoroughly enjoying what she is doing in the pornographic parts. The Crown accepts that she “appears” to be happy, and “appears” to be enjoying herself. It was not necessary for us to watch the videos, but we were provided with useful material with which to make a preliminary assessment between the two contentions. 18. Some photographs taken when the couple were on holiday were exhibited. The judge excluded any titillating photographs. We were provided with them. The precise details do not matter, but these photographs show the complainant posing in a number of different ways for the appellant. Taking two of the last three photographs in the bundle, photographs 28 and 30, as examples, one impression given by them may very well be that the complainant was totally at ease and entirely happy, and indeed thoroughly amused when the appellant took these photographs of her, in one case topless running towards him on the beach, and in another posing naked with her jeans pulled halfway down her thighs with her back to him while leaning forward against a wooden fence, with her face turned towards the appellant’s camera. 19. The judge was asked to consider a further set of topless photographs taken by the complainant herself in a photograph booth, in the absence of the appellant. These photographs lacked any probative significance, and we need not refer to them again. 20. The complainant’s witness statement described the purchase of the photographic equipment. She was older than 21 years, but no older than 24. She said that as she made the videos, she thought that she would have to spend less time “actually having sexual intercourse” with the appellant and that “in a way it kept him satisfied”, so that he would not trouble her. When she made the videos he told her to look as though she was enjoying herself. So she tried to look happy for him. She said that she did not enjoy making the films but knew that if she did so that she would feel safer. The appellant’s case would have been that this material was self-explanatory. The sexual relationship was mutual, and the videos and photographs demonstrated that there was indeed a powerful sexual attraction between them. 21. The judge concluded that the videos, and indeed the photographs, including photographs 28 and 30 which we have described, should be excluded. He said that the videos were made because the complainant was under the appellant’s influence and she did so in the hope that the sexual part of the relationship “might not continue”. Although the judge recorded the appellant’s case that the complainant made the videos voluntarily, he concluded that they would not advance the defendant’s case and that they could not be used on the issue of credibility. His conclusion, of course, assumed that the complainant’s evidence about the nature of the adult relationship was true, and failed to recognise that the videos and photographs might serve to demonstrate that it was not. 22. In fairness to him we should note that the judge was troubled about the possible proliferation of collateral issues. First, it was common ground between the complainant and the appellant that they had used drugs together. The Crown would have wanted consideration to be given whether the complainant’s apparent cheerfulness might have resulted from drug taking. In the event the drug issue was explained at the trial by both the complainant and the appellant. We simply do not know what conclusion might have been drawn about the drug taking, but the complainant did not suggest that she may have derived sexual pleasure from the relationship after drugs. Second, from early 1998, following the breakdown of a different, later sexual relationship, the complainant was treated on a number of occasions for a variety of problems with her mental health. There was evidence that she had repeatedly overdosed. There was no expert evidence about any possible impact between the complainant’s damaged health and any childhood abuse. The Crown suggested that it would have had to consider whether to call such evidence. The defence pointed out that there was no evidence of damage to the complainant’s mental health either during the period of childhood abuse, or during the adult relationship. In any event, however, it is critical to notice that the complainant was not admitting that she was happy with the sexual element of the adult relationship, as a consequence of the way in which she had been corrupted by the appellant when she was a child, but that she was simply submissive to the appellant after years of childhood abuse. Finally, the judge was deeply concerned about the potential humiliation of the complainant if she was cross-examined about the activities shown on the videos. As we have already indicated, in the result, he excluded the videos and, save where she was fully-clothed, the photographs. 23. After his ruling prohibited the use of the video, the complainant was informed of the judge’s decision. Although she knew that she would have to give evidence about the fact of the adult relationship, and could explain, and therefore would be subjected to cross-examination about her attitude to it, she was also able to assume that she would not be cross-examined on the basis that the videos, and the remaining holiday photographs, showed that she was an enthusiastic participant. 24. In summary, the judge’s ruling proceeded on the basis that the fact of the adult relationship should properly be disclosed to the jury, and that its admission did not contravene s 41 of the 1999 Act . However his ruling in relation to the videos and photographs produced a disturbing and artificial result. The question is whether s 41 compelled it. In our judgment it did not. 25. S 41 of the 1999 Act is concerned to provide protection for complainants in sexual cases by restricting evidence or questions relating to his, or her, sexual behaviour or history. Unless it falls within the permitted statutory criteria, the deployment of such evidence (which for the purposes of this judgment hereafter includes questions in cross-examination) is prohibited. 26. In relation to childhood abuse, the issue of consent could not and did not arise. The appellant adamantly denied any sexual impropriety. Therefore, provided the evidence related to a “relevant” issue in the case, s 41(3) (a) applied. In our judgment the adult relationship was relevant, not only as the judge expressly found, to the appellant’s contention that the complaint of childhood abuse was motivated by a desire for revenge, but also to the jury’s consideration of the even more critical question, whether the appellant had abused the complainant when she was a child. In short the adult relationship was relevant to both issues rather than the one expressly identified by the judge when making his ruling. 27. S 41(4) provides that the evidence shall not be regarded as “relating to a relevant issue” if its purpose, or the main purpose, is to impugn the credibility of the complainant. In one sense, of course, any evidence which directly challenges the evidence of a complainant, or seeks to demonstrate a malicious motive, involves an attack on her credibility. However merely because cross-examination of the complainant may impugn her credibility, in the context of the issues which we have just described, it does not necessarily follow that the purpose, or the main purpose for deploying it is to do so. (See R v Martin [2004] EWCA Crim 916 .) 28. Another feature of this appeal is that in consequence of the admission of the fact of the adult relationship evidence was given by the complainant at trial which fell within s 41(5) . Rightly in this case, having regard to the judge’s pre-trial ruling that the adult relationship was relevant, the Crown solicited the complainant’s account of it. The appellant was then entitled to rebut that account, and he did so, but without being able to call evidence to support his case that the complainant was not submitting but fully participating. In passing we note that s 41(4) only applies for the purposes of s 41(3) : it does not apply for the purposes of s 41(5) . 29. It is sometimes loosely suggested that the operation of s 41 involves the exercise of judicial discretion. In reality, the trial judge is making a judgment whether to admit, or refuse to admit evidence which is relevant, or asserted by the defence to be relevant. If the evidence is not relevant, on elementary principles, it is not admissible. If it is relevant, then subject to s 41(4) and assuming that the criteria for admitting the evidence are established, in our judgment the court lacks any discretion to refuse to admit it, or to limit relevant evidence which is properly admissible. In short, once the criteria for admissibility are established, all the evidence relevant to the issues may be adduced. As part of his control over the case, the judge is required to ensure that a complainant is not unnecessarily humiliated or cross-examined with inappropriate aggression, or treated otherwise than with proper courtesy. All that is elementary, but his obligation to see that the complainant’s interests are protected throughout the trial process does not permit him, by way of a general discretion, to prevent the proper deployment of evidence which falls within the ambit permitted by the statue merely because, as here, it comes in a stark, uncompromising form. 30. With these principles in mind, we return to examine the judge’s ruling about the videos and photographs. The dispute about the nature of the adult relationship – submission, or happy participation – was vital to the jury’s decision whether there had indeed been an earlier abusive relationship. Both protagonists gave conflicting accounts to the jury about the start of the relationship, and when it was adult, its nature. We shall not repeat our summary of the evidence. In the result, the jury had the fact of the adult relationship admitted before them, together with contradictory evidence about the way it started, and a critical dispute about its nature, relevant to the question whether the childhood abuse happened at all, as well as a possible motivation for revenge. Yet evidence of potential value to the resolution of the dispute was not before the jury which considered part of the evidence relating to the adult relationship, but not all, and certainly not all the evidence favourable to the appellant. 31. The judge permitted the evidence of the adult relationship to be given so as to enable an issue critical to the defence to be adduced. Having permitted this evidence to be given, he concluded that he should impose significant limits to the examination of the case on a factual basis which (a) was in issue between the complainant and the appellant and (b) which, at least arguably, would have been falsified by the very evidence which he excluded. Without the video and photographic evidence the jury may well have concluded that the relationship was indeed one in which the complainant simply submitted to the appellant. If so the jury might reasonably have concluded (a) that the relationship did indeed represent the logical conclusion of childhood abuse and (b) that the motive for the false complaint attributed to her by the appellant was itself false. If the sexual intercourse resulting from submission to him had produced specimen counts of rape, the evidence which apparently showed her enthusiastic participation would have been admissible to deal with the specific charge. However as submission, not rape, was alleged, her evidence of submission was shielded from proper cross-examination when, from the appellant’s point of view, it required to be and on one view could be directly rebutted by objective evidence. Therefore his account was deprived of worthwhile support which her demeanour in the videos and the photographs may well have provided. In effect the judge’s ruling, while intending to permit a proper examination of the complainant’s alleged motivation for a false complaint was limited in such a way that the nature of the adult relationship could not be fully examined. In our judgment there is a very real possibility that the conclusion of the jury on two critical issues we have identified was indeed rendered unsafe. If it was unsafe on either issue, in the particular circumstances of this case, it is impossible to conclude that the verdicts themselves were safe. 32. Accordingly these convictions were quashed. We concluded that a new trial should be ordered. We shall give directions after hearing counsel. 33. As stated above, we acknowledge that the trial judge had to ensure that the complainant was neither humiliated nor gratuitously harassed. However in our view that consequence would not necessarily have followed the admission of the evidence from the videos and photographs. Thus, for example, while it would have been inappropriate for the complainant to answer questions while a video was being shown to the jury of her masturbating, we do not see why the videos, or the relevant parts could simply have been shown to the jury in the absence of the complainant, to enable them to make up their own minds about such insights as they could derive from this material about the true nature of the adult relationship, and whether she was indeed submitting, or happily enthusiastic.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/493/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/493

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[2006] EWCA Crim 605

EWCA_Crim_605

2006-03-17

supreme_court

Case No: 200203846D5 ; 200206091D5 Neutral Citation Number: [2006] EWCA Crim 605 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT SOUTHWARK His Honour Judge Elwen T19971490 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 17 th March 2006 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE TUGENDHAT and SIR DOUGLAS BROWN - - - - - - - - - - - - - - - - - - - - - R. - v - LOUIS GLATT - - - - - -

Case No: 200203846D5 ; 200206091D5 Neutral Citation Number: [2006] EWCA Crim 605 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT SOUTHWARK His Honour Judge Elwen T19971490 Royal Courts of Justice Strand, London, WC2A 2LL Date: Friday, 17 th March 2006 Before : THE RIGHT HONOURABLE LORD JUSTICE HOOPER THE HONOURABLE MR JUSTICE TUGENDHAT and SIR DOUGLAS BROWN - - - - - - - - - - - - - - - - - - - - - R. - v - LOUIS GLATT - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal WordWave Limited 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Tim Owen QC and Mr Ivan Krolick (instructed by Byrne & Partners) for the Appellant, Glatt Oliver Sells QC, Andrew Mitchell QC and Martin Evans for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Tugendhat : 1. This is another case which concerns Part VI of the Criminal Justice Act 1988 which is headed “Confiscation of the Proceeds of an Offence”. Part VI was amended more than once, and has subsequently been replaced by the Proceeds of Crime Act 2002 . The instant case is concerned with Part VI as originally enacted. 2. Louis Glatt was convicted by a jury of a conspiracy to contravene the provisions of Section 93A of the Criminal Justice Act 1988 , contrary to Section 1(1) of the Criminal Law Act 1977 . His unsuccessful defence at the trial was that he thought that he was acting on behalf of the mother of Ellis Anthony Martin (“Martin”) and not on behalf of Martin. Martin’s fraudulent activities (described below) were not challenged. 3. Glatt was sentenced to seven years’ imprisonment. He now appeals against a confiscation order in the sum of £3,676,508.50 made on the 29 th May 2002. He was ordered to pay the sum within two years and ordered to serve three years’ imprisonment in default of payment. In a passage in a ruling given by the judge he said: “It was accepted by the prosecution, both at the trial and the retrial that Mr Glatt had not benefited personally in the sense of having made any money from his participation in the conspiracy, apart from the receipt from an old Rover car and agreement for the payment of his fees. In both trials the case was summed up to the jury on that basis.” 4. It is submitted, on the appellant’s behalf, that the trial judge, HHJ Elwen, ought to have found that the benefit obtained by Mr Glatt had no value. In the alternative it is submitted that the judge erred in his approach to the discretionary power vested in the judge to make no order or to reduce the amount ordered. Mr Krolick argues the first point on behalf of the appellant and Mr T Owen QC argues the second point. As part of the first submission, Mr Krolick raises a novel point of law on the interpretation of Part VI. 5. Between October 1994 and January 1997, Ellis Anthony Martin (“Martin”) was responsible for cheating the Revenue of a sum not less than £18 million by smuggling or diverting beers, spirits and cigarettes. The investigation into this fraud was given the name Operation Methuselah. Martin and a number of other defendants pleaded guilty to involvement. Four others were convicted at trial. Glatt’s trial took place later. This court dismissed Martin’s appeal and that of his co-defendants on 23 November 2005. The appellant, Glatt, who was tried separately, then abandoned his only remaining ground of appeal against conviction. 6. In March 1996 Martin was convicted of an earlier similar fraud which spanned the period November 1993 to July 1994. The investigation into that fraud was called Operation Jeroboam. He was subsequently sentenced to a substantial term of imprisonment. Whilst on bail awaiting sentence and in prison following sentence, Martin ran the Methuselah fraud. 7. Martin was able to carry out the Methuselah fraud because of the appellant Glatt, who was a solicitor at the time. Glatt pretended that various members of Martin’s team were legal representatives, thus enabling Martin to give the instructions to them to carry out the fraud. Martin also needed help in laundering the proceeds. Glatt gave considerable assistance in that regard. It was Glatt’s task on the instructions of Martin to acquire property by way of investment for Martin. 8. It was admitted at the trial that after his arrest in June 1994, Martin was made the subject of a restraint order by the High Court which required him to preserve his assets. The order was made on 22 July 1994. It restrained Martin from in any way dealing with any money goods, property or other assets whatever within or without the jurisdiction. In Operation Jeroboam the judge made a compensation order of some £3.3 million. Glatt was aware of both the restraint order and of the Jeroboam confiscation order. The following admission was made at the appellant’s trial: “Martin was laundering the proceeds of the fraud by removing the profits from the jurisdiction. He was also investing the proceeds in real property. Residential and commercial properties were purchased in London and the Home Counties, and also in France. The properties in London were managed by Gardner [one of Martin’s co-defendants] who had a management company called JPG Property; the French properties were located by Hutchinson [also a co-defendant] and were purchased in the name of Josephine Cruickshank, Martin’s mother, with the exception of a brandy distillery called Cognac Chollat which was purchased in the name of New England Trading Corporation. Glatt or French lawyers instructed by Glatt provided the legal services on the acquisition of these properties.” 9. It was further admitted that the properties purchased were held by a series of off-shore holding companies and that Glatt provided legal services in respect of each of the companies. The off-shore companies were themselves managed by an Isle of Man company and by a Guernsey company. Martin’s mother was shown as the owner of the company assets. Glatt had a power of attorney from her so that he could sign documents in her absence. Glatt was in regular contact with the two management companies and produced draft minutes of meetings. 10. For the purposes of the confiscation hearing the officer in the case, Mr Ford, prepared a statement. There was no challenge to paragraph 8.1 and 8.2 which read: “There can be no doubt that Louis Glatt has received very significant sums emanating from Martin’s criminal enterprises and has been directly instrumental in the conversion of such monies into the acquisition of various properties and other assets purchased in the names of off-shore companies for the ultimate benefit of Martin. Glatt was an expert in the field of off-shore companies and was responsible for the acquisition of those companies used for Martin’s benefit. At all material times he was the sole liaison with the relevant management companies who acted on his instructions alone.” 11. As this brief outline of the facts shows, this was as bad a case of money laundering as one could expect to see. As a solicitor, Glatt abused his professional position in order to assist Martin, whilst in prison, to launder the proceeds of a very large fraud. 12. Martin was made the subject of confiscation order in the sum of £10,000,342. The judge did not accept Martin’s denial about the extent of his assets. That order was quashed on appeal because of a failure on the part of the prosecution to serve the proper notice. Hutchinson was ordered to pay £1000 and Gardner was ordered to pay £28,502.18. Both were co-defendants in Martin’s proceedings. Gardner’s confiscation order was reduced on appeal to about £19,000 and Hutchinson’s order was quashed on appeal. See R v Brown [2001] EWCA Crim 2761 . 13. The sum of £3,676,508.50 which Glatt was ordered to pay reflected the amount of money which had either directly or indirectly passed through Glatt’s hands being the proceeds of Martin’s fraud. There were five discrete categories referred to by Mr Ford. 1) The total sum of £419,500 was paid primarily in cash into his client account by Glatt or his secretary. 2) Additional sums were paid or transferred into the client account of Louis Glatt & Co by Martin’s associates. This category amounts to about £1.9million. 3) £759,055 was paid by Martin’s associates directly to the bank accounts of the “Glatt created” off-shore companies. 4) A variety of properties were purchased by Martin or his companies using Glatt’s services. A receiver was appointed in connection with the proceedings against Martin, and the receiver sold the properties. The price received by the receiver exceeded the price paid for the properties by £728,750. The confiscation order included this sum in the total amount of the confiscation order. 5) Martin bought a second-hand Rover motor car for £7,200, which became registered in Glatt’s name. 14. There is no issue about the inclusion of the sum in the fifth category. However, if the only sum payable is £7,200, no confiscation order could be made. This is because no order could be made if the value of the benefit was less than £10,000. 15. Unlike most defendants, the appellant Glatt has considerable assets. Glatt largely failed to co-operate with the investigation into his financial affairs but the judge was satisfied that he had realisable assets of the amount (at least) of the confiscation order. To meet the confiscation order it might be thought that the appellant could have used the properties which Glatt bought on behalf of Martin, using the money in categories 1, 2 and 3. If Glatt had been able to use that property then it seems likely that there would have been no dispute about this confiscation order. However the properties which were acquired for Martin by Glatt in Operation Methusalah were not available having been used to meet the compensation order against Martin in Operation Jeroboam. Thus the prosecution sought (and obtained) an equivalent sum out of the non-criminal assets of Mr Glatt. The appellant had hoped to advance an argument based on “apportionment” but a recent decision of the Court of Appeal, to which we turn later, made that argument unsustainable. 16. Thus it can be seen that this case has two particular features. Glatt had no personal benefit out of the fraud (other than the Rover) and, if this order is upheld, HM Customs and Excise (“HMC&E”) will, in one sense, so it is submitted, recoup twice, once from Martin and once from Glatt. On the other hand, as Mr Evans points out, Martin’s total fraud cost the Revenue well in excess of the £3.6 million which Glatt has been ordered to pay. The argument on this appeal was heard on 24 th and 25 th November. At that time the Court was given to understand that all the property (other than the car) which Glatt obtained as a benefit had in fact been sold for the benefit of the Crown, to whom the proceeds had been paid by the Receiver. This was pursuant to the confiscation order made against Martin in the earlier proceedings, and not under an order made in these proceedings (that having been set aside in Brown ). So at that stage it appeared that all the property obtained by Glatt had been realised in the course of proceedings resulting from a confiscation order. As to a small proportion of it, it has also been the subject of the confiscation orders of £28,052.18 and £1000 made against Gardner and Hutchinson. But this information needed to be checked and it was left on the footing that the parties would inform the Court in writing of the position. On 1 st December 2005 Mr Sells QC and Mr Evans for the Crown prepared a Note for the Court stating that, to that date, the value of the property recovered in respect of the offence for which Glatt was convicted amounts to £2,423,157, leaving a shortfall well in excess of £1m. Thus, in so far as it is submitted for Glatt that there is double recovery in this case, the evidence is that it is limited to that amount of about £2.4m. Mr Owen QC, counsel for, Glatt does not agree this figure, but neither is he able to dispute it. The Note dated 1 st December 2005 was intended to reach this Court but unfortunately it did not do so. The fact that it had not reached this Court came to light when the draft of this judgment was circulated in the usual way with an invitation to counsel to submit a list of typing corrections and other obvious errors. For this reason, and for two other other reasons which will be referred to below, the Court reconvened at the request of the Crown to hear further argument on 6 th March 2006. THE STATUTORY PROVISIONS 17. It is helpful to start with the interpretation section. By virtue of s.102(1), “interest” in relation to property, includes “right.” The word “property”: “includes money and all other property, real or personal, heritable or moveable, including things in action and other intangible or incorporeal property.” By virtue of s.74(2), the expression “value of property” is to be construed in accordance with the provisions of section 74(4)–(6). Mr Krolick particularly relies on this. Lastly s.74(7) provides that: “Property is held by any person if he holds any interest in it.” 18. S.71(1) of the 1988 Act provides that courts shall have power to make an order under this section requiring the offender to pay such sum as the court thinks fit. S.71(2) provides that the Crown Court may make an order if certain requirements are satisfied. None of these requirements is relevant to the issues in this case. 19. S.71(4) , one of the key provisions in this case, provides: “For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained.” 20. There is no dispute in this case that in so far as category 1 and 2 are concerned, the appellant obtained the property as a result of or in connection with Martin’s fraud. In so far as category 3 is concerned, it is submitted that he did not obtain the property because it was paid directly to the bank accounts of the offshore companies, albeit they were set up by Glatt. 21. The appellant’s principal argument is that the property which he obtained had no value for the appellant because he had no beneficial interest in the money received in categories 1, 2 and 3. If this is right then it would also be wrong to include category 4 in the confiscation order, relating as it does to the increase in the value of the properties purchased. 22. S.72 (3) provides: “When considering whether to make a confiscation order the court may take into account any information that has been placed before it showing that a victim of an offence to which the proceedings relate has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with the offence.” We note in passing that a provision with a similar effect to this is still to be found in the 2002 Act s6(6). 23. There is no dispute that s.74(1), (2) and (3) assists the court in (and only in) determining the amount that might be realised at the time a confiscation order is made (the defendant’s “realisable assets”). 24. S.74(4), another key provision in this case, provides: “Subject to the following provisions of this section, for the purposes of this Part of this Act the value of property (other than cash) in relation to any person holding the property [A] – (a) where any other person [B] holds an interest in the property, is – (i) the market value of the first-mentioned person’s [A’s] beneficial interest in the property, less (ii) the amount required to discharge any encumbrance (other than a charging order) on that interest; and (b) in any other case, is its market value.” 25. The argument for the appellant is that s.74(4) applies to the determination of value for the purposes of section s.71(4), as well as to the process of determining the amount that might be realised at the time a confiscation order is made. Mr Krolick points to the opening words of the subsection and in particular the words “for the purposes of this Part of this Act” as well as to the definition of “value of property” in s.102(2). 26. Mr Evans, on behalf of the respondent, submits that section s.74(4) is concerned only with the determination of realisable assets. He further submits that, if he is wrong about that, then Martin did not, for the purposes of the section, hold any interest in the property. 27. It is important to note that s.74(4) only applies to the valuation of property in relation to a person “holding” the property. Mr Krolick submits that at the time he obtained the property for the purposes of s.71(4) the appellant was holding the property and therefore the subsection bites. 28. S.74(5) and (6) are not easy to understand. S.74(5) provides: “References in this Part of this Act to the value at any time (referred to in subsection (6) below as ‘the material time’) of any property obtained by a person as a result of or in connection with the commission of an offence are references to- (a) the value of the property to him when he obtained it adjusted to take account of subsequent changes in the value of money, or (b) where subsection (6) below applies, the value there mentioned, which ever is the greater.” 29. S.74(6) provides: “If at the material time he holds – (a) the property which he obtained (not being cash); or (b) property which, in whole or in part, directly or indirectly represents in his hands the property which he obtained, the value referred to in subsection (5)(b) above is the value to him at the material time of the property mentioned in paragraph (a) above or as the case may be, of the property mentioned in paragraph (b) above, so far as it so represents the property which he obtained, but disregarding any charging order.” 30. It is accepted that these two subsections apply when making the s.71(4) calculation of value. (We can ignore charging orders which are orders made on realisable property to secure payment to the Crown, see s.78). 31. An example illustrates these subsections at work. A thief T steals a ring. The court must determine T’s benefit under section 71(4) . His benefit is the value of the ring. In determining the value of the ring to T at the time he stole it, s.74(5)(a) requires the court to determine the value of the ring “to him” when he obtained it and then adjust that figure “to take account of subsequent changes in the value of money”, i.e. inflation. It has been authoritatively decided in a case to which we turn later that the value to T is not the amount of money which he could obtain (or did obtain) on the sale of the stolen ring, but the economic value to the loser ( Ascroft [2003] EWCA Crim 2365 ). Mr Krolick submits that this case is wrong. 32. Let us assume, however, that this case is right and that the value of the ring to T as adjusted is £3000. That will be the benefit unless the application of s.74(6)(a) or (b) achieves a higher figure, in which case the higher figure will be the benefit. S.74(6)(a) applies if T still holds the ring at the time of the confiscation order. If we assume that the ring is worth to T more than £3000, say £3200, the benefit (i.e. the value of the property obtained at the time of the theft) would then be £3200. 33. If T has disposed of the ring (obtaining some property in exchange) before the confiscation order is made, s.74(6)(b) comes into play. Let us assume that he disposed of it for £500 and with the £500 bought a second ring. If the value to T of that second ring is at the time of the confiscation order more than £3000, say £3500, then the benefit (i.e. the value of the property obtained at the time of the theft) will be £3500. If he has spent the £500 on living expenses, then s.746(b) has no application and the benefit would be, on our example, £3000 (the adjusted value of the ring). 34. If s.74(4) comes into play in determining “benefit” under section 71(4) , as Mr Krolick submits, then it would have the following effect on the ring example. The benefit, being the value of the ring at the time it was stolen, would be the market value of the ring (by virtue of s.74(4)(b)) unless the application of s.74(5) and (6) would achieve a higher value. That would be consistent with the authority to which we have referred and Mr Evans would have no objection, in practice, to that method of determining the benefit. 35. The dispute between the parties concerns s.74(4)(a) and its application to s.71(4). Returning to the ring example, the owner of the ring at the time of the theft (obviously) holds an interest in the ring even without the definition of “interest” as including “right” (s.102(1)). Mr Krolick submits that the court must determine the market value of T’s “beneficial interest in the” ring at that time because T was then holding the property. At that time it had no market value for T, so he submits, in a case where (as here, so he submits) there is an owner who is able and willing to make a claim to the ring, which is enforceable in law. He accepts that the court would then have to go on to consider s.74(5) and (6). He submits that s.74(5)(a) does not alter the position. The value to T when he obtained the ring was nil. The words “to him” achieve the same result as the expression “beneficial interest in the property” in s.74(4)(a)(i), so he submits. S.74(6)(a) does not assist if he is still holding the ring. 36. If, however, on disposal of the ring T received money or, for example, another ring, s.74(6)(b) comes into play. What is the value to T of the proceeds of the sale of the stolen ring? Mr Krolick accepts that the value to T is the amount of money he received, or the ring which he received, at the value current at the time of the confiscation order. Thus, he submits, the thief is only liable to account for the proceeds of his crime, in accordance, so he says, with the original aims of the legislation. If, on the other hand, he has thrown the stolen ring away, no confiscation order can be made and the proper order would be a compensation order under what is now s.130 of the Powers of Criminal Courts (Sentencing) Act 2000 . While Mr Krolick did not address the facts on a different assumption, we understand that he would submit that in a case where there is no person claiming an interest in the ring (or its proceeds), or if there is someone making such a claim, but the claim is not good, or legally enforceable, then the value of the ring to T will not be nil. In that case it will be a figure which is equivalent to its market value, subject to any uplift under section 74(5)-(6). 37. We now turn to the facts of this case and carry out the same exercise as we have done with the thief and the ring. What was the value of the property the appellant obtained? We start with s.74(4). Mr Evans submits (as we have noted) that this subsection is irrelevant, being concerned only with realisable assets. If Mr Krolick is right and the subsection does apply when determining the value under s.71(4), Mr Krolick submits that the value of the property (cash etc) obtained was nil, because, given that it was Martin’s money, the appellant had no beneficial interest in it (or his interest had no market value). Although Mr Krolick relied on the fact that the appellant was a solicitor and on the rules about client accounts, it seems to us that Mr Evans was right to say that the appellant could claim no special advantages as a solicitor. He should be treated as any launderer would be treated. Mr Krolick submitted that treating him in this way did not alter his argument that the appellant had no beneficial interest. What matters, in his submission, is that Martin was the beneficial owner and was in a position to make what Mr Krolick submitted was a legally enforceable claim to the money. To make such a claim all that Martin had to plead was the receipt by Glatt of the money (and not the illegal transactions out of which that arose) and so his claim would succeed on the basis of the law as stated in Tinsley v. Milligan [1994] 1 AC 340 . 38. S.74(5) and (6) do not alter the position, so Mr Krolick submits. The value to T of the property was nil (the words “to him” achieving the same result as the expression “beneficial interest in the property” in s.74(4)(a)(i)). So, in order to succeed on this point, Mr Krolick has to succeed at two stages. First he must be right that s.74(4) applies in the manner he contends for. If it does, then he must be right in his submission that Martin’s claim against Glatt for the money is a legally enforceable claim, which has the effect that the value of Glatt’s interest in the money is nil (on the facts of this case, Martin’s claim against Glatt is good or bad in its totality). 39. Mr Evans submits that, if s.74(4) is applicable to the s.71(4) calculation, Martin did not, within the meaning of s.74(4)(a) hold an interest in the property. Mr Evans submits that to the extent to which civil law cases (such as Tinsley v. Milligan [1994] 1 AC 340 ) might suggest the contrary, they should be ignored. In any event Mr Evans submits that the words “value to him” do not equate with “market value of the … beneficial interest” and he relies on authority to support his contention that “value to him” does not have the meaning for which Mr Krolick contends. The value to the appellant of Martin’s property at the time he obtained it was, so Mr Evans submits, its face value, ignoring any interest that Martin might have. Mr Evans also points to the practical consequences if Mr Krolick is right. Take this example. Examination of the accounts of a defendant convicted of conspiracy to defraud show that £1 million has passed through his account during the period of the conspiracy, for which no legitimate explanation is available. If Mr Evans is right, the prosecution will expect to have no difficulty making the judge sure that the defendant has benefited from the fraud by obtaining this £1 million and that the value of the benefit includes this £1 million. If Mr Krolick is right and if the defendant, who we shall call D1, says that he was holding the £1 million for D2, the prosecution would have to make the judge sure that the defendant was not telling the truth. If the judge was not sure, then the £1 million would not be included in the value of the benefit. D1 would have had the benefit but the benefit would have no value to him. His beneficial interest in the money would have no market value and the value of the property to him for the purposes of ss.74(5) and (6) would also be nil. The example becomes more bizarre if D2 denies that he had anything to do with the £1million or says that it was D1’s and not his and the judge cannot be sure that D2 is lying. Mr Krolick metaphorically shrugged his shoulders when an example like this was put to him. 40. Before resolving these competing arguments, we consider the policy behind Part VI of the 1988 Act , the provisions of which are often described as draconian. There is guidance on this in the cases. But first it is helpful to return to the example given above, and set out other examples of situations in which the Act has been, or may be, considered. 41. There is nothing exceptional about the fact that this case involves more than one person who might have rights to the money, and that their roles in the criminal conduct are different. It is clear that the effect of the legislation may be that the Crown receives payment from different individuals in respect of the same property. The effect may also be that each individual who is the subject of an order may lose more than the profit that he has made by his criminal conduct, and, in effect, pay twice over. The involvement of individuals can arise in a series or chain (where the proceeds of crime are passed from hand to hand) or in parallel (where individuals are jointly involved in the criminal acts). 42. Consider first the liability of individuals involved in series or chain. The thief T steals a ring with a market value of £3000. He sells it to a handler H1 for £1000. H1 sells it to another handler H2 for £1500. It is found by police in H2’s possession. All three are convicted. The fate of the ring itself may depend upon whether the true owner claims it or not: if she does, it will be restored to her by a restitution order, or she may claim for compensation in civil proceedings. If there is no traceable owner, or no claimant comes forward for some other reason, there will be no order for restitution or compensation. 43. In this example, on the Crown’s case, a confiscation order may be made against T for £3000. This is the benefit to him. As explained in Ascroft [2003] [EWCA] Crim 2365 at para 60, in cases where the goods acquired are not themselves illegal (as drugs are) the value to the defendant is what it would have cost him to obtain legitimately the goods that he had in fact obtained dishonestly. On Mr Krolick’s analysis, then as to £1000 it is his profit from the crime (that being what he sold it for), but as to the balance it is not profit but something else, which can only be a penalty. A second confiscation order for £3000 may be made against H1. In his case, this is the benefit to him, but it is not all profit from the crime. As to the £1000 he paid to T, it is his working capital invested in the criminal business. As to the balance of £2000, it either is profit (on the Crown’s case) or, on Mr Krolick’s includes £500 profit (being the difference between what he paid to T and received from H2), and as to the remaining £1500 it is a penalty. A third confiscation order for £3000 may be made against H2. In H2’s case, no more than £1500 can be profit, and his profit may be less (on Mr Krolick’s case) if he would have been unable to sell it for its market value of £3000. In addition (since a confiscation order is an order to pay money (s.71(1), and is not a proprietary remedy), there is the possibility that he may be deprived of the ring itself, whether by restitution to the owner or forfeiture. 44. Where individuals are involved in parallel, they may have similar roles or different roles. For example, a person may be party to a joint enterprise to commit burglary, or he may become involved only as a minder. 45. Suppose that in the example given in para 42 above, the ring is delivered by H2 to a minder M, and is found in his possession. On the Crown’s case, a fourth confiscation order in the sum of £3000 can be made against M, in addition to the orders made against T, H1 and H2. 46. In addition, at each stage (theft, handling and minding) there may be more than one individual jointly engaged. Subject to any question of apportionment, confiscation orders in the same amount may be made against each of those individuals. 47. On the Crown’s case there is thus no limit in principle to the total value of all confiscation orders that may be made against individuals involved in the theft and handling of a single ring. In R v May [2005] EWCA Crim 97 counsel accepted that there was this potential for multiple recovery in relation to chain cases (para 36), and the court held (at para 41) that it existed where defendants were jointly involved. 48. Similar questions arise in civil proceedings instituted for delivery up or damages, in a case of wrongful interference with goods, or, in other cases of fraud, for restitution, whether at common law or in equity. Where there has been a large robbery or fraud, there are examples of litigation in which fifty or more defendants have been joined to claims for delivery up, damages and restitution. See the Brinks Ltd v Abu-Saleh litigation reported at various stages, under this and other names, for example [1995] 1 WLR 1487 , and the Grupo Torres litigation, also reported at various stages (for example [1996] 1 Lloyd’s Rep 7). However, in civil cases there is a limit in principle to the total value of all orders that may be made in the victim’s favour. The limit is the value of the property stolen or dishonestly obtained. That value is either its value at the time the true owner was deprived of it, or if it has increased in value, then the higher figure. 49. There are crimes, such as those of which Martin was convicted, where the victim is not the owner of property, and the benefit obtained is the result of evading liability to pay taxes or excise duties. In these cases, there may also be civil proceedings of the kind contemplated in s.72(3) (see R v Edwards [2004] EWCA Crim 2923 ; [2004] All ER (D) 459 at para 71 below). A person convicted of smuggling or tax evasion remains liable for the duty or taxes evaded. In the case of drug trafficking, there was separate legislation which was in force at the time the offences which we are concerned with were committed, namely The Drug Trafficking Offences Act 1986 . In the case of drugs and other property which it is illegal for anyone to possess, there will be no civil proceedings by anyone claiming to be entitled to the property. So the need for forfeiture and confiscation orders is particularly acute in the case of crimes involving the possession of valuable illegal property. Correspondingly, the Drug Trafficking Offences Act 1986 s.1(5) (which requires the court to take account of the confiscation order it makes before imposing a fine or making other orders, such as a forfeiture order) does not refer to a compensation order. THE LEGISLATIVE POLICY 50. There are a number of statements as to the legislative policy. 51. In Welch v UK (1995) 20 EHRR 247 Welch was convicted of drugs offences and sentenced, on appeal, to 20 years imprisonment and a confiscation order of £7000 was made under the 1986 Act . He had been arrested in November 1986, the operative provisions of the 1986 Act came into force on 12 January 1987, and he had been sentenced in August 1988. The object of the proceedings before the European Court of Human Rights (“the Strasbourg court”) was to obtain a decision as to whether the facts disclosed a breach of Art 7 of the Convention (prohibition on retrospective penal provisions). The Strasbourg Court concluded (para 35) that, taking into account the combination of punitive elements it found to be present (set out at para 33), the order did amount to a penalty and there had been a breach of Art 7. One of these elements cited was the discretion of the trial judge, under s.4 of the 1986 Act , in determining the amount of the confiscation order. The 1986 Act s.4 contains provisions which correspond to the 1988 Act ss.71(6)(b), 72(4), and 73(6), which provide that the amount of a confiscation order is not to exceed the amount that might be realised. 52. The definition of benefit under the 1986 Act is different from that under the 1988 Act (set out at para 19 above). It reads as follows: 1(3) For the purposes of this Act, a person who has at any time (whether before or after the commencement of this section) received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking. 53. This difference in wording (“received any payment or other reward”, rather than “obtains property”) is not material to the general legislative policy. But it is material to other matters, as noted below. 54. The submissions of the UK Government, represented by Mr Moses QC (as he then was) are set out at para 24: 24. The Government contended that the true purpose of the order was twofold: firstly, to deprive a person of the profits which he had received from drug trafficking and secondly, to remove the value of the proceeds from possible future use in the drugs trade. It thus did not seek to impose a penalty or punishment for a criminal offence but was essentially a confiscatory and preventive measure. This could be seen from the order in the recent case, which had been made for the purpose of depriving the defendant of illegal gains. Had no order been made, the money would have remained within the system for use in further drug-dealing enterprises… 55. The Strasbourg Court quoted from Hansard (para 11) where the Secretary of State is recorded as saying: "By attacking the profits made from drug trafficking, we intend to make it much less attractive to enter the trade. We intend to help guard against the possibility that the profits from one trafficking operation will be used to finance others, and, not least, to remove the sense of injury which ordinary people are bound to feel at the idea of traffickers, who may have ruined the lives of children, having the benefit of the profits that they have made from doing so. ... We need the legislation because the forfeiture powers in existing law have proved inadequate. The courts cannot order the forfeiture of the proceeds of an offence once they have been converted into another asset - a house, stocks and shares, or valuables of any sort. The Operation Julie case was the most notorious example of the courts being unable to deprive convicted traffickers, as they wished, of the proceeds of their offences ... the Bill is designed to remedy those defects. It will provide powers for courts to confiscate proceeds even after they have been converted into some other type of asset." (Hansard of 21 January 1986, Cols 242 and 243) 56. In R v Cuthbertson [1981] AC 470 , 482-484, the House of Lords had held that the forfeiture powers given to the court by s.27 of the Misuse of Drugs Act 1971 did not apply to offences of conspiracy. More fundamentally, it was held that the forfeiture power applied only to tangible property (including drugs, apparatus, vehicles and “cash ready to be, or having just been, handed over for them”). It did not apply to intangible property, or to property situate abroad, and it did not authorise the court to follow or trace assets which could have been forfeited (but for the fact that they had been exchanged) into the other assets for which they had been exchanged. The arguments of counsel, set out at [1981] AC 472 , are a reminder that until the Forfeiture Act 1870 a convicted felon did forfeit all his property to the Crown, and this was regarded as a source of revenue for the Crown. Following and tracing are means by which the law enables a victim to recover the proceeds of theft and fraud from the wrongdoer in civil proceedings. The 1986 Act and subsequent legislation adapt these civil law procedures to provide a statutory procedure for the recovery of the proceeds of drug trafficking, theft and fraud in the criminal court. 57. The Strasbourg Court also summarised statements of the law on this and related matters as follows: 13. In determining the amount of the confiscation order the trial judge may take into consideration the degree of culpability of the offender. For example, in R. v. Porter [1990] 12 Cr App Rep (S) 377 the Court of Appeal held that where more than one conspirator was before the court the total proceeds of a drug trafficking conspiracy could be unequally allocated as their respective share of the proceeds if there was evidence that the defendants had played unequal roles and had profited to a different extent. Similarly, in the present case, the trial judge made a much smaller order in respect of the applicant's co-defendant in recognition of his lesser involvement in the offences… 15. Prior to the passing of the 1986 Act , Lord Salmon expressed the view that forfeitures of money had both a punitive and deterrent purpose (House of Lords decision in R. v. Menocal , [1979] 2 WLR 876 ). 16. The domestic courts have commented in various cases on the draconian nature of the confiscation provisions in the 1986 Act and have occasionally referred to the orders, expressly or impliedly, as constituting penalties (R. v. Dickens [1990] 91 Criminal Appeal Reports 164 [at p167: ‘intentionally draconian’]; R. v. Porter [1990] 12 Criminal Appeal Reports 377 [at p379]; In Re Lorenzo Barretto , High Court decision of 30 November 1992 and Court of Appeal decision of 19 October 1993). In the Court of Appeal decision in the last-mentioned case, which concerned the question whether a power to vary confiscation orders introduced by the Criminal Justice (International Co-operation) Act 1990 could be applied retrospectively, the Master of the Rolls (Sir Thomas Bingham) stated as follows (at p. 11): "While it is true that a confiscation order is made before sentence is passed for the substantive offence, and the term of imprisonment in default is passed to procure compliance and not by way of punishment, these are in a broad sense penal provisions, inflicting the vengeance of society on those who have transgressed in this field." 17. However, the domestic courts have also referred to the confiscation provisions as not being punitive but reparative in purpose ( Re T (Restraint Order; Disclosure of Assets ) [1992] 1 Weekly Law Reports 949). 58. In Re T at p 954 Parker J had referred to: “…a very clear Parliamentary intent, first, that a person convicted of a drug trafficking offence, in addition to being punished for that offence, should not be punished for other offences of a like nature, but deprived of the benefits of all his other drug trafficking; secondly, that his property should, for that purpose only, be assumed to constitute such benefits in the absence of proof to the contrary; and, thirdly, and most importantly, that self-incrimination should be no ground for failing to comply with a Crown Court order under section 3”. 59. Tivnan [1999] 1 Cr.App.R.(S.) 92, 96-97 was another case concerned with the Drug Trafficking Offences Act 1986 . Rose LJ said, in a passage approved in Re P [2000] 1 W.L.R 473, at 479 as being applicable to all confiscatory proceedings: “It is intended to strip those who deal in drugs of any possible profit from so doing, by depriving them of their realisable assets, whether or not these are the proceeds of drug trafficking, up to the amount by which they have benefited from drug dealing.” 60. Simon Brown LJ (as he then was), who had cited these words, returned to the point at p481, saying: “…the central policy underlying this legislation - Parliament's desire to strip criminals of their present assets to the extent of their past criminal profits. The Act is designed essentially to impoverish defendants, not to enrich the Crown”. 61. In Phillips v UK (2001) 11 BHRC 280 one question for the consideration of the court was whether Art 6 applied to confiscation proceedings, and the other was whether there had been a violation of the right to peaceful enjoyment of property under Article 1 of Protocol No. 1. At para 28 of the judgment it is recorded that: The Government submitted that the confiscation order should be regarded as a penalty for the drug-trafficking offence for which the applicant had been tried and found guilty; the confiscation proceedings did not amount to his being charged with any additional offence and Article 6 § 2 did not, therefore, apply. 62. The court held that Art 6 § 2 (the presumption of innocence) did not apply at this stage of the proceedings, and the statutory presumptions did not give rise to a violation of the right to a fair trial under Art 6 § 1, although that did apply. 63. The court then considered the complaint of breach of Article 1 of Protocol No. 1, which states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 64. Phillips submitted that the principles raised under the above Article were almost identical to those under Article 6 § 2, and that a fair balance had not been struck between public policy and individual rights. 65. At para 50 the Court held that a confiscation order amounts to an interference with the applicant’s right to peaceful enjoyment of his possessions and that Article 1 of Protocol No. 1 is therefore applicable. The decision of the Court as to violation is set out at paras 51-52 as follows: “51. As previously stated, the confiscation order constituted a “penalty” within the meaning of the Convention. It therefore falls within the scope of the second paragraph of Article 1 of Protocol No. 1, which, inter alia, allows the Contracting States to control the use of property to secure the payment of penalties. However, this provision must be construed in the light of the general principle set out in the first sentence of the first paragraph and there must, therefore, exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, among many examples, Allan Jacobsson v. Sweden (no. 1 ), judgment of 25 October 1989, Series A no. 163, p. 17, § 55). 52. As to the aim pursued by the confiscation order procedure, as the Court observed in Welch …, these powers were conferred on the courts as a weapon in the fight against the scourge of drug trafficking. Thus, the making of a confiscation order operates in the way of a deterrent to those considering engaging in drug trafficking, and also to deprive a person of profits received from drug trafficking and to remove the value of the proceeds from possible future use in the drugs trade”. 66. Shortly afterwards, Lord Steyn set out the legislative purpose of the Act (as amended) in R v Rezvi [2002] Cr App R (S) 70 at para 14: “The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy. The United Kingdom has undertaken, by signing and ratifying treaties agreed under the auspices of the United Nations and the Council of Europe, to take measures necessary to ensure that the profits of those engaged in drug trafficking or other crimes are confiscated: see the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (19 December 1988); Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg, November 8, 1990. These Conventions are in operation and have been ratified by the United Kingdom”. 67. This passage was in the context of demonstrating that the legislation did not violate the European Convention on Human rights in so far as it pursued a legitimate aim. 68. The following propositions appear from the foregoing. A confiscation order: i) is a penalty, and is a measure to which Article 1 of Protocol No. 1 is applicable; ii) is designed to deter those who consider embarking upon criminal conduct; iii) is designed to deprive a person of profits received from criminal conduct and to remove the value of the proceeds received from criminal conduct from possible future use in criminal conduct; iv) is designed essentially to impoverish defendants, not to enrich the Crown ( Re P ). 69. As already noted, (unlike the Drug Trafficking Act 1986) the 1988 Act contemplates (in s.72(3)) cases where there is a victim who may have a civil claim for restitution or damages. In such cases, at least where the victim is not the Crown, it is clear that the 1988 Act and related statutes cannot have a compensatory purpose: an order that money be paid to the Crown would not provide compensation to a victim who was not the Crown. In so far as the criminal courts had powers to order monetary compensation, they were derived from the Powers of Criminal Courts Act 1973 , as amended from time to time (now the Powers of Criminal Courts (Sentencing) Act 2000) . Similarly, there were powers to make restitution orders (now s.148 of the 2000 Act ) by which persons entitled to stolen property might have their stolen property, or goods representing that property, delivered up to them. There were also provisions in s.43 of the Powers of Criminal Courts Act 1973 for the forfeiture or deprivation of property used (or intended for use) in the commission of crimes (now s.143 of the 2000 Act ). By s.72(3) of the 1988 Act , the Court is required to take account of any confiscation order before making a forfeiture order. So the court has to consider a civil claim by a victim before the making of a confiscation order, but (as in the Drug Trafficking Act 1986 s.1(5)) a confiscation order is to be made (if at all) before the court considers a forfeiture or deprivation order. 70. The 1988 Act contemplates that both a compensation and confiscation order may be made against the same person in the same proceedings (s.71(7)), but where the court does that, the compensation takes priority in the event that the defendant’s means are insufficient. 71. The Act does not in terms contemplate that it shall operate as a means of compensating the Crown where the Crown is the victim, for example of evasion of duties and taxes, although a confiscation order may in practice have that effect. Compensating the Crown would only be necessary in cases where the Crown has suffered a loss, but does not have a civil claim against the defendant. Such a purpose will be unnecessary in most cases, since the Crown remains entitled to the duties and taxes evaded, and perhaps to other civil remedies, whether or not the defendant has been convicted. See R v Smith (David) [2001] UKHL 68 ; [2002] 2 Cr App R (S) 37. 72. In R v Edwards [2004] EWCA Crim 2923 ; [2004] All ER (D) 459 the facts were similar to those in Smith . The defendant had attempted to evade duty on importation of cigarettes, but did so by car, and was stopped while still inside the port area. The judgment includes the following at paras 24-25: “24. …On this appeal it was not argued that the provisions of the CJA arguably gave rise to the unlawful confiscation of property and a breach of Protocol 1, Article 1 of the ECHR because they could give rise to double recovery of the duty. In response to enquiry from the court, counsel for the respondent stated that where a confiscation order has been made, based upon a benefit calculated by reference to the unpaid duty, the Customs and Excise authorities do not, as a matter of practice, seek recovery of the unpaid duty by way of civil proceedings. That both civil and criminal remedies are available is not in doubt. Should the Customs and Excise Authorities pursue a civil remedy where a confiscation order had been met, it is clear there would, in effect, be double recovery of the duty. 25. The firm practice of the Customs and Excise Authorities is, in our judgment, well placed”. 73. What is referred to in this passage as double recovery is recovery from the same individual, both in confiscation proceedings, and in civil proceedings to enforce payment of the duty. There is nothing in this passage concerning double recovery in the other sense, namely the possibility of confiscation proceedings against a person who has been convicted, and civil proceedings against another person jointly involved against whom no confiscation order has been made (perhaps because he has not been prosecuted for some reason). 74. By the time Smith and Edwards came to be decided, the general power under s.71(1) of the 1988 had become an exception to the new general rule that the court was under a duty to make a confiscation order. Under s.71(1C) (set out in para 25 of Edwards ), it remained a power where the court was satisfied that a victim of any relevant conduct has instituted, or intends to institute civil proceedings, instead of being a duty, which it has otherwise become. It was to s.71(1C) that the court in Edwards was referring in the stating that the practice of the Customs & Excise Authorities is well placed. After citing that subsection, the court notes that the Authorities had confirmed, in answer to the court’s question, that they did not intend to, and would not, institute any civil proceedings against the appellant in respect of the duty. 75. In the present case, although the point was raised in argument by Hooper LJ, we have not been addressed on whether Glatt could be sued in the civil courts by the Crown for his role in assisting in the disposal of Martin’s money, and no assurance has been given of the kind given to the court in Edwards . If Glatt had been assisting in the disposal of the proceeds of a robbery or fraud, it is plain that the victim could sue him for his role as a dishonest assistant. See Barlow Clowes International Ltd & Anor v Eurotrust International Ltd & Ors (Isle of Man) [2005] UKPC 37 para 28 and the cases referred to in para 48 above. It is for consideration whether or not the Crown would have had any corresponding claim against Glatt for his role in this case. Since Glatt’s role involved the breach of a restraint order, it appears to us to be at least arguable that, subject to proof of damage, the Crown would have had a cause of action against him in conspiracy or negligence. See the cases on civil liability for disobedience to a freezing order, namely Surzur v Koros [1999] 2 Lloyds Rep 611 (as explained in Michaels v Taylor Woodrow [2001] Ch 493 para 40) and Customs & Excise v Barclays Bank Plc [2004] EWCA Civ 1555 ; [2005] 1 WLR 2082 . 76. Mr Evans pointed to the losses suffered by the Crown in the present case. But he did not invite us to find that the 1988 Act has, as one of the legislative purposes, to compensate the Crown for its losses in those cases where there is no civil claim that the Crown can make against the defendant. 77. When the making of a confiscation order under the 1988 Act became a duty, and not just a power, it became in effect a form of mandatory sentence. A confiscation order under the 1988 Act , in the form in which it was enacted and was in force at the time relevant to Glatt, was by contrast a form of discretionary sentence. The possibilities of injustice arising are greater in the case of a mandatory sentence, and in cases concerning the Act as amended the courts have been concerned as to how to avoid such injustice: see for example R v Wilkes [2003] EWCA Crim 848 para 31 (“The provisions are compatible with Convention rights because any serious or real risk of injustice can be avoided either by not making the assumptions [under s.72AA(4)] or by disapplying them”). In practice the cases involving the Crown where the court has no possible discretion may be limited. This remains the case under the 2002 Act s.6(6). Given the very wide scope of civil remedies available, the cases where the Crown will be in a position to institute civil proceedings are likely to be numerous. THE RELEVANCE OF SUBSEQUENT LEGISLATION 78. Mr Krolick invited us to use the subsequent legislation, including the Proceeds of Crime Act 2002 , as an aid to the interpretation of the 1988 Act . He cited R v Montila [2004] 1 WLR 3141 . That case concerned a different provision of the 1988 Act , namely s.93C(2), together with the Drug Trafficking Act 1994 s.49(2) (converting the proceeds of criminal conduct, and of drug trafficking, respectively). At para 41 Lord Hope of Craighead noted the different language used in the corresponding provisions of the 2002 Act , commenting that it would be surprising if the intention of Parliament in 2002 was to reduce the scope of the offences in question. He referred to the international instruments which the three statutory provisions had all been implementing. He had identified them earlier (they are referred to by Lord Steyn in the passage cited in para 66 above). These were followed by EEC Council Directive of 10 June 1991 (91/308/EEC). The Criminal Justice Act 1993 s.93C implemented the Directive. Both the Vienna Convention and the Directive are now implemented by the Proceeds of Crime Act 2002 . 79. The 1988 Act , Part VI, in the form originally enacted antedated these international instruments. We have not been referred to other international instruments preceding the 1988 Act . The reason given in Montila for departing from the general rule, and using a later statute as an aid to the construction of an earlier one, does not therefore apply to the statutory provisions with which this case is concerned. 80. At the hearing on 6 th March 2006 Mr Sells QC and Mr Mitchell QC appeared for the Crown. At this hearing Mr Sells QC submitted that when a court comes to exercise its discretion pursuant to the 1988 Act in its amended form, but it has to do so at a date after the Act was amended to remove the discretion (as the Judge had to here), then the court should take into account the intention of Parliament as expressed in the amending legislation. The 1988 Act was amended by the Proceeds of Crime Act 1995 , and by the time the confiscation order was made in this case in 2002, Parliament had again legislated for a significant diminution of the use of the discretion by the Crown Court, both in the 1995 Act and in the Proceeds of Crime Act 2002 . Mr Sells QC submits that in making the order in 2002 the Judge was entitled (although not bound) to consider that the removal of the discretion in 1995 could properly be taken into account in a case where the order was made seven years later, after the legislative landscape had so radically changed. He submits that this Court, when it comes to consider the ground of appeal relating to the exercise of the discretion by the Judge, should also have regard to the 1995 and 2002 legislation. Mr Sells QC relies on R v Khurshid Ahmed (Court of Appeal 9905818 X4) an unreported decision of this Court made on 8 th February 2000. 81. This submission had not been advanced by Mr Evans, rightly in our view. Khurshid Ahmed was convicted of three offences of conspiracy to defraud committed in periods between January 1995 and November 1997. The fraud was inflating the invoices for goods supplied by Ahmed’s business to a customer. The co-conspirators would sign receipts for the full amount of goods invoiced, although not all the goods were in fact delivered. Ahmed received the full invoice price and split the dishonest gains with the co-conspirators. 82. The Judge approached the case on the footing that all three counts related to offences committed after the coming into force of the 1995 Act , and so that his discretion was limited accordingly. This Court accepted that in relation to Counts 1 and 2 the 1995 Act did not apply, so that he did have the discretion afforded by the unamended 1988 Act (para 23 of the judgment). Counsel for Ahmed then submitted that had the true position been appreciated the Judge would have exercised his discretion to make a confiscation order of less than the full amount of the benefit obtained, because Ahmed had not kept all the benefit, but had passed three quarters of it on to his co-conspirators. This Court rejected that argument on the familiar ground that the fact a defendant passes some of his benefit on to somebody else is neither here nor there (para 25). The Court then added in para 27 an observation that under the unamended Act, the judge would inevitably have borne in mind the fact that, although the amended provisions did not apply at the relevant time, Parliament had thought it necessary to pass an amending Act which made it incumbent, in relation to offences committed after 1 st November 1995, to make confiscation orders of the kind the judge had in fact made in that case. 83. In our judgment the observations in para 27 are obiter, given the conclusion already reached in para 25, and are not authority for the submission advanced in this case by Mr Sells QC. 84. Mr Sells QC also referred us to a decision of this Court handed down after the hearing of this case, that is on 27 th January 2006 in the case of R v Ajay Kumar Sharma [2006] EWCA 16 Crim. In that case the defendant was convicted of an offence of conspiracy to defraud committed in the period October 2000 to May 2002. The judge made a confiscation order under the 1988 Act as amended by the 1995 Act . One of the grounds of appeal was that the judge failed to read down section 71 of the 1988 Act (as amended) as providing the court with a discretion. The argument was based on Articles 8 and Article 1 of Protocol 1 of the European Convention on Human Rights. At para 25 of the judgment the Court observed that it cannot be disproportionate for a defendant to be made accountable for what he has obtained. The amount of the benefit he obtained is not affected by the amount which might also be obtained by others to whom he transfers any part of the benefit. A decision on the construction of the 1988 Act as amended, and the impact of those articles of the ECHR does not assist in the exercise of the undoubted discretion that exists under the 1988 Act in its unamended form. 85. We reject the submission of Mr Sells QC. The 1988 Act , as unamended, is penal, the amending legislation is not retrospective, and cannot be retrospective: see para 51 above. It must be applied in accordance with its terms, and with any interpretation of it, or guidance in respect of it, given by this Court. s.74(4), AGENTS AND MINDERS 86. Glatt’s position is comparable to that of a person who minds drugs or stolen property, or an agent who carries money abroad. There are a number of cases in which defendants carrying out this, and other, roles have been considered by the courts. In many cases it is unclear what role a defendant has in fact played in the criminal conduct. But in others, including the present case, the defendant’s role can be identified from the indictment or basis of plea, or from the judge’s remarks. 87. A number of the cases cited to us related to defendants whose roles were clear and who could be described as couriers or minders or launderers. In all but two, confiscation orders were made in respect of the whole value of the property in question, and not on the basis of the reward the defendant received. Mr Krolick relied on two of these in particular, R v J [2001] 1 Cr App R (S) 273 and R v Johannes [2001] EWCA Crim 2825 ; [2002] Crim LR 14. 88. In R v J the appellant was convicted, together with others, of conspiracy to supply Class A drugs. The confiscation order was in the sum of £22,890. His realisable assets were £5,422. Lord Woolf CJ, at paras 11 and 13, approached the appeal on the basis that that the Judge had said that the appellant did not have a beneficial interest in the drugs with which he had been entrusted. The question was whether it was proper to draw the inference that they had been paid for. The Court of Appeal held it was not proper to draw that inference, given what the Judge had said. The reason that question was important was that the Crown were relying on the statutory assumptions under the Drug Trafficking Act 1994 s.4(3) (b). These included the assumption that any expenditure by a defendant since the beginning of the period was made out of payments received by him in connection with drug trafficking. That means that the Crown have to show expenditure, and they were unable to do this in a case where the Judge considered that the appellant had not paid for the drugs in his possession. The 1994 Act includes, at s.2(3), a provision in the terms set out in para 52 above, which corresponds to the differently worded provisions of s.71(4) of the 1988 Act . The decision said nothing about that section. Under s.4 of the 1994 Act , the Court was required to make the assumption for the purpose of determining whether a defendant had received any payment, and if so, the value of any payment received. The Court was not approaching the matter on the footing that the drugs the appellant was minding were property that he had obtained (the test under the 1988 Act ), since that was not the test to be applied under the 1994 Act . 89. In Johannes the Judge said the he was sure the appellant was a custodian or minder of the drugs worth £99,000 found in his possession, and had no financial interest in them. The Court of Appeal, following R v J , held that on that finding the statutory assumption under s.4(3) of the 1994 Act had been displaced. It followed that a confiscation order including the value of the drugs had to be set aside. The case adds nothing to R v J . 90. Mr Evans referred us to: R v Simpson [1998] 2 Cr App R (S) 111, R v Metcalfe [2001] EWCA Crim 1343 , R v Wilkes [2003] EWCA Crim 848 , R v May [2005] EWCA Crim 97 para 39-41 and Jennings v CPS [2005] Civ 746 para 28-42. 91. Simpson was another case under the Drug Trafficking Act 1994 . But in Simpson the appellant was found in possession of cash, the proceeds of trafficking. He was not found in possession of drugs. That Act includes the provision cited at para 52 above, and the further provision, s.4(1), that any payments received by any person in connection with drug trafficking “are his proceeds of drug trafficking”. It was submitted that in this laundering case, the appellant did not receive the cash within the meaning of the Act, because he was merely a bailee of it. A confiscation order was upheld in the value of the cash, and not of the much smaller sum contended for the appellant, namely his own personal reward for carrying the cash. 92. Simpson turns on s.2(3) of the 1994 Act and is not decisive of the interpretation of s.71(4) of the 1988 Act . Mr Krolick submits that it has no application because it turns on the words of the 1994 Act . This submission does not sit well with his reliance on the R v J and Johannes , which do turn on the words of the 1994 Act , but on the words of a provision in that Act which has no corresponding provision in the 1988 Act . 93. In Metcalfe [2001] EWCA Crim 1343 the point arose directly in relation to s.71(4). Mantell LJ held at para 12 that there was no reason why the approach of the court should be any different in relation to s.71(4). Mr Krolick notes the brevity of the reasoning, and that in particular, the Court was not apparently invited to consider his argument relating to s.74(4), to which there is no equivalent in the 1994 Act . 94. Mr Krolick sought to suggest that Lord Rodger of Earlsferry was suggesting a difference in R v Smith (David) [2001] UKHL 68 ; [2002] 2 Cr App R (S) 37 at para 32. That case concerned the smuggling of cigarettes. A minor issue related to the boat used and the facts are set out at para 10. Another smuggler, Marriott had been released on bail in November 1997. While on bail he approached the Respondent and, it appears, put up £55,000 with which the Respondent bough the boat. The Crown did not argue that the Respondent had himself put up any of the money to buy the boat. The boat was used to smuggle cigarettes in April. It was used again in May, when it was stopped with Marriott and the Respondent on board. The confiscation order made against the Respondent was made on an assessment of benefit received totalling £185,666.40. This included £55,000 in respect of the boat, as well as the value of the cigarettes. The order was limited to £46,250, the value of his realisable property (para 12). The boat was forfeited (para 14). The passage relied on by Mr Krolick is at para 32 where Lord Rodger says: “… it is not entirely clear, on the available evidence, what the value of the boat would have been to the respondent at the time when he obtained it (s.74(5)).” Mr Krolick submits this is a reference to the fact that the Respondent did not put up any money. That may be a possible interpretation, but the citation can hardly stand as a statement of legal principle. 95. In Walls [2002] EWCA Crim 2456 ; [2003] 1 Cr App R (S) 31 at para 25 this Court held that s.74(4) applied only when the Court is making the valuation of the offender’s realisable assets. Mr Krolick recognises that that is against him, but submits that it is not binding because the case in fact related to a different statute, the Drug Trafficking Act 1994 . 96. Of the other cases cited by Mr Evans, May and Jennings v CPS are on joint control. In Jennings the arguments are set out at para 26. The appellant contended that his benefit was what he got and retained for himself. After a detailed review of the authorities, including May , Laws LJ concluded that a restraint order had been properly made against each of two defendants in the whole sum alleged to be the proceeds of the conspiracy. In May at para 36 Keene LJ said: “If he obtains property within the meaning of s71(4), it matters not that he does so merely as a collector or distributor for others involved in the offence: it is the obtaining and not the retention that matters”. 97. R v Ellingham [2004] EWCA Crim 3446 ; [2005] 2 Cr App R (S) 32 is another case under the 1988 Act . The appellant pleaded guilty to fraudulent evasion of duty on cigarettes. His basis of plea was that he was not the organiser of the importation, but merely assisted in it, for a fee plus expenses. A confiscation order was made following a finding that the benefit was the whole sum of the duty evaded. There was no confiscation order in relation to a separate money laundering conviction in that case, but Pill LJ cited another case in which there was, R v Alagobola [2004] EWCA Crim 89 ; [2004] 2 Cr App R (S) 48. 98. In Alagobola the defendant was convicted of money laundering under s.93A(1)(a) of the 1988 Act . £121,570 was paid into the defendant’s bank account by a third party. The Judge found that the appellant’s suspicion about the money, and therefore his criminality, did not arise until some time after the deposit of the money into his account. The judge found that the benefit to be £62,238.61 and limited the confiscation order to that sum. The main reason for this was that the bank had recovered the balance. Pill LJ said this: “20 On the face of it, however, his submission is an attractive one. It is said that the appellant in fact derived no benefit; on the contrary, he sought to deprive himself of any benefit when he realised the possible source of the funds by ridding himself of them as soon as he could. 21 It seems to us, however, that the submission is founded upon the fallacious assumption that when the appellant dealt with the money by transfer he derived thereby no benefit. On the contrary, it seems to us the appellant was now in possession of the funds in his account which he knew or suspected were the proceeds of criminal conduct. By dealing with it following the acquisition of knowledge, upon the instructions of the alleged criminal, he was, in our view, and for the purpose of onward transmission, obtaining property in connection with the commission of an offence. He was exercising the right of the holder of the account to deal with the funds within it and he was dealing with those funds with a guilty mind. Accordingly, his benefit was the value of the property so obtained. Benefit from criminal conduct does not, for the purposes of s.71, mean personally to enjoy the fruits of criminal conduct. 22 Mr Moss [for the Crown] went further in argument. He submitted that upon the appellant acquiring knowledge or suspicion that the fund was criminal proceeds, the appellant, without more, obtained the fund for the purpose of s.71. 23 This submission we cannot accept. The appellant would obtain the fund only if he decided to retain it or to deal with it for his own or another's purposes. If, for example, he had gone to the police and reported his suspicions, it seems to us he could be said neither to have committed an offence under s.93A(1)(a), nor to have obtained property within the meaning of s.71. The appellant did, however, deal with the fund with knowledge on the instructions of the criminal, and by so doing, for the purposes of transfer, he obtained. 24 Thus it seems to this Court the judge was right to find as he did and the appeal must be dismissed.” 99. It follows, if Mr Krolick is right, that the effect of s.74(4) has been overlooked in a number of cases. We do not consider that it has been overlooked. The value referred to in s.74(4) is the value of property (other than cash), and is in effect either the value of that person’s beneficial interest, or the value of the whole, if no other person holds an interest. This provision is an appropriate one for calculating the realisable property held by the defendant. But the effect of applying this to s.71(4) would be to exclude from the scope of the legislation all those who obtain property as minders, or couriers or agents, and to give rise to the problems of proof described in para 39 above. Given that the objective of the legislation includes a deterrent and penal element, and that there is in principle no objection to multiple recovery in the sense of recovery of the same sum from different individuals, it is difficult to attribute to the legislature the purpose of excluding such an important group of offenders from the scope of the legislation. 100. There would also be an anomaly if Mr Krolick’s submission on s.74(4) is correct. The minder or courier caught with his principal’s cash would on any view be treated as having received the benefit of that cash, because cash is excluded from s.74(4). But if the principal’s money is paid into the minder’s bank account through the clearing system, since a bank account is not cash, s.74(4) would apply, and he would not be treated as having received the benefit. This anomaly arises in the present case, since category (1) is cash, and category (2) is money in a form other than cash. £419,500 was paid primarily in cash into his client account by Glatt or his secretary. See para 13 above. 101. Those who dishonestly assist in money laundering and other crimes by obtaining the property, but do so in the capacity as agents, might consider themselves fortunate if they do not have to pay someone (that is to the victim or, if none sues, the Crown) the value of the loss they have assisted in causing. Justice does not require that they be excluded from the provisions of the Act simply because they are likely to have to make payment out of their lawfully owned property without having enjoyed a beneficial interest in the property they have obtained. So far as the civil law is concerned, they are in general liable to be sued as joint tortfeasors or conspirators, or for knowing assistance in a fraudulent breach of trust (see the cases cited in para 48 above). They may have to meet any judgment out of their lawfully acquired assets. If the victims of offences were always in a position to institute civil proceedings, Parliament might not have thought it necessary to introduce the 1988 legislation. But in reality the victims are not always known, or if known, not always in a position to institute proceedings for other reasons. The proceeds of crime legislation prevents criminals from retaining as a windfall what the law contemplates should in principle be paid to the victims. 102. In cases involving very large sums of money, the disposal of the proceeds of crime (and civil wrongs) is difficult to achieve without the assistance of professional agents. The fact that they have not themselves profited from the crime to the full value of the loss is a point that arises on the issue of contribution between defendants to civil proceedings. It is not normally a defence to the claim. If the financial risk to which they are exposed in the confiscation proceedings is limited by the amount of the reward they gain, the deterrent will be much less than if the financial risk is limited by the amount of the property they obtain. If multiple recoveries from different individuals, which in total exceed the value of the loss caused, is considered to create an injustice in a particular case, then that can be addressed under the 1988 Act (in its unamended form) in the exercise of the court’s discretion. There may be other ways of addressing the point under later legislation. 103. For these reason, s.74(4) does not, in our judgment, apply to the assessment of the value of benefit under s.71(4), at least in the way which Mr Krolick submits. MARTIN’S CLAIM TO THE MONEY HELD BY GLATT 104. In Tinsley v Milligan [1994] 1 AC 340 two women ran a business together. They put a house into the name of the plaintiff for the purpose of concealing the fact that claims made by the defendant against the Department of Social Security were fraudulent. Later they fell out and the plaintiff claimed possession from the defendant. She counterclaimed for a declaration that the property was held on trust for the two of them in equal shares. The counterclaim succeeded. The principle, as stated by Lord Brown-Wilkinson at the end of his speech is: “In a case where the plaintiff is not seeking to enforce an unlawful contract (such as a right of property) the court is neither bound nor entitled to reject the claim unless the illegality of necessity forms part of the plaintiff’s case”. 105. This principle can cause problems for the police when faced with claims for the delivery up of property, which they have seized. In Webb v. Chief Constable of Merseyside Police [2000] Q.B. 427, 446-447 May LJ said: “In my judgment, the court should not extend the law in the way suggested. Although from the Chief Constable's perspective the money is the proceeds of crime, from another perspective the court should not, in my view, countenance expropriation by a public authority of money or property belonging to an individual for which there is no statutory authority. There is statutory machinery for the prosecution of those who deal in drugs and for the confiscation upon conviction of the proceeds of their drug dealing. There is statutory machinery for the confiscation upon conviction of the proceeds of other serious crime. There is statutory machinery for the forfeiture of the cash proceeds of drug trafficking which are being imported into or exported from the United Kingdom. There is no statutory power to confiscate the proceeds of drug dealing within the United Kingdom where the person entitled to possession of the money is not convicted of a drug trafficking offence. I recognise that there may be circumstances where for a variety of reasons a prosecution may not take place. But that does not, in my view, justify expropriation by means of a defence to a civil claim for return of money which has been seized from persons who are not convicted. It is one thing to prosecute to conviction and to take positive steps authorised by statute to confiscate the proceeds of crime from the convicted defendant. It is quite another to resist the claim of an innocent person by asserting some or all of the ingredients of what might have been a prosecution; or to effect confiscation in this way from a convicted person against whom statutory confiscation machinery has not been used. Innocent claimants would, I am sure, be deterred from pursuing entirely proper claims for the return of money or property to which they were entitled. I can foresee quite unacceptable possible consequences of the development of the law for which the Chief Constable contends in these cases. If statutory provision for civil confiscation are inadequate, it is for Parliament to strengthen them after proper consideration of all the implications”. 106. Martin is, of course, not innocent, and has been convicted. Moreover, as noted in para 8 above, the following facts were admitted by Glatt. After Martin’s arrest in June 1994, Martin was made the subject of a restraint order by the High Court, which required him to preserve his assets. In Operation Jeroboam the judge made a confiscation order of some £3.3 million. Glatt was aware of both the restraint order and of the Jeroboam confiscation order. 107. The money held on Martin’s behalf by Glatt could found a confiscation order in proceedings against Martin. The facts are therefore far removed from those in Tinsley and Webb . It may be that (but for the restraint order) Martin would have been legally entitled to demand that Glatt pay the money in question to Martin or to his order, and that in order to frame such a demand, he would not have had to rely upon his illegal activities. But given the restraint order, Glatt could not comply with any demand by Martin. For reasons explained in R v Brown (failure to serve the right notice on time) the confiscation order made in relation to this conspiracy against Martin in the sum of £10,000,342 was made and set aside on appeal. But the assets were nevertheless available to meet the order made against Martin in Operation Jereboam. They were in fact realised for that purpose. It is quite unrealistic to submit that Martin had a claim, which was enforceable against Glatt, in respect of these assets held by him. 108. The fact that Martin did not have an enforceable claim does not mean that the property was beneficially owned by Glatt. It means that the enforceable claim was ultimately going to be made on behalf of the Crown. For reasons stated above, in so far as Glatt obtained the property, it counts as a benefit to him under s.71(4) and its value is its market value. 109. But this result also means that this is not a case where the confiscation order amounts to double recovery in the sense of requiring Glatt to pay the same sum twice. The possible double recovery in question here is recovery from Martin (albeit in respect of an earlier offence) and recovery from Glatt. WHAT WAS OBTAINED BY GLATT? 110. In relation to categories (3) and (4) Mr Krolick submits that since these were not payments obtained by Glatt personally, they were not obtained by him within s.71(4). For the Crown it is submitted that a person obtains property if he receives property in a form over which he exercises a degree of control, even if the beneficial interest remains throughout with another person. 111. The facts as set out in the Statement of Mr Ford dated March 2001 are set out in paras 8 to 10 above, and as follows. In August 1994 Glatt, on Martin’s instructions, obtained Dolphin Properties Ltd. There was a change of name to Zero One. Seven properties were acquired by this company. In March 1995 Intercounty Ltd was acquired by Glatt on the specific instructions of Martin. This company also acquired seven properties. Other companies obtained by Glatt on Martin’s instructions are referred to as New England Trading, and Hallworth Finance. Centreville acquired on property. Two additional properties were acquired by Martin’s mother and another company referred to as JPG Properties. It is not suggested that Glatt had any beneficial interest in these companies, and he is not said to be the owner of the shares. 112. Mr Ford’s evidence in his paras 8.2 (para 10 above) as summarised in his para 8.4.i is that the companies were “controlled” by Glatt on behalf of Martin. The Skeleton Argument on behalf of Glatt sets out extensive passages from the Crown’s case as set out in its 1997 Statement of Evidence and subsequent documents. Little is said of the role of Glatt. From this it appears that the management of the properties was substantially carried out by Gardner and Hutchinson. Their roles in purchasing and managing properties, and handling cash, are also summarised in the judgment in Brown at paras 3(iii) and (xii). Hutchinson visited Martin in prison, posing as one of Glatt’s clerks. Gardner made some of the payments which were credited to Glatt’s client account. 113. Glatt took very little part in the proceedings at first instance. He adduced no evidence to explain or contradict the statement of Mr Ford in this respect. When ordered to inform the court whether he accepted or disputed the calculation of the minimum benefit figure set out in Mr Ford’s statement, a one sentenced response was given, dated 17 th May 2001. At that time Glatt was not represented by the solicitors and counsel representing him before us. It reads: “Without prejudice to the defence submissions as to the proper meaning of ‘benefit’ in s. 71(4) of the CJA 1988, the defence accepts that the calculation of the minimum benefit figure is accurate”. 114. In the skeleton argument filed on his behalf in May 2001 by Glatt’s counsel at that time, the passage in which Mr Ford states that Glatt controlled the companies is set out, as are extensive quotations from the authorities, including Rees (unreported 19 th July 1990) and Patel [2000] 2 Cr App R (S) 10. No submissions are made in that skeleton in relation to ‘control’, whether as to the facts or as to the law, although the point was raised in a Supplementary skeleton argument on behalf of Glatt on 15 May 2002. On 16 May 2002 HHJ Elwen accepted the Crown’s submission that the effect of the document dated 17 th May 2001 was that the court was not entitled to hear argument concerning the valuation of Glatt’s benefit. He held the benefit had been conclusively accepted by Glatt in the sum of £3,787,300. In his ruling of 29 May 2002 the Judge recorded what he had decided on 16 May 2002. The Judge said that there was no good reason advanced, almost twelve months later, as to why the defendant should be allowed to resile from it. 115. Before this court the Crown stood by this (on the basis of R v Tredwen (1994) 15 Cr App R (S) 580), but accepted that if there were shown to be an error of law in the basis of the concession, that concession could be re-opened on appeal. 116. The question whether Glatt did exercise control over the companies is one of fact, and in the absence of any statement from Glatt, there does not appear to us to be any basis on which that could have been disputed before the Judge, or could be re-opened before us. Of course, like Gardner and Hutchinson, Glatt exercised control not for his own benefit, but for the benefit of Martin. 117. Category (3) is said to be money paid directly into the off shore accounts of the four companies. Category (4) represents the increase in value of the properties acquired by Glatt and beneficially owned by Martin, as subsequently sold by the Receiver. 118. There are authorities on the meaning of ‘obtain’ in the 1988 Act . In Rees (unreported 19 th July 1990) Auld J (as he then was) held that “obtains” was not restricted to cases where the defendant had received the property into his possession, but included “obtaining for another or enabling another to obtain or to retain”. This part of Auld J’s judgment is available to us in the form of the extracts in the judgment of Buxton J (as he then was) in Gokal (unreported 7 th May 1997) and Patel [2000] 2 Cr App R (S) 10. Rees had pleaded guilty to three counts of obtaining money by deception with others. The total involved was £90,051.95, (the sum sought by way of confiscation order) but only in the case of count 1 did the building society suffer a loss of the whole of £33,465 obtained from it. In Patel Douglas Brown J identified the relevant facts as follows: “As is apparent from the judgment of Auld J., Rees pleaded guilty to three counts of obtaining money by deception, the money in each case being mortgage funds from a building society. He received loan moneys totalling £90,051.95: £33,465 in count one; £29,786.95 in count two; and £26,800 in count three. The argument on behalf of Rees to restrict benefit only to £33,465 derived from the fact that, in the face of the other two counts, the building society did not suffer a loss because there was adequate security for, and repayment of, the loan under the mortgage. Auld J.'s decision was that, irrespective of any net loss to the building society, Rees had actually obtained, with others, the total amount of the loans. What happened thereafter was irrelevant to the question of benefit…. ” 119. It appears that the issue in Rees arose partly out of the fact that the money was obtained jointly with others, and partly out of the fact that some of it was not lost. It is distinguishable from the issue in this case. The point made in relation to category (3) is that the property was not obtained by Glatt at all, and that it was not obtained for him either, but wholly on behalf of Martin. 120. In Currey [1995] 16 Cr App R (S) 421 the defendant was convicted with another of conspiracies to publish and import obscene articles. The defendant was the banker for both. The confiscation order was made on the basis of the total receipts generated. The appellant submitted unsuccessfully that the benefit should not have been assessed on the total that passed through his hands, but on his profit. Currey is thus unlike the case on category (3) in that the defendant received the whole of the property himself and passed some of it on to his co-defendant. 121. The issue in Gokal (unreported 7 th May 1997) arose from the fact that the Gulf Group of companies, by reason of the fraud perpetrated by Gokal and others, had obtained the total of £548m. The fraud had been necessary to enable BCCI to continue to fund Gulf. It was argued that Gokal was to be taken for the purposes of the 1988 Act as having obtained the whole of the £548m, because he caused that to be obtained by Gulf group. 122. Buxton J noted that Rees may have turned on the fact that it was a case involving s.15(2) of the Theft Act, which concerns obtaining property by deception. This provides: “For the purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it and ‘obtain’ includes obtaining for another or enabling another to obtain or to retain”. 123. Buxton J held that s.71(4) required “what can fairly be described as an obtaining by the defendant”. He stated that he saw no reason for reading the Theft Act definition as found in s.15(2) into the 1988 Act . He added: “Indeed, the fact that that definition is said to be specific to that section would suggest that the ordinary meaning of the word ‘obtains’ is not as set out in s.15(2)”. 124. Gokal appealed but not on this point, on which the decision of Buxton J was favourable to him. A further point argued before Buxton J was that the money was to be treated as Gokal’s, by piercing the corporate veil. Buxton J declined to take that step in that case. He considered that the realistic description of the case was that the Gulf companies were beneficiaries of Gokal’s fraud. 125. Gokal has this in common with the present case. The relevant property was obtained by the companies through the criminal conduct of the defendant, but not by the defendant, nor for the benefit of the defendant. In this respect it is the only one of this line of cases where the issue arises on facts similar to the ones in relation to category (3). On the other hand, it does not appear from the judgment in Gokal that Gokal exercised control over the Gulf companies, whereas Glatt did exercise control over the companies that received the property in category (3). 126. In Saia (unreported 20 th April 1999) Saia and others were convicted of conspiracy to defraud. Separate payments had been made to the defendants or one alone. The prosecution submitted that in assessing the benefit obtained by each defendant the court must attribute to each conspirator the gross proceeds of the particular conspiracy regardless of which of them may in fact have received the proceeds. Langley J agreed with Buxton J. He did “not think that a person obtains property which he causes to be received by someone else”. He reached this conclusion as a matter of ordinary English usage, and did not find the reference to the Theft Act helpful. Consequently he held that the court had to look at the extent of obtaining by the defendant personally. The case is therefore unlike the present one, to the extent that Saia, unlike Glatt, had a beneficial interest in some of the monies obtained. 127. In Patel [2000] 2 Cr App R (S) 10 the Court of Appeal considered the point in relation to the 1988 Act as amended by the 1995 Act . Patel had been convicted of conspiracy to obtain property by deception. He ran a post office, and had received stolen benefit books from a co-conspirator. Importantly, the appellant took the whole of the proceeds from the safe, and then paid to his co-conspirator his share. Douglas Brown J stated: “We share the view of Buxton J that s.15(2) of the Theft Act 1968 cannot assist in the construction of the 1988 Act where the offender is not charged with obtaining property by deception under s.15 or conspiracy to do so…” 128. Patel is thus unlike the case on category (3) in that the defendant received the whole of the property himself and passed some of it on to his co-defendant. 129. In M etcalfe [2001] EWCA Crim 1343 robbers had obtained £1.2m. Metcalfe was not a robber. He was a gambler who whose role was to launder the proceeds of the robbery. He received the money from the robbers and used it to place bets. He lost a lot in the process, but on occasion received winnings which he then gave to the robbers or their nominees. He was convicted of assisting others to obtain the benefits of criminal conduct. His benefit was assessed on the basis of what he had received, when he submitted it should be on the basis of his own fee or reward. The case is similar to the case against Glatt on categories (1) and (2), but differs from the case on category (3), because Metcalfe did receive all the money himself. 130. In May [2005] EWCA Crim 97 ; [2005] 2 Cr App R (S) 67 the Court considered Patel and other cases, in the context of considering property that was under joint control. However, the property had been received by companies, and in that context there is a reference to receipt by others, and to piercing the corporate veil. At para 37 Keene LJ said: “It seems to this Court to be important that there was a finding here that the companies retaining the VAT fraudulently were jointly controlled by various of the appellants. Once the corporate veil is pierced, as the appellants accepted it can be (a step endorsed by this Court in Dimsey and Allen [2000] 1 Cr.App.R.(S) 497 at 502), the property held by the company in question is to be regarded as the joint property of those controlling that company. It is analogous to the situation where conspirators have put the proceeds of the fraud straight into their joint bank account. In such a situation each is entitled to the full amount in the account. If one concentrates on the words of the statute, as one must, it seems to us that each individual "obtains" the property jointly held.” 131. On the basis of May Glatt abandoned the submission he had hoped to make to the effect that the court was required as a matter of law to apportion between the conspirators the totality of the benefit obtained by them. However, he submitted that the point was relevant to the exercise of the court’s discretion. 132. Mr Krolick submitted that piercing the corporate veil was not a course the court was asked to take. This may have been because the natural person standing as principal behind the corporate veils of the off shore companies was Martin, not Glatt. 133. Jennings v CPS [2005] EWCA Civ 746 ; [2005] 4 All ER 391 was an appeal against the continuation of a restraint order. The order was made in respect of an alleged conspiracy to defraud and fraudulent trading. The conspiracy was to defraud members of the public seeking loans. The company took fees from them, but no loans were ever made. The submission for the appellant was that the court should look to see what the defendant had got and retained for himself. The controlling director and shareholder was RP, who was due to be charged with conspiracy. A similar restraint order had been made against him. The appellant claimed he was no more than an employee, but the Crown alleged he was at the heart of the conspiracy, and that he played a full role in spending some of the cash generated. The Crown alleged that large sums sent to the company in the form of postal orders were cashed at a local post office but not credited to the accounts of the company. The restraint order was made on the basis of the alleged proceeds of the conspiracy amounting to £580,000 odd. 134. Laws LJ held (para 49) that the fact there was some evidence suggesting RP kept far and away the bulk of the money did not touch the merits of the order against the appellant. The case thus proceeded on the assumed basis that the appellant did receive the proceeds of the conspiracy and had an interest in at least some of them, unlike the case against Glatt on category (3). 135. At paras 29-37 Laws LJ considered these cases other than Saia . He held at para 37 that Gokal (and by implication Saia ) were out of line with the general run of authority. He said at para 38 that: “All that is required is that the defendant’s acts should have contributed, to a non-trivial (that is, not de minimis) extent, to the getting of the property”. 136. In response to this Mr Krolick submitted that the decision in Jennings v CPS , although decided in June 2005, did not have regard to the legislation subsequent to the 1988 Act . We have referred to this submission as a matter of principle, in para 78. 137. In particular, Mr Krolick notes that in the 2002 Act s.76 corresponds to the definition in s.71(4) of the 1988 Act , including the word “obtains”. It includes: “(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct… (7) If a person benefits from conduct his benefit is the value of the property obtained” 138. In the 2002 Act there is a definition of ‘obtains’ at s.84(2), which the focus of Mr Krolick’s submission: “(b) property is obtained by a person if he obtains an interest in it… (h) references to an interest, in relation to property other than land, include references to a right (including a right to possession)”. 139. It appears that the draftsmen considered the situation of property obtained by one person for another, and considered it necessary to state that in such a case obtaining an interest in property sufficed for obtaining property. The Act does not say that obtaining an interest in the property is a necessary condition of ‘obtaining’, nor does it in terms speak of control. On the other hand, there is nothing in the 2002 Act equivalent to the broader definition of Laws J in Jennings v CPS in para 135 above, namely that contributing to getting the property suffices. Of course, in Jennings Laws LJ was addressing an assumed factual situation where the defendant did retain control over and some interest in the property received by the third party, and his words must be understood in that context. 140. It must also be borne in mind that the provisions in question are in a penal statute and must be construed strictly, as Rose V-P stated in Attorney General's References Numbers 114-116 of 2002 and Numbers 144-5 of 2002 [2003] EWCA Crim 3374 , para 18. It makes a difference to the scope of the legislation if it is confined to those who do have an interest in property received by a third party, or if it extends to those who have no interest. 141. We would accept Mr Krolick’s submission only up to a point. In our judgment it may be that “obtains” does not include a case where a person causes property in which he has no beneficial interest to be received by someone else over whom he has no control. We do not have to decide that. But ‘obtain’ does include the cases where a defendant retains control over property received by a third person as a result of steps taken by him, as well as cases where he obtains an interest in property received by a third person. 142. Accordingly, since Glatt had some control over the companies, albeit for the benefit of Martin, he did obtain the property referred to in category (3), and, consequently, any increase in value of such property within category (4). DISCRETION 143. In exercising his discretion the Judge said that although Glatt was not in the same position as Currey (see para 120 above), who had disposed of the money he had received, the reasoning in that case applied equally to him, in that the money had been disbursed for investment. The judge took into consideration that Glatt was a professional man who had abused his trust, without which the operation could not have been carried on as it was. He said: “For the court to exercise its discretion otherwise than by making an order would be to subvert the legislation”. 144. The points made for Glatt are: i) The effect of the order is that there has been double counting in relation to the benefit set out in Mr Ford’s statement; ii) The benefit should have been apportioned between Glatt, Hutchinson and Gardner, as a matter of discretion. A calculation has been done dividing each item or class of property in Mr Ford’s statement equally between each of the defendants namely Martin, Gardner, Hutchinson and Glatt. Since in relation to some property all four were involved, and in relation to other parts either three or two of them were involved, with a particular part of the property, this arrives at a figure of £976,121.66 as Glatt’s share of the benefit. iii) That the order should have been limited to a defendant’s actual gain, which in Glatt’s case was nothing over the £10,000 minimum; iv) That Glatt should have been treated similarly to Gardner, and in Gardner’s case the Court of Appeal had reduced the confiscation order to about two thirds of the maximum available; v) That Glatt and his family have been ruined and the order is unfair, oppressive, and disproportionate when considered in conjunction with the rest of Glatt’s sentence and the loss of his profession; vi) That the Judge erred in comparing Glatt’s position to that of Currey; vii) That the Judge erred in considering himself bound to exercise his discretion to impose the maximum order. 145. For the Crown it is submitted that: i) The legislation envisages ‘multiple recovery’; ii) There is no occasion to apportion the benefit, where, as here, it is clear which defendant has received what property; iii) As to Gardner and Hutchinson, the cash they had actually handled was included in the benefit they had been found to obtain, and as to the other property the Judge had ruled that mere involvement in property purchases without receipt of funds did not constitute obtaining a benefit; iv) The judge exercised his discretion rightly, and was well equipped to do so, having conducted the trial and retrial of Glatt and having sentenced all the conspirators and conducted all related confiscation proceedings; v) The circumstances in which this Court was entitled to interfere were limited, namely where the Judge had failed to take into account a material consideration and had taken into account an immaterial consideration. 146. We have already referred to cases where this Court has held that the legislation envisages multiple recovery and double counting is not objectionable: see R v May [2005] EWCA Crim 97 (para 47 above), Jennings v CPS (para 96 above). We ourselves proceed on that basis: see para 99 above). 147. It is right to consider, as the Judge did, whether the making of this order, or not, would serve to fulfil the purpose of the legislation. 148. In the present case Glatt did not use any of his own funds to obtain the property (as might a trafficker in stolen goods or drugs) and he did not obtain any reward for his services (apart from the car worth less than £10,000). What he did employ, as the Judge pointed out, was his position as a solicitor, but he has forfeited that in any event. 149. So the purpose of a confiscation order against Glatt cannot be to take away his profits from crime, in the ordinary sense of the word profit. Nor can the purpose be to remove from him assets which he has used to commit crimes, in order to prevent him misusing them in that way in the future. We have found these to be the legislative purpose as set out in paras 50 to 68 above. We have also concluded (as the Crown accepts) that compensation is not one of the purposes of this legislation, for the reasons given in paras 69 to 77 above. This does not mean that HMC&E has no way of obtaining compensation for any losses suffered as a result of conduct such as Glatt’s involvement in the breach of the restraint order. The civil law has developed in recent years, as set out in para 75 above. The criminal courts might also have power to make a compensation order in such circumstances. 150. In these circumstances, it has to be asked what legislative purpose would be fulfilled by the order made. We find none. As stated above, Glatt has already been sentenced to the term of imprisonment of seven years (para 3 above) and has, of course, forfeited his profession as a solicitor. In addition, we were told on 6 th March, sums that he will in any event have to pay, or cannot recover, are the Receiver’s fees and his legal costs, for which the figures given to us are respectively £546,519.62 and £645,024.37, a total of £1,291,543.99. 151. The Judge was referred to Re K The Times 1 October 1990, of which we have the full judgment in the form of a Lexis print out. In that case McCullough J was asked to discharge a restraint order made under the 1988 Act . K had been charged with six offences of dishonesty while trading as an estate agent. It was alleged that he had bought properties with the assistance of mortgages, which had been procured by making false statements about his earnings and other matters. The benefit alleged was the total sum of £242,744.78 received from those providing the mortgage funds. These capital sums were secured on the properties purchased. Counsel for K submitted that the benefit was thus the equity of redemption. McCullough J did not accept this. He held that the benefit was the value of the houses. He explained: “There is nothing unfair to the defendant in this construction, since both capital and interest secured on the house will be taken into account at stage (3) [valuing his realisable assets], … and in any event, as I will come to presently, I would expect the judge to do so when arriving at a fair figure at stage (4) [whether it appears that a confiscation order may in fact be made]”. 152. McCullough J then turned to consider how the trial court might exercise the discretion under the 1988 Act . He held that the restraint order in that case was appropriate. But before reaching this conclusion he said this: “[the trial court] will not make an order which would be oppressive; in other words it will seek to be fair. So, for example, if a defendant with realisable assets of £200,000 committed an offence of the kind with which K is charged and thereby obtained a house worth £100,000 with the assistance of a mortgage of £70,000 and had not otherwise benefited (for example by letting or reselling), one would anticipate that, notwithstanding that the £70,000 had been left out of account in assessing the value of he defendant’s benefit from the crime, the judge would order confiscation of no more than £30,000. Indeed, in the example, he might decide to make no order at all, since not only would the defrauded mortgagee have lost nothing (being able to recover the advance in full from his security), the defendant (assuming that he had paid the balance of £30,000 in cash) would overall have gained nothing”. 153. In R v Layode (unreported 12 March 1993) this court, presided over by Watkins LJ, considered an appeal against the making of confiscation order in the sum of £133,891 made in respect of the defendant’s conviction for mortgage frauds. In that case the defendant had bought one property for £80,000 with the assistance of advances from the building society of £72,000. The judge included the £80,000 when valuing the benefit. This court held that he was right to do so. McPherson J gave the judgment of the court. He quoted with approval the passage in McCullough J’s judgment in K cited above. He also referred to Rees as follows: “Auld J considered all aspects of that particular case. He stressed the discretionary nature of the provisions of s.71(1)… He pointed out further that in the exercise of that discretion ‘if it is the case that the building societies have been able to recover the moneys dishonestly obtained, it seems to me, subject to any further submissions, that the proper exercise of the court’s discretion should be to exclude those sums in determining the amount of the order’. This court agrees with that approach…” 154. In our judgment, for the reasons given in para 85 above, this approach is one which we ought to follow in this case. It is not necessary or fair to impose any further sanction on Glatt in the form of a confiscation order. 155. Accordingly, in our judgment the judge fell into an error of law when he directed himself that “For the court to exercise its discretion otherwise than by making an order would be to subvert the legislation”. For the reasons given, we would therefore set aside his order, and make no confiscation order against Glatt. Before concluding this judgment we would like to acknowledge our indebtedness to Janet Ulph LLM LLM for her work “Commercial Fraud: Civil Liability for Fraud, Human Rights, and Money Laundering” recently published by OUP. 156. In these circumstances we do not need to consider the other points advanced under this head. The appeal succeeds to that extent. THE HEARING ON 6 TH MARCH 2006 157. The Crown asked for this case to be listed for rehearing on three grounds, namely i) the error of fact as to the amount recovered by the Crown under an earlier confiscation order, due to the Note of 1 st December 2005 not having been received by the Court (referred to in para 16 above); ii) in order to advance the new argument based on the decision in Ahmed which we have considered and rejected in para 85 above) iii) in order to address the Court upon certain authorities referred to in the draft judgment, and the textbook referred to in para 155 above, which had not been referred to in argument. 158. In this revised judgment we have corrected the factual error, and dealt with the argument based upon Ahmed . It remains for us to address the third point. 159. At the hearing on 6 th March 2006 Mr Sells QC did not submit that in the draft judgment the Court fell into any error of law in the sections of the judgment preceding the section headed Discretion. All the references to cases not referred to at the hearing in November 2005, save for one, were in sections of the draft judgment in which we have upheld submissions for the Crown, and rejected submissions for Glatt, and which have not needed to be revised following the submissions on 6 th March 2006. The textbook also relates to those sections, and does not address the exercise of discretion under the unamended 1988 Act. 160. The exception was a reference to para 75 above in the section headed Discretion which we have revised in this judgment (see para 149 above). The erroneous reference in the draft did not affect the conclusion we had reached in that section. Nevertheless, for the purposes of this judgment, we have reconsidered the whole of the section headed Discretion, and have reached the same conclusion.

2006_03_17-761.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/605/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/605

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[2013] EWCA Crim 1295

EWCA_Crim_1295

2013-06-28

crown_court

Neutral Citation Number: [2013] EWCA Crim 1295 Case No: 2012/3361/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 28 June 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE MACKAY SIR RODERICK EVANS - - - - - - - - - - - - - - - - - - - - R E G I N A v M.B. - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A

Neutral Citation Number: [2013] EWCA Crim 1295 Case No: 2012/3361/B2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 28 June 2013 B e f o r e : LORD JUSTICE ELIAS MR JUSTICE MACKAY SIR RODERICK EVANS - - - - - - - - - - - - - - - - - - - - R E G I N A v M.B. - - - - - - - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - - - - - - - Mrs G Hale appeared on behalf of the Appellant Mr R Thatcher appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE ELIAS: On 14th June 2010 in the Crown Court at Nottingham before His Honour Judge Lea, the applicant was convicted of two counts of cruelty to a person under 16 years. On 1st November 2010 before the same judge she was sentenced to concurrent sentences on both counts of 20 weeks' imprisonment suspended for two years, with an unpaid work requirement of 150 hours. She was acquitted of a further count of the same offence. She applies for an extension of time of almost two years in which to apply for leave to appeal against conviction by leave of the single judge. The facts essentially are these. The applicant was the mother of EF, who at the time of the alleged offences was aged about three-and-a-half years old. There was a co-accused, who was acquitted in relation to count 3. He was only ever indicted in relation to count 3. He was the applicant's husband, YF. EF attended the BB Nursery from February 2009. There were computerised lists which showed which children were expected to attend the nursery on any given date. These were produced in advance and then there was a daily log recording when the children actually did attend. The records showed that on 28th April EF attended the nursery between 12.40 and 16.30. The log had been signed by one of the nursery leaders, KM, which indicated the time when EF left the nursery. It was alleged that on that date, 28th April, another nursery employee, HC, witnessed the applicant disciplining EF firstly by pinching his arm, whilst doing so twisting his fingers, and then biting his arm over his jumper in the same place that she had just pinched him. A second member of staff, JF, also gave evidence that she had witnessed the pinch. There was a second allegation that on 19th May 2009 three nursery employees, LH, KM and LG witnessed the applicant slap EF, firstly using an item or items of clothing and then with her hand. These employees drew up a report and a plan of the alleged incidents. Following the second incident the nursery manager, KL, made a referral to the Children and Young Persons Services alerting them to the possibility that EF was a child at risk. Two social workers attended the family home the following day and EF was taken to be medically examined. He was found to have a number of bruises on his upper right back, his upper right and left arms and on the right and left side of his lower back. There was expert opinion that the lower back injuries might well have been bite marks. In interview the applicant denied slapping, hitting or pinching EF. She said that on occasions she would try and calm him by shaking his shoulders and tapping him on the face. Her case was that the witnesses were lying in their account of these incidents. As to the first occasion, the child had not even been at the nursery on 28th April and the records had been fabricated. She in fact had seen marks on EF on 18th May, after he had returned from the nursery. He had been complaining about staff at the nursery. She had wanted to move him to another nursery but she was told she could not. She said she had made a complaint to staff on 19th May and it was as a result of that that they had invented allegations against her and reported the matter to the social services. This was therefore on her case an entirely malicious fabrication by the staff to protect their own misconduct. She did not however give evidence before the jury at trial and no evidence was called on her behalf. The prosecution did call these nursery witnesses, each of whom gave evidence to verify the accounts they had given in interview. The principal issue for the jury therefore was whether the nursery employees had provided a truthful account as to what had occurred and whether there had been two incidents of deliberate assault as they had alleged. There are essentially two grounds of appeal. The first is that the judge failed properly to sum up her defence as disclosed in her police interviews. The second, and it is a related ground, is that he failed to give a good character direction and at the time when she was facing this trial she had no previous convictions of any kind. It is submitted that the judge ought to have done that and that the failure to do so seriously prejudiced the fairness of the trial and renders the convictions unsafe. We will deal first with the question whether the judge fairly summed up her case as given in interview and as put by her counsel to witnesses for the prosecution. We have absolutely no doubt that he did. It is true she had given a large number of rambling interviews, but the essence of her case emerging from them was that the child was not present on the first occasion, the allegations had been fabricated to conceal the fact that it was the nursery staff themselves who had harmed this little boy. The judge at page 3 of the summing-up said this: "Now the defence asserts, through her advocate, that these injuries were caused at the nursery and nothing whatever to do with any treatment by the mother and that in order to cover up those injuries sustained in the nursery false allegations have been made against the mother that she struck her son not only on 19th May - the date of the referral - but also on an earlier occasion, 28th April, when she says he wasn't even present at the nursery." That is a most admirably succinct summary of her case. There were various other passages in the summing-up where he reminded the jury of her case. Just to take a few examples. At page 10 he reminded the jury that her case was that she had not slapped her own child; at page 14 that the child had not even been at the nursery on 28th April; on the same page he reminded the jury that her case was that these were malicious fabrications designed to conceal the nursery's own misdeeds and that point was put again and again throughout the course of this relatively brief summing-up. At the bottom of page 21, for example, the judge said this: "You have to decide whether these are lying witnesses who have come to court and told lies as a consequence of this conspiracy at the nursery or whether they are actually telling you the truth about what happened." It is true that the judge did not in terms state that this summarised the account which the applicant had advanced in interview. Indeed he made no mention of the interview as such until counsel for the prosecution reminded the judge, after the jury had initially been sent out, that the originals of the daily register for the school were available for the jury, as were the witness statements. The judge then said this at page 31 of the summing-up, having recalled the jury: "I didn't make reference to the interview. Of course that's not evidence because it's not given on oath but it is evidence of what she said at the time which of course you can have regard to. I haven't gone through it because you've got a copy of it. But doubtless when you retire and consider this case you'll want to look and refresh your memory as to what she was saying to the police when she was interviewed about these matters." We were referred to a number of cases which the appellant submitted supported her case. In Curley and Cadwell [2004] EWCA Crim 2395 it was contended that the judge had not properly given any adequate summary of the appellant's case to the jury. As in this case, the defendant Curley had not given evidence or called any witnesses. He had however given a detailed account of rather complex financial transactions which constituted the basis of the charge against him of conspiracy to defraud. This court held that in the circumstances it was not enough for the judge simply to tell the jury to read the transcripts. The critical passage of the decision of the court given by May LJ was at paragraph 73 where he said this: "It needs to be emphasised and emphasised again that it is the plain duty of a judge summing up a criminal case to a jury to put fairly and sufficiently the defence case. Where a defendant has not given evidence, and in addition has not called any evidence on his behalf, there is no evidence from the witness box in support of that defence other than such evidence as has been gleaned by one way or another from other witnesses which have been called. Where that defendant who has not given evidence has been interviewed in detail and has given an account in interview which is relevant to their defence and which so far as it goes contains their defence, that is evidential material in the way that we have described and it is the duty of the judge, in our judgment, in putting the defence case properly and fairly to make such proper and structured reference in summary to the material in the interview which constitutes the defence case in the criminal trial. That we conceive to be a principle which applies to the present case and in our judgment the judge failed to live up to it." There was also reliance on the case of Akhtar referred to in 2001 Archbold News page 2 where the case summarised as follows: "Where the defendant neither gives or calls evidence but has been extensively interviewed, it is of particular importance that the summingup should at least summarise the main points made by the defendant. Only rarely if ever would a conviction be adjudged safe notwithstanding a failure to sumup the defence." We do not of course dissent from the statements of principle enunciated in these cases but there was no breach of them here. Had the only reference to the defence been the judge's observation about the interview being available for the jury to consider at the end of the summing-up, there would be considerable force in this submission. But, as we have indicated, that is far from the case. This summing-up was eminently fair to the appellant. It did not simply remind the jury that there was an interview for them to consider. It put the appellant's case fairly, cogently, on a number of occasions and there could be no doubt that the jury fully understand the nature of the case they had to deal with and the defence which she was putting forward. We therefore categorically reject that appeal. We turn to the second ground which is whether good character should have been referred to by the judge in his summing-up. There is absolutely no doubt that it is in principle a very important direction to give in favour of a defendant who is charged with a serious criminal offence, provided of course that it is appropriate for the judge to give the direction in the particular circumstances. If good character is raised by a defendant a judge will be required to give directions in relation to the two respects in which it is relevant, namely credibility and propensity. Moreover, the direction should be given even where a defendant fails to testify but gives an exculpatory account in interview. The jury should in the normal case have regard to the defendant's good character when assessing the credibility of that account – see the observations of Lord Taylor LCJ in Vye [1993] 1 WLR 473 , , subsequently approved by the House of Lords in Aziz [1996] AC 41. The failure to give a direction as to the relevance of the defendant's good character will often render verdicts unsafe, but not inevitably so - see the observations of Lord Bingham in Singh [2006] 1 WLR 156 when he said that a failure to give a good character direction on credibility is not necessarily fatal to the fairness of trial or the safety of the conviction. Having said that, the need to give the direction will be the more pressing where the veracity of the defendant and prosecution witnesses is directly in issue. The primary responsibility for raising the good character of a defendant lies on counsel, but typically a judge will raise the issue with the defence where it appears that a defendant is of good character. The judge would be wise to raise the matter in that way because if a good character direction is omitted when it ought to have been given, the mere fact that it was not given may be enough to render the verdicts unsafe, irrespective of the reason why it was not given or who was responsible for the error - see the observations of Lord Kerr giving the judgment of the Privy Council in Nigel Brown v The State [2012] UKPC 2 , paragraphs 30-31. As Lord Kerr went on to note, however, not every omission to put a defendant's character in issue demonstrates a failure by counsel to carry out his duty. That observation, it seems to us, is highly material in this case. Because of the criticism of the trial lawyer advanced in these grounds, the applicant waived privilege. We have an account of what occurred from the Solicitor Advocate Mr Posner who had represented the applicant below. He provided an explanation as to why he had not put good character in issue. It appears that at the time of the trial the appellant was charged with other offences of affray and of a threat to kill her husband and child. In fact subsequently the magistrates committed the case for trial but it was not proceeded with because the prosecution offered no evidence. So at the material time the applicant faced these serious charges which were, of course, connected with this child. Counsel says he discussed the matter with prosecution counsel and he was under the clear impression that if he wanted to pursue a good character direction, prosecuting counsel in turn would be considering a bad character application to have this matter brought to the attention of the jury. It would not necessarily have been right for this applicant to be treated as a woman of good character in the circumstances. Prosecuting counsel is present today and he has confirmed that there were discussions which took place precisely along the grounds indicated by Mr Posner. In our view, it was a realistic concern that Mr Posner had that this evidence might come before the jury. He was making serious allegations against the witnesses for the prosecution and in principle any evidence of bad character would be admissible under gateway (g) of section 100 of the Criminal Justice Act. These disputed offences potentially fell within the scope of the definition of bad character in section 98. It may well be that a judge would have been reluctant to let in the evidence in case it resulted in satellite litigation, but as against that it was a single incident with few witnesses. The position was not clear although it would have been difficult in any event for the judge to have given an unqualified good character direction given this pending case. Some modification would have been required. We need not speculate what the judge would have done had the matter been raised before him. It seems to us that the critical point is that here the solicitor advocate considered this matter and exercised a judgment why he did not think it appropriate to press for a good character direction. It was in our view a reasonable judgment to make. If the evidence of the other alleged offences had gone before a jury it would have been devastating. We do not therefore accept that counsel failed in his duty and thereby deprived this applicant of a valuable direction in her favour. This was a tactical decision, taken in what he perceived to be the applicant's own best interests. It is not open to an applicant to come to court now and to seek to reopen the case on the grounds that it was the wrong tactical call. One of the complaints is that there was no discussion about this matter with the applicant herself. It is not easy for us to know whether that was so. We would be surprised if there was not some discussion of this matter, but in any event it seems to us that this was a proper decision for counsel to have made. No doubt other counsel would have dealt with it differently, but we do not think that this counsel can be criticised for taking the stance that he did. In any event, we are persuaded that even if there had been a good character direction given in this case, we do not accept that it would have rendered the verdicts unsafe. This was not just a case of word against word. There was powerful evidence here to show the EF was at the nursery on 28th April as the prosecution claimed. The records would have had to be distorted in a rather complex way, it seems to us, in order to represent otherwise. Furthermore, the applicant did not give evidence herself. Her accusations against the staff would necessarily carry far less weight than the evidence which the prosecution witnesses were able to give on oath. In our judgment, on the facts here, this was in any event a safe conviction. We have not gone into the detail of the very extensive delay in lodging the appeal. We do not find the explanations for such delay convincing or satisfactory. In part the delay can be satisfactorily explained but not, we think, the period of almost two years before lodging this appeal. Had we considered that there was a very powerful case, then we would have allowed an extension notwithstanding the lack of any adequate explanation. But since we do not think there is a strong case, in the circumstances we refuse to extend time. We indicate that had we done so we would have refused permission to appeal in any event for the reasons we have given. MISS HALE: I am instructed to apply for a representation order for those instructing who were involved in taking four statements from the appellant, a statement from DR and indeed a statement from the solicitors himself. LORD JUSTICE ELIAS: You have a representation order, do you not? MISS HALE: I do, yes. LORD JUSTICE ELIAS: Were these statements taken after you had a representation order? MISS HALE: The statements were taken by those who instructed as a result of the skeleton argument received from the Crown in dealing with factual matters. LORD JUSTICE ELIAS: Yes, we will grant that representation order. It will be in the following terms: for work already done following the decision of the single judge in further preparing the application for an extension of time, for leave to appeal and in advising and obtaining a statement from the applicant in respect of the waiver of privilege procedure. That would be the standard form? MISS HALE: Indeed, that is right. Thank you.

2013_06_28-3211.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1295/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/1295

662bdc28f236db1972a1c8e2c8b37bf560351402d5bc8b39532165695dab26b4

[2017] EWCA Crim 895

EWCA_Crim_895

2017-06-15

crown_court

Neutral Citation Number: [2017] EWCA Crim 895 Case No: 201604194 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 15 June 2017 B e f o r e : LORD JUSTICE TREACY MRS JUSTICE WHIPPLE DBE HIS HONOUR JUDGE PICTON (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - R E G I N A v DELANDO SMITH - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Li

Neutral Citation Number: [2017] EWCA Crim 895 Case No: 201604194 B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 15 June 2017 B e f o r e : LORD JUSTICE TREACY MRS JUSTICE WHIPPLE DBE HIS HONOUR JUDGE PICTON (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - R E G I N A v DELANDO SMITH - - - - - - - - - - - - - - - - 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 C Guiloff appeared on behalf of the Appellant Ms T Hay appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LORD JUSTICE TREACY: 2. This appellant was convicted on 11 August 2016 in the Crown Court at Croydon of three counts of rape (counts 1, 2 and 3), one count of assault by penetration (count 4) and one count of causing a person to engage in sexual activity (count 5). He appeals against conviction with the leave of the single judge. The usual anonymity provisions apply in relation to the victims in this case. 3. Counts 1 to 3 relate to the complainant A, who, on 17 May 2015, was waiting at a bus stop after a night out. The Crown's case was that the appellant, a stranger, approached her in a car at the bus stop and offered her a lift, which she accepted. The Crown alleged that, having later stopped the car, he forcibly made her perform oral sex upon him (count 1). They then went to his flat where both vaginal and anal sex took place without her consent (counts 2 and 3). To prove its case, the Crown relied, inter alia, upon evidence from A; evidence of a complaint of rape made the following day; DNA evidence from vaginal swabs; and similarities between the offending against A and that against B, the complainant in counts 4 and 5. 4. The defence case was that consensual oral sex had taken place in the car, followed by consensual vaginal intercourse at the flat. The appellant could not remember anal sex taking place but said that A had been a willing and active participant in what had occurred. The appellant had produced to the police extracts from a video recording made by him on his phone in the car on the night in question. The original recording was not provided. 5. In relation to counts 4 and 5, victim B had gone to a nightclub and then to a fried-chicken shop in the early hours of 31 January 2016. She left the shop apparently without telling friends and got into a vehicle driven by the appellant, the same Nissan as he had been driving on the previous occasion. She said that the appellant offered her drugs. When she tried to get out of the car she found the doors were locked. The appellant then stopped the car in a car park, forced himself upon her and put his fingers into her vagina (count 4). B then negotiated that she would touch herself rather than have the appellant touch her. She touched her vaginal area whilst the appellant masturbated and pretended to enjoy it (count 5). 6. The Crown relied on evidence from B, evidence of complaints of sexual assault to family and friends and evidence of a complaint of digital penetration at a clinic, together with CCTV evidence of the appellant's car's movements at the relevant time. In addition, the Crown relied on similarities between this offending and that against A. The Crown also relied on some of the content of the recording which had been produced by the appellant himself. 7. The appellant's case was that B had asked him to stop the car so that she could take drugs. The conversation had turned to sexual topics. B had then voluntarily shown him her vagina. He asked if he could touch it, but she declined and touched herself while he touched himself. In other words, his case was that the activity was consensual. In addition to giving evidence, the appellant called evidence designed to show that the car could not be locked from the inside unless the keys were out of ignition. 8. The first ground of appeal is that the judge was wrong to reject a submission of no case to answer in relation to count 4. The submission was put on the basis that there was uncertainty as to whether the appellant had touched B's vagina and, if so, to what extent. Accordingly, it was argued that a properly directed jury could not be sure of sexual assault by penetration. Particular reliance was placed on ambiguity or uncertainty in B's account as to whether there had been penetration. The judge rejected that submission and is said to have been in error for doing so. 9. We are not persuaded that the judge was in error. The judge considered the relevant evidence in detail. He correctly noted that at different points in B's evidence she had varied between speaking of the appellant trying to put his fingers into her vagina, and saying that she believed that his fingers had gone inside her, albeit briefly. Having recited B's evidence the judge noted that in addition there was evidence of the complaint to the clinic made shortly after B's complaint to the police that she had been digitally penetrated, and there was some material on the recording produced by the appellant which was capable of supporting the allegation. In addition, there was evidence of some injury in the vaginal area, albeit that B had acknowledged touching herself in the way described in count 5. The judge reminded himself that the legal definition of "vagina" includes the vulva, and that only slight penetration of that area is required. 10. We have come to the conclusion that, contrary to the submissions for the appellant, the evidence was such that a properly directed jury could convict. Clearly the evidence was far from conclusive, and worthy of careful consideration. There was indeed material available to the defence in rebutting the allegation. But, in our view, there was sufficient for a jury properly to conclude that penetration had taken place. We therefore reject this ground. 11. The second ground represents a complaint about the judge's conduct on two separate occasions after the trial had been proceeding for about a fortnight. The first occasion is not relied on in its own right, but Miss Guiloff submits that it should be viewed cumulatively with the second occasion. The overall submission is that the judge's treatment of defence counsel significantly undermined her, firstly in front of the jury and secondly in the absence of the jury but in the presence of the appellant during a crucial stage in the defence case. The effect of this was that the appellant was denied a fair trial, particularly because the judge's censure of counsel in front of the jury may have harmed the defence. 12. We have read the transcripts of the exchanges complained of and also listened to the audio recordings. On the first occasion, counsel was cross-examining the officer in the case and exploring whether any consideration had been given to testing the appellant for drugs. After some exploration of the topic, the judge intervened to ask counsel about the nature of the questioning and to what issue it was relevant. After some exchanges, he said to counsel, in the presence of the jury in a firm voice, "Good common sense, Miss Guiloff, let's apply a bit of common sense". 13. After further exchanges in which the judge asked where the cross-examination was proceeding in the light of clear answers from the witness, counsel responded by saying that the parties were interested in the appellant having a fair trial. At this, the judge sent the jury out and there followed further exchanges between the judge and counsel in which he criticised her for the comment made about a fair trial and for her style of cross-examination. During the course of this, the judge made clear that counsel had a duty to defend her client and that the exchanges that were taking place in no way reflected upon the appellant. He said he would permit some further questions on the topic raised. We understand that, on the jury's return, they were told that any disagreement between judge and counsel did not reflect upon the appellant, and counsel then proceeded to cross-examine on the topic upon which she had already embarked. 14. The second episode took place on the following day, by which time the appellant was giving evidence. During his examination-in-chief, counsel was dealing with what could be heard on the mobile phone video footage recorded in the car. In so doing, counsel put to the witness words which she asserted were on the footage and asked the appellant if they were correct. There had been no prior agreement as to what could be heard on the footage, and, in essence, the question was a leading one, to which the Crown had been about to object had the judge not intervened. 15. The following exchange took place: "THE RECORDER: If you do that again, Ms Guiloff, I will send the jury out and home for the day whilst we sort it out. MS GUILOFF: We can play it again and again. If I said anything that is not on there, your Honour, obviously it is a matter for the jury what's on there. THE RECORDER: It is a matter for the jury and you are not giving any -- turn it off, turn it off. I said turn it off now. MS GUILOFF: I am doing my best, your Honour. THE RECORDER: You are not doing your best, you are very senior counsel and those kind of suggestions and telling the jury or saying in front of the jury what is in evidence is just not playing by the rules and you know that. MS GUILOFF: Can I play it? THE RECORDER: No, you can't. Members of the jury, please leave." The instruction to turn off the recording sounds as if it were shouted. The judge's final comments were said in an emphatic tone of voice. 16. The jury withdrew and the judge was then critical of counsel's having led the witness. He said that her behaviour was "quite unprofessional". Counsel responded that she had not thought that the passage was contentious, but acknowledged that it was not for her to tell the jury what was on the recording. Counsel said that the reason for thinking that the passage was uncontentious was because it had appeared clear to her. Some of these exchanges involved the judge speaking in emphatic terms. 17. There was then a short adjournment, after which counsel apologised to the judge, followed by a discussion as to what counsel should say to the jury on their return. Counsel acknowledged that the episode was her fault and the judge said that, if there was a repetition, he would have to consider sending transcripts to the Bar Standards Board. The judge concluded by saying: "You are a very senior junior of enormous experience and it is not something that happens by accident at your level. We will have the jury in, please." 18. On the jury's return to court, matters proceeded as follows: "THE RECORDER: Members of the jury, before we proceed with any further evidence, Ms Guiloff has something to say to you. MS GUILOFF: Members of the jury, with his Honour's leave, what I say to you is not evidence. The evidence comes from the witness box as his Honour has directed you earlier on. You make up your own minds what is on any piece of footage not me and so you must -- so the time that has been lost, my apologies, we are going to play the footage now and obviously you make up your own minds independently. What I say doesn't matter at all. It is only what's on the video and your view and any evidence you hear about it but not -- evidence does not come from me so for the time that you have lost I apologise. With your Honour's leave -- THE RECORDER: Understand this, members of the jury, you will discount entirely anything that has come from the mouth of Ms Guiloff which has not come from this witness giving evidence on these matters, the videos, regarding the content or what she thinks she may hear on the video, all right. You must not take that into account and if you have made any notes of it, you should cross them out. Ms Guiloff knows that that is something that she is not under the rules of the court allowed to do and she is very senior counsel. MS GUILOFF: So without more ado can I play the evidence so that what is on there can be heard? THE RECORDER: Yes, of course you can." 19. Apart from the exchanges we have specifically identified, the discussions or exchanges took place in a normal tone of voice. One of the key criticisms made is that, on two occasions during the second episode and in the presence of the jury, the judge had said that counsel was knowingly doing something she was not allowed to do. It is submitted that this could only have had the effect of diminishing counsel's standing before the jury. Moreover, this intervention during the appellant's evidence-in-chief was unfair to him. 20. Since ground 3 also relates to the overall fairness of the proceedings, it is appropriate to deal with that before ruling on ground 2. The essential complaint in ground 3 is that the summing-up was not fair either in content or in tone. A series of points has been made by Miss Guiloff in support of her contentions. 21. Firstly, she is critical of a direction which the judge gave, to the effect that the jury should not accept the advocate's version of what a witness had said unless they agreed with it. That direction was given in the context of telling the jury what was and was not evidence. Miss Guiloff suggests that it was a pointed reference back to the episode in relation to the recording. 22. In our view, what was said was part of a standard direction and the whole passage was put in terms which clearly referred to both advocates, rather than singling out Miss Guiloff. We do not consider that there is anything in this point. 23. Next, there is a criticism of the judge's directions on cross-admissibility. The complaint is that initially the judge pointed out similarities between aspects of the evidence of A and B, but failed to balance that by pointing out differences. At that stage, he had referred to the fact that Miss Guiloff had highlighted a list of differences in her speech but did not go into the detail. However, at a later stage in the summing-up the judge returned to the topic and did enumerate a variety of factors which had been relied on by Miss Guiloff. Again, we do not think that the criticism is sustainable. 24. There is criticism of the judge's directions in relation to previous inconsistent statements made by either or both of the complainants. It is submitted that the directions given were confusing, and in particular that the judge had failed to tell the jury that, if they rejected explanations for inconsistencies, they should treat the witness's evidence with caution. It appears on examination of the transcript that that criticism is correct, in the sense that the judge did not give that direction. 25. However, it seems clear to us, both from the fact that the jury were reminded that Miss Guiloff had pointed to inconsistencies and from the obvious reason for giving a direction on the topic, that the jury will have appreciated that, if there was no good reason for inconsistent evidence, it would mean that they might not be sure about the witness’s evidence. The jury had been repeatedly reminded that it was for the Crown to make the jury sure of its case, and in particular that A and B had not consented to sexual activity on each count. 26. Accordingly, we do not think that the failure to mention the need for caution was a misdirection which could compromise the safety of the convictions, although it was undoubtedly a blemish in the summing-up. 27. In the course of directions about inconsistency, the judge had referred to the question of whether the complainant had a motive to lie to family and friends. The judge had said that the jury should consider that area of the evidence in the context of considering inconsistency. It is said that the judge should not have told the jury that it was not for the appellant to prove motive. We do not accept that such a direction was required. The question was posed as part of a general series of considerations, and it was made plain to the jury where the burden of proof lay. 28. It was also submitted that the judge should have explored potential motives; for example, in the case of B, who had apparently fallen out with a friend of hers and might have wished to attract sympathy by making a false complaint. As to that, the judge made plain that he would not sum up all of the evidence and the arguments made. He had reminded the jury that arguments had been made on both sides and had been made at some length. He said he did not intend to repeat all of them, but did refer generally to feelings of regret, shame and other emotions which might generate false complaints. In that way we are satisfied that the jury was made aware that it could consider points made for the appellant in relation to this issue if it thought that they would assist them. 29. Next, Miss Guiloff made a series of points in relation to the judge's handling of the evidence of a Ms Clancy, a friend of A, who had been texted by A before or at the time of the alleged offences. There had been a problem with recovering the relevant text messages and there was a dispute as to their chronology and significance. One of the messages might have demonstrated, depending on the jury's view of it, that A was seeking help at the time of the assaults upon her. The judge undoubtedly made an error about the sending of those texts when he summed up. However, that was corrected immediately before the jury retired by prosecuting counsel, who commented that it was a point upon which the defence might wish to rely. The judge endorsed that. We are told that in fact a member of the jury had spotted the apparent source of the error, which all parties had made, at a late stage of the case, so that the correction ought to have had a particular resonance with the jury. We consider that what was done by way of correction was sufficient to deal with the error. 30. A further point arises in that it is said that the evidence of Ms Clancy was not summed up in a balanced way. We have considered passages referred to in the written submissions of Miss Guiloff and come to the conclusion that the overall summary of Ms Clancy's evidence was not unbalanced or unfairly dealt with, and that both sides of the case on the issue were sufficiently put during the course of the summing-up. 31. There is also a complaint that the judge did not give a balanced account of the cross-examination of the complainants. Again, we have reviewed the passages referred to and have concluded that matters were sufficiently dealt with. 32. The final area of criticism is that the tone of the summing-up was biased and unfair. As is apparent from the foregoing analysis, we do not accept that the criticisms made have any serious substance which could impact upon the safety of the conviction. Some of the criticisms made appear to us to have the character of a desire that the judge should make every point already made by defence counsel to the jury. That is not the function of the summing-up. In the circumstances, we are unpersuaded that the third ground of appeal is made out. 33. That brings us back to ground 2. It seems to us that there was justification on each occasion for the judge to have intervened. It is the second episode which is principally relied upon by counsel. We consider that the judge was wrong to have shouted an instruction to counsel to turn off the recording, and, more importantly, to have accused counsel of knowingly failing to "play by the rules". That happened on two occasions, with the second occasion occurring after counsel had tendered an apology and explained that she had done what she did because the content of the tape had seemed clear to her. 34. In our view, there was no justification for the course which counsel had taken, which was in effect to put words into the witness's mouth on a key area of the case when there had been no agreement as to what had been heard on the tape. Despite that, we consider that there was no justification for the judge to have said what he did in front of the jury, although he might justifiably have said that counsel should have known better. 35. We are unpersuaded that what took place had any adverse effect upon the appellant's evidence. The judge had already made clear to the appellant after the first occasion that his exchanges with counsel had nothing to do with the appellant and had given other substantial reassurances to him. On the second occasion, after the episode had concluded, the judge gave the appellant time to settle lest he had been discomfited by the exchanges. The judge subsequently showed a considerable degree of latitude as to the way in which the appellant gave his evidence and in which he was able to present other evidence in his defence. Accordingly, in so far as impact upon the appellant is concerned, we do not think that what occurred is something which avails him in this appeal. 36. Even if there was no direct impact upon the appellant, it is important for us to consider whether the judge's conduct was such as to lead to an unfair trial by reason of the creation of a real risk that the jury might have been prejudiced unfairly against the appellant or that the standing of defence counsel had been seriously undermined. 37. We do not consider that the first episode substantially adds to the picture and consider that the judge's comments to the jury after the first episode would have been recognised by them as having general application in not reflecting upon the appellant's case. 38. Nonetheless, we have given anxious consideration as to the overall effect of what occurred as a result of the judge's criticisms of counsel. The comments should not have been made in the terms used, but the episodes were brief in a trial which had lasted about four weeks, and had occurred in situations where the judge was correct to intervene. The jury did not retire until about ten days after the second episode. There is no suggestion that after that episode the trial did not proceed in a normal way thereafter. That is important in assessing the overall impact of what took place. Furthermore, there is nothing which the judge said in the course of his summing-up which, in our judgment, showed anything other than appropriate respect for defence counsel and the arguments she had made. There are instances in the summing-up of the judge drawing specific attention to points made by Miss Guiloff in a way which showed that her submissions had been properly and credibly made. 39. It is for us to stand back and form an overall impression of the impact made by the episode which we have indicated was regrettable. We have ultimately come to the conclusion that what occurred, when taken in the overall context of the trial, unfortuante though it was, was not sufficient to render the proceedings unfair. In that context, we have considered R v Lashley [2005] EWCA Crim 2016 and R v Cordingly [2007] EWCA Crim 2174 . Those cases are, of course, fact specific, and each case of this type must be assessed on its own particular facts. That is what we have done. 40. In all the circumstances, we conclude that ground 2 fails, with the result that the overall appeal against conviction is dismissed, notwithstanding Miss Guiloff's strenuous efforts to the contrary.

2017_06_15-3997.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/895/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/895

335c216bfe3bc5460507842cf42a9ccae3f77c513e821e178d6cacdd4c8efac3

[2008] EWCA Crim 1915

EWCA_Crim_1915

2008-08-06

crown_court

Case No. 200802473/A7 Neutral Citation Number: [2008] EWCA Crim 1915 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 6th August 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ANDREW SMITH HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - R E G I N A v SCOTT M - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Lim

Case No. 200802473/A7 Neutral Citation Number: [2008] EWCA Crim 1915 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 6th August 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ANDREW SMITH HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - R E G I N A v SCOTT M - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr R Davies appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. Mr Justice Andrew Smith: On 11th April 2008, the appellant was sentenced to a period of four years' custody for an offence of blackmail to which he had pleaded guilty the previous month. 2. In 1981 the victim made a sexual assault on the appellant when he was aged 11 and caused him a great deal of pain and also injury to the thighs. 3. In August 2007 the appellant went to the victim's house and asked if he remembered him. The two men spoke for some three hours. The appellant said he wanted £5,000 in order to go to Switzerland to end his life. The victim tried to buy time and said he needed 30 days to get the money. The appellant said he would return in a month's time. 4. In fact the appellant returned after two weeks. Again the two men spoke. This time the appellant said he was feeling better, but spoke of having had thoughts of coming to find the victim and doing him harm. There was talk of a payment of £5,000. A few days later the victim gave the appellant a cheque for that amount and the appellant paid it into his bank. 5. After another two weeks the victim received from the appellant a bereavement card on which the appellant had written various messages, for example: "Thanks for the pocket money. I regard it as an interim payment for damaging my life. 5K for and: "You don't deserve to contaminate the oxygen around you, you are a parasite on humanity. Pay me or shake hands with the devil sooner than planned. 30 days." 6. There were further comments making reference to the death penalty and there was some suggestion that the complainant should sell some land to find £50,000. 7. Two weeks later the victim received a second card with further messages, for example: "I put £50K on the value of your life. I will come for you. Test me the pain will be yours." 8. The appellant was arrested in mid-October. He made full admissions in interview. In due course a guilty plea was entered at the first opportunity. 9. When the appellant was sentenced he was 37 years old and had no previous convictions. He had suffered some psychological trauma as a result of the sexual abuse in his childhood and had had a short period as an in-patient in a psychiatric hospital. He reported that he attempted suicide on a number of occasions, but there was no suggestion of mental impairment or illness when he committed this offence. 10. The offending in this case, we observe, was not blackmail by way of a threat to expose what had happened in 1981. The victim was threatened with serious violence and death. The offending was planned and continued over some weeks. It clearly called for a substantial period of imprisonment. The only question is whether the sentence was manifestly excessive in view, not least, of the appellant's candour when he was interviewed by the police and his early guilty plea. 11. We have been referred to a number of authorities, including Attorney General's Reference No 67 of 2007 [2007] EWCA Crim 2878 in which the court considered a case which is comparable in this respect. There was serious blackmail by a series of substantial monetary demands made by the victim of sexual abuse against his abuser. However, in the end, the authorities are fact specific and of limited assistance. This made a difficult sentencing exercise all the more problematic and we have sympathy with the judge facing this decision. 12. However, we consider that, bearing in mind the background to this offending and the undoubted traumatic effect it had on the appellant, the sentence of four years passed upon the appellant was too long. It would have been appropriate after a trial but not given a guilty plea which earned full credit. We allow the appeal and reduce the sentence to imprisonment of two years and eight months. To that extent the appeal is allowed.

2008_08_06-1624.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1915/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1915

8eb140c4c4414287db90339c2f181598b391d0fe0f1a2582022c8f6581e0f553

[2008] EWCA Crim 1740

EWCA_Crim_1740

2008-07-31

supreme_court

Neutral Citation Number: [2008] EWCA Crim 1740 Case No: 200701190 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT HHJ Collender QC T20050639 IN THE MATTER OF THE PROCEEDS OF CRIME ACT 2002 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2008 Before: LORD JUSTICE TOULSON MR JUSTICE JACK and RECORDER OF HULL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: R

Neutral Citation Number: [2008] EWCA Crim 1740 Case No: 200701190 C2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM SNARESBROOK CROWN COURT HHJ Collender QC T20050639 IN THE MATTER OF THE PROCEEDS OF CRIME ACT 2002 Royal Courts of Justice Strand, London, WC2A 2LL Date: 31/07/2008 Before: LORD JUSTICE TOULSON MR JUSTICE JACK and RECORDER OF HULL (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between: R Respondent - and - SAMSUL ISLAM Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Cheryl Drew and Abdul Gofur instructed for the Appellant Mark Sutherland Williams and Charlotte Hadfield instructed for the Respondent Hearing dates: 22 July 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Toulson : 1. On 1 February 2006 at Snaresbrook Crown Court the appellant pleaded guilty to two counts of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of goods contrary to section 170(2) of the Customs and Excise Management Act 1979 . The appellant had been responsible for the importation of 3.53 kg of heroin in a consignment of vegetables and fish which arrived at Southampton from Bangladesh on 14 February 2005 and for the importation of 0.438 kg of heroin in a consignment of beauty products which arrived at Felixstowe from Bangladesh on 1 March 2005. Neither consignment came into the physical possession of the appellant because both consignments were seized by Customs at the port. 2. On 5 January 2007 a confiscation order was made against the appellant by His Honour Judge Collender QC in the sum of £404,604. A further order was made under section 27 of the Misuse of Drugs Act 1971 for the forfeiture and destruction of the drugs. 3. The appellant appeals against one part of the judge’s lucid judgment in the confiscation proceedings. In determining the value of the benefit to the appellant from the offences he included the sum of £71,424 representing the wholesale value of the heroin. Mrs Drew submitted on the appellant’s behalf that the judge was wrong to do so. 4. Under section 6 of the Proceeds of Crime Act 2002 a court considering whether to make a confiscation order must decide whether the defendant has benefited from the relevant criminal conduct (whether it be general criminal conduct or particular criminal conduct) and, if so, what is the recoverable amount. Under section 7 the recoverable amount is an amount equal to the defendant’s benefit from the conduct concerned unless the defendant shows that the available amount is less than that benefit, in which case the recoverable amount is the available amount (or a nominal amount if the available amount is nil). 5. The appellant failed to show that the amount available to him from his resources was less than the amount of the benefit found by the judge. The issue is whether the judge was right to include the wholesale value of the drugs in the value of the benefit to the appellant from his criminal conduct. 6. Section 76 (4) provides: “A person benefits from conduct if he obtains property as a result of or in connection with the conduct.” 7. The first ground on which the appellant was given leave to appeal was that the judge erred in law by holding that the appellant obtained the heroin at the moment of importation and consequently derived a benefit. 8. In the light of the judgments of the House of Lords in R v May [2008] UKHL 28 , [2008] 2 WLR 1131 and Jennings v CPS [2008] UKHL 29 , [2008] 2 WLR 1148 , that is a hopeless point. As the importer and consignee of the goods, the appellant obtained property in the goods in connection with their importation. It is irrelevant that the heroin was seized before it came into his possession because it was already his property. 9. The appellant was given leave to appeal on a second ground, which raises a more serious issue. The ground is that the judge erred in measuring the appellant’s benefit by the wholesale value of the drugs. 10. Section 79 provides that the value at any time of property then held by a person is the market value of the property at that time. 11. Under section 80 the value of property obtained by a person as a result of or in connection with his criminal conduct is to be taken as the greater of (a) the value of the property at the time the person obtained it (adjusted to take account of later changes in the value of money) and (b) the value at the time of the confiscation order of the property, if still held by the person, or any other property which directly or indirectly represents the other part in his hands. 12. In this case the drugs were no longer held by the appellant at the time of the confiscation order and the relevant question was what value was to be put on the drugs at the time when the appellant obtained them. 13. The judge’s finding that the drugs prior to their seizure had a wholesale value of £71,424 was based on evidence provided by an officer of HM Revenue and Customs, Mr Stacey. The judge recorded the rival arguments and his conclusion as follows: “The defendant argues that the Crown valuation of the heroin is to be abated to reflect the purchase price of the drugs… In the present case I simply must determine that the value of the property for the purposes of determining the recoverable amount, the benefit, not the available amount or realisable amount…The heroin does not form part of the defendant’s free property. I reject the defendant’s case on this issue and accept the prosecution contention that the benefit is the value of the property in the defendant’s hands when he obtained it. The cost of purchasing the drugs, of which there is in any event no evidence before me, is irrelevant to my determination of the appropriate figure which I judge to be that advanced by Mr Stacey.” 14. The appellant now advances a more fundamental argument which was not put before the judge. It is submitted that the authorities establish that no value was to be placed on the drugs in calculating the value of the benefit to the appellant from his criminal conduct. This is because market value in section 79 has been taken to mean the value in a lawful market and there was no lawful market in heroin. Counsel on both sides referred us to a number of authorities, none of which were cited to the judge. 15. In Thacker (1995) 16 Cr App Rep (S) 461 the defendant was convicted of being knowingly concerned in the importation of cannabis resin of which the estimated purchase price was £40,000. The goods were seized by Customs at the port of entry. The issue was whether the amount realisable for the purposes of a confiscation order under the Drug Trafficking Offences Act 1986 should include £40,000 representing the value of the drugs. The Court of Appeal answered the question in the negative, holding that: “… once the drugs had been seized, as they were in April 1992 by the Customs and Excise, they ceased to be property held by the appellant. There was no basis on which it could be held that he was in any position to realise that property as an asset.” 16. In Dore [1997] 2 Cr App R(S) 152 the defendant pleaded guilty to being knowingly concerned in the importation of cocaine and possessing cocaine with intent to supply. It was inferred that he must have paid £10,800 for the cocaine found in his possession. An order for the forfeiture of the drugs was made under section 27 of the Misuse of Drugs Act 1971 . There was a statutory assumption that the defendant’s expenditure of £10,800 on the purchase of the drugs had been met out of payments received by him in connection with drug trafficking. The judge therefore assessed the defendant’s benefit from drug trafficking as including the figure of £10,800 spent on purchasing the cocaine, and that sum was included in the amount of the confiscation order made against him. The defendant argued unsuccessfully that the judge had been wrong to do so in circumstances where the cocaine itself had been the subject of a forfeiture order. 17. The argument for the defendant was put in two ways. First, it was argued that in calculating the proceeds of his drug trafficking the value of the drugs forfeited should be disregarded, because otherwise there would be a double recovery. The flaw in that argument, pointed out by Lord Bingham CJ, was that while the sum of £10,800 was treated as part of the defendant’s proceeds or benefit from his (earlier) drug trafficking, the drugs themselves were not so treated; so there was no double counting in arriving at the defendant’s proceeds from drug trafficking. 18. The defendant’s second argument was that inclusion of the sum of £10,800 in the confiscation order would lead to serious injustice, in that he would have to sell his legitimately acquired home to satisfy the confiscation order, and that in those circumstances the sentencer had a discretion whether to include that amount. Rejecting that argument, Lord Bingham said (at p 160): “The appellant’s real complaint is that houses which he owns, and which were not the product of drug trafficking, should be realised to pay the confiscation order. But that is the result for which the Act provides and the court has, in our judgment, no discretion to mitigate the intentionally harsh consequences of a confiscation order.” 19. The relevance of Dore to the present case is that in the course of his judgment Lord Bingham referred to the decision in Thacker , which had been relied upon by the defendant. Lord Bingham said that the decision in Thacker was correct but that it threw no light on the solution to the issue in Dore . After citing what had been said in the judgment in Thacker , and approving it, Lord Bingham added this observation: “But even if the drugs had still been held by the defendant within the meaning of section 62 (5)(a) of the 1994 Act- and this could well be the position where it was the police and not the customs and excise who seized the drugs- so that the property would on its face be realisable property within the meaning of section 6 (2)(a) of the 1994 Act, the drugs would still be without value as realisable property. That is because, by virtue of section 7 (1) of the 1994 Act to which we have already made reference, the value of the property is to be taken as its market value and the market value must be the market value if the property is sold lawfully. In the case of drugs, it is obvious that the drugs cannot be sold lawfully and therefore they have no market value.” 20. Two points might, with respect, be noted about this passage. First, Lord Bingham was addressing a hypothetical situation and his observation was not necessary to the reasoning in Dore . Secondly, the issue which he was considering on those hypothetical facts was whether the drugs should be treated as having realisable value equivalent to market value. 21. It is not difficult to see that when Parliament provided that the amount of a confiscation order made against a defendant should be limited to the realisable value of his assets (as it did by section 5 of the 1994 Act, reproducing section 4 of the 1986 Act ), it must have meant lawfully realisable (which would therefore exclude value which could only be realised by going into an unlawful market). 22. Perhaps because of the high authority of Lord Bingham, the passage quoted above from his judgment in Dore appears to have been treated in later cases as if the words were statutory and applied in a very different context from that which Lord Bingham was considering. 23. When looking at the benefit historically gained by a criminal from drug dealing, as distinct from looking at what is his realisable property, it is not self-evident that the court should exclude the actual market value of goods in which it was unlawful for the defendant to deal. 24. Tuckey LJ flagged the point in Berry [2000] 1 Cr App R (S) 352, 356, when he said: “It is clear from Dore that for the purpose of assessing realisable assets, drugs in the defendant’s possession must be valued at nil because they have no market value. However, we observe without deciding that it does not necessarily follow that the same would apply when considering the antecedent question of valuing the defendant’s benefit.” 25. In Ajibade [2006] EWCA Crim 368 , [2006] 2 Cr App R (S) 70, the defendant flew to London from Nigeria. She was searched on arrival and found to be wearing a corset containing a little under 2 kg of cocaine with an estimated street value of around £100,000. In making a confiscation order the judge held that her benefit included the value of the drugs in her possession, which he put at approximately £45,000 representing their wholesale value. On appeal the defendant relied on Lord Bingham’s judgment in Dore for the proposition that the drugs should have been taken to have a nil value. The appeal proceeded on a concession by the prosecution that the principle stated by Lord Bingham applied equally to the calculation of benefit. (Counsel for the prosecution said that the concession was limited to a case where the defendant was a courier, although it is hard to see how that could make any difference). The appeal was therefore allowed and the confiscation order was quashed. 26. In Hussain [2006] EWCA Crim 621 the defendant was convicted of being knowingly concerned in the importation of diamorphine. He was found to be carrying the drugs when he was stopped and searched at Manchester airport. The judge refused to make a confiscation order and the prosecution appealed against his refusal. The judgment of the court, given by Stanley Burnton J, identified the crucial issue as whether the judge’s decision was correct, having regard to the fact that the defendant had in his possession a quantity of drugs of considerable value, if sold illicitly. The judge set out the relevant provisions of the 2002 Act including sections 76(4), 79 and 80. Stanley Burnton J then turned to the question whether the drug had a market value at the time when the defendant acquired it, or at any subsequent time, within the meaning of the Act. He said that the natural meaning of “market value” was value in a lawful market and that there was nothing in the Act or in authority to lead to a contrary conclusion. 27. He cited Lord Bingham’s judgment in Dore and added that, since the words “market value” had been re-enacted in the 2002 Act , Parliament must intend them to have had the meaning given to them in Dore . He also cited Ajibade. In conclusion Stanley Burnton J described the result as not offensive to common sense. He said: “16. The result is not a result which is in any way offensive to common sense. In a case such as the present, the drugs having been seized, the defendant has received and enjoys no benefit by reason of the drugs themselves. Had he sold the drugs, the proceeds of sale, assuming them to be cash or other property which it is lawful to buy and to sell in this country, would have been “a benefit”, which would have been the subject of confiscation proceedings. Equally, if it could have been shown that the drugs in this case had been purchased with property which was itself the proceeds of drug trafficking, that property, which would normally be a sum in cash, would have been his benefit for the purposes of the Act. However, none of those circumstances applied in the present case.” 28. What may be more difficult to defend in terms of common sense are the anomalies which now exist in this part of the law. One oddity is that if a person smuggles cigarettes which are seized at the point of entry, he is taken to have obtained a benefit equal to the duty evaded ( Cadman Smith [2002] 2 Cr App R (S) 37) so that a criminal might appear to be better off, in terms of protecting his assets, by dealing in drugs rather than tobacco. However, that apparent oddity may be off-set by another. If a defendant has a criminal lifestyle, as defined by section 75, the statutory assumptions set out in section 10 have to be applied unless any assumption is shown to be incorrect or there would be a serious risk of injustice if the assumption were made. Under section 75 (2) a defendant has a criminal lifestyle if, among other things, his offence is specified in schedule 2 which, in broad summary, includes drug trafficking offences. One of the statutory assumptions (as in Dore ) is that expenditure incurred by the defendant within 6 years prior to the commencement of proceedings for the offence was met from property obtained by him as a result of his criminal conduct. By that circuitous route, if a defendant is caught in possession of drugs, market evidence can be used to infer what he must have paid for the drugs and thereby attribute to him a past benefit equal to (and based upon) the inferred purchase price of the seized drugs, although market evidence cannot be used to place a direct value on the drugs held by him (since the drugs themselves are deemed to be without market value). This presupposes, of course, that there would be no injustice in applying the assumption; but the court saw no such injustice in Dore . This, however, fits uneasily with the court’s expression at the end of Hussain of its view about the common sense of the result. 29. On the other hand, there would be stronger ground for objection if the prosecution were able to pursue both the direct and indirect routes so that the finding of drugs could generate the finding of a double benefit in the form of the value of the goods and also their inferred purchase price (statutorily assumed to be the proceeds of earlier crime). That would be in substance a kind of double counting of the kind which was alleged in Dore , but which was not found in Dore precisely because the seized drugs were not included in the calculation of benefit. Hussain prevents double counting of that kind. An alternative way of preventing such double counting, if Hussain had been decided differently, would be to refuse to apply the statutory assumptions in relation to the inferred purchase price of the drugs where its application would otherwise produce such double counting and be unjust. 30. In Rose [2008] EWCA Crim 239 the issues before the court were different, but we mention the case because in the course of giving the judgment of the court Richards LJ considered Hussain . The court regarded it as establishing that under the 2002 Act illegal drugs are to be treated as having no value when applying sections 79 and 80, whether for the purpose of assessing a defendant’s benefit from obtaining drugs or for the purpose of assessing the amount available to him at the time of the confiscation order. 31. In our judgment we are bound by the decision in Hussain , which is directly in point, to hold that the judge was wrong in law when he took the direct route of finding that the appellant had obtained a benefit worth £71,424 by obtaining the heroin which was the subject of his offences. 32. If the prosecution had proceeded differently, the judge might have taken the indirect route of inferring as a matter of fact that the appellant must have spent £x in purchasing the drugs and that the £x spent on drugs came from criminal conduct. This route would have been available to him, since the judge found that by reason of his pleas of guilty the appellant had a criminal lifestyle. 33. However, it is not possible for this court to uphold his confiscation order on that basis, because, as the judge said in his judgment, he had no evidence on which to find what the purchase price had been. There was evidence about the wholesale value of the goods, but it would not be right for this court, in the absence of evidence on the subject, to infer that this equated to what the appellant would have paid to his Bangladeshi supplier or suppliers. 34. We conclude that this appeal must be allowed and the amount of the confiscation order reduced by the sum of £71,424.

2008_07_31-1617.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1740/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1740

933bd7c307387c2b8cb655d32568c52d31ad63c2050929ed3f685d763adf3cc8

[2007] EWCA Crim 1698

EWCA_Crim_1698

2007-06-20

crown_court

No: 200601314 D4 Neutral Citation Number: [2007] EWCA Crim 1698 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 20th June 2007 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE BURTON MR JUSTICE HOLMAN - - - - - - - R E G I N A -v- LEVI SOLOMAN WALKER - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 883

No: 200601314 D4 Neutral Citation Number: [2007] EWCA Crim 1698 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 20th June 2007 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE BURTON MR JUSTICE HOLMAN - - - - - - - R E G I N A -v- LEVI SOLOMAN WALKER - - - - - - - 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) - - - - - - - Non-Counsel Application - - - - - - - J U D G M E N T 1. LORD JUSTICE HOOPER: At the conclusion of yesterday's hearing we announced that the appeal against conviction would be dismissed. We now give our reasons. 2. On 15 February 2006, in the Crown Court at Birmingham before Mackay J and the jury, the appellant was convicted of murder: count 1. Dale Campbell was convicted on count 2 of doing an act tending and intended to pervert the course of justice and possessing a prohibited weapon, namely a firearm. Shervaun Whitehouse, the appellant's then girlfriend, was also convicted of count 2. The appellant appeals his conviction by leave of the full court. 3. Niall Sharpe was murdered at about 4.34am on 4 September 2004 in the West Cross Shopping Centre, Oldbury Road, Smethwick. He was killed by a single shot from a Beretta automatic pistol. That night a party was being held in the house of Rashida Bogle in Drake Road on the Galton Village housing estate. That estate is known as, and was called during the trial, "the concrete jungle". It was on the opposite side of Oldbury Road from the shopping centre. 4. There was evidence that the appellant had entered the house where the party was taking place about five minutes after the murder. About one-and-three-and-a-quarter hours later a taxi was called. In the period before the calling of the taxi there was evidence that the appellant and his two co-defendants were in the kitchen talking. 5. The taxi having been called, Josiah Bogle got into the taxi with Campbell. According to Josiah Bogle, Campbell during the journey put a bag on the seat between them. It was Bogle's evidence that Campbell had said words to the effect, "Your cousin said hold this and he'll collect it in the morning." In his statement he had said words to a similar effect, "Take this and Creeper [the appellant] will come for it in the morning." 6. He looked in the bag and saw the gun, a magazine and a gold chain. There was no doubt that the gun had been used in the murder and the gold chain stolen during the course of the murder. Bogle said he was frightened when he realised there was a gun in the bag and took the gun to a friend called Daniel Marsh and asked him to look after the gun. According to Bogle he took the chain to the appellant's girlfriend, Shervaun Whitehouse, and told her to give it to the appellant. According to Bogle he saw the appellant during the following day, but did not ask him about the bag. 7. Marsh made a statement which was read to the jury, albeit that its contents were not agreed. Marsh was unavailable to give evidence. He said that Bogle came to see him on the morning of 5 September and gave him a gun to look after. He said that the next day he took it back to Bogle and that they decided to get rid of it. They gave it, according to Marsh, to Curtis Bailey. The police tracked down Curtis Bailey and eventually found the gun which had been used in the murder and which, on the evidence of Bogle, was in the bag. The necklace was also located via a circuitous route. The evidence that the necklace had been given to Whitehouse by Bogle came only from Bogle. None of the defendants gave evidence. 8. We turn to the summing-up to see how the prosecution put their case: "Step one: opportunity. They say Levi Walker had the opportunity to commit murder in that he was dropped off in the area of Kwik Save by Moses Bogle and Dean Smith shortly before the shooting, and he was on his own, they say, when he was dropped off, and this step, step one, it has to be said, is wholly dependent on the evidence of Moses Bogle and we'll have to spend some time looking at him. Step two: the crime. A much simpler, shorter step to consider. Niall Sharpe was shot dead, it did happen, and about pretty well exactly 04.34 -- we'll see how that works out - by a single gunman who fired a single shot and who stole his yellow gold chain, and really there's no controversy about any of that. The gunman then made his way off at around (inaudible), variously described, towards the concrete jungle. The gunman was a black male wearing either a white or light coloured top. That's step two. Step three is within the concrete jungle. The prosecution say Levi Walker was recognised running up Talbot Way in the direction of Frobishire Way and Drake Road very shortly after the time when this shooting must have occurred, minutes after. This step depends on the evidence of Richard Morgan and depends entirely on it. Fourthly, Levi Walker was in the kitchen. So the fourth step can be called the aftermath, if you like. The cover-up, the prosecution call it. Levi Walker has his meeting in the kitchen at 8 Drake Road, attended by Dale Campbell and Shervaun Whitehouse. This is within an hour and a half now of the shooting, soon after which Campbell asks Josiah Bogle to take the gun away, and the prosecution say these circumstances must show that this was being done for Levi Walker, who must have told Campbell that he'd used the gun in the murder and he wanted it got rid of or removed from the area." 9. This appeal concerns a ruling made by the trial judge in relation to the evidence of Josiah Bogle of what Campbell had said in the car when handing over the bag. See paragraph 5 above. 10. The evidence was undoubtedly admissible against Campbell. Bogle therefore gave the evidence to the jury in the course of the trial. It was submitted, on behalf of Walker, that although the evidence was admissible against Campbell it was not admissible against him. The judge ruled that it was, and that is the ruling which is under challenge in this appeal. The judge, of course, had had the benefit of hearing Bogle give his account of what Campbell had said in front of the jury. 11. There was, and is, no dispute that Bogle, in stating what Campbell had told him, was giving hearsay evidence, the admissibility of which depended on sections 114 of the Criminal Justice Act 2003 and following. Section 114(1) provides that a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if, any of the following four lettered subparagraphs are satisfied. The relevant subparagraph, with which we are concerned, is (d). That provides: "the court is satisfied that it is in the interests of justice for it to be admissible". 12. Bogle was giving evidence of a statement made by Campbell, which was not made in oral evidence by Campbell. Campbell was the defendant and, of course, the prosecution could not call him as a witness and, as we have noted, Campbell himself never gave evidence. 13. Section 115 provides: (1) In this Chapter references to a statement or to a matter stated are to be read as follows. (2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form. (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been- (a) to cause another person to believe the matter, or (b) to cause another person to act or a machine to operate on the basis that the matter is as stated." Applying subsection (3), in telling Bogle what he did, Campbell's purpose was to cause Bogle to act, namely take the bag and temporarily look after it for the appellant. 14. There was likewise no dispute in the court below, nor before us, that Campbell's account of what Walker had said to him was similarly hearsay evidence. Walker's statement to Campbell was not made in oral evidence and Walker's purpose, if he made the statement, was to cause Campbell to act, namely take the bag and give it to Bogle for temporary safekeeping. 15. The prosecution argued that section 118(7) applied. That states: "Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated." The judge agreed with that submission. We come back to that conclusion later in our judgment. 16. There is no dispute that the judge had to apply section 114 to both Campbell's statement to Bogle and Walker's statement to Campbell. Unfortunately the judge did not do that, but jumped straight to section 121. The judge also concentrated in his ruling on the reliability of Bogle's evidence. Mr Imman attacks his conclusion about Bogle's reliability. Section 114(2) provides: "(2) In deciding whether a statement not made in oral evidence should be admitted under section (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." Section 121 provides: "(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless- (a) either of the statements is admissible under section 117,119 or 120, (b) all parties to the proceedings so agree, or (c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose. (2) In this section 'hearsay statement' means a statement, mot made in oral evidence, that is relied on as evidence of a matter stated in it." 17. As far as section 114(2) is concerned, the only subsections of real importance in this appeal are subsections (e) and (f). We should say in passing that as far as subsection (g) is concerned Walker could have given evidence that he never gave the bag to Campbell. True it is, as Mr Imman QC submits, that Mr Walker could not directly challenge Campbell's conversation with Bogle. However, if he had denied giving the bag to Campbell and if the jury had found Walker's evidence credible, that would have been sufficient to render Bogle's evidence about what Campbell said to him of no evidential value. 18. As far as section 121 is concerned, it is the reliability of the statements of Campbell and Walker which need to be considered. The judge never addressed the issues of the reliability of Campbell and Walker as makers of the statements, the reliability of the evidence of the making of the statement by Walker to Campebell and the reliability of the statement themselves. (See Maher 2006 EWHC 1271 (Admin)). 19. However, the judge was never asked to carry out this exercise. It was the full court in giving leave which noted that the judge had not apparently carried out the necessary exercise. It is accepted by Mr Inman that we should now carry out that part of the task not carried out by the judge. Only if we reach the conclusion that the judge would necessarily have decided the issue adverse to the appellant, should we dismiss the appeal. 20. We start with section 114(f) , namely the reliability, as it appeared to be, of the evidence of the making of the statement by Campbell to Bogle. The judge did deal with this issue in his ruling, although he concentrated on Bogle's reliability generally. He said: "So Mr Inman's main attack and main fire is directed on the question of reliability, which is something I have to 'take into account" before expressing satisfaction. I'm in a good position to judge that because I've heard the whole of Josiah Bogle's evidence. He's been cross-examined extensively before a jury which as an exercise is, if anything, even better and more intense than the equivalent testing in a voir dire . Mr Inman makes obvious points about the difficulties inherent in his account. Without listing them all the main ones are these. In fact Walker never did make any attempt to collect the gun either in the morning or at any time; in fact Bogle never did try to contact Walker about it to say "When are you gonna take this gun off my hands?"; and that is the case even though he had ample opportunities to do so, two of them at least on the same day, the Saturday, and there is evidence that he spent substantial time with Walker in the following week at Nottingham, both at Nottingham and driving to and from it, where one would have thought this topic would have been raised, and then when his own brother Moses was arrested and gives a false alibi, it is only after all this that this account of the conversation emerges. There are other points. It is not to be dismissive of them to describe them as jury points, but that is what they are. Mr Barker urges me to approach this case, as I believe I will have to tell the jury to approach it, on this basis: that the actions and reactions and responses of some of the witnesses in this case, and the Bogle brothers in particular, shouldn't be judged by the kinds (?) of behaviour of probably most of the members of this jury. It's not to say that they don't live under the same laws, they do, but the points Mr Inman is making is 'Well why didn't you do this, that, or the other?' This is a different culture that these young men live in. The world they live in has strong but unorthodox loyalties, attitudes to authority, responses to criminal situations. Over it hangs a duty to keep quiet, particularly about crime, a fear of others, a need not to stand out from the crowd or fall out, to rock the boat, to put one's head above the parapet, whatever phrase one chooses. At the core of Josiah Bogle's evidence, as it Seems to me - and it will be for the jury to decide whether it seems to them as well - is the fact that he has eventually broken all or some of these rules. Anyone can see what a difficult time he had in the witness box. It is for the jury to decide whether he had that difficult time because he is a liar or because he is putting his neck on the line. For my part, I cannot say that he is a witness who was incapable of being believed; it's a case eminently suited to decision by a jury. It is perfectly possible that they could on a reasonable basis come to the conclusion that the core of his evidence, which must have cost him a high price in terms of his anxiety and which may yet in the future cost him in other ways, is true. I'm not saying that it was; it is not for me to pass that judgment. Therefore, if I have to apply Section 121 I rule that the interests of justice, which include justice to the defendant and justice to the prosecution, require this statement to be admitted as evidence against both Walker and Whitehouse." 21. Mr Inman accepted before us that the judge encapsulated in the ruling his principal arguments about the reliability of Bogle. Mr Inman attacks the test applied by the judge in the penultimate sentence of the passage which we have quoted. He particularly attacks the use of the expression "incapable of being believed". In our view the judge was saying in this passage no more than, "A reasonable jury could properly rely on the evidence of Bogle in the process of reaching the conclusion that 'A' was guilty". Mr Inman, and indeed Mr Barker QC, accepted that if this is a proper interpretation of what the judge was actually saying, then the judge was applying the correct principle. It was agreed that it was not for the judge to decide whether he found Josiah Bogle reliable, but whether a reasonable jury could find him reliable. 22. We add a further point in commenting on the judge's reasoning. Although in section 114 the reliability of the maker of the statement is a factor, the reliability of the evidence of the making of the statement seems to us the more important. Assessing the reliability of the evidence of the making of the statement permits the judge to examine not just the evidence of the person making the statement and his reliability, but other evidence which may well touch on the issue. That said, we take the view that the judge did reach a decision as to Bogle's reliability, which he was entitled to reach. 23. In passing, we should note that we heard no argument on the meaning or effect of the words "appears to be" in subsection 114(e) and (f). 24. We now turn to subsections (e) and (f) and start with Campbell. Subsection (e) "requires" the judge to assess how reliable the maker of the statement, Campbell, appears to be. Subsection (f) "requires" him to assess how reliable the evidence of the making of the statement to Campbell by Walker appears to be. There is, in our view, considerable overlap between these two subsections and it is subsection (f) which is of particular importance, at least in this case. In deciding the issue raised by subsection (f) the reliability of the maker of the statement may be of importance in deciding the issue of admissibility, but not necessarily so. 25. We have no doubt that if the judge had made these assessments he would have ruled the evidence of what Campbell said to Bogle admissible under section 114 for at least the following reasons. There was no doubt that Campbell was not the murderer. The evidence of Bogle that Campbell had handed him the bag containing the gun and necklace was evidence upon which a reasonable jury could properly rely in reaching the conclusion that the appellant was guilty. The murder had only very recently taken place and there was considerable other evidence that the appellant was the murderer. There was evidence that the appellant was in the house within minutes of the murder and was talking to Campbell in the kitchen in the period before the taxi was called and the hand-over took place. 26. Section 114(e) also "required" the judge to assess the reliability of Walker as the maker of the statement to Campbell. In his summing-up, as we have seen, the judge said that the prosecution's case was that, given what Campbell said to Bogle, Walker must have told Campbell that he had used the gun in the murder and wanted it removed from the area. Mr Inman did not argue that the application of subsection (e) would render Walker's statement to Campbell inadmissible, so we do not need to trouble ourselves further about this. 27. Before passing on to section 121 we make two points: first, this is an alternative possible argument that the prosecution might have put forward, that is an argument that relies upon section 118(5), which refers: "Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings." By virtue of section 114(1)(b) that would be a rule of law preserved by section 118 which could make the statement admissible. Mr Barker did not rely on section 118(5) and we say no more about it. 28. Secondly, there was no dispute that if Campbell had said no more to Bogle than, "'A' gave me the bag" Campbell would not, in this respect, have been giving hearsay evidence. In fact, that is all that the prosecution really needed. If Campbell had said this and no more to Bogle, and assuming that Bogle's account of what Campbell had said to him was admissible evidence against Walker, the prosecution would have proved through Bogle that the gun was in the hands of the appellant within a short time of the murder, and this would be very strong support for the other evidence that the Appellant was the murderer. Even if we were wrong about our conclusion on section 121, to which we now turn, this will be enough, in our view, to say that the conviction was safe. In reality, although Campbell gave further evidence about what Walker had asked him to do, what really mattered, in our view, was that Campbell had received the gun from Walker on the account given by Bogle. 29. We turn to section 121. It imposes a higher threshold, so it appears to us, than section 114 . Section 114(1)(d) says: "the court is satisfied that it is in the interests of justice for it to be admissible." 30. Section 121 refers to the value of the evidence being so high that the interests of justice require the earlier hearsay statement (in this case Walker's statement to Campbell) to be admissible. Value, it seems to us, although we heard no detailed argument on the point, to mean probably probative value, that is, for example, the word used in section 114(2)(a) . Section 121 requires the judge to consider the issue of how reliable the statements appear to be. In this case the statement of Campbell to Bogle and of Walker to Campbell. The judge, having concluded that the statements were admissible under section 114 , having applied subsections (e) and (f), is unlikely, so it seems to us, to reach the conclusion, applying section 121, that the statements are not reliable. Applying what we have said in relation to section 114 , we take the view that if the judge had asked the right questions in relation to section 121 he would not have ruled the statements of Walker to Campbell inadmissible under section 121. 31. We say something briefly about common enterprise: section 118(7). We did not ask Mr Barker for any detailed argument and we therefore give only our tentative views. In his ruling the judge said: "Mr Barker puts it forward on two bases; first, under Section 118 preserved common law categories of admissible hearsay, number 7 is common enterprise. 'Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.' There is other evidence that shortly before this gun was passed to Bogle he, Levi Walker and Shervaun Whitehouse had been together. I'm sorry, Dale Campbell, Levi Walker and Shervaun Whitehouse had been together just the three of them in the kitchen of Rashida's house, and there is other evidence, if the jury accept it, capable of amounting to circumstantial evidence consistent with Walker having come to that meeting hot-foot from shooting Niall Sharpe just off the Oldbury Road minutes before. So the prosecution say the jury could infer, if they think it safe to do so, that a joint enterprise or conspiracy was hatched in that kitchen there between the three to take all necessary steps to conceal this crime and including the step of removing the gun as far away from the scene as they could. Mr Inman objects that the sayings of one party to a joint enterprise cannot be used to establish the existence of the common enterprise and the prosecution of course accept that proposition as being correct, which it is, but that isn't the case here, they say. The existence of that joint enterprise depends on inferences to be drawn from other evidence, but, once established, what any one member of the conspiracy says is the conspiracy in action and becomes evidence against the others. So Mr Barker argues that the words said by Campbell are the common enterprise in action -- seen in action in disposing of the gun and is admissible as such against all three. I accept Mr Barker's arguments in this respect." 32. The rule, to which section 118(7) refers, is very helpfully discussed in Cross and Tapper on evidence, 10th Edition, page 610. The justification for the rule is that a party to a common enterprise can be treated as an agent of another party to a common enterprise: see also section 118(6). The existence of the common enterprise (in this case getting rid of the murder weapon) cannot be proved, as the judge said, by what was said by Campbell to Bogle. Mr Barker agreed that without Bogle's evidence of what Campbell said to him there would be insufficient evidence of any common enterprise. Our tentative view is that section 118(7) was not satisfied and we do not need to decide the issue in the light of our other conclusions. 33. For the reasons, which we have now given, this appeal is dismissed.

2007_06_20-1141.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1698/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1698

ed2e3a21e8fe876ed67baa3e0336ee5ec9f166cf2c5dd77fec998a6257d6fd9d

[2004] EWCA Crim 1470

EWCA_Crim_1470

2004-05-26

crown_court

No: 200401743 A0 Neutral Citation Number: [2004] EWCA Crim 1470 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 26th May 2004 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE LEVESON MR JUSTICE RODERICK EVANS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 34 OF 2004 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London

No: 200401743 A0 Neutral Citation Number: [2004] EWCA Crim 1470 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 26th May 2004 B E F O R E: LORD JUSTICE HOOPER MR JUSTICE LEVESON MR JUSTICE RODERICK EVANS - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 34 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 ELLISON appeared on behalf of the ATTORNEY GENERAL MISS R BUTLER appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T Wednesday, 26th May 2004 1. LORD JUSTICE HOOPER: Her Majesty's Attorney General applies for leave to refer a sentence as being unduly lenient. We grant that leave. 2. The offender's name is Michael John Webb. He is 47 years old. 3. On 5th March 2004 he pleaded guilty to indecent assault on a male person under the age of 16, contrary to section 15(1) of the Sexual Offences Act 1956 . He was sentenced by His Honour Judge Hall on the same day to six months' imprisonment, with an extended licence period of two and a half years. 4. The agreed facts are as follows. The victim of the offence, BS, aged 14 years, first met the offender when they both attended a football referees' course at Wycombe Wanderers Football Club in November 2002. Thereafter they occasionally met in similar circumstances. They also spoke quite often on the telephone. The offender would telephone BS at home, sometimes several times a week, which resulted in BS trusting him and looking up to him. 5. BS wanted to attend an adult football match that the offender was due to referee on Saturday 15th March 2003, but it was difficult for BS to travel there. The offender had spoken to, but had never met, members of BS's family. BS's parents had come to understand from the offender that he was caring alone for two sons. It was agreed with the mother of BS that he would spend two nights (14th and 15th March) at the offender's home so that he could attend the match. 6. The offender collected BS from his mother's place of work in the early evening of Friday 14th March 2003. On the way to his home the offender told BS that he would sleep on the settee downstairs. However, later in the evening he said that he would put up a Z-bed for BS in his bedroom. On behalf of the Attorney General, Mr Ellison suggests, and we agree, that this shows a degree of pre-planning on the part of the offender. The offender's sons, aged 16 and 19 years, were both present during the evening and overnight. They each had their own bedroom. 7. Before they went to bed the offender questioned BS at some length concerning his relationship with his parents, during which BS became upset and tearful. It seemed to BS as if the offender was trying to identify a "soft spot" capable of upsetting him, and it did. Mr Ellison comments that this demonstrates exploitation on the part of the offender. We agree. Once BS became upset, the offender put his arm around BS and cuddled him for some time. When they went to bed they both undressed to their underpants and BS got into the Z-bed. That bed had been placed close enough to the offender's bed to enable him, whilst lying in his bed, to touch BS. BS tried to go to sleep, but the offender began to question him about his family life and again BS became upset. The offender invited BS to sit on his bed and he again put him arm around him. Then he asked BS to lie down on the bed with him and he put his arm around him. Before BS went to sleep the offender had his front against BS's back. Later: "The offender took BS's hand and placed it over his crotch area under his boxer shorts and onto his penis. BS pretended not to be awake. The offender then placed his hand under BS's boxer shorts and touched his penis for a while. BS turned over onto his front and took his hand away from the offender's crotch. The offender again put his hand on BS's penis and he then pulled BS's boxer shorts down to his knees. The offender started to rub BS's bottom, opening and closing his buttocks with his hands. BS could then feel that something was inserted into his bottom, but he had no idea what it was, it went in quite far and was then removed. The offender then touched BS's penis again, making it erect, before he pressed his own buttocks against BS's penis for some time. When the offender moved his position BS got up saying he needed a drink". He left the room and looked for his clothes but could not find them. He then returned to the bedroom and told the offender he was going to sleep on the Z-bed. The offender then reached out and took hold of BS's hands, saying that he loved him. After a while the offender pulled his hand away. The offender told BS to get back onto his bed, so he did, being able to think of no excuse for not doing so. A little later BS said he was too hot as an excuse to get off the offender's bed. He went downstairs, found a fleece top (that was not his) and left the house, wearing only his boxer shorts and a fleece. It was just after 04.00 hours and he made a 999 emergency call to the police. That, in our view, is significant in that it shows the traumatic effect on BS of the offender's behaviour. 8. Police officers met BS at 04.05 hours and found him to be apparently shocked and a little confused. There were reports before the court which indicated that BS subsequently developed difficulties sleeping and some behavioural problems that affected his family life and school work. In September 2003 BS was diagnosed as having post-traumatic stress disorder and thereafter received a protracted period of counselling. We have read the victim impact statement dated 9th February 2004. 9. The offender was arrested at 05.55 hours on the morning of 15th March. He accepted that when he and BS had discussed BS's home life, BS had become upset and that he, the offender, had put his arm around him, but he denied any indecent conduct with him and denied inviting him to lie on his bed. He said that BS's allegations were probably just an attempt to "draw attention to himself". 10. The offender has no previous convictions. 11. The basis upon which the offender pleaded guilty was that he disputed the prosecution facts only insofar as he did not hide BS's clothes from him and that he did not masturbate when he touched BS. 12. The mitigation advanced by the offender included reference to the fact that if he was given a custodial sentence of more than six months, he would lose his home, because of problems with the mortgage, and that his younger teenage son, C, would have no home to go to and no means whatsoever by which to support himself. 13. In mitigation Miss Butler said: "The problem is with the younger boy [C]. [C] is still at home, [C] being the contact with [BS] in the first place. [C] lives at home full-time. The relationship with their mother is not such that they can go and live with her in any event. She runs a bed and breakfast and has a fairly full clientele list at any given time so there is not space for [C] to go and live with his mother. He sleeps in a store-room as and when he does go and visit her but there certainly is not permanent accommodation for [C]. He is still at college ..." 14. Miss Butler went on to say that there was no means whatsoever by which C could support himself and that there was no way that money could be mobilised in order to support C were the father to be sent away for a period longer than six months. The judge was asked to bear those factors in mind "very, very highly" when considering the period of custody. 15. There is then further reference to the severe problems faced by the offender's parents, one aged 74 and the other aged 85, and the role that the offender played in their care. 16. In concluding her submissions on mitigation, Miss Butler said: "... any period of custody that you impose today will wreak havoc in the lives certainly of [C], to a slightly lesser extent [J] [another brother] and then the parents, so the risk is that there will be more victims to what has already been a most unfortunate incident, and it would be very regrettable that [C's] career could not progress to fruition ... " 17. In passing sentence, the learned judge said: "Miss Butler has eloquently told me about the effect that any sentence of imprisonment of any length would have on your sons, and on your father in particular, and I have read their heartrending letters to me and they reveal the good side of you." Clearly, that mitigation was an important factor in the decision of the trial judge to pass a sentence of only six months. 18. We turn now to a statement by C's mother which has been prepared for these proceedings and submitted by the Attorney-General: "I understand that it was suggested to the Court that I have refused to house my son [C]. I would like to make it clear that this is not the case. [C] who is now 16 years has always had a room at my home which he occupies for most of the week. As previously stated he does still stay at his father's address in Thame at weekends and occasionally during the week. [C] attends [the name of the college]. I pay for all his college costs including transportation. I take him from my home most mornings to Thame where he gets the college minibus and in the evening I collect him from his father's house and bring him home. I should add that I receive all the child benefit and Child Tax Credit relating to [C]." 19. It is, to say the least, most unfortunate that the sentencing judge was misled in the way that he was about this matter. We are not suggesting, of course, that either Miss Butler or her solicitor knew about this apparent deception. 20. We turn to the pre-sentence report. The author of the report said that he regarded the risk of non-sexual offending as low and went on to say: "As regards sexual offending there may be a higher risk, although Mr Webb is adamant that he will never allow himself to be in a situation where such behaviour could occur. He does however still struggle with self awareness, understanding why he offended, and has a limited acceptance and understanding of the victim's perspective. Self knowledge and victim awareness are key areas which impact on behaviour change." There is then a reference to a proposal that the offender take part in sex offender treatment, such as that offered by the Thames Valley Project. 21. Mr Ellison, on behalf of the Attorney General, submits that the following aggravating features are present. We agree. The offender abused his position of trust to commit the offence and exploit the vulnerability of his victim. The victim was away from home, the offender learnt about his home problems and took advantage of that to indecently assault the victim. 22. In the skeleton argument prepared for this hearing by Miss Butler, she said that grooming was of limited duration over the evening of 14th March 2003. That is right. Mr Ellison has not suggested that there was any grooming before the evening in question. Nonetheless, we take the view that when the decision was made by the offender to put the Z-bed up in his room and to invite BS to come into his bedroom, the offender was planning for what was to happen thereafter. 23. It is submitted on behalf of the Attorney General that the assault was prolonged, probably about half an hour. Mr Ellison also submits that it involved both masturbating the victim and the insertion of something into his anus, making this a serious indecent assault. Mr Ellison then refers to the long term effects that this has had upon the victim. 24. As the Attorney General accepts, there were mitigating factors. First of all, the offender had pleaded guilty. However, he did not plead guilty until after the plea and directions hearing, albeit before the trial. He is not, therefore, entitled to full credit. Secondly, this was a single offence - this is not one of those cases where the court is concerned with a series of indecent assaults over a period of time. Thirdly, Mr Ellison points out that the offender has no previous convictions. 25. Mr Ellison drew our attention to three cases. In Attorney-General's References Nos 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41 and 42 of 2003 [2003] EWCA Crim 1973 this court, presided over by Kay LJ, re-affirmed that sentencers should consider the following when passing a sentence for an offence of this kind, the degree of harm to the victim, the level of culpability of the offender, the level of risk posed by the offender to society and the need to deter others from acting in a similar fashion. The court re-affirmed the proposition that good character does not justify a substantial reduction. 26. In paragraph 6 Kay LJ summarised the submissions of the Attorney General in those twelve cases to the effect that far too great regard had been paid to the interests of the defendant and insufficient account had been taken of the seriousness of the offending. He repeated the Attorney General's submissions to the effect that the courts have failed to recognise the seriousness of the harm caused to the victim and the proper interests of the public at large, both in protecting others from serious harm from the individual offenders and also in deterring others from committing like offences. The court continued in paragraph 8: "However, it is clearly undesirable for many reasons that courts should pass sentences that are out of line with proper sentencing practice. To do so can only cause public concern and affect the confidence of the public in the system. It runs the risk that people may feel that sexual offenders have not received proper punishment thereby increasing the danger that extra-judicial punishment may be meted out. An inadequate sentence frequently adds to the anguish of the victim, who feels that society has not recognised his or her suffering, particularly when they have had to steel themselves to speak of offending against them that they might have chosen not to rehearse publicly. Nor is such a sentence any kindness to an offender, who will in all probability be subjected to a reference to this court with the unnecessary anguish of having to start the sentencing process all over again." 27. In paragraph 9 Kay LJ said that the court ventured to suggest that in some of the cases considered, if the sentencer had stood back and looked at the matter, he or she might well have recognised that too great a weight had been attached to the interests of the offender and insufficient weight to the victim's proper interests and the interests of the public at large. In our view, that also applies to this case. 28. Two further authorities were drawn to our attention by Mr Ellison. The first is Attorney-General's Reference No 5 of 2001 (Terence Culshaw) [2001] 2 Cr App R (S) 473. The case involved three offences committed some considerable time before over a period of some four years, starting when the victim was 7-8 years old. During visits to the offender's home, the offender performed sexual acts with the victim. The offender was convicted. In reaching the conclusion that the sentence of six months' imprisonment was unduly lenient, Lord Woolf, Chief Justice, giving the judgment of the court, said that it had reached the conclusion that if these matters were to come before the court today, having been committed fairly recently, an appropriate sentence would be not less than four years' imprisonment. 29. The other case to which Mr Ellison referred is Attorney-General's Reference No 41 of 2000 (David Harrison) [2001] 1 Cr App R (S) 372. In that case the offender had met a 13 year old boy, who attended a school for children with special needs. The offender took the boy to a restaurant and then to a swimming pool, later they met in a cafe, and subsequently went to the offender's flat, where the offender gave the boy a karate suit and a mobile telephone phone. They met again the following week when they again went swimming. The offender asked the boy to model for him and the boy agreed to do so. Subsequently the offender took a variety of photographs of the boy naked. The boy was given £20 and vouchers for the mobile telephone. Police officers found photographs in the offender's possession showing the boy and other children naked. Some photographs showed the offender and another boy apparently engaged in simulated sexual intercourse. He was sentenced to a probation order for three years and the Attorney General asked this court to review that sentence. In paragraph 20, Rose LJ, Vice President of the Court of Appeal Criminal Division, said: "In our judgment, the circumstances of these offences were of a gravity which required the imposition of a prison sentence in the court below of at least 3 years' imprisonment in total. The gravity lay not so much in the nature of the sexual activity in itself but in the grooming of this vulnerable and handicapped boy, over a period of time and the giving of money and other gifts." In that case the offender had pleaded guilty. 30. We turn to the mitigation advanced on behalf of the offender by Miss Butler. She submits, first of all, that the sentence should reflect the fact that the offence was not of a violent nature or confrontational. Thus, so she submits, it did not have the damaging physical effects that such violence might have caused. She accepted that there was harm of a psychological nature, although she asked us to treat the victim impact statement with some care because the offender is not able to challenge it. 31. The thrust of her submissions, it seems to us, was that harm of a psychological nature is somehow less important than physical harm. It is not, at least in this case. As the victim impact statement makes clear, BS has lost confidence in, and the ability to trust, other people and now suffers from post-traumatic stress disorder. 32. She submitted that the assault was at the lower end of seriousness. We do not accept that. This was an offence planned over a short period of time, but nonetheless it was a serious indecent assault involving masturbation and penetration. 33. Miss Butler submits that the sentence is not unduly lenient. We disagree. 34. Having regard to the authorities to which we have already referred, we take the view that the appropriate sentence was a sentence in the region of two and a half to three years' imprisonment. 35. Recognising the element of double jeopardy, the sentence which we now impose is one of two years' imprisonment. 36. We turn to the consequential orders that follow from that. The judge, under section 85, made an order extending the licence period for two and a half years. In the light of the alteration that we have made to the sentence, we take the view that the extended licence period should be one of two years. 37. Given that we have now increased the sentence, we are required to make the appropriate order under section 28 of the Criminal Justice and Court Services Act 2000 , disqualifying the offender from working with children. Finally, we note that the provisions regarding the Sex Offenders Register will apply also to this offender.

2004_05_26-250.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1470/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/1470

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[2019] EWCA Crim 1677

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2019-09-27

crown_court

[2019] EWCA Crim 1677 2019/02377/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 27 September 2019 B e f o r e: LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE EDIS and MRS JUSTICE THORNTON DBE ____________________ R E G I N A - v - A C F ____________________ 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 t

[2019] EWCA Crim 1677 2019/02377/A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 27 September 2019 B e f o r e: LADY JUSTICE NICOLA DAVIES DBE MR JUSTICE EDIS and MRS JUSTICE THORNTON DBE ____________________ R E G I N A - v - A C F ____________________ 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. __________________________ Miss T J Ayling QC appeared on behalf of the Appellant Mr O Saxby QC appeared on behalf of the Crown ______________________ J U D G M E N T ( Approved ) ______________________ Friday 27 September 2019 LADY JUSTICE NICOLA DAVIES: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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. 2. On 11 September 2017, in the Crown Court at Reading, having been convicted following a trial of counts 46 and 56, and having pleaded guilty to the remaining sixteen counts, the appellant was sentenced as follows: Complainant AMF: • Count 15, rape of a child under 13 (multiple incident count), six years’ imprisonment, to run consecutively to the sentence on count 46;  Count 46, rape (multiple incident count), 22 years’ imprisonment; Complainant ALF: • Counts 17, 21, 22 and 23, rape of a child under 13, five years’ imprisonment, to run concurrently with each other and with the previous sentences; • Counts 20 and 24, sexual assault of a child under 13, sixteen months’ imprisonment, concurrent on each, to run concurrently with the existing sentences; • Count 25, assault occasioning actual bodily harm, six months’ imprisonment, to run concurrently; • Counts 26 and 27, rape of a child under 13, six years’ imprisonment, concurrent on each, to run concurrently with the existing sentences; Complainant LF: • Counts 28 and 29, rape of a child under 13, five years’ imprisonment, to run concurrently on each and concurrently with the existing sentences; Complainant CF: • Counts 36, 37, 38 and 39, rape of a child under 13, five years’ imprisonment, to run concurrently on each and concurrently with the existing sentences; and Complainant DF: • Count 56, doing acts tending and intended to pervert the course of public justice, six years’ imprisonment, to run concurrently. The total sentence was, therefore, one of 28 years’ imprisonment. 3. The appellant was acquitted of counts 42, 47, 49 and 50 (rape) and of count 55 (perverting the course of public justice). A restraining order was imposed, pursuant to section 5 of the Protection Against Harassment Act 2005, unlimited as to time, as was a Sexual Harm Prevention Order of unlimited duration. Indefinite notification requirements were imposed. 4. There were three co-accused: “ZF” (the mother of the appellant), who was convicted of three counts of cruelty to a person under 16, two counts of perverting the course of public justice and was sentenced to eight years’ imprisonment; “AF” (the appellant’s father), who was convicted of two counts of cruelty to a person under 16, two counts of rape and was sentenced to a total of 26 years’ imprisonment; Paul Johnson was convicted of one count of perverting the course of public justice, he was sentenced to fifteen months’ imprisonment, suspended for 24 months. The facts 5. The co-accused, ZF, had three children prior to forming a relationship with the co-accused, AF. They subsequently had eight children of their own, including the appellant (their eldest son), born in 1992, and the complainants, AMF, CF, ALF and LF. It was alleged at trial that the appellant, ZF and AF sexually abused the complainants between February 2001 and March 2007. Social Services had become involved with the family. One of the complainants disclosed being sexually abused at home. Police became involved, accounts were taken from the complainants and interviews were held with some of those who had been implicated. Family Court proceedings were instituted, during the course of which the appellant admitted that he had sexually abused his four younger siblings. He was taken into voluntary care in February 2007. The complainants subsequently retracted their police statements. The criminal investigation was closed. The Family Court proceedings continued, as a result of which the complainants were made the subject of full care orders. They were removed from the family home and placed in foster care or a children’s home. 6. In early 2013, ALF and LF made disclosures to the police in relation to the alleged sexual offending. A second police investigation was instituted which encompassed offences relating to ALF, LF and two other siblings. Offences involving AMF (counts 15 and 46) 7. In 2016, AMF (then aged 22) disclosed that she had been sexually abused by her father and the appellant. The abuse began in 2004, when she was aged 9 to 10. The appellant and her father would come into her room and vaginally rape her. The appellant did this on numerous occasions until she was about 12. At the time of the offending, the appellant was aged between 12 and 14. The abuse would occur two to three times a week and increased to almost every night as she became older. (The appellant pleaded guilty to count 15. The coaccused, AF, was acquitted of the counts alleging sexual offending during this time.) 8. AMF was placed in a children’s home in 2009, her family would contact her and on occasions she would return to the family home. In 2011 she returned to live with her family in that home. Thereafter, her father continued to rape her as a form of punishment for transgressions such as using the telephone without asking, or engaging with the police or social workers. (AF was convicted of counts 45 and 48 (rape), but acquitted of the other counts which he faced.) AMF also alleged that the appellant continued to rape her (count 46). AMF said that the last incident occurred on 19 May 2016. (The appellant was acquitted of counts 47 (an allegation that she had been raped by him with the assistance of their mother) and counts 49 and 50 (allegations that she had been raped the day after her birthday as punishment for speaking to the police and further as punishment at the house of a family friend)). Offences involving LF (counts 28 and 29) 9. In interviews between July 2013 and February 2014, LF (then aged 15) stated that the appellant had started to abuse her in January 2005. She was aged 8 and the appellant was aged 12. She had been stabbed in the leg by her sister, ALF, and they had argued. She told her father about the incident, who told the appellant. The appellant came into her room and screamed at ALF, as a punishment the appellant vaginally raped ALF. He then pushed LF to the ground and vaginally raped her. ALF told her mother about the incident, but no action was taken (count 28). 10. ALF could recall two further occasions when the appellant had raped her: the first, after she had been to the shops with AMF; the second when she used the wrong cup to make her mother a drink (count 29). LF described her father as being the ringleader. He controlled everything that happened in the family. Her parents were violent to each other. They would also be violent to the appellant if he did not administer whatever form of punishment his father had decided was appropriate. (AF was acquitted of any offending against LF.) Offences involving CF (counts 36 to 39) 11. In an interview in November 2014, CF (then aged 19) stated that the appellant had raped him on numerous occasions between January 2005 and March 2007, when CF was aged between 9 and 11 and the appellant was aged between 12 and 14. They used to share a bedroom. CF would sleep on the top bunk bed; the appellant would sleep on the bottom bunk. The appellant would tell him to come down to his bed and would hit CF if he refused. The appellant would then anally rape him. The abuse occurred approximately once a week. On about six occasions, CF tried to tell his mother what was happening. Offences involving ALF (counts 17 and 20 to 27) 12. In an interview in March 2013, ALF (then aged 15) stated that the appellant had begun to abuse her in February 2004, when she was aged 7 and the appellant was aged 11. She was asleep. The appellant had climbed into bed with her. He would talk to her, telling her that he knew that she was awake and she could hear him. He punched her in the face and had sexual intercourse with her (count 17). 13. On two further occasions, the appellant pulled down her trousers and touched her vagina: once in the car, when her father had stopped to buy drinks at a service station; and once in her bedroom (counts 20 and 24). On the latter occasion, the appellant had burnt her wrist with a cigarette when she tried to stop him from sexually assaulting her sister, LF (count 25). 14. During a family shopping trip in Reading, the appellant had vaginally raped ALF in the car park toilets (count 22). He had also raped her on numerous occasions at their home address (counts 26 and 27). On a further occasion, the appellant had raped ALF on an area of grassland whilst one of his friends watched. He also had a video camera on a tripod, which ALF believed had been used to film the incident (count 23). The offence involving DF (count 56) 15. DF was one of the three children born to ZF prior to her relationship with AF. Following his allegations of child cruelty against his mother in 2014 (count 1, of which ZF was convicted), DF (then aged 33) stated that the appellant had contacted him and told him that his mother wanted him to write a letter retracting the allegations. They subsequently met in person so that he could write the letter. DF had been sleeping in a tent in a park. But, having written the letter, he was allowed to stay at the family address, where he remained for some weeks. These arrangements were orchestrated by ZF who used the appellant to persuade or pressure DF into writing the letter. In sentencing, the judge observed that the appellant had been loyal to his mother, who exerted an enormous hold over him and the other children. The Crown Court proceedings 16. 23. The appellant was aged 25 at the date of sentence. He had one previous conviction for shoplifting in January 2017. The judge treated the appellant and his co-accused as being of good character for the purpose of sentence. The judge described the evidence given during the ten week trial as representing one of the most serious cases of interfamilial sexual abuse that she had heard or in which she had been involved. Full credit was given for the appellant’s guilty pleas at the plea and directions preparation hearing. 17. Counts 15, 17, 20 to 29 and 36 to 39 (the abuse which the appellant had admitted in the Family Court proceedings) were committed when the appellant was aged between 12 and 14. They took place when he was alone with his siblings, generally in the home and as a punishment. The appellant apparently regarded himself as the disciplinarian in the family. The punishment took a sexual form. The judge stated that the appellant’s mother was aware of what had been going on. There was some evidence that she had beaten the appellant, but the judge stated that the overwhelming evidence was to the effect that ZF had turned a deliberate blind eye to what had taken place. 18. The judge identified the complainant AMF as a highly vulnerable individual. She had been raped as a child by the appellant and subsequently, having returned to the family home from care, was repeatedly raped by her father and the appellant on at least six occasions between July 2011 and January 2016 (count 45 by AF and count 46 by the appellant). AMF suffers from type 1 diabetes, she has self-harmed on occasions, she has also received a diagnosis of bipolar disorder. The judge found that her particular frailties will have been known to both her father and the appellant. 19. The sexual abuse by the appellant of his four siblings has had a significant effect on each of them. The court heard evidence of their disturbed behaviour as children, demonstrated at home and at school. All have required significant input from those tasked with looking after them. The abuse of them by the appellant and the lack of protection by their mother in the cases of ALF and CF has affected each of them significantly. Victim Impact Statements from LF and ALF were before the court. 20. Counts 1 and 2 charged cruelty against respectively DF and KF (the children of ZF), they were carried out by ZF and AF. The judge described ZF as a woman who had no control over her temper, she wanted to be in charge and would use deliberate force to dominate the family. ZF turned a blind eye to the sexual offences perpetrated by the appellant. He had himself been a victim of abuse by ZF’s family. ZF had sought to control her children throughout their lives and was described by the judge as a dominating figure in the family. 21. AF physically abused two of his stepsons. He sexually abused his daughter, AMF, repeatedly over a five-year period and he raped her on her 22 nd birthday. It was a repeated and sustained campaign of rape, including a punishment rape for talking to the police. 22. The judge identified the appellant as a victim of sexual abuse, he was abused by his extended family and as a result, he had come to regard sexual abuse as part and parcel of his life. It was his way of exerting control over others. The judge found that the sexual abuse which the appellant had suffered had played a significant part in his behaviour towards his siblings. He did not fully appreciate at the earlier stage of the offending (2004 to 2007) that what was being done to him and what he was doing to others was out of the ordinary. The shame and disgust the appellant felt as a child at his behaviour has manifested itself in self-mutilation, which includes his genitalia. The judge stated that the appellant “sadly and horrifyingly exemplifies the phenomenon of the abused becoming the abuser”. She observed that had the appellant’s sexual abuse ceased when he was 14, and his offending had been limited to count 39, she would not have considered finding him dangerous, due to his youth and the sexual abuse by others of him. However, his sexual offending continued towards AMF, whom he knew was very vulnerable. As a result, the judge thought it appropriate to consider the issue of dangerousness. 23. The appellant had pleaded guilty to thirteen counts of rape and had been convicted of a further count of rape. The counts to which he had pleaded guilty were rape of a child under 13. The judge characterised the offending as being of such severity as amounting to a campaign of rape, such that a custodial sentence of twenty years and above may be appropriate. The victims were very young and therefore particularly vulnerable, the appellant was their brother and in some cases he was significantly older than his young victim. Given those factors, the judge placed the offending in Category 1A of the Sentencing Council Guidelines. She identified by way of aggravating factors: the fact of ejaculation; the fact that the offending took place in the family home; others were present at times; and there were multiple victims. 24. As to counts 20 and 24 (sexual assault of a child under 13 against ALF (non-penetrative stroking of the vagina)), the judge found that it was Category 1A offending by reason of the age and resulting vulnerability of the complainant. Similar aggravating features applied. 25. The judge identified the offence in count 25 (assault with a cigarette) as greater harm, by reason of ALF’s age and vulnerability due to personal circumstances. The judge characterised the cigarette as a weapon. The starting point was eighteen months’ custody. Aggravating factors were: the location and the presence of others. 26. As to the complainant CF, the judge repeated the observations insofar as they replied to ALF and the campaign of rape. 27. In assessing dangerousness, the judge found that AF and the appellant met the criteria. The appellant’s offending spanned two distinct periods in his life. The first was serious offending as a child between the ages of 12 and 14, however, the judge accepted that his culpability must be scrutinised within the highly disturbed context of his family home. His second period of offending, which commenced in 2011, was when AMF returned to the family home, he knew that she was vulnerable. The appellant needed intervention, but insufficient was provided. As to the later offending by the appellant, which took place when he was aged 19 to 23, the judge found that it fell into Category 1A. She stated that the offences, either by virtue of the serious psychological harm or the vulnerability of the victim, could be categorised as a campaign of rape, falling outside the Sentencing Council Guidelines and resulting in a sentence of more than twenty years’ custody. However, given the monitoring which would be provided by reason of the Sexual Harm Prevention Order and restraining orders, and the conditions which would attach to the appellant’s licence on release, the judge was satisfied that a determinate would be appropriate. 28. Upon counts 15, 26 and 27 (multiple incident counts of rape of a child under 13 in respect of AMF and ALF, when the appellant was between the ages of 12 and 14), a starting point of twenty years’ custody was taken. It was reduced by half, to take account of the appellant’s age at the time and his culpability. The application of the one-third discount, plus a little for personal mitigation, resulted in a sentence of six years’ imprisonment for each of the three offences. In respect of all the offences which were committed between 2004 and 2007, the judge applied the same reductions and discounts to reflect the appellant’s age, culpability, credit for guilty pleas and personal mitigation. Upon count 46 (multiple incident count of rape of AMF between July 2011 and May 2016, of which the appellant was convicted after trial), the sentence of 22 years’ imprisonment was imposed. The judge identified no reduction in sentence for the age of the appellant, his history as a victim of sexual abuse and his personal mitigation. AF (his father) was also sentenced to 22 years’ imprisonment for similar offending over a five-year period in respect of AMF. For the offence of perverting the course of justice (count 42), a sentence of six months’ imprisonment was ordered to run concurrently for reasons of totality. 29. A pre-sentence report, which was before the court, provides a detailed and insightful assessment of the appellant and his offending, following a five-hour interview with him. The author of the report states that it is not possible to consider the appellant’s behaviour without taking account of his own background of familial abuse, both physical and sexual, and the fact that the expectation of safety within the family had been eroded to a point where it is possible that the offences were seen by the victims as an extension of normal family behaviour, until addressed by Social Services. The appellant is recorded as not seeking to place responsibility with others, but he made comments, which were accepted, consistent with not understanding that his behaviour to his younger siblings was wrong until after he had been removed from the home environment in 2007. The author clearly states that the appellant’s behaviour cannot be separated from his own experience of abuse, emotional, physical and sexual, during childhood. In the report, reference is made to the judgment in the 2007 Family Court proceedings, which documents sexual abuse of the appellant, not only by an older male cousin, but by his maternal aunt and grandmother. The report also provides the details of the appellant’s own attempts at self-mutilation. 30. The author of the report states that the appellant’s childhood and family background must be considered to be a contributory factor to his offending both as a child and as an adult. There are overt pressures and concealed influences within the family, a sense of loyalty to parents, and allegations of intergenerational physical and sexual abuse, which have created a culture of secrecy, distrust of professionals and a genuinely confused sense of sexual morality and norms within the wider family. It is within this context that all the offending has taken place. As to the offending which took place following his return to the home in respect of AMF, the author of the pre-sentence report states that the appellant must be considered to be fully culpable, he was in possession of the knowledge that such behaviour had previously been exposed as unacceptable and had led to separation of the family unit. In custody the appellant was under the care of the mental health team due to thoughts of suicide and self-harm. Medication was being prescribed. 31. The pre-sentence report assesses the appellant as posing a high risk of serious harm to adults and children known to him, namely, immediate and extended family members. The author identifies the considerable mitigation in relation to the earlier offences, which includes the young age of the appellant, his own experience of abuse and the fact that he is recorded to have made admissions at the time of the Family Court proceedings which were not subsequently resolved. 32. The report of Dr Michael Layton, a consultant psychiatrist, was also before the court. He identified the appellant as presenting with long-standing symptoms of depression, posttraumatic stress disorder, substance abuse and personality difficulties. Those symptoms are best described as “complex PTSD”, resulting from prolonged and severe trauma in childhood. It is the opinion of Dr Layton that the appellant’s psychological and psychiatric problems stem from his experiences of childhood neglect, and emotional, physical and sexual abuse. The abuse of the appellant took place before he was 16, in a family setting where children were not kept safe and were routinely subjected to emotional and physical abuse and neglect. Dr Layton describes the complex nature of the ambivalent relationship which the appellant has with his parents, and identifies the fact that the appellant may remain to some degree under their control, as well as being affected by a deeply ingrained sense of loyalty, however misplaced. The grounds of appeal 33. The appeal is directed primarily at the sentence of 22 years’ imprisonment and to the consecutive nature of the sentence passed on count 15. Reliance is placed on the judge’s assessment of the appellant as being himself a victim of sexual abuse – abuse by his extended family – which the judge assessed as having led him to regard sexual abuse as part and parcel of his life. It is said that it is what he learnt within the family environment and that it was to an extent within it normalised behaviour and a means of controlling others. The judge identified the shame and disgust which the appellant had felt as a child at his behaviour, which manifested itself through his own self-mutilation. Reliance is also placed upon the judge’s description of the appellant as a victim of his upbringing. 34. In sentencing the appellant to 22 years’ imprisonment on count 46 (the same sentence as was passed upon his father on a similar count), the judge is said to have failed to take account of the fact that this was not a breach of trust. AMF was just eighteen months junior to the appellant. The authority of R v Forbes [2016] EWCA Crim 1388 is cited, in which the court stated that: “17. … The mere fact of association or the fact that one sibling is older than another does not necessarily amount to breach of trust …” At the time of this offending, the appellant was still young and immature. He was aged 19 to 23 in the relevant period, AMF was aged 17 to 22. Further, this was said to be learned behaviour, he had been put at risk by his parents when he was abused by members of the extended family. He was vulnerable by reason of past abuse, and this manifested itself in his own self-mutilation. 35. It is further contended that, when sentencing the appellant in respect of count 46, the judge failed to take account of the abusive background which impacted directly on the maturity of the appellant. Given his background, he should not have received the same sentence as his father, the man who failed to safeguard him when he was younger. In any event, any sentence passed by the judge should have been ordered to run concurrently in order to take account of the principle of totality. 36. In response, the Crown has properly relied on the seriousness of the offending and has identified the fact that (in respect of the offending between 2004 and 2007) the judge had regard to the family context, but it identifies the aggravating feature of the offending, namely: multiple victims, the force that was used, ejaculation and the presence of others. Discussion and Conclusion 37. The appellant’s offending was of the most serious. It represented a course of sexual conduct towards his younger siblings, the effect of which will remain with each of them for the rest of their lives. We do not seek in any way to minimise the effect of the appellant’s offending upon the complainants, however, his offending has to be viewed in the wider context of the family into which he was born. There was before the sentencing court an impressive and insightful pre-sentence report. It appears that it was not dealt with at any length by the judge in what was clearly a difficult sentencing exercise. 38. It is undisputed that the appellant is the victim of sexual abuse. It was identified by the Family Court as having been committed by his maternal grandmother, his maternal aunt and a cousin on his mother’s side of the family. It commenced when he was aged 11 and continued until he was about the age of 14. It is accepted that when he was taken into care in 2007, the appellant regarded his own behaviour towards his younger siblings and that of his abusers as normal within the context of his family, such was the depravity within the family. His parents neglected and physically abused the appellant. It is of note that in the Family Court proceedings in 2007, the appellant admitted the sexual abuse of his younger siblings. 39. Count 46 spans the period 2011 to 2016. The offending began when the appellant was aged 19 and continued until he was aged 23. In passing sentence upon count 46, no mention was made by the judge of any reduction for the age of the appellant; nor of the fact that he was the victim of sexual, physical and emotional abuse and neglect. In our judgment, these were highly relevant factors of which account should have been taken. We accept and agree with the assessment of the author of the pre-sentence report that it is not possible to consider the appellant’s behaviour without taking account of his own background of familial abuse (emotional, physical and sexual) during childhood, together with the fact that his expectation of safety within the family had been eroded by reason the behaviour of his parents and his extended family. 40. The appellant was aged 19 when the second period of offending commence but, given the damage caused to the appellant by his destructive and abusive parental family, we conclude that he would not have possessed the maturity to fully understand the gravity, nature and consequences of his actions. The damage which had been caused to him did not cease when he attained the age of 18. His maturity, or lack of it, appears to have played no part in this aspect of the judge’s difficult sentencing exercise. As Lord Burnett LJ stated in R v Clarke and Others [2018] EWCA Crim 185 , at [5]: “Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. …” 41. Further, we have difficulty understanding how the same sentence of 22 years’ imprisonment was passed upon the appellant’s father for similar offending. His father was not only considerably older, as a parent he had wholly failed to provide any support or safety to his young son. The appellant’s father played his own destructive part in the appalling childhood of his children. 42. In our judgment, there is force in the submissions advanced on behalf of the appellant that the sentence on count 46 did not reflect all the mitigating factors which were before the court, nor should it have been of the same length as that passed on his father for similar offending. To reflect these factors, we have concluded that the appropriate sentence on count 46 is one of 20 years’ imprisonment. That sentence is to run concurrently with the sentences passed on the other counts. Thus, we quash the sentence of 22 years’ imprisonment passed on count 46 and substitute for it a sentence of 20 years’ imprisonment, to run concurrently with the sentences on the other counts. 43. On count 5, a sentence of six years’ imprisonment was imposed, and ordered to run consecutively to the sentence on count 46. We quash the consecutive nature of that sentence and substitute for it a sentence of six years’ imprisonment, to run concurrently with the sentences on the other counts. Accordingly, the total sentence is one of 20 years’ imprisonment. To this extent, the appeal is allowed. 44. Miss Ayling, Mr Saxby, as I said in my lengthy judgment, this must have been an extremely difficult sentencing exercise for the judge, and it is clear that it was a very difficult trial for all. The court would like to thank you for the quality of your submissions and the insight which was demonstrated in them. _______________________________________

2019_09_27-4721.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1677/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1677

e5557798c6114876466294864d592a2df4fe0353f3826428a6285a1106ba4200

[2011] EWCA Crim 2797

EWCA_Crim_2797

2011-12-01

crown_court

Neutral Citation Number: [2011] EWCA Crim 2797 Case No: 201101496B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HHJ STEPHENS T20107162 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/12/2011 Before : LORD JUSTICE HOOPER MR JUSTICE EDWARDS-STUART and RECORDER OF HULL HIS HONOUR JUDGE METTYEAR (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : IMRAN ASLAM Appellant - and - THE CROWN Re

Neutral Citation Number: [2011] EWCA Crim 2797 Case No: 201101496B3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT HHJ STEPHENS T20107162 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/12/2011 Before : LORD JUSTICE HOOPER MR JUSTICE EDWARDS-STUART and RECORDER OF HULL HIS HONOUR JUDGE METTYEAR (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) - - - - - - - - - - - - - - - - - - - - - Between : IMRAN ASLAM Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR. J. DEIN QC and MR. T. SMITH appeared for the Appellant. MR. C. AYLETT QC and MR. B. FITZGERALD appeared for the Respondent. Hearing date: 24 th November 2011 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Hooper : 1. At the conclusion of the hearing we announced that we were dismissing grounds 1 to 6 of the appeal and refusing permission to appeal on new ground 7. We then heard submissions from Mr Dein QC about sentence. We reserved judgment on that matter. 2. I shall give the judgment of the court on grounds 1-4. Edwards-Stuart J will give the judgment of the court on grounds 5-7 and the Recorder of Hull will give the judgment of the court on sentence. 3. The appellant appeals his conviction (by a majority of 10-2) for the murder of Hayder Ali (count 2). He was acquitted of the murder of Mohammed Ali, Hayder’s brother (count 1). The appellant was subsequently sentenced to imprisonment for life with a period of 20 years less 308 days being specified as the minimum term. 4. At about 12.10 am on Saturday 22 April 2006 Hayder Ali and Mohammed Ali were in a white Mercedes van driving along Fircroft Road in the direction of Upper Tooting road in London when, almost at the junction of the two roads, a large group of heavily armed males attacked the van. The attack was the culmination of some three hours of skirmishes, a number of which had been initiated by the occupants of the van. The background to the events of the 21 and 22 April was a long standing feud between Hassan Mir who was a member of the group of heavily armed males and a former friend of his, Hammad Bhatti, who was in the van. In the van with Hammad Bhatti were his brothers Favaad and Javaad. For convenience we shall call the group in the white van, the Bhatti group and the attacking group, the Mir group. 5. Mohammed Ali was stabbed to death shortly after getting out of the van and Hayder Ali was stabbed to death when he came to the assistance of his brother. 6. Within a very short time the appellant fled to Pakistan and did not return until some four years later, by which time the trials of other defendants had been completed. 7. Following a seven month trial presided over by HHJ Moss QC in 2007 Hassan Ahmed Mir, Imran Hussain, Imran Asif Ali, Usman Butt, Noor Kayani and Aazam Mubashir Butt were convicted of the murders of both brothers. The Bhatti brothers were crucial witnesses for the prosecution in the trial. 8. To prevent that trial from becoming unmanageable, four defendants were tried separately in a second trial: Omar Butt, Quadeer Khan, Shazad Kayani and Bilal Kayani. That trial took place before the appeal from the first trial. HHJ Moss was also the trial judge. The Bhatti brothers gave evidence again. During the trial HHJ Moss ruled that the evidence of the brothers was “irredeemably tainted”. The judge fearing that, nonetheless, the jury might accept the evidence as true, decided that a fair trial was no longer possible. He stayed the proceedings. His decision to stay the proceedings was upheld on an appeal by the prosecution: [2008] EWCA Crim 238 . 9. At the appeal in April 2009 the six convicted defendants submitted that the verdicts of the jury in their trial were unsafe in the light of the ruling at the second trial and of unchallenged fresh evidence. It was not disputed by the prosecution that the Bhatti brothers and the victims’ father, Shahid Ali, were involved in a conspiracy to pervert the course of justice in the second trial. 10. The convictions of the six defendants were quashed by another division of this Court in April 2009, see [2009] EWCA Crim 731 . The Court ordered that four of the appellants should be retried (Hassan Mir, Imran Hussain, Imran Asif Ali, Usman Butt). In the case of Noor Kayani, the Court of Appeal sentenced him for violent disorder arising out of the fatal incident, an offence to which he had pleaded guilty at the first trial. 11. Thereafter Hassan Mir and Usman Butt pleaded guilty to the murder of Hayder Ali as secondary parties, a basis of plea accepted by the prosecution having regard to the fact that they were unable to rely at all on the Bhatti evidence as a result of the decision of the Court of Appeal and of a further decision by MacKay J who was to preside over the retrials. Imran Ali pleaded guilty to a conspiracy to cause grievous bodily harm, as did Imran Hussein later in February 2010 (but on the accepted basis that he was not present in Fircroft Road). 12. It was only after the resolution of these matters that the appellant returned from Pakistan. On arrest he was interviewed and declined to answer questions. A defence statement was later served to the effect that he had left the area before the fatal Fircroft Road incident. At trial he gave evidence but, during cross examination, refused to answer any more questions. The standard adverse inference directions were given in respect of his failure in the police interviews to mention facts later relied upon and his refusal to answer questions in cross-examination. 13. Whilst in Pakistan he kept up with what was happening in England. He only came back after all the other persons alleged to have been criminally involved in the fatal incident had either been acquitted or convicted on their pleas. He probably assumed that, with the Bhatti evidence no longer available, there would be little direct evidence against him. If he assumed that, he was wrong. The prosecution called a witness, Zak Uddin. The principal grounds of appeal relate to the ruling of the trial judge, HHJ Stephens QC, that the prosecution were not prevented from calling him by virtue of section 78 of PACE 1984 and relate to how the judge dealt with the evidence of Uddin in his directions to the jury. 14. Putting the matter shortly, Uddin went to the police station on 24 th April knowing that he was wanted for questioning. He was arrested for murder, cautioned and interviewed in connection with the murders. In his interviews on that day, on the next day and in June 2006, he gave an account of his movements that evening and identified the appellant as one of two people who stabbed Hayder Ali, the other being Hassan Mir (who, as we have said, had pleaded guilty to the murder of Hayder Ali on the basis that he was a secondary party). He identified a knife (ETK/7) as a knife that he saw. The knife bore the blood of Hayder Ali, as well as DNA from Usman Butt. Two similar Victorinox knives, ETK/7 and ETK/35, were found at the scene. The stab wound to Mohammed Ali was caused by a long narrow knife with a single edge. All of Hayder Ali’s stab wounds could have been caused by ETK/7. Undisputed expert evidence was given of the connection between the knives and the meat trade. Both had been ground in a similar way until the blades were very thin. Two similar Victorinox knives, for use in the meat trade, were found at the appellant’s home address when it was searched in 2007. Whilst they were almost new, they had been sharpened in the same way as ETK/7 and ETK/35. The appellant Aslam had a particular connection to the meat trade. His father ran a business called Al Halid Meats from an abattoir in Milton Keynes in 2006, providing meat to the Brixton and Tooting areas of London. Aslam worked with him. 15. At the time when Uddin was interviewed the Bhatti brothers had implicated Uddin as the person who in Trinity Road, shortly before the attack, had set up the Fircroft Road meeting. Much later CCTV evidence showed that the Trinity Road meeting had taken place at 10.40 pm and not at about midnight. This was another example of the unreliability or untruthfulness of the Bhatti brothers. 16. In October 2006 Uddin was told that no action would be taken against him. A witness statement had been prepared summarising what Uddin had said in the police interviews. He declined then and thereafter to sign the statement. He was not a prosecution witness at the first or second trial or at the retrials. 17. At the appellant’s trial Uddin gave evidence that the appellant was not at the scene of the fatal attacks. On the application of the prosecution he was ruled to be a hostile witness and cross-examined in detail about what he had said in interview. Albeit that he did not completely resile from what he had said to the police in interview about the earlier events of the night, he continued to maintain that the appellant was not at the scene of the fatal attacks. 18. Thus the issue for the jury was whether they were sure that Uddin was telling the truth when he told the police that the appellant had stabbed Hayder Ali. In determining that issue there was evidence which the prosecution submitted supported the proposition that he was telling the truth and evidence which Mr Dein submitted showed that he was not telling the truth about the involvement of the appellant. Mr Dein did not seek to rely on Uddin’s evidence to the jury that the appellant was not present at the scene. 19. Uddin was cross-examined by Mr Dein. In substance Mr Dein put it to Uddin that he had lied to the police about the involvement of the appellant to divert suspicion from himself. Mr Dein put it to Uddin that not only did he know that he was under suspicion but that he had every reason to believe that he was under suspicion. Although Mr Dein did not formally put it to Uddin that he was an accomplice to an agreement to commit grievous bodily harm to members of the Bhatti group, the effect of his cross-examination was that Uddin was an accomplice. The prosecution did not accept that he was an accomplice and the judge did not direct the jury that, on all the evidence, they had to treat Uddin as an accomplice. Mr Dein complains strongly about that. 20. We take the background to the events of 21 April to 22 April and take some of the detail from the skeleton argument prepared for us by the prosecution: The Fircroft Road attack was the culmination of a series of skirmishes between two rival gangs of young men in the Tooting area that took place over the course of the night in question. The witness, CCTV and telephone evidence demonstrate the following approximate chronology: 9pm: The Chicken Cottage Incident - A quarrel took place between Hammad Bhatti and Hassan Mir. Hammad Bhatti went back to his father’s shop in Earlsfield and thereafter a group of his associates assembled in the family’s white Mercedes van, which then headed in to Tooting. Meanwhile, a group of Hassan Mir’s associates began to gather in Tooting in the Foulser Road area. 10.15pm: The Foulser Road Incident - The white van pulled up on the Upper Tooting Road by Foulser Road and the occupants got out. They chased a number of Hassan Mir’s group down Foulser Road and smashed the rear windscreen of Aazam Butt’s green VW Polo, before getting back into the Mercedes van and driving off down the Upper Tooting Road. They remained in the Tooting area. Hassan Mir’s group remained in the area around Foulser Road and Dafforne Road. 10.40pm: Trinity Road - The Meeting with Zak Uddin - The Mercedes van stopped on Trinity Road and some of the occupants engaged in a conversation there with Zak Uddin. The conversation was captured on CCTV from a passing bus at around 10.42pm (see Exhibit 1 p4a, showing stills from the bus). During this meeting, at 10.41pm, a call was made from Uddin’s phone to Omar Butt (call 342 on the combined call schedule at p18 of Exhibit 3). CCTV from the Upper Tooting Road showed Omar Butt amongst Hassan Mir’s group at around this time. A number of the group were assembled around the junction of Dafforne Road and Upper Tooting Road (see Exhibit 1 p5-9). 10.45pm: The Dafforne Road Incident - The Mercedes van drove down Trinity Road and turned right down the Upper Tooting Road. As it passed Dafforne Road, it was attacked by members of Hassan Mir’s group, including Mir himself, Usman Butt and Noor Kayani. The van drove off down the Upper Tooting Road (see the CCTV stills of the incident in Exhibit 1 p10-12). Following the incident, the Bhatti group returned to the shop (where Brian Glover was replaced in the van by Zak Sharp), then on to the Bhatti family home, before driving in to Tooting again shortly before midnight. In the intervening period, Hassan Mir’s group continued to assemble in the area around Foulser Road, Dafforne Road and the Upper Tooting Road (see CCTV stills in Exhibit 1 p13-28). 12.05am: The Noyna Road Incident - Shortly before the fatal attack, the Mercedes van stopped just inside the junction of Noyna Road and the Upper Tooting Road, as did Aazam Butt’s green VW Polo. A skirmish took place between those from the van and Hassan Mir’s group. The Bhatti group got back into the van, drove up Noyna Road to Glenburnie Road, shortly before driving down Fircroft Road towards the Upper Tooting Road. CCTV stills show Noor Kayani and Kashif Khan running in the direction of Noyna Road at 12.05am, and Hassan Mir walking back towards Foulser Road at 12.07am. 12.10am: The Fircroft Road Incident As the van arrived at the junction of Fircroft Road and the Upper Tooting Road, a large group ran across from Foulser Road and started to attack the van and then its occupants. A variety of weapons were used: Knives, screwdrivers, bats, a hammer, planks of wood and other makeshift items. Mohammed Ali was attacked outside number 14 Fircroft Road. Hayder Ali was then attacked, leaving a trail of blood from outside number 14 to outside number 24, where he finally fell to the ground. Both brothers died from stab wounds caused by long thin blades. The attackers fled the scene before the arrival of the police, leaving dozens of weapons scattered around the scene, including two similar knives, exhibits ETK/7 and ETK/35. ETK/7 bore the blood of Hayder Ali, as well as DNA from Usman Butt (see Exhibit 1 p37-56 for the location of the exhibits recovered from the scene). 21. The appellant admitted being present in the Tooting area and in contact with members of the Mir group up until shortly before the Fircroft Road incident, but stated that he had left the scene at around 11.50pm to get something to eat. He had not conspired to do harm to anyone, did not provide any weapons and did not participate in the Fircroft Road attack. 22. Ground 1 relates to the ruling of the trial judge refusing to accept an application that the evidence of Uddin was inadmissible. Mr Dein submits that the ruling was perverse. 23. Mr Dein submitted to the judge and to us that what Uddin had told the police about the involvement of the appellant in the fatal attacks was so unreliable that the judge should have ruled that no reasonable jury could rely on it, a submission that Mr Dein was to repeat later in the trial. 24. Mr Dein submitted that although much of what Uddin had said about the earlier incidents was either true or not demonstrably false, what was demonstrably false was the implied suggestion throughout the interviews that he was not an accomplice to the attacks on the Bhatti group. To summarise Mr Dein’s submissions in the words of his skeleton argument: In June 2006 Zak Uddin was interviewed again and asked about a weapon he was seen holding on CCTV. He admitted possession of this weapon only when confronted by the CCTV and said that he had taken it off someone for safekeeping. It was clear from the interview that the police expressed fundamental doubts about the truth of his account, repeating the possibility that he had set the whole thing up and pointing out his widespread involvement on the evidence. Telephone evidence demonstrated that he had been in contact with both the van group and the Tooting group. His car was seen in Trinity Road meeting with the van group an hour before the killing and he was seen in conversation with the Bhattis. He was in ongoing contact and attempted contact with the van group at the critical stages before the attack in Fircroft Road. There was a clear basis for believing that he had encouraged the two groups to meet and then had participated in the fatal attack. 25. Mr Dein summarised his cross-examination of Uddin in this way: During cross-examination on behalf of the appellant Zak Uddin confirmed that he had known himself to be a suspect when he went to the police station and believed he was one of the main suspects for the killings. He had met with the van group an hour and a half before the events in Fircroft Road and was aware the police thought he had set the attack up (98E) . He agreed that he had lied in interview about the school he attended to make his story sound more convincing. He had reason to lie because of the weight of the evidence against him (98F) . Uddin agreed that he had known at the time of interview that he was suspected of having set up the murders (99B) in Fircroft Road, standing over Hayder Ali at the time of the murder and had Hayder's blood on his shoes. He was the last person to leave the scene from the Tooting group and thought the members of the van group might have named him as a stabber. Prior to the incident he had been on the Upper Tooting Road, making calls to Azam Butt and members of the van group. Whilst his dealings with Butt followed by events in Trinity Road were mere coincidence, he was aware at the time of interview that there might be considered a strong body of evidence against him (99C-101F) . Uddin confirmed that he had manipulated his account to the police so that they did not think he was involved. He had a grudge against Imran Aslam for sleeping with his girlfriend (101F) and so wanted to get him into trouble. Very little of what he told the police was a truthful account and it was Uddin's unequivocal evidence that nothing he said to the police could be trusted by the jury. His only concern was to protect himself (101F) . Crucially it transpired, based on CCTV and telephone evidence, that Uddin was far more heavily implicated than his interviews revealed. For example, he made telephone contact with Quadeer Khan, who was the driver of the white Metro said to have been used to bring the group's van to a halt about twenty minutes later, at approximately 11:45pm. He was in close association with Hassan Mir, Usman Butt and Noor Kayani throughout the evening. Equally, on his own account, he left the scene in a car with Hassan Mir, met Quadeer Khan at home, had Hayder Ali's blood on his shoes and was in telephone contact with Hassan Mir afterwards (99D) . 26. Mr Aylett points to a number of matters which supported the credibility of Uddin on the central issues of what happened at Fircroft Road. Amongst other things Mr Aylett points to the fact that Uddin was being interviewed almost immediately after the events in question and that it was not the appellant’s case that his evidence was infected by anything done by the Bhatti brothers. He points to the fact that Uddin repeatedly and forcefully said that he had attended the police station voluntarily and was giving an account because he wanted to see justice done for the dead brothers. His words were compelling, so it is submitted. For example, he said: “Okay, first of all I’d like to make it aware to you that the reason I’ve come today is ‘cos I want justice for the two brothers, the Ali family, and, you know, for what’s happened to them. I deeply do feel really sad and I feel very shaken up and still am, even when you say the names and you say the two guys died. I feel I have got butterflies. That’s how I actually feel”. When first asked to name the initial stabber of Hayder Ali, he was slow to do so, saying: “Well, my life’s going to get screwed up, isn’t it?” The interviewing officer said it was up to him, but he had said he was there because he wanted justice to be done. In this light, Uddin went on to name the participants. If Uddin had wanted to see Aslam and others punished because he had some sort of vendetta against them, it was strange, so it is submitted, that he did not claim to have seen many elements of the attack in Fircroft Road, most particularly the attack on Mohammed Ali. Mr Aylett pointed to a number of pieces of evidence which tended to support the general account of the events at Fircroft Road being given by Uddin and the identities of the participants. Mr Aylett pointed out that in respect of the actions of those whom Uddin named as involved in the attack on Hayder Ali, Hassan Mir and Usman Butt pleaded guilty to murder, Noor pleaded guilty to violent disorder, Aazam Butt fled to Pakistan the next day and Tanveer Quadeer left the UK soon after and had not returned by the time of Aslam’s trial. 27. In our view the judge was entitled to reach the conclusion that a reasonable jury could properly find what Uddin said to the police about the involvement of the appellant in the fatal events at Fircroft Road was both accurate and credible. Mr Dein submits that the judge was wrong not to conclude that the only proper conclusion was that Uddin was an accomplice. We disagree. But even if we were wrong, it would not undermine our conclusion that a reasonable jury could properly find what Uddin said to the police about the involvement of the appellant in the fatal events at Fircroft Road was both accurate and credible. 28. In his application to the judge to exclude the evidence of Uddin, Mr Dein relied on, amongst other things, the fact that Uddin had not been called before as a witness. Mr Aylett has given an explanation for why he was not called before and, in any event, the issue is Uddin’s credibility and accuracy when he was interviewed by the police so soon after the killings. Mr Dein also submits that, by the time of the trial of the appellant, there were so many pointers towards Uddin being an accomplice that he should have been interviewed by the police about them. Mr Dein claimed that it was not fair to impose upon him, through cross-examination, the exploration of these pointers. 29. Mr Dein also made the point that he faced considerable pressure in particular because the decision to call rather than apply to read Uddin’s evidence was only made very shortly before the trial. However, he made no application to be granted more time. He was also well aware of the facts of the case having been counsel at the first trial and on the appeal and having had to prepare arguments on the issue of whether the prosecution could read Uddin’s statement. We accept of course that Mr Dein would have had to do a considerable amount of work to be ready for the cross-examination of Uddin. 30. The fact that the police had not re-interviewed Uddin about these “pointers” does not render the conviction unsafe. Even if Uddin had been re-interviewed it seems unlikely that he would have answered questions and, in any event, we see no forensic disadvantage in Mr Dein having the first opportunity to test Uddin on these matters. 31. We have looked carefully at the reasons given by the judge for rejecting the submission that he should rule the evidence of Uddin inadmissible and we have no doubt that the judge was entitled to reach the conclusion he did. 32. The second ground concerns the ruling made by the judge that Uddin was to be treated as a hostile witness. Mr Dein accepted that the ground was linked to ground 1. It is, in our view, unarguable that the judge’s decision was wrong. It was the only decision that he could have made. 33. The third ground concerns an assertion by Uddin in his interview with the police that Hayder Ali (at about the time of the Foulser Road incident) had told him that the appellant had waved a knife at him. This evidence was admitted by consent (see section 114 of the Criminal Justice Act 2003 ). Complaint is made about the judge’s directions to the jury about how they should approach Uddin’s interview in this respect. The complaint is made that the judge should have given more detailed directions than he gave and in particular should have said more than the same limitations applied to this evidence as to the challenged evidence of a witness Umer Butt. Those limitations were: the jury had had no opportunity to see and hear Hayder Ali, the statement allegedly made by Hayder Ali had not been made on oath and Hayder Ali had not been cross-examined about it. 34. The judge warned the jury about the dangers in accepting Uddin’s evidence (see below). He told the jury that his directions about what Uddin had told the police about what Hayder Ali had said to him needed special consideration. Later he reminded the jury to be especially careful about what Hayder Ali had allegedly said. In our view there was no need for the judge to say more. The real issue was Uddin’s credibility. If Uddin had truthfully reported to the police what Hayder Ali had said then it is difficult to see why Hayder Ali at some point earlier in the evening would have concocted a story about the appellant. 35. We turn to ground 4. Mr Dein submits that a much fuller direction should have been given to the jury about how to approach Uddin’s interviews. Mr Dein wanted what could be described as a full accomplice direction and he complains that the judge did not remind the jury sufficiently of the various points made by Mr Dein which, in his submission, tended to show that Uddin was an accomplice. This further undermined his credibility in that he had not admitted that he was an accomplice and in that he had even more reason not to tell the police the truth. 36. This was not a case where the accomplice was giving evidence against a defendant. The evidence which Uddin was giving exculpated the appellant. As we have said the jury had to decide whether what Uddin told the police shortly after the killing was accurate and truthful, so that they could be sure about it, taking into account all the evidence in the case. The principal reason why Uddin might have lied was the fact that he himself was under arrest and being investigated for two murders. Mr Dein submits that Uddin was even more likely to lie if not only was he suspected to be involved but was in fact involved. Mr Dein further submits that the jury should have been given what he described as the traditional direction about hostile witnesses, a direction which in our view would give insufficient weight to section 119 of the Criminal Justice Act 2003 . 37. The judge cautioned the jury about relying on Uddin. The fact that the jury had doubts about the reliability of Uddin in respect of at least some of the things which he had said to the police became clear in a question asked by the jury after many hours’ deliberations. In the rather unusual circumstances of this case the judge’s directions were in our view quite sufficient. It is inconceivable that the jury did not understand that they should approach what Uddin said to the police whilst being interviewed with great caution. 38. Mr Dein also submits that the judge should have given further directions about the lack of any independent supporting evidence. There was no direct supporting evidence of Uddin’s statement to the police in interview that the appellant stabbed Hayder Ali. There was however evidence capable of supporting much of what Uddin said and the judge reminded the jury of the prosecution’s case on that. The fact that a witness correctly describes A, B and C as being involved in an offence offers or may offer some support for the conclusion that the witness has also correctly described D as being involved. There was also evidence and inferences from that evidence which was capable of undermining Uddin’s credibility when interviewed by the police. The jury were reminded of that. 39. We must stand back and ask whether the judge’s directions about Uddin gave the jury the necessary help to evaluate his credibility as he spoke to the police. We have no doubt that he did. We dismiss ground 4. Mr Justice Edwards-Stuart: 40. We turn to ground 5 – the introduction of prejudicial evidence during cross-examination and ground 6, that the conviction is unsafe because of the failure to discharge the jury. 41. These two grounds are inextricably connected and so it is convenient to take them together. Mr Dein submits that matters of evidence were wrongly, and indeed incorrectly, introduced by Mr Aylett during his cross-examination of the appellant and that this resulted in irremediable prejudice to him. Further, he submits, the conviction is unsafe as a result of the judge's failure to take into account all relevant considerations and/or to discharge the jury after these highly prejudicial matters had been put to the appellant. 42. During his cross-examination of the appellant Mr Aylett asked him about certain statements that Mr Aylett said had been made by witnesses in earlier proceedings. The questions were asked during a line of questioning about the appellant’s reasons for remaining in Pakistan for some four or more years whilst the trials of the other defendants were taking place. 43. The first exchange went as follows: Q. So you did not come back until after the retrials had been sorted out? A. That’s correct, yes. Q. Yes. Did you in fact know, Mr Aslam, that both Hassan Mir and Usman Butt were blaming you for the stabbings, did you know that? A. I found out a little, yes. Q. You did find that out? A. Yes. Q. When did you find that out, please? A. This is once the convictions had taken place in the first trial. Q. All right, so after they had been convicted, you found out that they were saying that you had been responsible for the stabbings? A. That’s correct, yeah. Q. Yes. That is why, Mr Aslam, you did not come back until after the cases of Hassan Mir and Usman Butt had been sorted so they might still have the opportunity to blame you in your absence. That is the truth, is it not? A. No, it’s not. Q. You only came back once you realised that there was no prospect of your ever having to stand in the dock alongside them, and that is the truth of it, is it not? A. No, it’s not. 44. At this point there was no protest by Mr Dein, perhaps understandably because he must have been taken unawares by the questions and may not have known whether or not what Mr Aylett had said was correct. 45. On the second occasion, the cross-examination was as follows: Q. What, even though he has told the police back in April 2006, that he actually saw you stab Hayder Ali, you bear no ill feeling towards Uddin? A. I ran off to Pakistan because I was scared. He went to the police and made up as much lies as he could because he was scared. Q. I mean, is it the case that anyone who is scared makes up anything about anyone else; including, for example, Hassan Mir and Usman Butt, when they went into the witness box and said that you had stabbed the two boys: is that what happens? People just blame whoever is not there? A. Well, it’s the easiest way of doing it, yes. 46. Leaving aside the issue of the introduction of such evidence by this means, the first problem with these exchanges is that Mr Aylett's questions were factually inaccurate. The true position was that in the first trial Hassan Mir gave evidence that after the Fircroft Road incident (where the murders took place), the appellant told him that he had stabbed two people (" shanked 2-2 man "). Usman Butt gave evidence that towards the end of the Fircroft Road incident, the appellant had thrust a knife into his hand and that Butt had thrown it away as he left the scene - by implication, this was the murder weapon. However, the situation was complicated by the fact that the appellant effectively agreed with what Mr Aylett had put to him. 47. On the afternoon of 31 January 2011, shortly after the second series of questions had been asked and part way through Mr Aylett's cross-examination of the appellant, Mr Dein asked if he could raise a matter of law with the judge. He then indicated that he wished to make an application to discharge the jury. Written submissions from both parties were prepared overnight and placed before the judge early the following morning. 48. Having considered counsels’ submissions, the judge made a ruling in the following terms: "In my judgment, Mr Aylett should have given some indication to defence counsel of his intention to introduce references to the matters which he did put in cross-examination and in particular to what Hassan Mir and Usman Butt had allegedly said on earlier occasions, particularly in the witness box. I for one have no idea about such matters, not having conducted any of the earlier trials. Furthermore, Mr Aylett could have been reminded of what had actually been said and not stated the matter incorrectly as he did. Having said that, I have concluded that there is no high degree of need to discharge this jury at this critical period in the fourth week of this trial. The matters which are of concern, not only to Mr Dein but to the Court, can properly and, in my judgment, adequately be dealt with in the summing up in such ways I decide, having heard from counsel in due course. Whether it is in anyone's interests not least the Defendant’s to refer to these matters at this stage whilst the Defendant is still giving evidence I shall take advice from counsel now and I invite any thoughts on that matter." He then gave Mr Dein a little time to reflect on the position and to respond to the judge’s request. 49. Shortly after this ruling had been given, the appellant decided that he was not prepared to give any further evidence or to call any witnesses. At about noon on the same day, 1 February 2011, the judge considered what, if any, direction he should give to the jury about the questions that had been put by Mr Aylett. At this point, Mr Dein took the position that the defence could think of no form of " comment, direction or formula " which would satisfactorily address the issue and so left the matter for the court to resolve. So the judge heard further submissions from the prosecution only. 50. After this, the proceedings resumed, in the appellant's absence, at 2:15 pm on the same day. The judge then gave the jury the direction about the questions that Mr Aylett had asked in cross-examination. He said this: “First of all, in the course of Mr Aylett's cross-examination he put to Mr Aslam that something had allegedly been said by Hassan Mir and Usman Butt during their trial, the first trial. You should ignore that and put it completely out of your minds. They have not been witnesses and whatever they may or may not have said is not evidence in this case in any shape or form and I will give you a formal direction on that in my summing-up in due course, but I wanted to say that at this stage just in case any of you were wondering about that and how you should approach it." He then went on to direct the jury in relation to the appellant's absence from the dock and his refusal to give further evidence. 51. The appellant’s case is that the direction in relation to the evidence compounded the situation and was quite insufficient to dispel the effect of the questions which were, it was submitted, " devastatingly prejudicial " and unnerved the appellant to such an extent that he had refused to return to the witness box. Mr Dein submits that the judge's decision not to discharge the jury then and there was one that no reasonable judge in his position could properly have taken. 52. Mr Dein submitted also that the prosecution’s contention that the appellant's motives for remaining in Pakistan were purely tactical would effectively put the defence in the position of having to deal with the incorrect suggestions that had been made during cross-examination, thus highlighting the very piece of evidence that the jury was supposed to ignore. In short, it was submitted on the part of the appellant that the matters put to him in cross-examination and the way they were dealt with by the judge led to an unsafe conviction. 53. In his skeleton argument served in response to this appeal Mr Aylett submitted that " it was perfectly legitimate for prosecution counsel to explore whether [the appellant] knew what was being suggested about him in those proceedings and whether it affected his decision to remain abroad and avoid a joint trial " and that, in cross-examining on this topic, " prosecution counsel's error was not one of principle, but of mistaking the precise evidence that had been given ". Whilst we accept the first of these submissions, we have reservations about the second. However, for reasons that will become apparent, we do not have to decide on this appeal whether that second submission is in fact correct. 54. Mr Aylett also submitted that the appellant's flight to Pakistan very soon after the killings and his decision to remain until the conclusion of all other criminal proceedings relating to the case were inevitably matters that the jury could and should take into account in considering his guilt. It was something that the appellant himself addressed when giving evidence in chief: he told the court that he did not come back initially because he thought it would have delayed the second trial (which was in 2007), and that he did not return after that because it would have delayed the subsequent retrial and that would have been selfish of him. The prosecution suggested, and Mr Aylett submitted that it was clearly open to the jury to conclude, that this account was untrue. 55. It was against this background that the relevant questions were asked and Mr Aylett submitted that the trial judge was in the best position to assess the risk to the defendant as a result of the questions that had been asked and that his decision was not one with which an appellate court should lightly interfere. 56. We accept this last submission made by Mr Aylett. The incident was unfortunate and was one that should never have happened, as the judge observed. However, mistakes of this sort do occur from time to time and can often be remedied by prompt and appropriate action from the trial judge. 57. We consider that this was such a case. We reject the appellant's submission that the judge's direction made matters worse: on the contrary, in our judgment the judge was justified in concluding that the situation could be remedied by means of a clear direction to the jury. His decision was certainly not unreasonable. In considering whether or not to discharge the jury he applied the correct test, namely whether there was a " high degree of need " to discharge the jury: see Archbold , 2011 Edn, at 4-253. We can see no error either in the judge’s approach or in his actual decision. 58. Following this decision and the appellant's refusal to give any further evidence or to call any witnesses, the trial moved to final speeches and summing-up. These gave rise to two further events that were the subject of complaint. First, in his final speech Mr Aylett, without prior notice to Mr Dein or to the judge, told the jury that when putting his questions to the appellant in cross-examination he had been wrong and so the jury should completely disregard them. Second, the judge gave a further direction to the jury in his summing-up about these questions and that direction is also a subject of criticism by the appellant. 59. What Mr Aylett said in his final speech to the jury was that, when asking the appellant about what Hassan Mir and Usman Butt had said in the first trial, he got it wrong. He said that the record had been checked and that what he said was incorrect and that the jury should disregard it. He said also that nothing that was said in evidence in the first trial had any relevance now. 60. In his summing-up, the judge said: “Now, any specific suggestion put by Mr Aylett in cross-examination was based on inaccurate information as he readily and properly accepted. If you remember what he said specifically, ignore it, because it is not evidence, and in fact it was incorrect. So I shall not even remind you of what he said, but put it out of your mind if you do remember the specific suggestion he made. But that, he submitted to you, would not weaken his overall suggestion that the reasons Mr Aslam gave in cross-examination for not coming back were nonsense." 61. Mr Dein submitted that the correction by Mr Aylett " could only have triggered further chaos, confusion and prejudice in the minds of the jury ". Further, since Mr Aylett did not retract his suggestion that the appellant had been behaving tactically in delaying his return to this country (as reflected in the point made in the passage in the summing-up that we have just quoted), the defence had to deal with the point in its closing speech, thus reminding the jury of the very piece of evidence that it had been told to ignore. In addition, this was compounded by the stress that Mr Aylett had placed in his closing speech on the appellant's exit from the witness box. Mr Dein submitted that this was unfair in the light of what happened and again only served to force the defence to deal with the incorrect suggestions that had been made. 62. Mr Dein submitted that the judge should not have compounded the problem by returning to the question, but instead should have simply ignored the whole question of why the appellant had delayed his return to the United Kingdom. 63. In our judgment the judge was right not to ignore the incident and to give both the initial and the further directions in the terms that he did. The point could not simply be ignored because the appellant was being challenged in strong terms as to his motive for remaining in Pakistan for so long. 64. Mr Aylett submitted also that there was no significant prejudice, or perhaps more accurately that any initial prejudice that there may have been was averted, because the jury were told in the clearest terms by Mr Aylett that what he had said in cross-examination was wrong and should be ignored and that, thereafter, the jury received guidance from the judge in the clearest terms to similar effect. In his skeleton argument, he submitted that what the jury was told could be summarised in the following terms: i) That the matters put in cross-examination were inaccurate. ii) That the prosecution had accepted that they were inaccurate. iii) That the prosecution had told the jury to ignore it. iv) That they were not evidence. v) That the jury should put them out of their minds. 65. In our view, any prejudice that was suffered by the appellant was wholly or substantially caused by his own decision to leave the witness box and not to return and continue his evidence. Whilst, in a sense, that decision may have been influenced by the fact that Mr Aylett asked the questions that he did and the judge's subsequent decision not to discharge the jury, it was in our judgment not a decision that was a natural consequence of the events that preceded it, particularly given that the appellant was represented by very competent leading and junior counsel and was given legal advice. As Mr Aylett put it, the appellant's decision should be seen properly as a result of his own petulance or design, rather than as the result of any fault on the part of the prosecution. 66. For all these reasons we do not consider that the conviction is unsafe by reason of these grounds of appeal. 67. We turn to ground 7 - the telephone conversation of 14 October 2007. 68. This did not form part of the grounds of appeal for which permission had been given by the single judge and so it was necessary for Mr Dein to apply to the court for permission to rely on it. After hearing submissions we refused permission and said that we would give reasons later. This part of this judgment contains our reasons for that refusal of permission. 69. The thrust of this ground is that the conviction is unsafe because of the recent discovery of a telephone call on 14 October 2007 lasting 42 minutes made by Uddin to Shahid Ali, the father of the two murdered brothers, the implication of which is said to be that Uddin’s initial statements to the police during his interviews on 24-26 April 2006 were or may have been contaminated by Mr Ali. 70. It seemed that both the defence and the prosecution had overlooked the existence of this telephone conversation, the details of which were buried in a mass of unused material that had been disclosed by the prosecution. We do not make any criticism in respect of the late discovery of the existence of this telephone call. 71. What is said by Mr Dein is that, if the defence had known of this telephone call at the time of the trial, they would have explored fully Uddin's relationship and dealings with Shahid Ali. Mr Dein told us that, after much agonising, the defence chose not to pursue this aspect. In particular, there had been a disclosure of an earlier relationship between the sister of one of the murdered men and Uddin and this was another matter that the defence decided not to explore. We were told that the purpose of exploring these matters would have been to demonstrate that Mr Shahid Ali had had a malign influence over Uddin which could have influenced what the latter told the police in April 2006. 72. As we have already said, the reason for the abandonment of the second trial, and the subsequent successful appeals against the verdicts in the first trial, were the result of the contamination of evidence given by the Bhatti brothers. Mr Shahid Ali played a material part in the interference with this evidence. The submission on behalf of the appellant is that knowledge of this telephone call in October 2007 would have enabled the defence to mount a similar attack on the evidence of Uddin. 73. We disagree. We can see no arguable basis for the assertion that what was said in a telephone call in October 2007 could affect or undermine the reliability of what Uddin said to the police some 18 months earlier in April 2006. 74. It may or may not be the case that knowledge of the existence of this telephone call might have prompted the defence to explore the lines of cross-examination of Uddin indicated by Mr Dein, but it is pure speculation whether or not such cross-examination, if it had taken place, would have improved or impaired the appellant's position. The fact that this one telephone call was made by Uddin to Shahid Ali, and not the other way round, does not immediately fit in with a scenario involving the intimidation or manipulation of Uddin by Shahid Ali. 75. Further, as Mr Aylett pointed out in his skeleton argument submitted in response to this application, it was largely unnecessary for the defence to explore why Uddin might have given a false account to the police in April 2006 for the simple reason that Uddin gave that explanation himself during his evidence. The explanation was that the appellant had slept with Uddin's girlfriend not long before the murders and that Uddin wanted to get his revenge by implicating the appellant. The prosecution made the further point that it would be very odd if the result of contact between Shahid Ali and Uddin in 2007 was to cause Uddin when giving evidence to exculpate the person charged with murdering Shahid Ali's son, rather than to incriminate him. 76. For these reasons we concluded that the seventh ground was not reasonably arguable and we therefore refused permission. 77. We conclude by saying that the learned judge conducted what was a difficult case impeccably. The Recorder of Hull: 78. The application for leave to appeal sentence was referred to the full court by the single judge. We give leave to appeal. 79. The appellant was sentenced to life imprisonment with a minimum term of 20 years specified under s 269(2) of the Criminal Justice Act 2003 . Days spent on remand were ordered to count towards the minimum term. 80. In his perfected grounds of appeal against sentence Mr Dein set out a number of individual points. However, he realistically accepted before us that his submission could be summarised as a complaint that the 20 year minimum term was too long when compared to that specified for others who were also sentenced for the murder of Hayder Ali. They were Hassan Mir whose minimum term was 12 years and Usman Butt who received a minimum term of 11 years. 81. On passing sentence on Mir and Butt, Mackay J. said that each of them was “part of a mob that night, a mob of 20 or 30 strong, equipped with a whole range of makeshift weapons, anything that came to hand and setting upon another group, in a public place to which it had been lured by way of ambush. This was a major piece of public disorder on what should have been the quiet streets of London It caused alarm, fear and dismay to the many members of the public forced to witness it”. We add that as a result of the disorder two men died. Mackay J. concluded that but for the discount that he gave each defendants for pleas of guilty the appropriate minimum terms would have been 14 ½ years for Mir and 13 ½ years for Butt. 82. The appellant’s position is much worse. Firstly, he does not have the benefit of a guilty plea and so the true comparison between his sentence and those of Mir and Butt is to the notional terms of 14 ½ and 13 ½ years. 83. Secondly, the approach to sentence on the appellant was very different to that appropriate for the other two. This for the following reasons : (a) At the time of the murder the appellant was 23 years old. Mir was 18 and Butt 17. (b) Both Mir and Butt were sentenced on the basis of them being secondary parties to the murder. This does not apply to the appellant. (c) They were sentenced on the basis that they did not have an intent to kill. In sentencing MacKay J. said: “that there was no intent to kill on the part of those members of the group, yourselves included, as opposed to those who actually did the stabbing”. The appellant was clearly convicted on the basis that he was one of those who stabbed Hayder Ali and the learned judge was entitled to conclude, as he did, that the appellant intended to kill. 84. Mr Dein concedes, despite submissions to the contrary to the sentencing judge, that it was proper to distinguish between the appellant and the other two in fixing the minimum term. We agree. We also take the view that the distinction had to be substantial. 85. Our conclusion is that the appellant’s sentence, looked at individually, cannot be faulted. Nevertheless, looking at the case broadly we take the view that the range of the minimum terms imposed is too great. In these circumstances we reduce the appellant’s specified term to 18 years. To that extent only the appeal against sentence is allowed.

2011_12_01-2881.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/2797/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/2797

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[2021] EWCA Crim 166

EWCA_Crim_166

2021-02-02

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 Neutral Citation Number: [2021] EWCA Crim 166 CASE NO 202003237/A1 Royal Courts of Justice Strand London WC2A 2LL Tuesday 2 February 2021 LORD JUSTICE HOLROYDE MR JUSTICE LAVENDER HIS HONOUR JUDGE LODDER QC (Sitting as a Judge of the CACD) REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 REGINA V “VT” 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 SMITH appeared on behalf of the Attorney General. MR J HARRISON appeared on behalf of the Offender. J U D G M E N T 1. LORD JUSTICE HOLROYDE: This case relates to a youth who was aged 15 at the time of his offence, and is now aged 17. The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged and we are satisfied that his welfare outweighs the strong public interest in open justice. We make an order pursuant to that section that whilst he remains under the age of 18, no information may be included in any publication which is likely to lead members of the public to identify him as a person concerned in these proceedings. We shall refer to him as "VT". 2. VT was convicted of an offence of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 . He was sentenced to a youth rehabilitation order, with requirements of supervision, an activity requirement and a programme requirement. 3. Her Majesty's Solicitor General believes that 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. 4. VT and his victim knew one another from school. They had, at one stage, been on friendly terms but had fallen out in the summer of 2018. 5. The offence was committed on 9 February 2019 when VT was aged 15 years 9 months and his victim a few months older. VT and three others approached the victim in the street. After an exchange of words, VT punched him. So too did one of the other youths. The victim tried to fight back. VT then stabbed him in the back with what the victim described as a pocket knife with a blade 3 or 4 inches in length. The wound bled heavily. He was assisted by passers-by and taken to hospital. 6. A report provided by the hospital described the a centimetre incision, with the wound penetrating into muscle to a depth of 10 centimetres. By good fortune, it appears that the injury was less serious than it might have been. 7. VT was arrested that evening on suspicion of attempted murder. In interview under caution he denied that allegation but otherwise made no comment. He was released on bail. 8. Months then passed. Enquiries were being made into the identity of the other three youths, though ultimately no one else was charged. Scientific examination of VT's clothing (which in the event found no bloodstaining or other incriminating feature) was not completed for several months. It was not until late October 2019 that the medical report was provided by the hospital. The consequence was that VT remained under suspicion of attempted murder, on bail for about 3 months and thereafter released under investigation until 23 December 2019, when he was charged. At that stage the charge was one of inflicting grievous bodily harm with intent. At a later stage, which has not been identified with precision, it was changed to the charge of which VT was ultimately convicted. 9. On 23 January 2020 VT made his first appearance before the Youth Court. The prosecution submitted that the case was suitable for trial before the Youth Court and that the likely sentence, if convicted, was no more than 2 years' custody. The court accepted that submission. 10. At trial in June 2019, before the Deputy Chief Magistrate, VT's case was that he had not been present at, or involved, in the incident. He did not give evidence. He was convicted and was committed for sentence to the Crown Court pursuant to section 3 B of Powers of Criminal Courts (Sentencing) Act 2000 . 11. VT then appealed against his conviction. The appeal was heard by HHJ Denniss and two magistrates sitting in the Crown Court at Isleworth. VT gave evidence, claiming that he had not been present or involved and putting forward an explanation for the cell siting of his phone in the relevant area. The court accepted the evidence of the victim, disbelieved VT and dismissed the appeal. 12. The learned judge then adjourned sentence so that a full report could be prepared by the Youth Offending Team. He gave no indication as to the likely sentence but observed: "The primary aim of the court in these circumstances is rehabilitation, not punishment, although this was a serious case." 13. After a short delay, because VT was required to self-isolate, the sentencing hearing took place on 30 November 2020. No up-to-date medical information about the victim and no victim personal statement was provided to the court. VT, who was aged 17 years 6 months by the time of the sentencing hearing, had no previous convictions, cautions reprimands or warnings. In the period which had elapsed since the commission of the offence, he had taken five GCSE examinations, passing all of them with good grades. He had not committed any further offence. His family had planned to relocate to a different area, so that a fresh start could be made, and VT had been offered an apprenticeship in the area where they hoped to live. Unfortunately that plan had not come to fruition, so arrangements had instead been made for VT to commence, in December 2020, a 2-year extended BTEC, course treated as equivalent to three A Levels. 14. The judge was assisted at the sentencing hearing by what he rightly described as "an extremely good report, insightful and helpful" by a member of the Youth Offending Team. VT had admitted the stabbing to the author of the report, saying that he had used a compass which he had in his rucksack, and had acted because he feared he would be seriously hurt by his victim. 15. The author of the report referred to the support which VT received from his close-knit, stable and law-abiding family. He assessed VT as understanding the seriousness of his conduct and being genuinely remorseful. He assessed the offence as being an isolated incident, out of character. He expressed concern that custody, of which VT was frightened, would expose VT to others more entrenched in criminal behaviour and would limit his future opportunities. He concluded that VT would benefit more from community intervention, with which he was motivated to engage fully. Having discussed various possible options he recommended a youth referral order with the package of requirements which the judge later imposed. 16. The judge was also provided with letters speaking of VT's good qualities, including his diligence as a student and his voluntary work at his Hindu temple. 17. Mr Harrison, then as now representing VT, made submissions in mitigation. The judge raised a question as to whether he should sentence on the basis that VT had used a knife or a compass, commenting that the latter "seems to be more consistent with the description of the injury". He said that: "It makes a considerable difference to the gravity of the offence." Having considered reasons why witnesses might have thought that a compass was a knife, the judge decided that he would sentence on the basis that a compass had been used. 18. In his sentencing remarks the judge observed that an adult offender would receive a prison sentence of quite some length. But, he said: "... you were only 15 at the time and the law is that the court should try and seek rehabilitation, if at all possible, for children who get involved with the law." 19. The judge went on to say that he was confident that VT would not get involved in any further offences of violence. He referred to VT's family and to VT's charitable work at the temple, which was a strong point in his favour. He accepted that VT was genuinely remorseful. He noted that VT had no previous convictions and had not been in any trouble since the offence. He concluded that the appropriate sentence was that to which we have referred. 20. The prosecution subsequently applied under the slip rule for the judge to reconsider the factual basis of his sentence. At a hearing of 21 December 2020 the judge accepted that he had almost certainly been in error in accepting without question that VT had used a compass. He accepted that it was almost certainly a pocket knife, which was a more probable instrument to have inflicted the injury. He said however that that error had made no difference to his sentence. At the end of the appeal hearing, and before the preparation of the report, he had in any event had a youth rehabilitation order in mind. He considered that rehabilitation was paramount in this case and that the elapse of almost 2 years since the offence was very significant. It was also important that VT had no previous convictions, and had an exemplary record which was reflected in the documents put before him. The judge emphasised that he had not accepted that it was a case of excessive self-defence. In those circumstances he declined to vary his sentence. 21. For the purposes of this hearing the court is assisted by an updating report from the Youth Justice Service as to VT's progress during the time he has been subject to the youth rehabilitation order. This updating report confirms that VT has complied with all requirements made of him, has attended all sessions and engaged extremely well. The author of the report assesses that the imposition of a custodial sentence, whilst sending a strong message that behaviour of this kind will not be tolerated, will do little by way of rehabilitation for VT and would likely limit his future opportunities with regard to his eventual release back into the community. The author added that VT is engaged with education, and a custodial sentence would constrain his completion of the current BTEC course. 22. On behalf of Her Majesty's Solicitor General, Mr Smith submits that the finding that VT had inflicted the injury with a compass rather than a knife was not one which was reasonably open to the judge. At the appeal hearing the court had accepted the evidence of the victim and had rejected that of VT. The judge should not have accepted for sentencing purposes a version of events which was put forward only to the author of the pre-sentence report, was inconsistent with the victim's evidence and had never been tested. In those circumstances Mr Smith submits that, on the authority of R v Cairns [2013] EWCA Crim 467 ; [2013] 2 Cr App R(S) 73, this Court is entitled to, and should, sentence on the correct factual basis. 23. Alternatively, and in any event, the sentence did not adequately reflect the seriousness of the offence. In terms of the guideline applicable to an adult offender it was a category 2 offence, with a starting point of 6 years' custody and a range from 5 to 9 years. Mr Smith submits that two higher culpability factors were present, namely the use of a knife and the fact that VT played the leading role in a group of attackers. The offence was further aggravated by the fact that another of the youths present had filmed the attack. 24. In those circumstances, submits Mr Smith, the judge would have been entitled to move upwards from the guideline starting point for an adult before considering matters of mitigation and then addressing an appropriate reduction for youth. 25. As to matters of mitigation, Mr Smith accepts that at least some of the passage of time, namely the initial period before charge, was in no way due to the actions and decisions of VT. He further accepts that good character was a matter properly to be taken into account, as of course was VT's youth. But, he submits, the judge's acceptance of genuine remorse is more problematic, given that the remorse was expressed to the author of the pre-sentence report in the course of an untruthful account of the circumstances in which the wound had been inflicted. 26. Mr Smith recognises the principles set out by the Sentencing Council in its Definitive Guideline giving Overarching Principles for Sentencing Children and Young People, but says that the starting point for an adult offender would be a significant period of custody. Even making every allowance for VT's youth and mitigation, it was not open to the judge to come down to a non-custodial sentence. Alternatively, if the youth rehabilitation order was appropriate on the basis that VT had used a compass as a weapon, a substantially more severe sentence was necessary given that he in fact used a knife. In sum, Mr Smith argues that nothing less than a detention and training order was appropriate. 27. Mr Harrison reiterates the mitigating factors which he persuasively argued before the judge. In relation to the long passage of time between the commission of the offence and sentencing, he points to R v Woodhouse [2020] EWCA Crim 970 , as an example of the court taking such delay into account. He invites the attention of the court to the principles stated in the Children guideline, and suggests that the submissions of the Solicitor General somewhat tended to treat this young offender as if he were an adult offender whose sentence fell to be reduced on grounds of youth. That, submits Mr Harrison, is not the correct approach. The correct approach is that which the judge accepted and adopted. He recognises that the judge had initially made an observation about the nature of the weapon making a significant difference, but points out that the judge did not either then, or at any other time, suggest that the difference would be determinative of the appropriate type of sentence. 28. As to the doubt cast by Mr Smith on VT's remorse, Mr Harrison submits that the court should recognise the realities of the position of a young offender, finding it difficult to face up to the full extent of his guilt. The important point, submits Mr Harrison, is that in the end VT has accepted his guilt and his responsibility for the injury which he inflicted. The updating report from the youth offending team confirms the view which the judge had formed of VT. In all the circumstances, submits Mr Harrison, there was an accumulation of factors which justified the judge in taking the course he did. Had VT been older at the time of the offence the position would no doubt have been different. But given that he was only 15 at that time, Mr Harrison urges us to treat the sentence as one which was within the range properly open to the judge. 29. We are grateful to both counsel. Having considered their helpful written and oral submissions, we have reached the following conclusions. 30. As the judge himself acknowledged, he fell into error in his initial decision that he should sentence on the basis that the weapon used by VT was a compass. There must, we think, have been a complete misunderstanding of the dimensions of the wound, which were clearly not consistent with the use of a compass. We accept that the judge's initial finding was not one which he could reasonably have made. It was a significant error in two respects: first, because it underestimated the nature and dangerousness of the weapon which was used; and secondly, because VT was able to put forward a reasonable explanation why he was carrying a compass, but he could not have justified his carrying a pocket knife. The judge made clear that it was not an error which affected his decision as to sentence. We must however consider whether, on a correct understanding of the weapon used and the injury inflicted, the sentence was unduly lenient. 31. The judge rightly followed the Children guideline. That guideline begins by emphasising, in paragraph 1.1, that those sentencing offenders aged under 18 must have regard to the principal aim of the youth justice system, namely to prevent offending by children and young people, and to the welfare of the offender. It goes on to state the following principles, amongst others. First: "While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) ...” (paragraph 1.2) Secondly: "... a custodial sentence should always be a measure of last resort for children and young people and statute provides that a custodial sentence may only be imposed when the offence is so serious that no other sanction is appropriate ... " (paragraph 1.3). Thirdly, it is important to avoid: "…'criminalising' children and young people unnecessarily; the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish." (paragraph 1.4) Fourthly: "... children and young people are likely to benefit from being given an opportunity to address their behaviour and may be receptive to changing their conduct. They should, if possible, be given the opportunity to learn from their mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on the prospects and opportunities of the child or young person. …" (paragraph 1.6). 32. Those principles make clear, in our view, that those sentencing children and young persons should not regard the young offender as, so to speak, a 'cut down' version of the adult offender, or approach the case as if the offender were a mature adult and then merely make an adjustment of sentence to reflect youth. 33. Where a custodial sentence is unavoidable, then paragraph 6.45 of the guideline indicates that the court may as a preliminary consideration consult the equivalent adult guideline in order to decide upon the appropriate length of sentence. 34. The judge, in our view, clearly had those principles well in mind and applied them to the circumstances of this case. This was undoubtedly a serious offence. VT was the leader of a group which attacked the victim, outnumbering him four to one. He was carrying a knife which he used to inflict a serious wound. The court was satisfied that he did so with intent to cause really serious injury. The filming of the attack was a further aggravating feature. 35. There was however powerful mitigation. The offence was committed when VT was only 15. He had never been in trouble with the police before and has not been in trouble since. Almost a year passed before he was charged - a long period in the life of one so young. Although he denied the offence and put forward an untruthful account, he has now come to accept his responsibility and the judge accepted that VT was genuinely remorseful. Given that the judge had not only the pre-sentence report to assist him, but also his own observations of VT, that was a conclusion to which he was entitled to come. The testimonials, to which the judge rightly gave weight, show that VT is intelligent and generally polite and well behaved. The judge, in our view, had an ample basis for his confidence that VT would not offend again and for taking the view that VT would be willing and able to engage with support and rehabilitation. As the updating report shows, events have proved the judge right in that regard. Whilst awaiting his trial and his subsequent appeal VT had done well in his exams and, with the support of his parents, was going on to further education. A custodial sentence would have had lasting repercussions for that education and for his future prospects. 36. VT could not have complained if the judge had imposed a custodial sentence. Knife crime is a matter of serious concern, and even a young offender will often have to be given a custodial sentence for an offence such as this. In this case, however, there were important factors in favour of a non-custodial sentence, which collectively carried considerable weight. The issue for us is whether, on the correct factual basis which the judge accepted at the later hearing, a non-custodial sentence was within the range of sentences properly open to him. We have concluded, albeit by a narrow margin, that it was. The judge's approach was consistent with the principles stated in the guideline and was justified in the particular circumstances of this case. 37. For those reasons the application for leave to refer is refused. The sentence 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

2021_02_02-5074.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/166/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/166

e4271e47cf0d567fbee4e15c1412a00fac4e9955a89eafc3352ee433b7a12213

[2011] EWCA Crim 3107

EWCA_Crim_3107

2011-12-14

crown_court

Neutral Citation Number: [2011] EWCA Crim 3107 Case No. 2011/04090/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 14 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 - MICHAEL DAVID McCARTHY __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Str

Neutral Citation Number: [2011] EWCA Crim 3107 Case No. 2011/04090/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 14 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 - MICHAEL DAVID McCARTHY __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Miss C Newall appeared on behalf of the Appellant ____________________ J U D G M E N T THE LORD CHIEF JUSTICE: I shall ask Mr Justice Sweeney to give the judgment of the court. MR JUSTICE SWEENEY: 1. This is an appeal against sentence by leave of the single judge. 2. On 28 February 2011, in the Crown Court at Snaresbrook, the appellant, who is now aged 41, pleaded guilty at the first opportunity to an offence of burglary. 3. The burglary was of a male student's room in a hall of residence. The victim confronted the appellant during the course of the burglary. The appellant nevertheless managed to escape. He tried to take the victim's computer with him. In the process the computer, which had cost £1,200 and which had much of the victim's course work on it, was damaged beyond repair, and so the appellant abandoned it a short distance from the scene of the crime. 4. As a result of his previous convictions the appellant qualified for a required minimum sentence of three years' imprisonment under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 . On 28 March 2011 the appellant was sentenced by His Honour Judge Pardoe QC to three years and two months' imprisonment, with a direction that 43 days spent in custody on remand should count towards the service of that sentence. In passing sentence the learned judge identified a number of aggravating features, and made clear that the notional sentence that he would have passed after a trial was one of four years' imprisonment. However, he concluded that full discount for the early guilty plea was limited to 20% because it was a section 111 case. Thus he imposed the sentence to which we have already made reference. Whether the learned judge was right to so limit the discount for the early plea is the sole point in this appeal. 5. The learned judge did not have the advantage, as we now have, of being referred to R v Gray [2007] 2 Cr App R(S) 78, in which that was the very point in issue. 6. On the appellant's behalf Miss Newall accepts that section 144(2) of the Criminal Justice Act 2003 limits the court on a plea of guilty to reducing the required minimum sentence to a term of not less than 80% of the three year period specified in section 111 of the 2000 Act . She submits, however, that Gray is clear authority for the proposition that when the sentence imposed is longer than the minimum term, a discount greater than 20% may nevertheless be applied, provided that the resultant term does not fall below 80% of the required minimum, that is below approximately two years and five months. 7. We agree. Accordingly, given that the learned judge would rightly have applied a full discount of one-third for the early guilty plea had he not felt constrained by the legislation to do otherwise, we propose to give effect to that by quashing the sentence of three years and two months' imprisonment and substituting for it a sentence of two years and eight months' imprisonment. The period of 43 days spent in custody on remand will continue to count towards the sentence. To that limited extent this appeal is allowed. ____________________________

2011_12_14-2895.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/3107/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/3107

afbaa780f7c19637d04f22aaecb4fa99a815fbc63ed913a83cc1543a40046458

[2015] EWCA Crim 177

EWCA_Crim_177

2015-02-19

crown_court

Neutral Citation Number: [2015] EWCA Crim 177 Case No: 201302432 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southhampton Crown Court His Honour Judge Hope T20127186 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/02/2015 Before : LORD JUSTICE FULFORD MR JUSTICE HAMBLEN and HIS HONOUR JUDGE WAIT (sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : A Appellant - and - Regina Respondent - - - - - - - - - - - -

Neutral Citation Number: [2015] EWCA Crim 177 Case No: 201302432 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southhampton Crown Court His Honour Judge Hope T20127186 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/02/2015 Before : LORD JUSTICE FULFORD MR JUSTICE HAMBLEN and HIS HONOUR JUDGE WAIT (sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : A Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Balbir Singh (instructed by Mandla Bhomra and Co ) for the Appellant Mr David Richards (instructed by Crown Prosecution Appeals Unit ) for the Respondent Hearing dates : 25 November 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Fulford : Introduction 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to some of the offences charged in this case. No matter relating to the victim shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the victim of the relevant alleged crimes. This prohibition applies unless waived or lifted in accordance with s.3 of this statute. 2. On 17 April 2013 in the Crown Court at Southampton before Judge Hope and a jury the appellant, A (who is now aged 29), was convicted of rape and sexual assault by penetration (counts 2 and 4 respectively). He was acquitted of threats to kill (count 5). On 22 May 2013 he was sentenced to 16 years’ imprisonment on count 2 and to a concurrent term of 8 yea rs’ imprisonment on count 4. 3. C , the appellant’s mother, was convicted of witness intimidation (count 8) and was sentenced to 18 months’ imprisonment. She was acquitted of threats to kill (count 7). 4. B , the appellant’s father, was convic ted of sexual assault on a female (count 3) and sentenced to 2 years’ imprisonment. The jury were unable to reach a verdict on the separate count of rape that he faced (count 1). He was acquitted of making threats to kill (count 6) 5. Before this court the appellant appeals against his sentence by leave of the single judge. Furthermore, he renews his application for leave to appeal against his conviction following refusal by the single judge. When the case was listed on 9 July 2014, the Full Court (Fulford LJ, Foskett J and the Recorder of Bristol) adjourned the hearing and a request by the appellant to introduce fresh evidence in order to give the prosecution an opportunity to investigate the material on which the appellant proposed to rely in support of his application for leave to appeal against conviction. The court ordered the prosecution to file any relevant evidence by 13 August 2012. The appellant was afforded until 27 August 2014 to file his skeleton argument, with the prosecution’s response to be file d 7 days thereafter. 6. The directions hearing took place on 14 November 2014 before the present constitution. Mr Singh, on behalf of the appellant, informed the court that he wished to call Harjap Singh (statement dated 7 July 2014) and Balwinder Singh Chahal (statement dated 8 July 2014). The prosecution applied to call the complainant (statement dated 8 August 2014). Mr Richards, for the Crown, conceded that the court should hear the evidence of the appellant’s witnesses, Singh and Chahal. The court, in the result, granted leave to appeal, and directed that the three witnesses were to give evidence. The Facts 7. The appellant was married to the complainant. They lived with the appellant’s parents (his co-accused) in Southampton. The appellant and the complainant had one child, born in 2010. She had been married before – this was said to have been a love match – and the complainant believed that she was treated badly by the appellant’s family because of this earlier marriage. The complainant alleged that the appellant had an extramarital affair during their marriage with a woman who lived in Birmingham, with the apparent knowledge and consent of his parents. 8. The complainant’s evidence, which included video -recorded interviews with the police, was to the effect that the appellant did not show consideration towards her even during what she described as the occasions when they had consensual sexual relations. Their marriage deteriorated over time, and the appellant behaved violently towards the complainant; she told him that she did not wish to have physically intimate relations with him because he did not treat her well. Ultimately, she considered she had no choice but to submit to his demands – frequently wholly against her will – and she informed him that if he persisted in abusing her in this way it would be the equivalent of having sex with a dead body. She maintained that from at least March or April 2012, the appellant raped her every few days, and the couple had numerous fights and arguments about sex. These events involved anal and oral rape. The complainant suggested that he was extremely persistent about having sexual relations with her, and she said that he beat and attacked her if she resisted his demands. His behaviour deteriorated when he had been drinking. Once he hit her very hard on her back and she showed the officers a long mark on her right hand inflicted when she tried to push the appellant away. Additionally, he pulled her hair, twisted her arms and threatened to cause unobservable internal injuries. 9. Although the complainant gave some particulars of the occasions when, and the circumstances in which, she was raped or sexually assaulted, in the main the allegations were broadly similar in nature, albeit she set out in considerable detail the various ways in which her husband repeatedly mistreated her. Therefore, the incidents of rape and assault constituted more of a pattern of behaviour on the part of the appellant, as opposed to clearly identifiable individual incidents. 10. As to the complaint that he sexually assaulted her, the complainant additionally asserted that whilst they were at home he frequently inserted his fingers into her vagina and anus without her consent. 11. The complainant’s account as regards at least some of the incidents changed durin g the course of her evidence – for instance, there was an occasion when the appellant taunted her on his return from visiting his girlfriend in Birmingham and although her original account was that he raped her, in evidence she suggested that she successfully resisted his violence on this occasion. Similarly, she described an incident in the communal hall in greater detail during her evidence than in the pre-trial interviews. It is relevant to note that she was tested on these changes during the course of her cross- examination. 12. On 6 July 2012 the police were called to deal with an incident involving the appellant and the complainant. She alleged that the appellant and her father-in-law, B, had raped her. Over the following weeks the police conducted a number of interviews with the complainant during which she accused both men of raping her over a period of 3 years. It is to be noted that she had made previous complaints, including the allegation that her father-in-law had raped her, but this was the first allegation of this kind against her husband. 13. Turning, briefly, to the position of her father-in-law, B, she alleged that his sexual assaults began with a considerable amount of touching. This progressed to a particular incident of sexual assault (count 3) and then rape (count 1) after she was persuaded to give him a leg and head massage in his bedroom. Thereafter, he sexually assaulted and raped her on a regular basis. 14. The prosecution relied principally on the complainant’s account. Thi s included evidence from three women with whom she spoke concerning these events: Eileen Levi, Amerjitand Jennifer. They each suggested that the complainant told them that her husband and father-in-law were raping her, and they said they had seen bruising to her body. D , the husband of the appellant’s lover, claimed that both the appellant and his father had had sexual intercourse with his wife. 15. It is of relevance to note at this stage that the prosecution included three “ multiple incident counts ” (counts 1, 2 and 4) in the indictment. In adopting this approach, the Crown relied on the Practice Direction then in force, Practice Direction (Criminal Proceedings: Arraignment) [2008] 1 WLR 154 at IV.34.14, which provides: In […] cases, such as sexual or physical abuse, a complainant may be in a position only to give evidence of a series of similar incidents without being able to specify when or the precise circumstances in which they occurred. In these cases, a “multiple incidents” count may be desirable. If on the other hand, the complainant is able to identify particular incidents of the offence by reference to a date or other specific event, but alleges that in addition there were other incidents which the complainant is unable to specify, then it may be desirable to include separate counts for the identified incidents and a “multiple incidents” count or counts alleging that incidents of the same offence occurred “many” times. Using a “multiple incidents” count may be an appropriate alternative to using “specimen” counts in some cases where repeated sexual or physical abuse is alleged. The choice of count will depend on the particular circumstances of the case and should be determined bearing in mind the implications for sentencing set out in R v Kidd [1998] 1 WLR 604 . 16. The present iteration of the Criminal Practice Directions [2013] 1 WLR 3164 ; [2013] EWCA Crim 1631 repeats this text essentially unchanged at paragraph 14A.13. This part of the practice direction supplements Rule 14.2(2) of the Criminal Procedure Rules which permits the prosecution to include counts in the indictment that allege a course of conduct: (2) More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission. 17. The judge’s direction to the jury was as follows: Now, as you can see, in fact, three of these counts, Count 1, Count 2 and Count 4, are what is described in the statement as multiple incident counts pursuant to a criminal procedure rule. In those three counts, members of the jury, to be guilty of such a count, a multiple incident count, the defendant concerned who is charged in the indictment on that count must be proved so that you are sure to have carried out the activity alleged in the count on more than one occasion during the period specified in the date set out in the particulars of the offence. So, two such occasions would be sufficient in law for that criteria to be met, maybe a lot more but there has to be at least two under a multiple incident count. If, members of the jury, in any case in any one of those three counts, Counts 1, 2 or 4, you were sure that the activity alleged in the count happened but it only happened on a single occasion, if that was the case it would be open to you to say, “Not guilty as charged, but guilty to a single incident count.” So that is how to look at those multiple incident allegations. 18. We turn to the implications of his approach as regards sentence later in this judgment. The Defence Case 19. The appellant denied the allegations when interviewed. The defence case was that the allegations had been fabricated. The appellant accepted that there had been disharmony in the household, dating back to when the complainant had been given “ leave to remain ” by the Home Office. However, he maintained that their sexual relationship had been entirely consensual. The Fresh Evidence 20. Balwinder Chahal has been at various time the General Secretary of the Gurdwara Nanaksar. The individual who occupies this role gives general advice and assistance to members of the community. 21. He met the complainant for the first time in the Gurdwara Nanaksar (in the dining hall) in February 2014 when she asked for his help because she wanted to be reconciled with her husband. Mr Chahal said it is usual for members to ask members of the Gurdwara committee for guidance, albeit he was not acting as General Secretary at this particular point in time. The complainant had previously attended another temple on the same street. She told him about her family and their problems. She said her daughter missed her father and she considered that his sentence was too long. She indicated she felt guilty about what had happened. The complainant said the appellant had raped her but nonetheless indicated it would be better if they got back together as a family . 22. Mr Chahal met her on a second occasion with Harjap Singh, the then General Secretary. The complainant repeated much of what she had said on the first occasion and she mentioned the sexual assaults by her father-in-law. When they asked why she wanted to be reconciled after these events, she said she had lied “a little” because a woman called Eileen had persuaded her that otherwise her husband might go free. Mr Chahal did not know how many lies she had told or the subject matter of the lies, and he said it was not his duty to investigate these matters. She said her husband and father-in-law had gone to prison respectively for raping and sexually assaulting her. She repeated her belief that the appellant had received a very severe sentence. She indicated that her daughter wanted her father and she wanted to be reconciled with her husband for her sake. 23. She asked Mr Singh to write a letter which was to be sent to the police and the court. Contact was made with the appellant’s family, who indicated that they were prepared to be reconciled with their daughter-in-law. 24. Harjap Singh gave broadly corroborative evidence, save he did not suggest the complainant alleged that her husband had raped her, although he recalled she said the appellant had been horrible to her. Instead, she alleged that her father-in-law had raped her. She indicated that her husband had been imprisoned for 16 years and she felt guilty. She had not realised that he would be punished so severely. She told him that an Indian lady called Eileen had advised her that she needed to tell a “ little lie ” because otherwise he would get away scot-free. As a result, she had told a few lies in court. As with Mr Chahal, this witness did not enquire as to the extent or the nature of the lies. She indicated that she wanted to make up with the appellant even if he did not forgive her. 25. Mr Singh helped by writing two letters that were aimed at assisting the appellant, albeit they indicated he had treated the complainant badly. The main difference between them was that the second letter reflected the fact that the couple were divorced. However, the complainant never sent them and in due course she indicated that she did not want to take the matter any further. 26. The complainant denied in her evidence before us that she had sought the help of Messrs Chahal or Singh in order to effect a reconciliation, and instead she testified that she had told them about her concern that the appellant would be unchanged following his release from prison. Mr Chahal indicated that it would be a good deed if she organised her husband’s release, but she did not wish to live with him again. She said that it was Mr Chahal’s idea to write the letter referred to above, and he tried to persuade her to send it. She said that Eileendid not advise her about how to give her evidence or what to say. She did not suggest to the complainant that she should lie but instead provided her with support and assistance, particularly on an occasion when her husband was very drunk and telephoned the police. The Grounds of Appeal Against Conviction Inconsistency Submissions 27. The ground of appeal against conviction for which leave was refused is that the verdicts are fatally inconsistent as between the appellant and his father, and that as a result the convictions of the former on counts 2 and 4 are unsafe. It is suggested that no reasonable jury could properly have reached different conclusions as regards the two accused, given the case against them was based on the same evidence and the jury was confronted with a continuing and essentially undifferentiated scenario involving both men (albeit they were not charged with joint offences). Mr Singh emphasises that following the jury’s disagreement as regards the complaint’s father -in-law, a not guilty verdict was entered at the direction of the judge, and he contends that in all the circumstances there is a lurking doubt as to the safety of the appellant’s convictions. Discussion 28. The single judge observed, when refusing leave on this ground, that: It is indeed notoriously difficult to challenge the verdict of the jury on the grounds that their verdicts are inconsistent. In sexual cases in particular, it is the common experience that juries may be sure of part of a complainant’s evidence and convict upon it but yet not be sure of another part and therefore acquit; that is the position even when there is but one defendant. In this case, however, there were two defendants: the jury were sure and convicted upon the evidence of the complainant which bore against her husband (the applicant A) but yet were not sure in relation to the allegations made against her father in law B (they did not acquit Mohan but, except upon one count of sexual assault, they were unable to agree and in particular they were unable to agree upon the ‘multiple incident’ count of rape laid against him). I see nothing in the least inconsistent in the jury being sure of the charges as against Mandeep but yet not sure of the charges as against Mohan. The defendants would have a valid complaint if the judge directed the jury that the verdicts would have to be the same: they were obliged to consider the case against each defendant separately and were entitled to be sure as against one but not the other. Accordingly, I reject the application for leave to appeal against conviction. 29. We agree with that assessment of the single judge. In our view, this proposed ground of appeal is unarguable. The appellant was charged separately from his father and the allegations against the two men were dissimilar as regards the circumstances of the offences. As against her husband, the complainant gave a lengthy history in which she described the detail of the way he forced her to have sexual relations during their marriage. The incidents involving her father-in-law occurred on different occasions and the two men were not alleged jointly to have assaulted her. The appellant and his father-in-law individually gave evidence in their own defence, and the jury would have been entitled to reach differing conclusions as to their credibility. The jury were sure that the appellant had raped the complainant but they were unable to return a verdict as regards the multi-incident rape allegation concerning her father-in-law, albeit he was convicted of sexual assault (an offence that was said to have preceded the first allegation of rape). The jury’s inability to be sure as against one defendant on a count of rape whilst convicting another defendant on a separate count of rape does not reveal any logical inconsistency, even if both counts were essentially dependent on evidence given by the same witness. This is particularly the case when there are multi-incident counts, because the jury need to be sure that the victim had been raped by the accused at least twice. 30. We emphasise, therefore, that it is suggested on the appellant’s behalf that the jury reached irreconcilable conclusions. That is not the case. They reached a conclusion to the criminal standard as against one defendant and they were unable to reach a conclusion as regards another defendant. The father-in-law was not acquitted; instead, the jury did not reach a verdict. This is not a situation, therefore, where there is a logical inconsistency between verdicts; instead, as against one defendant there was a guilty verdict and as against the other defendant there was no verdict at all. It is very rare for this court to find that a conviction on one count and a failure to agree on another will provide a ground of appeal. In R v Formhals 2013 EWCA Crim 2624; 2014 I Cr App R 35, Davis LJ observed: 28. It will be a rare case indeed where a failure to reach a verdict can be said to be logically inexplicable when contrasted with or set against a verdict or verdicts which have been reached. If such an argument is to be run, it will have to be run in cases which will call for the closest scrutiny by the court. Moreover, such an argument has to be run in circumstances where the principles applicable to inconsistent verdicts (in the true sense of the words) are—as has long been established—themselves very tightly prescribed: see, amongst other cases, R. v Dhillon [2010] EWCA Crim 1577 ; [2011] 2 Cr. App. R. 10 (p.112) where the main relevant principles are helpfully summarised by Elias L.J. at [33] of the judgment of the court, and as further amplified by the judgment of the court delivered by Jackson L.J. in the case of R. v Dobson [2011] EWCA Crim 1856 . The bar is thus set high for the application of the principle of inconsistent verdicts. It can be set no less high, and perhaps is set higher, where the attempt is to compare and contrast a verdict of guilt with a failure by the jury to agree. 31. This ground has no merit. Fresh Evidence Submissions 32. Mr Singh argues that if the evidence of Messrs Chahal and Singh had been available at trial it would have been admissible. He suggests that their testimony is capable of being believed and it has direct relevance on the main issue in the case: the credibility of the complainant. He submits that even if a jury only concluded that she possibly wished to be reconciled with her husband and his family, this might have affected their view of her evidence in a critical way. However, he argues that if they went further and accepted she may have told some “ small lies ”, the verdicts would inevitably be unsafe. Mr Singh suggests that although it is for this court to assess their accounts, in reality it is unsustainable to contend that the evidence of these two witnesses does not undermine the safety of the appellant’s convictions. 33. For the Crown, Mr Richards contends that if the complainant had told the two men that she had “ lied a little ”, they would inevitably have questioned her about the nature, extent and importance of the lies. Discussion 34. As described above, there were some anomalies in the complainant’s various descriptions of her treatment at the hands of the appellant. Indeed, it has been an important part of his case that she has been inconsistent in her account as to what occurred. In particular, the appellant alleged at trial that there are some notable differences between the various versions she has provided of her sexual mistreatment. The evidence of the two witnesses to the effect that she admitted telling some small lies needs to be viewed in that critical context. By the time she spoke with Mr Chahal and Mr Singh, she had been cross-examined during the trial on these differences in her account and she had been clearly and repeatedly accused of lying. We stress that, according to the two witnesses, they did not ask a single question in order to establish the content or context of these “small lies”. Given the absence of other evidence as to what she meant by this statement, the most likely explanation – and the only explanation for which there is evidential support – is that the complainant was referring to these changes or developments in her account on which she had been tested and challenged in cross-examination. The jury were entirely aware of these differences in her narrative, and they would have made an assessment of whether they amounted to lies on her part, small or otherwise, and, if so, their significance. Therefore, the fresh evidence put before this court by the appellant – which for these purposes we accept is credible and admissible – would not have added to the jury’s understanding of the case or materially affected their view of the complainant’s reliability or credibility as a witness. 35. It follows that in our judgment the fresh evidence does not render these verdicts unsafe. The Grounds of Appeal Against Sentence The Sentence 36. Turning to the appeal against sentence, the judge paid heed to the fact that the appellant was 28 and he was treated as being of good character. However, the judge observed the complainant was a very vulnerable individual and that the appellant had dealt with her in an appalling fashion: he had treated her almost as if she was property. In all the circumstances, there had been a serious breach of trust. The victim continued to struggle in her everyday life. The psychological effect on her had been serious and repeated, and only ended when she left the matrimonial home. The judge noted that in his conversations with the author of the pre-sentence report as well as in a letter he had sent to the court, the appellant continued to denigrate the complainant and was in complete denial as to what he had done. Of critical significance given the central argument raised on the appeal against sentence, the judge found that he had committed multiple rapes against the complainant. He had also committed further acts of degradation on the complainant by penetrating her vagina with his finger on several occasions. 37. The judge considered that the offending fell within the most serious categories as regards both offences for the purposes of the sentencing guidelines. Submissions 38. This appeal is argued on the basis that the sentence of 16 years imprisonment was excessive and wrong in principle. It is suggested there was a fundamental problem in sentencing the appellant in these circumstances because the extent of his criminality was uncertain, not least because the complainant gave differing accounts about his conduct. 39. It is contended that the judge had no information as to the basis upon which the jury convicted the appellant other than they must have accepted that there were at least two incidents respectively of rape and indecent assault. It is argued that the judge was obliged to accept that scenario as the least serious credible basis for sentencing. 40. Therefore, it is said that although there had been more than one incident of rape, thereby placing this offence within category 1 of the Sentencing Guidelines, the appellant should have been sentenced at the lower end of the range on the basis that the offence occurred towards the end of the relationship. Alternatively, it is suggested this should have been treated as a category 2 offence because category 1 is not intended for circumstances such as the present case. In this regard it is argued that although the jury found that there was more than one rape, it was perpetrated over a very short period in the context of a marriage breaking down, with a husband forcing himself on his wife on two occasions against a background of a continuing consensual sexual relationship. 41. In all the circumstances it is suggested a sentence of 10 years would have been sufficient to reflect the seriousness of the allegations. The Single Judge 42. The single judge observed: 1 turn then to the appeal against sentence. The form of the indictment, to which no objection seems to have been taken, was a so-called ‘multiple incident’ count laid pursuant to CrimPR part 14.2 (2). I have serious doubts as to the suitability of a ‘multiple incident’ count in such circumstances. The judge directed the jury that they could convict only if they were sure that he raped his wife M ‘on more than one occasion ... So, two such occasions would be sufficient for that criteria to be met, maybe a lot more but there has to be at least two under a multiple incident count’ […]. He further directed them that if they were sure that it happened only once, they could return a special verdict to that effect of ‘Not guilty as charged but guilty to a single incident’ […]. The same point arises in connection with the ‘multiple incident’ count charging him with sexual assault upon M. In fact the jury convicted him of both counts. How then was the judge to sentence him? In accordance with the judge’s direction, the jury may have found just two such incidents proved. But the judge found as a fact […] that his abuse was ‘serious and repeated’. Since he passed a sentence of 16 years, he must, in effect have found a campaign of rape against her. Such a finding might have been justified had there been a serious of counts laid against him but the full Court should have the opportunity of considering whether such a finding should — or even could - have been made upon this indictment. Indeed, I consider it to be at least arguable that the appellant should have been sentenced upon the basis that the jury might have found only two such incidents proved against him. NOTE: I invite the prosecution to attend to explain and justify —if they can - the form of the indictment and to make representations as to the judge’s findings of fact. Discussion 43. There is a long-established rule that it is for the judge to determine the factual basis of sentencing, apart from the rare cases in which the jury is asked to return a special verdict when he will be guided by their decision. But there is an undoubted difference between establishing the facts that are relevant to the charge on which the accused has been convicted, on the one hand, and deciding how many times a defendant committed the crimes for which he is to be sentenced, on the other. Generally, when the prosecution allege that a defendant has perpetrated a number of similar acts on different occasions, it is impermissible for the accused to be charged with a single offence as representing, or constituting, the entire course of conduct for the purposes of sentence. The cardinal rule is that the judge may sentence only for those offences in respect of which the accused has been convicted, or which he has asked to be taken into consideration on sentence. As the headnote in R. v Canavan [1998] 1 Cr. App. R. 79 sets out: Where a defendant is convicted on an indictment charging him with offences said to be representative of other similar criminal offences committed by him, it is inconsistent with principle that the court should take into account such other offences so as to increase the sentence if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration. Nor does [statute] legitimate the practice of sentencing for unindicted, unadmitted offences . 44. As a result, the prosecution needs to have formulated a clear charging strategy in advance of the Plea and Case Management hearing. In R. v Hartley [2011] EWCA Crim 1299 ; [2012] 1 Cr. App. R. 7 this court (Hughes LJ VP) set out the following: 12. … Criminal Procedural Rules 14.2(2) … permit a count on an indictment to contain an allegation of more than one incident of the commission of an offence if the incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission. That is a departure from the common law and to that extent a modification of what used to be called the rule against duplicity. […] 22. We do not think that it is possible to attempt any general statement of how indictments ought to be framed in the very wide range of cases that come before the courts. Everything in reality depends on the facts of the individual case, on what is alleged and on what issue is raised by the defendant. We have been reminded that there exist two new potential procedures. One … [is] … the Criminal Procedure Rules …. There is also now in existence the Domestic Violence (Crime and Victims) Act 2004 which in sections 17 to 19 does provide in some cases for an order to be made for representative counts to remain on the indictment and in the event of conviction for guilt of outstanding instances to be determined by the judge without the jury. Those provisions are set out in Archbold …, but we draw attention to the fact that they are limited in application. There are strict conditions for when they can be employed and in particular they can be employed only where otherwise the indictment would be of such a size as to be impracticable for the jury to cope with. It seems to us much more likely that in general terms the problem of which this case is an example can normally be dealt with by the framing of an indictment which does not contain an enormous number of counts but does contain sufficient to enable the judge to pass sentence on a basis which sufficiently represents what really happened. More than that we do not attempt to say, beyond perhaps this. Where specific incidents are capable of identification, however exiguously, for example "the time the vase broke", or "the time we went by train to Brighton", then ordinarily we would expect the indictment to contain a count referable and identifiably referable to that event so that the jury can determine it. That of course is subject to not, if there are hundreds of them, overloading the indictment with more counts than the jury can be expected to determine. Generally it is necessary for those who are framing indictments to pay attention to any issues flagged up by what the defendant has said either in interview with the police or later in a defence statement. Ordinarily we would suggest where there is simply a complaint of a course of conduct over a period of months, often years, more than a single count for each period is usually appropriate, although one per year may well suffice if the alleged period is extended. But the overall principle is simply that regard must be had in an intelligent way to the possible views of the case at which a jury might arrive and to the position of the judge in due course should there be convictions. If thought is given to those questions we have little doubt that it will normally be possible to frame an indictment in a manner which enables the sentencing to be realistic and complies with the strict rules of law as set out in R v Canavan . 45. Thus, the prosecution must choose how to apply or adapt the three distinct possible approaches: a) To include a count or counts in the indictment pursuant to Criminal Procedure Rules 14.2(2), alleging a course of conduct: (2) More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission. b) To request that the judge resorts to sections 17 - 19 Domestic Violence (Crime and Victims) Act 2004 which enables the judge in particular circumstance to try the outstanding allegations following conviction on sample counts; or c) To include sufficient counts to enable the judge to impose a sentence which sufficiently represents what happened, but care is needed not to overload the indictment. 46. The problem that this case has highlighted is how does the court deal with a course of conduct count under the Criminal Procedure Rules 14.2(2) when the extent, seriousness and timespan of the defendant’s offending is unclear from the jury’s verdict. There were no means by which the judge was able to interpret the jury’s decision in this regard. 47. In our judgment, the central answer to this problem is to be identified in the purpose underpinning multiple counts: it is to enable the prosecution to reflect the defendant’s alleged criminality when the offences are so similar and numerous that it is inappropriate to indict each occasion, or a large number of different occasions, in separate charges. This provision allows the prosecution to reflect the offending in these circumstances in a single count rather than a number of specimen counts. However, when the prosecution fails to specify a sufficient minimum number of occasions within the multiple incident count or counts, they are not making proper use of this procedure. In cases of sustained abuse, it will often be unhelpful to draft the count as representing, potentially, no more than two incidents. Indeed, in this case, if there had been a multiple incident count alleging, for example, "on not less than five occasions" with an alternative of one or more specimen counts relating to single incidents for the jury to consider if they were unsure the offending had occurred on multiple occasions, the judge would have had a solid basis for understanding the ambit of the jury's verdict and he would been able to pass an appropriate sentence. Therefore, the prosecution needs to ensure that there are one or more sufficiently broad course of conduct counts, or a mix of individual counts and course of conduct counts, such that the judge will be able to sentence the defendant appropriately on the basis of his criminality as revealed by the counts on which he is convicted. In most cases it will be unnecessary for the counts to be numerous, but they should be sufficient in number to enable the judge to reflect the seriousness of the offending by reference to the central factors in the case: e.g. the number of victims, the nature of the offending and the length of time over which it extended. Therefore, in drafting the indictment, a balance needs to be struck between including sufficient counts to give the court adequate sentencing powers and unduly burdening the indictment. As the editors of Archbold Criminal Pleading Evidence and Practice 2015 at paragraph 1- 225 have observed, the indictment must be drafted in such a way as to leave no room for misinterpretation of a guilty verdict and regard must be had to the possible views reached by the jury and to the position of the judge, so as to enable realistic sentencing. 48. In the present case the judge dealt with the appellant in breach of the requirement that he should not be sentenced for crimes of which he has not been convicted. The only fair approach to the course of conduct counts which he faced (counts 2 and 4) is that he should have been sentenced on the basis that he had committed two offences of rape and two offences of sexual assault by penetration. The overall sentence of 16 years’ imprisonment was excessive, particularly since the jury may have convicted on a limited approach to the complainant’s account, namely that the offending occurred at the end of the relationship in the context of ongoing consensual sexual activity. Given this offending came towards the bottom end of category 1, and bearing in mind that for each count the jury must have found that the rape or the assault occurred at least twice, we substitute a sentence of 12 years’ imprisonment on count 2 and a concurrent term of 6 years’ imprisonment on count 4. To that extent o nly this appeal is allowed. The overall sentence is 12 years’ imprisonment.

2015_02_19-3550.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/177/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/177

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[2022] EWCA Crim 1379

EWCA_Crim_1379

2022-10-21

crown_court

This judgment is handed down by the Court remotely by circulation to the parties’ advisers by email and release to the National Archive. The date for hand-down is deemed to be 21 October 2022. Neutral Citation Number: [2022] EWCA Crim 1379 Case No: 202200881 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NEWCASTLE His Honour Judge Evans T20077039 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/10/2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE FRASER a

This judgment is handed down by the Court remotely by circulation to the parties’ advisers by email and release to the National Archive. The date for hand-down is deemed to be 21 October 2022. Neutral Citation Number: [2022] EWCA Crim 1379 Case No: 202200881 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT NEWCASTLE His Honour Judge Evans T20077039 Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/10/2022 Before : LORD JUSTICE WILLIAM DAVIS MR JUSTICE FRASER and MRS JUSTICE HILL Between : REX Respondent - and - PAUL RICHARD SURREY Applicant/Appellant Mr Fitzgerald KC and Ms Woodrow (instructed by Dr Laura Janes of GT Stewart Solicitors ) for the Appellant Mr Jarvis (instructed by Crown Prosecution Service ) for the Respondent Hearing date : 6 October 2022 Judgment Mr Justice Fraser: Introduction 1. This is an application for permission to appeal against sentence which has been referred to the Full Court by the Registrar. It is also an application for an extension of time of 14 years 11 months and an application to admit fresh evidence under s.23 Criminal Appeal Act 1968. For reasons of convenience we shall refer to the applicant/appellant simply as Surrey. No discourtesy is intended by the use of solely the applicant/appellant’s family name. 2. The provisions of s.39 of the Children and Young Persons Act 1933 (“CYPA 1933”) were engaged in this case because the applicant was under 18 years of age both at the time that he was convicted, and also when he was sentenced. An order was made on the date of sentence, 29 March 2007, under s.39 of CYPA 1933 in relation to proceedings in the Crown Court in the following terms: “The Court prohibits the publication of the name of the defendant who is the subject of this order.” Those provisions are no longer engaged as the defendant is now over the age of 18, when such orders lapse. This interpretation of the operation of the prohibition was made clear in R v JC and RT and Others [2014] EWHC 1041 (QB) by the Divisional Court (PQBD, Cranston J and Holroyde J (as he then was)). 3. For completeness we record that s.39 of the CYPA 1933 was repealed when section 45 of the Youth Justice and Criminal Evidence Act 1999 came into force, which replaced it, the relevant date for that latter statutory provision coming into force being 13 April 2015. That makes no difference to the fact that reporting restrictions are no longer in force in this case and have not been for many years. 4. On 16 January 2007 in the Crown Court at Newcastle, Surrey pleaded guilty before Her Honour Judge Bolton to one count of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861 (“OAPA 1861”). Surrey was aged 17 both at the time of the offence, when he pleaded guilty and when he was sentenced. That sentencing hearing also took place in the Crown Court at Newcastle before His Honour Judge Evans, on 29 March 2007. 5. Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 was in force at that time and applied in Surrey’s case. This provided that if the court was of the opinion that neither a community sentence nor a detention and training order was appropriate, then it could impose a sentence on him up to the statutory maximum for the offence, notwithstanding his age at the time. He had previously been sentenced in September 2005 to a detention and training order of 6 months in duration for a previous offence. It is therefore no surprise that the court concluded that such an order was not an appropriate for his section 18 offence. 6. Section 226 of the Criminal Justice Act 2003 (“CJA 2003”) also applied because he had committed a specified serious offence and the court was of the opinion that there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. The sentencing judge took the view that it was not necessary for him to impose a life sentence and that an extended sentence under section 228 would not be adequate to protect the public from the risk posed by Surrey. In those circumstances, the sentencing judge was required to impose a sentence of detention for public protection. 7. The judge therefore sentenced Surrey to a sentence of detention for public protection under s.226 CJA 2003. Such a sentence is more usually known as an DPP and is for those under the age of 18. It is the equivalent sentence to one for adults called imprisonment for public protection which is often referred to as an IPP, such sentences being created by section 225 of the Criminal Justice Act 2003. These types of sentence were subsequently modified and then finally abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, although that was done with prospective effect from December 2012. Thus, it remains the lawful sentence which Surrey is required to serve, pending the outcome of this application and, if permission is given, the appeal. 8. The custodial element of the sentence passed upon Surrey was 2 years, less the period he had by then spent in custody on remand, which was 81 days. Surrey therefore had a little more than about 21 months or so further to serve in custody, before the custodial element of his DPP was served. Serving that period would not, however, mean that Surrey would be entitled to release at that point. 9. This is because such a sentence has a minimum custodial term specified by the court at the time of passing the sentence, which is the period that must be served before the prisoner is entitled to have their case considered by the Parole Board. It is the element of the sentence designed to achieve two of the three aims of sentencing, namely punishment and deterrence. The third aim, protection, is achieved by the nature of the sentence once the minimum custodial term has been served. The sentence can potentially lead to some confusion on the part of some people, in that the minimum custodial term could (incorrectly) be interpreted as a period of imprisonment in the same way that a fixed determinate term would be. Importantly, if a person has been sentenced to an IPP sentence, they can potentially remain in detention long after the minimum custodial term had been served. Their release is permitted only when the Parole Board decide that such risk as they present can be adequately managed in the community. Simply because the minimum custodial term has been served, it does not mean that they are entitled to release, or are indeed safe to be released. Once released, such a prisoner remains on licence and can be recalled to prison, either for breach of any conditions of that licence, or if other offences are committed. The sentence remains in force indefinitely, and an offender is therefore subject to licence conditions and potential recall for the remainder of their life. 10. Surrey has not been released for reasons which will become clear. He remains in custody, although not in prison. He is now in secure hospital. The Facts 11. The index offence which led to his being charged, and then pleading guilty, had occurred on 31 December 2006, at a New Year’s Eve party. The complainant, a young person to whom we shall simply refer as the complainant , who was aged 16, attended a house party at an address in Vale Head, Whitley Bay. The party was being held at the home address of a friend of his. Amongst the attendees at the party were a group of five male youths from the Gateshead area, including Surrey, who was at that time aged 17. They did not know the complainant . The complainant was wearing a number of prominent items of jewellery, including rings, and at one point during the party one of those present overheard Surrey saying words along the lines of “I think we should tax that kid’s rings”. These comments were understood by those who overheard them to be a suggestion that they should steal the complainant ’s jewellery. The complainant was informed of what had been said and the jewellery was temporarily hidden for safekeeping. 12. Later during the course of the evening the complainant , who had become upset at something that had gone on with a girl at the party, was sitting on the stairs. He was approached by Surrey who invited him into the main bedroom for a chat. They both sat on the bed and Surrey closed the door. Surrey asked the complainant what was wrong. Before the complainant could answer he felt a blow to the back of his head. He turned to his left and saw a knife in the applicant’s hand. He ran from the bedroom downstairs shouting “I’ve been stabbed”. As he looked back he could see Surrey who followed him downstairs shouting, “He fell over. I haven’t done anything”. The complainant ran outside into the front garden where friends tended to his injuries and contacted the emergency services. Police arrived at the location and found that the complainant had suffered a five inch laceration to the back of his head. He was taken by ambulance to hospital where he received 10 stitches to close the wound. He had been stabbed in the back of his head by Surrey, and had the knife penetrated 2 cm further than it had, it would have penetrated his spinal cord and caused significant and permanent injuries. 13. Police established that Surrey was responsible, and the knife that was used, which belonged to the mother of the person holding the party, was recovered from the front bedroom. It must have been taken from the kitchen by Surrey and was used to stab the complainant . Surrey was eventually arrested at 10:30 am on 1 January 2007 at his home address. He made no comment in interview. He was identified the following day by the complainant on a video identification parade. 14. Upon his plea of guilty, the court ordered preparation of a Pre-Sentence Report (“PSR”), which was provided dated 15 March 2007. This set out his childhood history, which was a very unhappy and dysfunctional one, and included reference to his low IQ, difficulties in seeing alternatives to conflict, and unsuccessful attempts to curb his aggression. He was living in a supportive environment with his father and grandparents, and his grandmother in particular were doing their best to support and encourage him, but he had substantial difficulties in accepting any authority from adults and was confrontational. The report concluded that he was at high risk of causing harm to members of the public through further violent offending, and was also at high risk of re-offending. 15. Surrey told the author of the report, Mr Bowman, in the two interviews that were held with him, that he had been drinking alcohol and smoking cannabis on the night in question and this had influenced his behaviour. He said that the incident arose as a result of the complainant giving him “dirty looks” after he had been kissing the complainant’s ex-girlfriend. He admitted that he picked up the knife and approached the complainant with the intention of stabbing him because of the dirty looks he had given him. When they spoke in the bedroom the complainant had warned him to keep away from his ex-girlfriend and referred to him as a “ginger nut”. This made him angry and he stabbed him with an intent to cause him injury. 16. The court also had a medical report upon Surrey prepared by Dr Kennedy, a chartered clinical psychologist which was dated 23 March 2007. That report included further details about Surrey’s troubled childhood. He had lived with his mother and her new partner, both of whom had subjected both him and his siblings to sustained abuse. He had been taken into care by the local authority on a number of occasions but returned to his mother. She was eventually convicted of sexual offences and was a Schedule 1 offender. Dr Kennedy had seen Surrey in October 2004 after he had been referred to the Northern Forensic Mental Health Service for Young People in June 2004. Dr Kennedy had concluded that he was not “overtly mentally unwell” and Surrey had been discharged on 29 October 2004. He was then re-referred in May 2005 but refused to engage, and was consequently discharged again on 3 June 2005. 17. Dr Kennedy’s report was concerned to address the question of future risk and did not address whether the Applicant’s conditions met the criteria for a Hospital Order under the Mental Health Act 1983 (“MHA”). No conclusion was offered as to whether Surrey suffered from a mental disorder within the meaning of the MHA, nor whether such a disorder was of a nature or degree which necessitated treatment in hospital. 18. Surrey had a high number of previous convictions, namely 28, commencing in 2003, and had been before the courts on 13 different occasions. His convictions included those from the juvenile courts, such as possessing an offensive weapon, possessing Class C drugs, common assault, battery, being drunk and disorderly, disorderly behaviour, criminal damage, breaches of supervision orders, breaches of previous detention and treatment orders that had been imposed, and theft. 19. The judge considered the circumstances of the offending, the contents of the PSR and the medical evidence of Dr Kennedy. He observed that despite the sentences that had been passed upon him for his previous offending, and despite Surrey having been supervised, his offending had persisted, and had escalated in frequency and seriousness. There was a developed pattern of anti-social behaviour on his part, and a pattern of perceived provocation with planned use of a weapon. He found him that there was a significant risk to the public of his committing further specified offences and causing serious harm, within the definition of s.226(1)(b) of the CJA 2003. This means that he satisfied the test of dangerousness within the Act. He therefore sentenced Surrey to a sentence of detention for public protection or DPP with a custodial term of 2 years less the time he had already served on remand. 20. The applicant was originally detained, due to his age at the time, in a series of Young Offender Institutions, and then he was transferred to an adult prison. During his imprisonment there have been a number of incidents of serious self-harm, suicide attempts, and also assaults on other inmates. In November 2010 he was transferred to Rampton Hospital for the first time where it was concluded that he suffered from personality disorders. Rampton Hospital is a secure hospital for the treatment of offenders who are mentally unwell. Following an assault on another patient in 2011 and a reluctance to engage in treatment, he was transferred back to prison in April 2012. 21. He acquired further convictions after the imposition of the DPP and whilst he has been in custody. On 22 July 2008 he was convicted of assault occasioning actual bodily harm contrary to s.47 OAPA 1861. On 21 April 2010 he was convicted of criminal damage, and on 25 April 2012 he was convicted of wounding/inflicting grievous bodily harm contrary to s.20 OAPA 1861. For each of these three offences he was sentenced to custodial sentences of 12 months, 20 months and 18 months respectively, each to be served concurrently to his DPP. 22. Having displayed psychotic symptoms in December 2013, in June 2014 he was transferred back to Rampton Hospital where he was diagnosed - for the first time - with schizophrenia. However, in the absence of his engagement in therapeutic work he was transferred back to prison in January 2015. There he continued to self-harm and he only complied inconsistently with his medication. There was a significant decline in his ability to cope in June 2015, which coincided with the death of his grandmother that month. His mental state since then has deteriorated and in June 2018 he was transferred back to Rampton Hospital under ss. 47 and 49 Mental Health Act 1983. He remained there for the next three years, until November 2021 when he was transferred to a medium secure unit at Northgate Hospital in Morpeth. Here he remains. He is in receipt of both medication and treatment for his schizophrenia which continues, and he is under the care of a consultant psychiatrist, Dr McKinnon, who is the Responsible Clinician. The fresh evidence 23. We considered the fresh evidence de bene esse in the first instance. This was substantially from consultant psychiatrists, although Dr Carthy is a Specialty Registrar. The fresh evidence was from Dr David Brabiner, in a psychiatric report dated 30 June 2014; Dr Withecomb, in two reports dated 11 November 2015 and 10 June 2020; Dr Barani Sambandan, in both a psychiatric report and letter of 18 June 2021 and 28 June 2021; Dr Callum Ross and Dr Elliot Carthy, who prepared a Joint Psychiatric report dated 28 January 2022; Dr Iain McKinnon, whose views were set out in the psychiatric report of Dr Ross and Dr Carthy, 28 January 2022; and also Dr McKinnon’s evidence in a Joint Report with Dr Ross dated 27 September 2022. We also had the benefit of what is called in the index a “Gatekeeping Assessment” from Dr Julie Thorpe dated 10 June 2020. We also received oral evidence from Dr Ross and Dr McKinnon which we refer to in more detail at [40] onwards. 24. Surrey had been assessed in 2013 and underwent a further assessment by Dr Brabiner of Rampton Hospital, which led to his second admission to Rampton. Dr Brabiner at that point identified concerns that Surrey may be suffering from a previously unidentified psychotic illness. Dr Brabiner was the clinician who recommended his transfer back to hospital. On 3 June 2014 he was transferred to the Learning Disability Service at Rampton Hospital and his mental state stabilised following the reintroduction of medication. However, he continued to express delusional and paranoid beliefs and refused to engage in any therapeutic work in relation to his personality disorders, insisting that he did not need to be in hospital (although he had previously expressed a desire to return to hospital). He was therefore kept separate from other patients. In a report of 30 June 2014, Dr Brabiner diagnosed him for the first time as having schizophrenia. Dr Brabiner concluded that this mental illness warranted his detention in hospital for the protection of others. Dr Brabiner was unable to form a conclusion as to the presence of a concurrent personality disorder at that stage, but further confirmed the presence of a learning disability. In terms of the chronology, following this diagnosis, Surrey remained in Rampton but was returned to the prison estate following a period when he would not engage with the treatment in Rampton. 25. This led to a further period when Surrey was in prison rather than hospital. This, again, saw his condition deteriorate. This led to a further referral to the hospital authorities, and he was admitted to Rampton again. The report of Dr Thorpe dated 10 June 2020 was initiated to consider whether he had to complete further therapies within Rampton before he could be moved to Northgate. That report concluded that further treatment in Rampton was required and that the position should be reviewed before any transfer took place. 26. The First Tier (Health, Education and Social Care Chamber (Mental Health)) Tribunal then issued a decision dated 6 October 2021 following a further hearing to consider his treatment. That hearing was held whilst Surrey was at Rampton, which is a secure hospital, and the decision was whether to approve his move to Northgate Hospital, which is medium secure. The Tribunal found that he was suffering from paranoid schizophrenia and mild learning disability, based on the unchallenged evidence of the professional witnesses, namely Dr Sambandan in a report dated 18 June 2021 and other medical professionals involved in his treatment. Dr Sambandan is a consultant forensic psychiatrist and was Surrey’s Responsible Clinician at Rampton Hospital. That evidence was found to be consistent, mutually supportive and aligned with all that was known about Surrey through what the Tribunal described as “his well-documented history” and also oral evidence given by him to the Tribunal. The Tribunal found that he suffered from mental disorder as prescribed by the Mental Health Act. 27. The Tribunal concluded that the primary disorder from which he suffered was a severe, chronic, psychotic disorder that was prone to rapid relapse. In the past, including recent past, relapse had been linked to non-compliance with a sustained, consistent medical regime. Social stressors, such as a change in environment had also played a significant role in his relapse pattern. The learning disability was lifelong. He experienced impairments relating to communication, intellectual reasoning, and social skills and his disability was associated with abnormally aggressive behaviour and seriously irresponsible conduct. The nature of both disorders was mitigated by the structured secure environment and medical regime which was being provided in a clinical setting under a legal framework. Were he to be removed from such an environment he would quickly and significantly relapse. Behaviour, including his impulsive and violent behaviour relating to his learning disability would quickly re-emerge. We would observe that this analysis and these findings entirely matched his history over the pre-ceding years; his periods of relative stability would invariably be within a clinical environment, and movement following such stability (or his refusal to engage, which would lead to his discharge) back to the prison estate were invariably accompanied by significant deterioration of his mental condition. 28. The conclusion of the Tribunal was that he was suffering from mental disorders of a nature which made it appropriate for him to be liable to be detained in a hospital for medical treatment. In respect of the health, safety and protection of other people, the Tribunal decided that if he were to leave hospital, he would be deprived of the significant level of specialist treatment he needed and was receiving and that such a course of action would “completely destabilise Mr Surrey’s mental health”. The history of transfers between prison and Rampton illustrated that due to his mental disorders he was unable to tolerate the stresses attached to a change in environment by returning him to prison. Transfers back to prison in the past had further demonstrated that he struggled to comply with his medication regime in the absence of the support provided in the secure hospital environment. The Tribunal decided that were he to leave hospital he would rapidly and severely deteriorate. He had a long and significant history of self-harm and suicide attempts both in the community (which we add here were when he was a teenager and before the imposition of the DPP) and also in prison. The prison, even with the specialisms available, were unable fully to contain this behaviour and the Tribunal concluded that it was very likely that this would quickly resurface were he to leave a clinical environment. His history confirmed that he posed a risk to others when unwell. The Tribunal decided that outside the ward environment he would again quickly become a risk to others. 29. Accordingly, the conclusion of the Tribunal was that the risks were such that it was necessary to warrant his continuing treatment in a secure hospital. Appropriate medical treatment was available to him at Rampton where he had psychiatric supervision and support from a specialist experienced team in a high secure hospital. He received clozapine medication which was supervised and monitored, and the plan was for him to be moved to a medium secure hospital environment at Northgate Hospital, which then occurred in November 2021. This was nearer to his family – his father and paternal grandparents – and facilitated family visits and increasing contact with them. This transfer was initially on the basis of what is called trial leave under s.17 MHA, and then a permanent transfer was made, that having been approved by the Ministry of Justice. 30. Dr Ross submitted a joint report to this Court together with Dr Carthy, who is a Specialty Registrar in Forensic Psychiatry. Their joint report is dated 28 January 2022 and it includes an extensive recitation of the history of his imprisonment, including previous admissions to Rampton, as well as what the report described as a “disastrous attempt to enter Mr Surrey into a therapeutic community at HMP Gartree” in 2012, which was done (as is usual) as a precursor to a prisoner being considered for release. However, given that the aim of the prison system is that a prisoner becomes medicine-free during such a process, the psychotropic medicine which he was taking was reduced and this caused a dramatic deterioration both in his condition and behaviour. In its conclusions the joint report states that Surrey suffers from mental disorders and treatment in hospital is required both for his treatment and the protection of others. 31. The mental disorders from which he is suffering are Paranoid Schizophrenia, Personality Disorder (emotionally unstable, dissocial and paranoid) together with a mild Learning Disability with his IQ being in the range of 50-70. This makes it appropriate for him to be detained in a hospital for the medical treatment he requires, which was available at Rampton Hospital. 32. The schizophrenic illness from which he suffers is characterised by those features which are overt, namely the positive features of the illness such as hearing voices and holding false beliefs. In Surrey’s case, he endured beliefs in prison that officers were going to slash his throat, he misinterpreted others’ benign actions and interpreted them as threatening, he believed that his television had been interfered with, described hearing voices, and had an affect (which is an observable mood state) out of keeping with what would be reasonable. There were periods when he would laugh incongruously, his behaviour was erratic and unpredictable, and it included dangerous actions including swallowing cleaning fluid and other attempts at self-harm. There was also a very clear and temporal relationship with medications prescribed and withdrawn in terms of the psychotic symptoms from which he suffered. 33. The authors of this Joint Report were of the view that the horrific experiences he had endured as a child in his early childhood, and the trauma and significant neglect he experienced, had contributed to the evolution of his personality disorder. 34. One specific point of instruction addressed in the Joint Report was whether the requirements of section 37(2) of the MHA would, based on what was now known, have been met at the point of his sentencing in 2007. Their joint conclusion was that the diagnosis of mental illness was not something that a psychologist, as opposed to a psychiatrist, would have been expected to establish in the course of the psychological assessment performed by Dr Kennedy. They noted that there was evidence that by 2010 he was in the early period of the acute phase of his initial psychotic episode, and that the period preceding this, which is known as the prodrome phase, was likely to have begun several years before, at around the time of the index offence. 35. Dr McKinnon also provided some evidence which is contained in the Joint Report of Dr Ross and Dr Carthy dated 28 January 2022. This was to the effect that he broadly agreed with their clinical assessment and that Surrey was doing well following the transfer to Northgate from Rampton. 36. Dr Ross also prepared a joint report with Dr McKinnon, who as we have observed is the Responsible Clinician at Northgate Hospital and has therefore been the medical professional most closely involved with his treatment since his transfer to Northgate. This Joint Report is dated 27 September 2022, therefore very shortly before the hearing of the application and appeal before us on 6 October 2022. Dr McKinnon had already concurred with the views expressed in the Joint Report by Dr Ross and Dr Carthy to which we have referred above; and Dr Ross had continued to liaise with Dr McKinnon following Surrey’s transfer to Northgate from Rampton. We summarise the conclusions of this, the most recent Joint Report, as follows. 37. Both Dr Ross and Dr McKinnon agreed that the diagnosis of learning disability was definitely present at the time of the index offence in 2007, and also that it was likely that the diagnosis of schizophrenia was present at the time and was prodromal. They agreed there were elements of paranoia in the offence in 2007, and that was significant. They also agreed that the most clearly demonstrable interventions that improved his mental state was the prescription of anti-psychotic medication, in his case this being clozapine. There were no areas of disagreement between them, and in isolation, or more likely in combination, these mental disorders were significant in his offending, and there was a causal link present. His diagnosis amounted to “mental disorder” in terms of section 1 of MHA. 38. They agreed with the list of factors identified in Dr Ross and Dr Carthy’s Joint Report, and explained that it was “vitally important” that compliance with medication could be imposed as a condition upon release, if that was through the mental health regime, by a Mental Health Tribunal. The same conditions on taking medication are simply not possible if release of a person is sanctioned by the Parole Board. It is also far less likely that a probation officer, who would be responsible for supervising him upon release, would be able to spot early signs of any deterioration in his mental health compared to a multi-disciplinary clinical team who would be responsible for him if he were released by a Mental Health Tribunal. 39. We turn therefore to the oral evidence which we received on 6 October 2022 from Dr Ross and also Dr McKinnon, who remains (as at the date of both the hearing and this judgment) as the Responsible Clinician for Surrey’s treatment under the MHA. 40. Dr Ross’ oral evidence was entirely aligned with the earlier written evidence that he had submitted in his two Joint Reports, the first with Dr Carthy and the second with Dr McKinnon. He confirmed that both the nature and degree of the mental disorders from which Surrey was suffering were such that they warranted his continuing detention under the MHA, and that the detention was necessary both for the protection of the public, and also for his own health and safety. Dr Ross confirmed that it was recognised that those suffering from schizophrenia would, if left unsupervised, often or sometimes fail to take their medication. This can be for a variety of reasons including the adverse side-effects of the medication. This failure to comply with the prescribed medication is a feature of the condition which is well known. 41. Dr McKinnon fully agreed with Dr Ross and explained to the court that, in his opinion, the schizophrenia could have been identified at the time of the offending in 2007. However this would have been very difficult at that time as it was in the prodromal phase. The learning disability from which Surrey suffers could certainly have been identified then. Dr McKinnon considered that the schizophrenia could have been spotted earlier than it was, but it would have been necessary for someone to have the necessary expertise in order to do so. Surrey was now making reasonable progress and the intention was for him to be gradually tested in the community, eventually graduating to release, but this would be over a number of years and no release could be considered for quite some time. Following release, any indication that either he was not taking his medication, or that his mental state was deteriorating, would lead to his immediate return to secure hospital. 42. Both Dr Ross and Dr McKinnon in their oral evidence were agreed that Surrey needed treatment for his mental disorder, in particular the antipsychotic medicine which he was prescribed and was taking, namely clozapine, and that the treatment he was underdoing in Northgate helped his condition, and also prevented further deterioration in his mental state. They agreed that his offending was related to his mental disorders and that these contributed to his offending. There was a causal connection between his condition and his offending. Even if not, as Dr Ross put it, “fully blown” schizophrenia at the time in 2007, the condition was present then, in its prodromal state. Both Dr Ross and Dr McKinnon agreed that in terms of protection of the public, any eventual release into the community (should it be decided at some point in the future by a Tribunal that the conditions were at that stage to be satisfied) the mechanism for return was far more comprehensive within the framework of release by a Mental Health Tribunal, than the Parole Board. In particular, the procedure of regular medical reviews and the ability to return Surrey to secure hospital should, for example, he fail to observe the medication regime that was prescribed, was something with which those medical professionals tasked with his supervision were well versed, rather than (say) a probation officer. 43. They were both of the view that the protection of the public would be increased by any release of Surrey taking place within what Mr Fitzgerald KC for Surrey described as the “mental health pathway”, rather through the criminal justice system, namely parole. They both urged the imposition of a Hospital Order under section 37 MHA with a Restriction Order without restriction of time under section 41 MHA as the best way to achieve this. 44. We are satisfied that it is necessary in the interests of justice to receive all the fresh evidence contained in the reports put before us, and also the oral evidence of Dr Ross and Rr McKinnon. That evidence satisfies the criteria in section 23(2) of the Criminal Appeal Act 1968. Having admitted it, we accept the evidence as proving that Surrey was in fact suffering at all material times from a mental illness, something which was not brought to the attention of the sentencing judge in 2007, which is why he proceeded (perfectly properly, in the light of the evidence before him) on the basis that Surrey was not mentally ill. Indeed, given that Dr Kennedy’s report before the sentencing judge did not offer any conclusion as to whether Surrey suffered from a mental disorder within the meaning of the MHA, nor whether such a disorder was of a nature or degree which necessitated treatment in hospital, the sentencing judge could not sensibly have proceeded at that time and on the information before him in any way other than he did. We further accept that the conditions set out in section 37(2)(a) of the 1983 Act are met. The law and the parties’ submissions 45. We have had the benefit of a detailed skeleton argument from Mr Fitzgerald KC and Ms Woodrow on behalf of Surrey, together with a Respondent’s Notice from the Crown, who was represented before us by Mr Jarvis. The Crown did not actively oppose the appeal, but did not formally concede it, and Mr Jarvis attended the hearing. The position set out in the Respondent’s Notice could be described as being one of sensible neutrality. We are very grateful for the Crown’s detailed written submissions. 46. Section 37 MHA allows a sentencing court to order that an offender who might otherwise be sentenced pursuant to section 226 CJA, instead to be detained in hospital for treatment (a ‘Hospital Order’). The circumstances in which a Hospital Order can be made are set out in Section 37(2) and are identical to the conditions required for transfer under Section 47(1), except that the assessment as to whether the order is appropriate is a matter for the court rather than the Secretary of State. Those conditions under s.47(1) are in circumstances where at least two clinicians agree that he is suffering from a mental disorder which is “of a nature and degree which makes it appropriate for him to be detained in a hospital for medical treatment, and that medical treatment is available.” The Secretary of State, if such an order is made under s.47(1), or the court, if one is made under s.37, must also be of the opinion that it is expedient to do so having regard to the public interest and all the circumstances. 47. Under Section 37(2)(b) an order can only be made where: “the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.” A Hospital Order can be made subject to a Restriction Order under section 41 MHA, which effectively prevents an offender from being released from hospital unless and until either the Secretary of State or the First Tier Tribunal confirms that he no longer poses a risk arising from his medical condition. A Restriction Order cannot be made unless the court hears oral evidence from at least one of the two registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a). 48. If such an order is made, any release will be subject to conditions and the patient will be supervised by a responsible clinician and liable to recall to hospital if those conditions are not complied with. Such conditions can include compliance with a regime to take prescribed medication. 49. Here, no application for permission to appeal was made by Surrey or on his behalf after his sentence in 2007. This means that an extension of time is required. A large number of authorities were lodged before us on all of the different legal issues which arise in this case, which we have considered, but we shall only refer to the most important ones that set out the main principles which fall to be considered in a case such as this one. Those are, in chronological order, as follows. 50. In R v Beatty [2006] EWCA Crim 2359 (per Scott Baker LJ, Jack and Mitting JJ) the Court of Appeal considered an appeal referred to it by the Criminal Cases Review Commission against a discretionary life sentence imposed upon an appellant in 1991 for rape, kidnapping and making threats to kill. The appellant had been transferred to Broadmoor 3 years after sentence. It is unnecessary to recite the facts, but the medical evidence available to the sentencing judge at the time had made it clear that the conditions for making a Hospital Order were not, at that time, met. Accordingly, the judge passed a discretionary life sentence. 51. At [60]-[62] the Court of Appeal held that it has the power to quash a sentence of detention and impose a Hospital Order where fresh medical evidence demonstrates that the criteria under section 37 and section 41 MHA would in fact have been satisfied at the time of sentence, had that evidence been before the sentencing judge. The power arises under sections 9 and 11 of the Criminal Appeal Act 1968. In those circumstances the original sentences imposed were held to be ‘wrong in principle’ (albeit with no criticism of the sentencing judge who could proceed only on the evidence then before the court). 52. In R v Vowles [2015] EWCA Crim 45 (per Lord Thomas LCJ, Macur LJ and Globe J) the Court of Appeal heard six appeals together that had been conjoined. In each of them there had been psychiatric medical evidence before the court at the time of sentence, but in each of them the sentencing judges had imposed an indeterminate sentence (namely either an IPP or a life sentence) rather than a Hospital Order. In each case the offender appealed to the court against sentence on the grounds that a hospital and restriction order should have been imposed by the court below. The court gave authoritative guidance on the approach to be taken when deciding whether such orders should be substituted on the basis of fresh evidence. Of the six conjoined cases before the court, all of those in which the court was satisfied that the public would be better protected by the imposition of a hospital order resulted in the quashing of the original sentence of imprisonment. 53. The principles which should guide a court in determining whether to make a Hospital Order under the 1983 Act either at the time of sentence, or on appeal in substitution for a custodial sentence, were set out by the Court of Appeal at [51] to [54]. They are as follows. 1. The requirements as to the recommendations of two registered medical practitioners in Section 37(2)(a) must be met, but this alone is not sufficient. 2. Where the conditions in Section 37(2)(a) are met judges must then have regard to “all relevant circumstances” including the following four issues when deciding whether the condition in Section 37(2)(b) is (or would have been) met: a) The extent to which the offender needed the treatment for the mental disorder which he was suffering; b) the extent to which the offending was attributable to that disorder; c) the extent to which punishment was required; and d) the protection of the public, including the various regimes in determining release and post-release. In relation to this consideration, the court emphasised at [52] that judges “must now pay very careful attention to the different effect in each case of the conditions applicable to and after release.” 54. In relation to the fourth important consideration at (d) in the list which we have set out at [53] above, the Court emphasised at [52] in Vowles that judges: “must now pay very careful attention to the different effect in each case of the conditions applicable to and after release . As is shown by the case of R v Teasdale [2012] MHLR 387 to which we have referred at para 48(iv), this consideration may be one matter leading to the imposition of a hospital order under s.37/41.” (emphasis added) 55. The Court at [54] gave further guidance as to the order in which judges must consider the issues arising in cases such as this one where it appears that a hospital order may be appropriate. Firstly, the court must consider whether a hybrid ‘limitation order’ under section 45A MHA may be appropriate. Given that Surrey was aged only 17 at the date of sentence, the only disposal open to the court below other than a sentence of imprisonment was the imposition of a hospital order under sections 37 and 41 MHA and a so-called hybrid order was not available. That consideration does not therefore arise in this case. 56. Secondly, the Court should also consider the following matters. Firstly, whether the conditions under Section 37(2)(a) are satisfied (that the appellant suffers from a mental disorder which is such that it would be appropriate for the offender to be detained in a hospital and treatment is available). Secondly, whether the conditions in 37(2)(b) are met such that a Hospital Order is the most suitable method of disposal. The Court stated that it was essential that the judge gives detailed consideration to all the factors encompassed within section 37(2)(b). For example, in a case where the court is considering a life sentence under the Criminal Justice Act 2003 as amended in 2012 (following the guidance given in R v Burinskas (Attorney General's Reference (No 27 of 2013) ) [2014] 1 WLR 4209), if (1) the mental disorder is treatable, (2) once treated there was no evidence he would be in any way dangerous, and (3) the offending is entirely due to that mental disorder, a hospital order under sections 37 and 41 was likely to be the correct disposal. 57. The Court also made clear that when assessing suitability of disposal under section 37(2)(b) MHA, regard must be had to the possibility of ‘other methods of dealing with’ an offender, including whether the powers of transfer to hospital for treatment under section 47 would be appropriate. 58. This approach was endorsed in the subsequent case of R v Edwards [2018] EWCA Crim 595 in which the Court of Appeal again summarised the relevant considerations at [34] of that judgment, making clear that there is no presumption in favour of imprisonment and that each case will ultimately turn on its own facts. 59. The correct approach for an appellate court considering an appeal seeking a Hospital Order was most recently confirmed by this Court in R v Cleland [2020] EWCA Crim 906. In that case, the appellant had pleaded guilty to a charge of attempted murder and been sentenced in 2013 to life imprisonment with a minimum term of 7 years. He had been 16 at the time and the victim, with whom he was infatuated, was 12. He appealed in 2014 and his appeal was dismissed by the Full Court, and his application to the Supreme Court for permission to appeal had been dismissed on 8 July 2014. The Criminal Cases Review Commission had then, in 2020, referred his case again to the Full Court, such a referral being treated as an appeal against sentence. The court (Holroyde LJ, Nicklin and Murray JJ) heard that at his sentencing below, amongst other evidence, the court had before it a report by a consultant forensic psychiatrist, who suggested that the appellant might have an emerging psychopathic disorder, but found no evidence that he was mentally ill and made no recommendation of a medical disposal. 60. Following the approach laid down in R v Bennett [1968] 1 WLR 988 and R v Beatty , this court made clear that: “following the admission of fresh evidence as to the offender’s mental health at the time of sentence, the court has the power to substitute the sentence which it considers is (and, as the evidence now shows, always was) appropriate.” 61. The court made clear there is no inconsistency between this approach and the observations of the court in other cases such as R v Chin-Charles [2019] EWCA Crim 1140 at [8]. The court observed that rather, as it was expressed: “having admitted the fresh evidence in accordance with the provisions of section 23, this court is asked to consider what that evidence shows to have been the true state of the appellant’s mental health at the time of sentence . If the fresh evidence shows that it was otherwise than the judge believed it to be, the court has power to quash the original sentence if it considers that the appellant “should be sentenced differently”, and to impose such sentence as it considers appropriate.” (emphasis added) 62. At [27] to [29] the Court considered the dicta of the Lord Chief Justice in R v Vowles [2015] EWCA Crim 45. The Court in Cleland heard submissions as to the relevance of the fact that the appellant's minimum term was shortly to expire. For the appellant, it was submitted that the answer to the third question posed in Vowles at [51] (referred to above) is that there was now no need for punishment given the minimum term was very close to expiring. Concerning the medical evidence regarding the appellant’s mental health, the court found: “[45] It would have been admissible in the court below. There is a reasonable explanation for the failure to adduce the evidence in the court below, in that at that stage no detailed assessment had been made giving rise to a diagnosis of ASD. We are satisfied that it is necessary in the interests of justice to receive the evidence contained in the reports and oral evidence of Dr Stankard and Dr Latham. Having admitted it, we accept the evidence as proving that the appellant was in fact suffering at all material times from a mental illness, whereas the judge proceeded (perfectly properly, in the light of the evidence before him) on the basis that the appellant was not mentally ill. We further accept that the conditions set out in section 37(2)(a) of the 1983 Act are met.” 63. The court stated that it was appropriate to consider, in cases such as that one, whether the need for punishment fell away, or were of lesser consideration, given the appellant had served almost the whole of the minimum term specified in any event. The court took into account all the different competing considerations, which it found to be “finely balanced” but concluded that in all the circumstances a section 37/section 41 order offered the greater prospect of managing both that appellant's return to the community, and life in the community, in the way which would be most likely to reduce the relevant risk. Accordingly, the life sentence was quashed and a Hospital Order under section 37/section 41 was imposed. 64. In the instant case, the period of time ordered to be served by Surrey as the custodial element of the DPP was served long ago. Indeed, that period is somewhat modest by comparison with the total time that he has spent in custody since he was sentenced over 15 years ago. That element of a DPP (or IPP for offenders over the age of 18) represents the component part of the sentence aimed at punishment of the offender; the remainder of the sentence is designed to protect the public from serious harm caused by commission of further specified offences. It is clear that in this case, the punishment required for the offence in question has been served. 65. Finally, it is important to observe that Surrey was aged 17 at the time both of his offending in the very early hours of New Year’s Day 2007 and sentencing later that year. He was therefore a child when he was sentenced. Any court when sentencing an offender below the age of 18 at the time of the offence must have regard both to the statutory purpose of the youth justice system under section 37 of the Crime and Disorder Act 1998 (CDA), and the ‘welfare principle’ under section 44 of the Children and Young Persons Act 1933 (CYPA). Section 44 CYPA requires that all courts concerned with those who deal with children and young people must have regard to the welfare of that child or young person and “shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training”. This is what is meant by the welfare principle. Courts concerned with young offenders must apply this principle as a primary consideration. 66. The need to have regard to the welfare principle and aims of the youth justice system at every stage of consideration when sentencing those who offend as children is also made clear in guidance issued by the Sentencing Council. The definitive guideline on youth justice, namely “Overarching Principles – Sentencing Youths” dated November 2009 and was not in place when Surrey was sentenced. However, the guideline codified the principles of sentencing young persons that were well recognised before 2009 (we record that it has been replaced since by similar guidance published in 2017). The application of the principles in Vowles to an appeal of this nature concerning a child were considered in Cleland and only in one other case, namely R v Fuller [2016] EWCA Crim 1867. 67. In the case of Fuller , the appellant had been 15 years old at the time of sentence and was convicted of two counts of attempted rape and one count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He, as with Surrey, was sentenced in 2009 to a DPP with a custodial term of 3 years. The court (Sharp LJ, Morris J and the Recorder of Maidstone) at [41] expressly considered Vowles . No separate or different consideration of the principles arises because an appellant was sentenced when they were below the age of 18. At [49], in a passage which is redolent of our approach to, and conclusions in this case, the court in Fuller observed the following: “[49] As his treating doctors have made clear, the appellant's release into the community can only be contemplated if he is properly monitored by a multidisciplinary mental health team, who are aware of his mental health condition; and who will be best placed to identify any non-compliance with any medication regime for example, or deterioration in his condition which could elevate his level of risk, and require his return to hospital for further treatment. In short, a hospital order with restrictions is most suitable for the appellant and ultimately, for the protection of the public.” 68. In conclusion therefore, our answers to the questions posed in Vowles are as follows: 1. The requirements as to the recommendations of two registered medical practitioners in Section 37(2)(a) are clearly met in this case. Both Dr Ross and Dr McKinnon gave oral evidence before us which we accept. That is a necessary pre-condition to continue to consider the other factors set out in Vowles , but this alone is not sufficient. 2. We therefore address all the relevant circumstances of the offending. These include the four issues set out in Vowles when deciding whether the condition in Section 37(2)(b) would have been met at the time. 69. Turning therefore to those four issues, Surrey needed treatment for the mental disorder which he was suffering, both at the time of the offending, and undoubtedly he does so now. The accounts of the offending itself demonstrate that his condition was a significant cause or contributing factor to the stabbing of the complainant . We have set out above at [15] Surrey’s account at the time to the author of the PSR. His interpretation of the way that the complainant was acting towards him demonstrates the reaction of someone who is experiencing paranoia, something explained in the medical evidence before us. Both Dr Ross and Dr McKinnon are clear that there is a significant causal link between his condition and the index offence. His offending at the time was, in our judgment, clearly attributable to his mental disorder, which at the time was untreated. There can be no criticism of the sentencing judge in 2007 for failing to consider the imposition of a hospital order at that point as a sentencing option, because there was simply no material before him that referred to any diagnosis of Surrey’s mental illness. Both Dr Ross and Dr McKinnon are clear that the mental illness would have been present in 2007, albeit undiagnosed at the time. 70. In some cases the next element for consideration will merit more detailed analysis than it does here, namely the extent to which punishment is required for the particular offending in question. Here, the position is more straightforward because the custodial term of both a DPP and an IPP represents the punishment element and this is expressly stated at the time of passing such a sentence. In the case of Surrey, this was set at a custodial term of 2 years in 2007. He has clearly served that period in custody, and exceeded it by some margin. In the particular circumstances of this case, therefore, this particular question is clearly answered in Surrey’s favour because the requirement for punishment for the stabbing of the complainant has been satisfied some time ago. 71. We turn therefore to the protection of the public, including consideration of the various regimes both in determining his release, and the monitoring of him post-release. We give this specific point very careful attention, for obvious reasons. Not only is this emphasised at [52] in Vowles , but also the rationale of both DPP and IPP sentences is to protect the public. That is why the structure of such a sentences is of indeterminate length. In our judgment, the different mechanisms both of release and post-release supervision under either the Parole Board (for a sentence of imprisonment) or the Mental Health Tribunal (for a hospital order) are substantially different in the case of Surrey in terms of this important question. 72. In particular, the powers available under the MHA for the clinical team to recall Surrey to hospital either if his mental health appears to be deteriorating, or if he fails to maintain his prescribed medication, are both important powers that are not available to the probation service, who would be responsible for his supervision were he to be released on parole. As recognised in the passage in Vowles we have recited at [54] above, this can be one significant factor which leads to the imposition of a hospital order under section 37/section 41 MHA. In our judgment, it alone represents the significant factor which justifies the imposition of such a hospital order in this case. We also impose this without limit of time, which means that this protection of the public will continue for his lifetime. Extension of time required 73. This therefore brings us to the question of delay in applying for permission to appeal, and the lengthy extension of time required. The delay in this case has been considerable, and therefore the extension of time is very long, as we have observed. There are, however, very good reasons for that, as set out in the detailed witness statement of Dr Janes, Surrey’s solicitor. The principles to be applied in an extension of time case are well known. In R v Hughes [2009] EWCA Crim 841 at [20] it was said that an extension of time would “be granted only where there is good reason to give it, and ordinarily where the defendant will otherwise suffer significant injustice”. In R v Thorsby [2015] EWCA Crim 1 it was stated “the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so”. It was also said in that case that “the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual…..” and “the court will examine the merits of the underlying grounds before the decision is made whether to grant an extension of time.” It also noted that the passage of time may put the court in difficulty in resolving whether an error has occurred, and if so to what extent. 74. In all the circumstances of this case we are clear that it is in the interests of justice to grant the extension of time that is sought. We have examined the merits of the underlying grounds and as we have explained above, these are strong. The extension required is very lengthy, but it is clear from considering the history of Surrey’s imprisonment and more recent treatment in Rampton (three admissions in total), and now Northgate, that the passage of time, far from causing additional difficulty in considering the subject matter of the appeal, has in fact improved and enhanced the material before the court, in particular the fresh evidence. That was clearly not available before, something which the prosecution sensibly accepted in their constructive approach both to the applications and the appeal. 75. Further, Surrey did not seek to appeal in 2007. Were we to refuse to extend time, his only avenue would be an application to the Criminal Cases Review Commission, and were that body to refer his case to the Full Court as a potential miscarriage of justice, it would be considered on its merits. Failing to extend time would therefore, on the particular facts of this case, simply increase administrative delay and expense and ultimately serve no purpose. It is therefore in the interests of justice to grant the extension of time that is required and we do so. Conclusion 76. Due to the nature of the case, we gave our decision at the conclusion of the hearing on 6 October 2022. These are our reserved and detailed reasons for that decision. We granted leave to appeal, admitted the fresh evidence and granted an extension of time in the required period for the application for permission to appeal to be made. We allowed the appeal. We quashed the sentence passed in the Crown Court in Newcastle on 29 March 2007 of a sentence of detention for public protection under section 226 CJA 2003 (the DPP), and in its place imposed a Hospital Order under s.37 of the Mental Health Act 1983 with a Restriction Order under s.41 of the same Act, unlimited in time. We also extended the Representation Order to cover the work done by Surrey’s solicitors from the date of lodging of his appeal. 77. We would add only this, in terms of the practical effect of our decision on this appeal. Once the custodial term of a DPP or an IPP has been served, the purpose of the continuation of detention as part of the sentence is protection of the public. Once such a prisoner is released, when this is considered safe by the Parole Board, that prisoner on licence can only be returned to custody when they breach their licence conditions or commit a further offence. When a prisoner who is under a section 37/section 41 Hospital Order is released, which occurs when the Mental Health Tribunal considers this to be safe, that person can be returned to a secure hospital for breaches of the medical conditions imposed upon that release, such as a failure to take their prescribed medication. This applies to Surrey. It can therefore be seen that the protection of the public is increased, rather than diminished, by the outcome of this appeal.

2022_10_21-5470.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1379/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1379

9cccd0f794314d014d40943dfa58a6a00bfb853f6561cf75bd84fe84609650fb

[2006] EWCA Crim 1743

EWCA_Crim_1743

2006-07-05

crown_court

No: 2006/1882/A2 Neutral Citation Number: [2006] EWCA Crim 1743 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 5 July 2006 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE MITTING THE COMMON SERJEANT OF LONDON (HHJ BARKER QC) (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- ELIDA NAZIFI - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 14

No: 2006/1882/A2 Neutral Citation Number: [2006] EWCA Crim 1743 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 5 July 2006 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE MITTING THE COMMON SERJEANT OF LONDON (HHJ BARKER QC) (Sitting as a Judge of the CACD) - - - - - - - R E G I N A -v- ELIDA NAZIFI - - - - - - - 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 A KELLY appeared on behalf of the APPELLANT - - - - - - - J U D G M E N T 1. MR JUSTICE MITTING: In February 2006 the appellant, a woman of 36, of Kosovan extraction and of previous good character and a mother of a two-year-old son, had a brief intimate relationship with a Kosovan man which included two acts of consensual sexual intercourse. She lent him £1,250. When he did not repay it during the time agreed she said to him that she "would do something he could not imagine" if the money was not repaid. He did repay it by leaving it at her house on the night of Sunday 19th February. Before he did, and on the same day, the appellant contacted the police and made a complaint in detailed and convincing terms that she had been raped on 13th February by a man posing as a gas man in front of her two-year-old son. After doing so he had taken £1,250 cash from the top of a chest of drawers at the foot of her bed. She gave a good description of the alleged rapist and of the van in which he arrived, saying that she had been told that it was owned by the Kosovan man and naming him. She did not undergo a medical examination because she was distressed and needed to care for her son. 2. At 7.20 pm on 19th February, the Kosovan man was arrested on suspicion of rape and interviewed. He gave a true account of his relationship with the appellant, including the circumstances in which she had made and he had repaid the loan. He spent 20 hours in custody. 3. On the morning of 20th February, before he was released, the appellant telephoned the police to say that the £1,250 had been posted through her letter box and that she did not want to make a formal statement against the man. She said that she had received a threatening call from his mother. She made a withdrawal statement. 4. At 4.00 pm she telephoned the police and told them that she had lied. She said that she had made the accusation to get her money back from the man. 5. The pre-sentence report recommended a community order. A medical report said that she had been suffering from depression and anxiety for which she had been referred for counselling and prescribed medication. 6. On 27th March 2006, having pleaded guilty at the earliest opportunity, she was sentenced by His Honour Judge King to 15 months' imprisonment for doing an act tending and intended to pervert the course of justice. 7. In her helpful written advice, Miss Kelly referred to a line of authorities culminating in Merritt [2006] 1 Cr.App.R (S) 105 which includes Gregson [1993] 14 Cr.App.R (S) 85. The authorities consistently demonstrate that an immediate custodial sentence for this type of offence is invariably required, whatever the personal circumstances of the woman making the false complaint. But those circumstances may be taken into account when assessing the length of the sentence. 8. The facts of this case are not in principle dissimilar to those of Gregson . The man in particular spent approximately the same period in custody as this man. In that case nine months' imprisonment was reduced to four; the sentence that was also arrived at in Merritt . The addition of a financial motive for the offence in this case is, in our view, an aggravating feature, giving the offence some characteristics of blackmail. For that reason we would not be able to reduce the sentence to the four months held appropriate in Gregson or Merritt , but we do determine that a sentence of six months' imprisonment would meet the justice of the case and the appellant's circumstances. Consequently, we quash the sentence of 15 months' imprisonment and substitute for it a sentence of six months' imprisonment.

2006_07_05-863.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1743/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1743

a3d5f210c61c7006886d5898f8020dbd3cd82c917d97481539d7852dc009e601

[2023] EWCA Crim 1349

EWCA_Crim_1349

2023-11-15

crown_court

Neutral Citation Number: [2023] EWCA Crim 1349 Case No: 202301305 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT MANCHESTER Mrs Justice Yip 05C10085522 Date: 15 November 2023 Before : Dame Victoria Sharp, President of the King’s Bench Division Mrs Justice McGowan and Mr Justice Chamberlain - - - - - - - - - - - - - - - - - - - - - Between : Thomas Cashman Applicant - and - Rex Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2023] EWCA Crim 1349 Case No: 202301305 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT MANCHESTER Mrs Justice Yip 05C10085522 Date: 15 November 2023 Before : Dame Victoria Sharp, President of the King’s Bench Division Mrs Justice McGowan and Mr Justice Chamberlain - - - - - - - - - - - - - - - - - - - - - Between : Thomas Cashman Applicant - and - Rex Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - John Cooper KC (instructed by ) for the Applicant Hearing date: 15 November 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment ............................. Dame Victoria Sharp, P: This is a case in which a reporting restriction order was made by the court below under section 46 of the Youth Justice and Criminal Evidence Act 1999. The terms were read out in court. For the avoidance of doubt, at the outset of hearing of the present application, an order was made in identical terms for the purposes of the proceedings before this court. The reporting restriction order does not prevent the public reporting of this judgment. 1. On 30 March 2023, in the Crown Court sitting in Manchester, Thomas Cashman was convicted following a trial before Yip J and a jury of all five counts that he faced: first, the murder of Olivia Pratt-Korbel (count 1); secondly, the attempted murder of Joseph Nee (count 2); thirdly, the wounding of Cheryl Korbel with intent to cause grievous bodily harm (count 3); and finally, of two counts of possessing firearms with intent to endanger life (counts 4 and 5). 2. On 3 April 2023, he was sentenced as follows: to imprisonment for life on count 1 with a minimum term specified of 42 years, less 182 days spent on remand; to imprisonment for life on count 2, with a minimum term specified of 22 years; to 10 years imprisonment on count 3 and to 18 years’ imprisonment on each of counts 4 and 5. All sentences were concurrent. The applicant’s total sentence therefore, was imprisonment for life with a minimum term specified of 42 years, less 182 days spent on remand. 3. The applicant now renews his application for leave to appeal against sentence, following refusal by the single judge. 4. The circumstances in which these offences occurred are notorious. The serious injury by shooting of Cheryl Korbel and the fatal injury of her daughter, 9-year-old Olivia, by the same bullet that had already seriously injured her mother, occurred in the Korbels’ home in Liverpool while the applicant was chasing and attempting to murder Joseph Nee. 5. The salient facts were summarised by the trial judge in her sentencing remarks in this way: “All five offences arose out of the events of 22 nd August 2022, when, armed with two guns, the defendant set out to kill Joseph Nee. He lay in wait before opening fire in a residential street. CCTV captured him standing over Mr Nee, shooting at close range. When the first gun malfunctioned, Mr Nee was able to scramble away. But the defendant had a second gun ready. He relentlessly pursued Mr Nee, causing him to seek refuge by barging into the home occupied by Olivia’s family. Undeterred and wholly unconcerned for the safety of others, he continued to shoot at Joseph Nee, firing into that family home. Olivia, just nine years’ old, heard the commotion from her bed, Unsurprisingly, she came downstairs to seek the comfort of her mother. Her last words were: “Mum, I’m scared”. In a terrible twist of fate she had stepped directly into the line of fire. As her mother battled to keep the front door closed, the defendant fired a shot that passed straight through the door, then through Cheryl Korbel’s wrist and into Olivia’s chest, killing her. The defendant then managed to get his hand inside the door and fired another shot inside the house, Fortunately, the door was closed on his hand and the bullet discharged into the door frame, avoiding the people inside”. 6. As the judge observed, the killing of Olivia shocked not only the city of Liverpool but the nation. 7. Cheryl Korbel was a wholly innocent woman unconnected with Joseph Nee who had opened her door to see what was happening outside. Despite the terrible pain inflicted on her, she had fought to keep the trouble outside and had desperately tried to save Olivia. Emergency services arrived swiftly, but they were unable to save Olivia who died later that night in hospital. Ms Korbel was unable to be with her daughter when she died, because of the emergency treatment her own gunshot wounds required. 8. Mr Nee too suffered serious gunshot injuries. His shooting involved a significant degree of planning and premeditation on the part of the applicant, which went well beyond the premeditation that many, if not most murders involving the use of firearms involve. 9. The applicant had sourced not one, but two guns, presumably to allow for one misfiring; he knew what van Mr Nee was driving and, as the CCTV footage amply demonstrated, he had been looking out for Mr Nee earlier that day. The applicant spotted Mr Nee’s van, he changed his clothes, concealed his face and headed to the van, but by then it had left. Later, however, the applicant spotted the van again. Realising Mr Nee was likely to remain where he was until the end of the televised football, he changed his clothes and lay in wait. Mr Nee left the house he had been in at about 10pm. He and a man he was with walked into the road where Olivia lived with her family. As they did so, the applicant ran up behind them and used a 9mm self-loading pistol revolver to fire three shots at Mr Nee, inflicting a gunshot wound to his stomach which he was lucky to survive. Mr Nee escaped and was picked up by associates and taken to hospital before the Police arrived. 10. The applicant was arrested on 4 September 2023. He denied any involvement in the offences, a position he maintained throughout his trial. The judge ordered the applicant to attend his sentencing hearing, but he refused to leave the cells. 11. The applicant is now 34. Prior to his convictions in this case, he was not of good character. He had 18 previous convictions including for theft, and kindred offences, and for possession of class B drugs. There was no history of violence, save for one minor offence of battery, but, as the judge observed when sentencing him, the applicant made it clear during the trial that he was a criminal who used threats and violence when it suited him. 12. In her sentencing remarks, the judge explained the approach she had adopted to the sentences for the individual offences, so that the applicant and others would know how she had arrived at the eventual sentence she imposed. She said, however, that the reality was the offending could not be compartmentalised and the minimum term to be served, of 42 years less time spent on remand, reflected the totality of his offending. 13. Starting with count 1, Schedule 21 of the Sentencing Act 2020 provides the statutory framework for sentencing for murder. 14. The starting point under Schedule 21, para. 2(2)(b)(a) for the murder of a child involving a substantial degree of planning or premeditation is a whole life order. The judge said this did not apply to this case, because the planning and premeditation was not directed at the child. Rather it was the applicant’s settled intention to do all that he could to murder Mr Nee. That said, however, the seriousness of the murder, taken in combination with the other offences was particularly grave such as to require a lengthy minimum term. The starting point, in Schedule 21, para. 3(2)(b), for a murder involving the use of a firearm, was 30 years. Having used this as the starting point, the judge then had to and did consider the non-exhaustive list of aggravating features set out in Schedule 21, para. 9, together with any other relevant factors. 15. First, there had been a significant degree of planning or premeditation, albeit directed at Mr Nee and not Olivia. Secondly, though the judge did not necessarily accept the concession made that Olivia was a particularly vulnerable victim, whether she was or not was academic. The real gravity of this case was that a young child was shot and killed in her own home – as the judge put it, shooting into a family home with no regard for who may be caught in the cross fire was obviously a very significant aggravating factor to be reflected in the minimum term. Thirdly, none of the statutory mitigating features applied. Whilst there was no intention to kill Olivia, the fatal shot was fired with the clearest possible intention to kill and this was premeditated. Had the applicant planned to kill Olivia, he would have faced a whole life term. Had he killed Mr Nee on his own, the use of two firearms and the firing of shots into a family home would still have required a substantial uplift. The fact that Olivia was killed made the offence more serious still. Care had to be taken not to double count features that were common to counts 1, 2 and 3. The overall sentence had, however, to reflect the fact that harm was not limited to killing Olivia but included serious injury to two other people. 16. As for count 2, the judge said that, had she been sentencing the applicant for this offence alone, she would have imposed a life sentence, because of the obvious risk of serious harm that he posed to members of the public. This was a category 2A offence within the relevant Sentencing Council’s Guideline, with a starting point of 30 years and a range of 23 to 35 years. Even though a Category A case, the offence was aggravated by the planning, the relentless pursuit of Mr Nee and the use of two firearms, so a figure towards the upper end of the range should be selected (but discounted by one third to reflect the early release provisions which apply to a determinate sentence). For Count 3, the offence fell into Category A2, within the relevant Sentencing Council Guideline, with a starting point of 7 years and a range of 6 to 10 years. The offence was aggravated by being committed against a woman in her own home and a sentence at the top of that range was appropriate. The firearms offences, counts 4 and 5, were part and parcel of the other offences, and the judge said it would be artificial to consider them on their own. These were category A1 offences within the relevant Guideline. Since the sentences would have no impact on the overall sentence the applicant had to serve, the judge simply adopted the starting point within that Guideline for that category of offending – 18 years for each offence. 17. The submissions now made on behalf of the applicant are in substance, two-fold. First, Mr Cooper KC submits that the uplift from the starting point of 12 years was too great and did not fairly reflect the facts of the offending, in particular the (lack of) sophistication and level of the planning involved. In addition, there was a failure to factor in the absence of offending of violence in the applicant’s background. 18. Secondly, there was a failure to recognise as a mitigating circumstance that the applicant would be 76 before consideration could be given for his release on licence. In that latter context, in his written submissions Mr Cooper referred us to a number of decisions of this court. He relied, in particular, on the case of R v Reeves [2023] EWCA Crim 384. 19. We can deal briefly with the first submission. 20. Where the court passes a life sentence for an offence, the sentence for which is fixed by law, and sets a minimum term, section 322 of the Sentencing Act 2020 requires the court to take into account the seriousness of the combination of the offence and any one or more offences associated with it. 21. When setting the minimum term for murder, it followed that the judge was required to take into account the attempted murder of Mr Nee, the serious wounding of Cheryl Korbel in her own home and the consequence of the applicant’s determination to murder Mr Nee, which was the killing of a nine year old child when she had come downstairs from her bed to be comforted by her mother. This is what the judge did. She had heard the evidence during the trial. Her sentencing remarks were immaculately structured and well-reasoned and they accurately encapsulated the relevant aggravating features that were present. 22. It was common ground that a starting point of 30 years for murder involving the use of a firearm was the correct one. The uplift of 12 years from that starting point represented a little over half of the sentence on Count 2 alone. Having regard to the totality of the offending in this case and its seriousness, which the judge correctly identified, it cannot sensibly be argued the overall sentence imposed was excessive, let alone manifestly excessive. 23. Mr Cooper in his written submissions, though with less emphasis orally, sought to rely on a number of other decisions of this court to demonstrate that the overall sentence in this case was too high. It is sufficient to say that comparisons in the context of offending such as this are likely to be invidious and unhelpful. What was said in R v Erskine [2009] EWCA 1425, by the late Lord Judge CJ, at [63] in relation to the citation of authority in a different statutory context, is also apposite here: “The principles for the exercise of the statutory power are set out in the statute. No further elaboration is necessary. Each case depends upon the application of the powers as set out in the statute in the context of specific facts in the individual case, no more and no less.” 24. As for the second argument, with respect to Mr Cooper we do not consider the authority of Reeves is of assistance either. It is not authority for the proposition for which it is cited (viz., that old age on release per se is a mitigating factor). No point of principle arises therefore which assists the applicant or this court. 25. The sentence imposed by the judge was a long one. It means that the applicant will be well into his 70s before he can be considered for release on licence. That, however, is a consequence of the commission by him of these terrible crimes, rather than of any error of approach on the part of the judge. The applicant invaded the home of a family in his determination to execute Joseph Nee, whom he had already shot. He then murdered by shooting Olivia, a little girl of nine, and seriously injured her mother. These events have left Olivia’s mother and her family with a lifelong sentence of trauma and loss. There were no mitigating features. There was no remorse. The sentence ultimately arrived at was entirely merited on the facts, and the contrary is not arguable. The application for leave to appeal against sentence is refused.

2023_11_15-5909.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1349/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1349

716a63e497c92f887af6da0e77c9dcb4965e5e871fb0ba1940e7cc504d2fede4

[2003] EWCA Crim 1011

EWCA_Crim_1011

2003-02-17

crown_court

No: 200202756/W5 Neutral Citation Number: [2003] EWCA Crim 1011 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 17th February 2003 B E F O R E: LORD JUSTICE AULD MR JUSTICE FULFORD HIS HONOUR JUDGE ZUCKER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - R E G I N A -v- J.T. - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No:

No: 200202756/W5 Neutral Citation Number: [2003] EWCA Crim 1011 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 17th February 2003 B E F O R E: LORD JUSTICE AULD MR JUSTICE FULFORD HIS HONOUR JUDGE ZUCKER (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - R E G I N A -v- J.T. - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - MR S WILSON appeared on behalf of the APPELLANT - - - - - - - - - - - J U D G M E N T Monday, 17th February 2003 1. MR JUSTICE FULFORD: On 8th November 2001 in the Crown Court at Maidstone the appellant was convicted of various offences and on 30th November 2001 was sentenced as follows. Counts 1, 2, 4, 5, 6, 8 and 9, all of indecent assault on a female, he was sentenced to two and a half years' imprisonment on each to be served concurrently. On counts 3, 7, 10 and 11, all of gross indecency with a child, the appellant was sentenced to 12 months' imprisonment on each, concurrent with each other and concurrent with the sentences imposed on the earlier offences. The total sentence was, therefore, one of two and a half years' imprisonment. 2. Having passed that sentence of imprisonment, the learned judge, after some discussion with counsel, stated that his licence period was to be extended for two years under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 . The learned judge indicated in terms that he wanted to ensure that the appellant was to be under supervision for a period of two years following his release. 3. Although we do not have a transcript of any court proceedings following the original sentencing hearing, it appears that the learned judge purported to vary the extended licence period after counsel returned to court in order to address him on the terms and effect of section 86 . We are told that he stated by way of variation of sentence that the supervision of the appellant would run not for two years, but for the entirety of the sentence. In those circumstances, and in the absence of a proper record, it is difficult to determine exactly what order was made finally by the learned judge. 4. It is important to note that the offences spanned the period of 4th July 1981 to 2nd November 1988. The effect of section 86 is that if an offender is sentenced to a determinate sentence of 12 months or more, and the whole or any part of his sentence was imposed for a sexual offence committed before September 30th 1998, the court may order that section 86 of the PCC(S)A will apply to him. The consequence of the order is that when he is released on licence he will remain on licence until the end of the whole of his sentence. The offender will not necessarily remain in custody any longer than otherwise would be the case, but he will be liable to supervision and recall throughout the whole of sentence. 5. The appellant appeals against the part of the sentence that concerns that licence period with the leave of the single judge, the Registrar having granted an extension of time, 159 days, for the filing of grounds of appeal. We turn, briefly to the facts. 6. Since the issue that falls for determination on this appeal is not fact dependent and relates solely to the validity of the extension of the licence period we are able to deal with the background facts in summary form only. 7. Between 4th July 1981 and 2nd November 1988 the appellant committed a number of indecent acts with three of the female grandchildren of his partner. The victims were all under 13 years of age at the time. The indecent assaults consisted initially of touching the genital area of two of the victims and progressed to digital penetration, oral sex, simulation of sexual intercourse and finally to forcing the children to masturbate him. The appellant indecently exposed himself to the third victim. 8. The offences were reported to the police in January 2001. On 16th January 2001 the appellant was arrested. When interviewed he denied the offences. 9. In passing sentence the learned judge observed that the appellant had been convicted of a number of offences of indecency with young girls who were effectively his grandchildren and in those circumstances only a custodial sentence could be justified. In deciding the appropriate sentence account was taken of the fact that the matters were the subject of discussion within the family in 1993, and his partner was currently in ill health, but those were not, in the view of the court, exceptional circumstances such as to justify suspension of the sentence. We have set out above the learned judge's purported orders under section 86 of the PCC(S)A. 10. It is argued that this sentence is invalid in that the offences were committed prior to the coming into force of the relevant legislation that gave the courts the power to extend the licence period. The courts gained these powers by way of section 44 of the Criminal Justice Act 1991 , which was later replaced by section 86 . Section 44 contains the following: "(1) Where, in the case of long-term or short-term prisoner -- (a) the whole or any part of his sentence was imposed for a sexual offence; and (b) the court by which he was sentenced for that offence, having had regard to the matters mentioned in section 32(6)(a) and (b) above, ordered that this section should apply, Section 33(3) and section 37(1) above shall have effect as if for the reference to three quarters of his sentence there were substituted a reference to the whole of that sentence". 11. Section 33(3) of the 1991 Act required a short-term prisoner who had been released on licence, and then recalled, to be released on licence once he would (but for his release) have served three-quarters of his sentence. Section 37(1) limited the licence period of all prisoners to three-quarters of their sentence. 12. The matters mentioned in section 32(6)(a) and (b) are the linked needs of protecting the public from serious harm from offenders; preventing the commission by them of further offences and securing their rehabilitation. 13. Section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 sets out as follows: "(1) Where, in a case of a long-term or short-term prisoner -- (a) the whole or any part of his sentence was imposed for a sexual offence committed before 30th September 1998, and (b) the court by which he was sentenced for that offence, having had regard to the matters mentioned in section 32(6) (a) and (b) of the Criminal Justice Act 1991 , ordered that this section should apply." There are similar references, as in section 44 , to section 33 and section 37 of the 1991 Act (see paragraph 11 above). 14. The provision from which section 86 is derived, the Criminal Justice Act 1991 section 44 , came into force on October 1st 1992 (SI 1992 number 333). Before that date the longest period which an offender could serve under any determinate sentence was two thirds of the sentence. 15. Prior to that date there were no provisions available for ordering supervision and recall throughout the whole of the sentence. It is submitted that the extension of the supervision to the end of the sentence represents a heavier penalty than could have been imposed in accordance with the provisions in force at the time. Article 7 of the European Convention on Human Rights is relied on in this regard. 16. Article 7 provides as follows: "(1) No one shall be held guilty of a criminal offence on account of any act or admission which did not constitute a criminal offence under national or international law at the time when it was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. (2) This article shall not prejudice the trial and punishment of any person for any act or admission which at the time it was committed was criminal according to general principles of law recognised by civilised nations." 17. It is submitted that these provisions would be violated if an order under section 86 is made in respect of an offence committed before 1st October 1992. Counsel for the appellant argues that section 86 must be interpreted in accordance with the Human Rights Act 1988 section 3 as if it contained a limitation to offences committed on or after that date. 18. Section 3 of the Human Rights Act contains the following: "(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. (2) This section (a) applies to primary legislation and subordinate legislation whenever enacted, (b) does not affect the validity, continuing operation, or enforcement of any incompatible primary legislation and (c) does not affect the validity, continuing operation, or enforcement of any incompatible subordinate legislation, if, disregarding any possibility of revocation, primary legislation prevents removal of the incompatibility." 19. There is no doubt, in our judgment, that these provisions are punitive and are properly to be contrasted with purely preventative measures that do not invoke any principle against retrospective penalty: see Ibbotson v United Kingdom [1999] Crim LR 153, where, by contrast, the European Commission held that the registration requirements of the Sex Offenders Act 1997 , which have a partially retrospective operation were preventative, rather than punitive in character, and did not therefore constitute a penalty for the purposes of Article 7. 20. We, therefore, accept the submissions that we should apply section 3 of the Human Rights Act so as to read section 86 in a manner that is compatible with Article 7 of the Convention. There is no incompatibility with primary legislation, and, accordingly, we have no hesitation in applying to section 86 the interpretation contended for, namely that it is without effect as regards any sentence passed for an offence committed before October 1st 1992. We add that we would have arrived at this conclusion independently of the Humans Rights Act for it is a general principle of law long applied in England and Wales that where an act or admission constituted an offence when committed no penalty is usually to be imposed which is heavier than the one applicable at that time. 21. Maxwell on the Interpretation of Statutes puts the matter in emphatic terms: "It is a fundamental rule of English law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act , or arises by necessary and distinct implication." (see 12th Edition page 239). No such terms or necessary or distinct implication is to be found under the relevant legislation. 22. We quash the purported extension of the licence period under section 86 , but otherwise the sentence in all other respects remains as passed, namely two and a half years' imprisonment. 23. It is an offence to publish the name and address of the victim, or any matter which might lead to identification of the victim.

2003_02_17-23.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1011/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1011

c54cc0bbb3066cf1b1ffe36ad476c92f3ce450eb4f41ec34f5f86f5ccbd45e8b

[2023] EWCA Crim 1685

EWCA_Crim_1685

2023-12-01

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 CASE NOs 202201715/B5 & 202201716/B5 Neutral Citation Number: [2023] EWCA Crim 1685 Royal Courts of Justice Strand London WC2A 2LL Friday, 1 December 2023 Before: LORD JUSTICE WILLIAM DAVIS LADY JUSTICE WHIPPLE DBE HIS HONOUR JUDGE WATSON (Sitting as a Judge of the CACD REX V THOMAS MOORE __________ 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) _________ The Appellant appeared in person MISS A BOND appeared on behalf of the Crown _________ J U D G M E N T 1. LORD JUSTICE WILLIAM DAVIS: On 3 May 2022 in the Crown Court at Preston, Thomas Moore pleaded guilty to two counts of breach of a Sexual Harm Prevention Order and one count of failure to comply with notification requirements. He was sentenced to a period of nine months' imprisonment. With the leave of the single judge he appeals against his conviction. The single judge refused him leave to appeal against sentence. Mr Moore in writing has renewed his application for leave to appeal against sentence. At the moment we do not need to consider that. Sentence will be of no significance should we accede to his appeals against conviction. 2. Although granted a representation order, the appellant is unrepresented. Counsel, Ms Farhad Arshad, was assigned by the registrar and lodged a skeleton argument. She then withdrew because there was a breakdown in her relationship with the appellant such that effective representation could not be provided. The same thing happened with new counsel that was assigned thereafter. The appellant has submitted a skeleton argument of his own. A significant part of that document consists of the argument prepared by Ms Arshad. Indeed her signature still appears at the end of it. 3. The factual position is relatively straightforward. On 18 July 2017 at Minshull Street Crown Court in Manchester the appellant was convicted of making indecent photographs of children. He was sentenced on 8 September 2017. He was conditionally discharged for two years. A Sexual Harm Prevention Order was imposed. The duration of that order was five years. The appellant was also subject to notification requirements. Those requirements could only be extant for the period of the conditional discharge. The Sexual Harm Prevention Order prohibited the appellant from using any device capable of accessing the internet unless he made the device available on request for inspection by a police officer. 4. On 16 November 2021 police went to the appellant's home and asked him to provide devices for inspection pursuant to the conditions of the Sexual Harm Prevention Order. The appellant provided one mobile telephone. The police went upstairs where they found another mobile telephone. According to them the appellant refused to give the officers the PIN number for one of the telephones. He offered to enter the PIN himself but the officers apparently were concerned he might delete data on the handset before giving it to the officers. 5. Also at the appellant's home was a Capital One credit card. The notification requirements which had been put in place in September 2017 required him to notify police within three days of the issue of any credit card. The credit card had not been registered with the police. 6. The appellant appeared at the Magistrates' Court on 19 November 2021. He was sent for trial to the Crown Court sitting in Preston. Thereafter he appeared at the plea and trial preparation hearing and pleaded not guilty. His case was adjourned for trial. He provided a defence statement in which he set out his defence, namely that he would have produced all the devices had he been given an opportunity to do so. He was only not willing to give the police his PIN number because he was given no assurances as to how it would be used. 7. His case was listed for trial on 3 May 2022. His case was called on before the judge at about 11 o'clock in the morning. He was not present because he was in custody and had not been brought up from the cells. Prosecution counsel was not present either. Once defence counsel was before the judge, the judge said this: "JUDGE MEDLAND KC: ... it is obviously at the moment this is no more than a sort of informal process. ... It strikes me that your, if I have understood the case correctly, your client [a reference to the appellant] has been in custody for about four and a half months now. ... The nature of the breaches is, if I understand right, that the supervising officers go round there, and he partially complies but sort of does not really on their account. His contrary account is well if only they had given me more time and been less difficult I would have given them what they wanted." 8. The judge went on to say: "... if that analysis of the facts of the case is broadly correct, marrying it up against the sentencing guidelines ... it would fall within a bracket it seems to me whereby to all intents and purposes he has done his time." 9. He then said this: "The equivalent of a nine-month sentence although the sentence would probably, after trial, actually be of the order of 12 months or thereabouts ... if he pleads without the evidence being challenged there is room for some credit." 10. Defence counsel acknowledged what the judge had said. He pointed out the obvious, namely that the defendant was not present. Nor was prosecution counsel. The judge said this: "We can go through this process then [by which he was referring to a time when the appellant would present], but whether it be upon your application for a Goodyear indication or my giving one of my own volition that will be the outcome." 11. Defence counsel said that he had had significant conferences with the appellant and described the appellant as "a cautious character". The case was then adjourned in order to allow counsel to speak to the appellant. 12. When the case was called back on, still with the appellant not in court, defence counsel said this: "l I have conveyed your Honour's thoughts to the defendant. Now my learned friend is in Court [a reference to prosecution counsel], can I invite your Honour to repeat those comments in front of the defendant?" 13. There was then the inevitable short delay before the defendant was brought up. Once he was in court the judge said this: "Prior to the defendant coming into Court, about an hour and a half ago you were in Court on your own Miss Bond being otherwise detained in Court 10, and I expressed certain views to you about this case which I am happy to express again in the presence of the defendant. ... In my view, bearing in mind the facts of this case, and the manner in which the breaches are alleged to have occurred, bearing in mind that the defendant has now been in custody for in round figures four and a half months, that is the equivalent of a nine-month sentence. In view of that, if the defendant, and this is a Goodyear indication which I am giving of my own volition, in the event of the defendant pleading guilty to the indictment without there being a Newton Hearing, I would take the view that he had effectively served what the public required him to serve, namely a sentence of the order of nine months, and therefore he would be released." The appellant then asked to speak to his counsel below. 14. The matter was called back on after the lunch adjournment and the appellant was re-arraigned. In relation to each count he said amongst other things "I plead guilty". The recording of the proceedings makes it clear that he said something to qualify those pleas but in each case the transcript simply reads "(inaudible) I plead guilty". 15. The judge said this when arraignment had concluded: "Now, Mr Farley, departing from the usual format of simply answering either guilty or not guilty, your client [a reference to the appellant] sought to indicate that there was some gloss which he wished to put on it. May I check with you that you are quite satisfied those pleas are entered voluntarily by the defendant?" 16. Defence counsel said: "I believe so. Those are my instructions when we were in the cells. I expected him to say guilty and he did." 17. It is apparent from the transcript that the judge's question and counsel's response followed immediately one after the other without further discussion with the appellant. 18. Counsel have been asked for their recollection now of what the appellant said which was not audible on the recording. Prosecution counsel told the court that her recollection was that the appellant said he was pleading guilty for a particular reason, essentially qualifying his pleas. But counsel both then and today is unable to recall precisely what was said. Defence counsel's recollection is even less clear. He cannot remember if he heard anything which the appellant may have said prior to pleading guilty. 19. The judge moved quickly to sentence. His sentencing remarks were very brief and did no more than announce that the sentence would be one of nine months' imprisonment on each count concurrent. 20. As we have said, the notification requirement imposed as a result of the sentence imposed in September 2017 lasted only for the length of the conditional discharge. It expired in September 2019. Count 3 alleged a failure to comply with the notification requirements on or before 16 November 2021, namely significantly outside the period of the requirements resulting from the conviction in 2017. The prosecution accept that in law the appellant cannot be guilty of the offence charged in count 3. It is unfortunate to say the least that nobody realised that at the time. However, the effect is that the conviction on count 3 inevitably is unsafe, notwithstanding the plea of guilty. The appellant pleaded guilty to something of which in law and fact he could not be guilty. 21. In relation to counts 1 and 2, the argument is that the pleas of guilty were vitiated due to the approach taken by the judge. The judge's approach placed impermissible pressure on the appellant. That is evidenced in part by whatever qualification was expressed when the pleas were tendered. 22. Our starting point for consideration of this submission is Nightingale [2013] EWCA Crim 405 , a decision of the Court of Appeal Court-Martial court. We refer in particular to paragraphs 10 to 14 of that judgment, the relevant parts of which read as follows: "... a defendant charged with an offence is personally responsible for entering his plea, and that in exercising his personal responsibility he must be free to choose whether to plead guilty or not guilty ... The principle applies whether or not the court or counsel on either side think that the case against the defendant is a weak one or even if it is apparently unanswerable... What the principle does not mean and cannot mean is that the defendant, making his decision, must be free from the pressure of the circumstances in which he is forced to make his choice. He has, after all, been charged with a criminal offence... In addition to the inevitable pressure created by considerations like these, the defendant will also be advised by his lawyers about his prospects of successfully contesting the charge and the implications for the sentencing decision if the contest is unsuccessful... ... the provision of realistic advice about his prospects helps to inform his choice. In marked distinction, unlike the defendant's lawyers who are obliged to offer dispassionate, even if unwelcome, advice, the judge, subject only to express exceptions must maintain his distance from and remain outside this confidential process. The decided cases ... identify specific exceptions to this rule. They include the discretion in the judge, if invited to do so, to provide the defendant with a 'Goodyear indication' ... If the judge chooses to respond to such a request, that would not constitute inappropriate judicial pressure just because the judge agrees to respond to a request by or on behalf of the defendant. It is also open, and perhaps as far as the judge can ever go, to remind the defence advocate that he is entitled, if the defendant wishes, to seek a Goodyear indication. But if he chooses not to do so, it remains wholly inappropriate for the judge to give, or to insist on giving, any indication of sentence. Goodyear underlines that 'the judge should not give an advance indication of sentence unless one has been sought by the defendant'. There is one further exception to the general principle which we must mention. There is one situation in which the judge is entitled to use his own initiative to give an indication of sentence. It is where he decides to let the defendant know that the sentence or type of sentence will be the same whether the case proceeds as a guilty plea or following a trial, results in a conviction ... " 23. More recently in R v AB and others [2021] EWCA Crim 2003 , this court considered those principles in the context of ordinary Crown Court proceedings. It confirmed that the principles in Nightingale apply equally to such proceedings. The court in AB and others acknowledged that the pressure on the Crown Court to dispose of cases is intense. It was intense at the time of AB and others and it is even more intense now. Judges are being encouraged to engage whenever possible in active case management to ensure that proper pleas are tendered. However, that kind of encouragement cannot allow any derogation from the general principles as set out in Nightingale . 24. We can understand why the judge in this case was anxious to do all that he could to create space for other cases in the Crown Court. It may be that the judge considered that there was no real basis for the pleas of not guilty in the appellant's case. Whatever the position, the principle is clear. It is wholly inappropriate for a judge to give any indication of sentence in the absence of an express request by the defendant. Here the judge took matters into his own hands. That was before the appellant had even been brought up to court. In that exchange the judge said in terms the sentence after a plea would be nine months, after a trial more likely 12 months. When the appellant was brought up, he (the appellant) did not invite any indication of sentence; he was simply told, were he to plead guilty to the indictment he would be released. 25. In our judgment, what the judge said and the order in which he said it amounted to improper pressure on the appellant to tender pleas of guilty. When he did plead guilty he said something to indicate his equivocation in respect of his pleas. Unfortunately counsel who represented him did not investigate the position. He simply said without more that he believed that the pleas were entered voluntarily. Whether discussion then with the appellant would have led to some change in the position we simply do not know. But taking all of those matters into account, in our judgment the pleas of guilty tendered to counts 1 and 2 cannot stand. Those convictions, for all of the reasons we have set out, are unsafe. It follows that we quash all of the convictions on each of the counts to which the appellant pleaded guilty. 26. We repeat our understanding of the pressure that is on Crown Court judges in the current climate. We do not suggest that judges should not do all that they can properly to case manage cases. But there is a fundamental principle at play here, the principle that the defendant in any criminal case is entitled to assess his plea by reference only to the advice he is given by his counsel and his own wishes and not by what is said by the judge. 27. MISS BOND: My Lord, I am instructed to ask the court to consider ordering a retrial on counts 1 and 2. Not on count 3. 28. LORD JUSTICE WILLIAM DAVIS: I see. On what basis do you say there should be a retrial? 29. MISS BOND: My Lord, it is submitted that it is in the interests of justice given the nature of the offences, that they are breaches of a Sexual Harm Prevention Order and that the appellant has previous convictions for the same. Whilst I appreciate any sentence following a trial may not make any difference -- 30. LORD JUSTICE WILLIAM DAVIS: It could not. Whoever tried Mr Moore again, if they were to do so, could not impose a sentence longer than the one imposed by Judge Medland KC. 31. MISS BOND: No, but it would be marked on the appellant's record that he had further breaches of the Sexual Harm Prevention Order and given the nature of the offences were he ever to commit offences of a similar nature it would be important that that were marked on his record and so it is on that basis that the Crown seek a retrial on counts 1 and 2 only. 32. LORD JUSTICE WILLIAM DAVIS: We will retire to consider that. (Short adjournment) 33. LORD JUSTICE WILLIAM DAVIS: Miss Bond, we are quite satisfied that the interests of justice do not require a retrial. So these convictions are quashed and that will be the end of it so far as the appellant is concerned. 34. MISS BOND: Very well. Thank you. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_12_01-5929.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1685/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1685

71fb80ebc0661de3213d55aae90047456f859183230942372c90fd14a8214f3e

[2008] EWCA Crim 1897

EWCA_Crim_1897

2008-07-09

crown_court

Neutral Citation Number: [2008] EWCA Crim 1897 No: 200800929/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 9th July 2008 B e f o r e : LORD JUSTICE LATHAM MR JUSTICE IRWIN MR JUSTICE COULSON - - - - - - - - - - - - - - R E G I N A v SAEED ABBAS - - - - - - - - - - - - - - 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 14

Neutral Citation Number: [2008] EWCA Crim 1897 No: 200800929/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 9th July 2008 B e f o r e : LORD JUSTICE LATHAM MR JUSTICE IRWIN MR JUSTICE COULSON - - - - - - - - - - - - - - R E G I N A v SAEED ABBAS - - - - - - - - - - - - - - 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 Lewis appeared on behalf of the Applicant - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE COULSON: On 17th December 2007 in the Crown Court at Bradford, on what would otherwise have been the first day of the trial, the applicant pleaded guilty to one count of causing death by dangerous driving (count 3) and two counts of driving without due care and attention (counts 1 and 2). On 31st January 2008 he was sentenced by His Honour Judge Prince to 7 years' imprisonment on count 3. No separate penalty was imposed on counts 1 and 2. His application for leave to appeal against his sentence was refused by the single judge. It is now renewed to the full court. 2. The relevant facts are these. The applicant was a bus driver who worked for First Buses and had done so since the summer of 2005. At 6.00 am on 25th September 2006 the applicant reported for work at the bus depot at Bradford. His shift involved driving a double decker bus from Bradford to Leeds and then from Leeds back to Bradford and Bradford to Huddersfield via Brighouse. 3. There was an early indication of problems with the applicant when, at about 8.15 am, as the bus was driven along the Stanningley bypass towards Leeds, the passengers noticed that the applicant was braking unnecessarily harshly as he approached speed cameras. Then, as the bus approached a bridge on that bypass, the applicant allowed the bus to drift off the nearside of the road, which put it on course for the bridge parapet. He managed to come to his senses in time and made a sharp swerve to compensate. In doing so, the bus went onto a grass verge and narrowly missed a lamp post before coming back onto the road in the correct lane. It is of note that in interviews later, the applicant claimed that the driving of a motorcyclist had caused him to take such action. Unhappily that turned out to be entirely false. 4. Later the applicant drove back to Bradford from Leeds and passengers getting on there noticed that he failed to change the sign at the front of the bus. Then he left Bradford and headed towards Huddersfield. He was caught on camera, within his own cab, driving with only one hand on the wheel. The first occasion (which gave rise to count 1) lasted for 55 seconds, the second occasion (which gave rise to count 2) lasted for 17 seconds. It appeared he was reading either a timetable or a diary at the time of those incidents of careless driving. 5. Throughout the journey the applicant constantly yawned and rubbed his face and a number of passengers who got on the bus described him as uninterested when they showed him their passes and tickets. When he got to Brighouse he parked the bus at the wrong stop and again seemed uninterested when passengers either paid their fares or showed their passes. He then set off from Brighouse towards Huddersfield on the A461. The weather was clear, the road was dry and visibility was good. There were 44 passengers on board. 6. About 30 seconds before the crash the applicant yawned at least twice and the bus again started to drift across the road. The applicant came to his senses after a few seconds and reacted with compensatory steering but again overreacted and overcompensated. This caused the bus to leave the road. It crossed a foot path, struck a kerb and demolished a lamp post. It passed over the forecourt of a show room and crushed two metal barriers. It then crossed a grass area and dropped down through a hedge over a private access road. It demolished a boundary wall and buried itself into the side of a domestic garage. One of the passengers, on seeing the applicant was losing control of the vehicles, shouted at him but did not seems to register what was happening. 7. All the passengers were thrown about on the bus. Forty of the 44 received injuries, and many had to escape the bus by climbing out of the broken windows. A Mr Rowley, who was sitting at the front on the top deck, suffered an open fracture of the right ankle. He underwent two operations. Nineteen days after the crash he died. That was the result of a massive pulmonary arterial embolism which was caused from thrombosis which was directly attributable to the immobility caused by the injury he had suffered in the crash. 8. In his interview, the applicant purported to blame the mechanical condition of the bus. 9. There was a basis of plea on count 3, which the Crown accepted. This recorded that (a) the defendant admitted losing concentration and thereby causing the accident; (b) the loss of concentration was caused by fatigue and the defendant accepted that he did nothing to abate the fatigue; (c) that the applicant did not fall asleep at the wheel; and that (d) at the beginning of his shift the applicant did not believe himself to be unfit to undertake the driving. 10. When he sentenced the applicant, Judge Prince said of his driving that morning: "You, Mr Abbas, were a public service vehicle bus driver. Bus drivers and coach drivers are entrusted with the lives of their passengers every time they take charge of their vehicles. They are paid to adopt that trust of their passengers and the passengers are entitled to expect the drivers to respond to the trust placed in them by responsible and careful driving and concern for their passengers' safety. Tiredness kills. It is a slogan that all drivers have seen lit up in neon above the motorways as they drive." He went on to say: "There are indications in the evidence that you were far too tired to be driving from the description given of you by passengers. Your whole attitude on this particular day... was one of irresponsible carelessness for those entrusted to your care. It was a conscious decision you made to drive whilst not just tired but clearly extremely tired and what is worse, it was a conscious decision that was made after you had received a warning as to the condition you were in." In addition, the judge said that many deaths or injuries could have been foreseen as a result of the condition in which the applicant was at the time of driving, and he took the view that the applicant's culpability was at the higher end. The judge said he could not stress too highly the importance of the warning that he received at 8.15 that morning when he came so close to crashing the vehicle into the parapet of the bridge over the Stanningley bypass. In addition, in his remarks the judge referred to the applicant's lies to the police as to the cause of the accident and the fact that the plea of guilty was not entered until the first day of the trial. 11. The judge said that if the trial had been contested he would have imposed a term of 8 years. He discounted that term by 1 year to reflect the applicant's late guilty plea. On the applicant's behalf this morning, Mr Lewis properly accepts that no issue can be taken with that discount. 12. As we have noted, the application for leave to appeal was refused by the Single Judge, who pointed out the separate occasions when, some time before the accident itself, the applicant had been warned that he was not in a fit state to drive, whatever his belief at the outset of his shift. 13. Originally it was said that the 8 year starting point was too high by reference to two separate grounds. The first was by reference to draft guidelines produced by the sentencing advisory panel. We understand why those were referred to by Mr Lewis in front of the learned judge, but as Mr Lewis very properly accepted before us this morning those are not guidelines to which it is appropriate for this court to have any reference at all, given that they are what they say are, namely draft guidelines, which may or may not be implemented. 14. That leaves the principal point pursued by Mr Lewis in his helpful submissions this morning. That is his submission that, by reference to R v Richardson [2006] EWCA Crim 316 , the notional sentence of 8 years was too long. In the circumstances of this case, we respectfully disagree with that submission. It seems to us that this was a case which, in all the circumstances, the judge was entitled to categorise as being of the most serious culpability, albeit, as we explained to Mr Lewis in the course of argument, towards the bottom end of that highest category. According to R v Richardson the range for that category is 7 to 4 years' imprisonment. So the 8 year notional term, prior to the discount for plea, was precisely within the bottom end of that highest category. 15. The principal reasons for identifying this as a case of the most serious culpability are these. The applicant would have realised, during his first run to Leeds, that he was unfit to drive due to fatigue. He received a number of warnings on that trip as to his unfit condition, particularly the near collision with the bridge parapet. It was his failure to recognise that warning sign that gave rise to the tragedy that ensued. He ignored the safety of the 44 passengers who entrusted themselves into his care, because he must have known, by the end of was first run that he was not fit to drive, but he continued to do so. In those circumstances, we consider that this was a case within that highest band, and we therefore consider that the judge was correct to take 8 years as a starting point. There can therefore be no criticism of the 7-year term actually imposed. For these reasons, we dismiss this application for permission to appeal.

2008_07_09-1576.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1897/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1897

1eeaf37d9d3f74d71e1fd23a257084d3ace951442cb7fbe67729e0d878352780

[2008] EWCA Crim 3055

EWCA_Crim_3055

2008-11-06

crown_court

Neutral Citation Number: [2008] EWCA Crim 3055 No. 2008/03780/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 6 November 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MRS JUSTICE SWIFT DBE and MR JUSTICE MADDISON - - - - - - - - - - - - - - R E G I N A - v - JAMES GERARD KELLEHER - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company)

Neutral Citation Number: [2008] EWCA Crim 3055 No. 2008/03780/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 6 November 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MRS JUSTICE SWIFT DBE and MR JUSTICE MADDISON - - - - - - - - - - - - - - R E G I N A - v - JAMES GERARD KELLEHER - - - - - - - - - - - - - - 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 N Hinchcliffe QC appeared on behalf of the Appellant Mr A Colman and Mr H McCann appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T Thursday 6 November 2008 THE LORD CHIEF JUSTICE: I shall ask Mrs Justice Swift to give the judgment of the court. MRS JUSTICE SWIFT: 1. On 7 May 2008, at the Inner London Crown Court, the appellant, who is 40 years old and has no previous convictions, pleaded guilty on re-arraignment after the jury had been sworn to one offence of conspiracy to deposit controlled waste unlawfully contrary to section 33 of the Environmental Protection Act 1990 ( the 1990 Act ). On 12 June 2008 he was sentenced to fourteen months' imprisonment. Fifteen counts charging offences of knowingly causing controlled waste to be deposited on land were ordered to remain on the file on the usual terms. The appellant appeals against sentence by leave of the full court. 2. A co-accused, Patrick Anderson, who pleaded guilty at the same stage to the same offence, was sentenced to 22 months' imprisonment. 3. Waste which is designated as "controlled waste" may only be carried and transported by persons who have a relevant licence and may only be deposited at licensed and regulated sites. The appellant and Patrick Anderson were the organisers, over an 18 month period, of a wide scale operation unlawfully to deposit controlled waste material (commonly known as "fly-tipping") onto sites in areas of the north and east of London. Others were involved in the operation in a subordinate capacity. An empty site would be chosen and the locks broken, entry forced and new locks fitted. Sometimes "Health and Safety" and other signs were put up outside to give the impression that the activity was legitimate. There would be a man at the gate in a high-visibility jacket showing lorries onto the site to tip their loads of soil, rubble, concrete and other construction material, while an earth-moving vehicle moved the material to maximise the amount of waste that could be tipped. If those on site were approached or questioned, there would be an attempt to give a plausible excuse for the activity or everyone would quickly disappear. Some of the sites received deposits of only a few lorry loads, whilst others had vast amounts, which cost thousands of pounds to clean up. Each lorry should have gone to a licensed waste site, at a cost of £50 to £150 (depending on the contents) to deposit the waste lawfully. Evidence was collected of dumping at fifteen different sites between the beginning of 2003 and the middle of 2004. 4. In March 2002 the appellant, who ran his own transport business, had obtained a licence in his own name to carry and transport controlled waste. However, he and Anderson used a number of names as a front for their unlawful activities. The most significant of these was Michael (or "Mick") Ryan. Vehicles were registered in that name, although they were in fact under the control of the appellant and Anderson. The contact number given for Michael Ryan in a number of documents was in fact a mobile phone which belonged to the appellant. An application for a waste carrier's certificate was made by the appellant in the name of Michael Ryan. A bank account was opened in the name of Michael Ryan by means of a form completed by Anderson. Cheques drawn on that account were written by the appellant. Account books were kept which provided clear evidence that the business had been run by the appellant and Anderson in Ryan's name. There was no evidence of any payments having been made to a person called Ryan. 5. In interview, the appellant was adamant that the conspiracy was organised and controlled by an individual called Michael Ryan and that he was merely his assistant. However, it is clear from the transcript of the sentencing hearing on 11 June 2008 (at page 13C-H) that the appellant and Anderson pleaded guilty on the basis of the prosecution case, namely that he and Anderson were the real organisers and used the name Michael Ryan in an attempt to conceal their own criminal activities. 6. During the three year period between November 2001 and November 2004, the appellant received about £311,000 from the Ryan account. The account received over £550,000 from waste companies, of which over £250,000 was withdrawn in cash. The total estimated tonnage of waste dumped at the sites was over 14,000 tons. The estimated cost of removal and clean-up of the sites affected was £347,000. 7. Despite the basis on which he had pleaded guilty, in his interview with the author of the pre-sentence report the appellant continued to claim that he had been acting under the instructions of Ryan and had played a minor part in the conspiracy. Within that limited context, he accepted that the offences had been fuelled by greed and selfishness. He expressed regret and remorse and a determination not to re-offend. He voiced concern as to how he would cope with a period in custody. He was the sole earner in his family and was concerned that he would lose his home, as the mortgage would not be paid. He was also concerned about the long-term impact on his relationship with his children. He said that he would have to close his business and two employees would lose their jobs. The author of the report concluded that there was a low risk of the appellant re-offending. A Community Order with an unpaid work requirement was recommended; or, if the court considered that a custodial sentence must be imposed, it was suggested that a Suspended Sentence Order with requirements might be considered. 8. In sentencing the appellant, the judge observed that the case was at the extreme end of fly-tipping. It had become an operation which was almost industrial, and certainly commercial, in its scale. He had no doubt that immediate prison sentences were called for, for what he described as "such flagrant, eyes open, wrongdoing". He referred to the large quantities of waste deposited, the length of time over which the activity had continued and the estimated cost of the clean up. Sophisticated devices and disguises were used to give the appearance of lawful dumping, along with some concealment of the offenders' tracks. Moreover, the offending had continued even after the appellant and Anderson had been interviewed by the police (the appellant in November 2003) about their activities. 9. The judge considered that the appellant and Anderson had played an equal part in the conspiracy. However, he made a distinction between them on the basis of Anderson's previous convictions, five of which related to fly-tipping. Anderson was sentenced to 22 months' imprisonment. The judge indicated that he had given a small discount from the maximum sentence of two years' imprisonment for the very late plea. The appellant was sentenced to fourteen months' imprisonment. He was given the same discount for the very late plea of guilty, but a further allowance was made for the fact that he had no previous convictions and the burdens which his conviction and sentence would place upon him. 10. The Grounds of Appeal contend that the sentence was manifestly excessive and/or wrong in principle in that it failed to give proper weight to factors including the appellant's personal mitigation and good character and to the absence of aggravating features, including, but not limited to, the absence of material of a dangerous or offensive nature or waste which had a long-lasting effect on the environment. The appeal is now directed at the judge's starting point of the maximum sentence of two years and at the level of distinction which he drew between the appellant and his co-accused, Anderson. 11. Section 33 of the 1990 Act , so far as relevant, provides: "(8) Except in a case falling within subsection (9) below, a person who commits an offence under this section shall be liable -- (a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both; and (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both." 12. Subsection (9) of section 33 refers to "special waste". The maximum sentence for unlawfully depositing special waste is, on summary conviction, imprisonment for a term not exceeding six months or a fine not exceeding £20,000 or both, and, on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both. 13. Section 62(1) of the 1990 Act provides that, if the Secretary of State considers that controlled waste of any kind is or may be so dangerous or difficult to treat, keep or dispose of that special provision is required for dealing with it, he shall make provision by regulations for the treatment, keeping or disposal of waste of that kind. Waste in respect of which such Regulations have been made is defined by section 75(9) as "special waste". 14. The Clean Neighbourhoods and Environment Act 2005 ( the 2005 Act ) increased the maximum penalties for depositing waste which is not classed as "special waste". It provides that, for offences committed after the commencement date (7 July 2005), the maximum penalty in respect of both special and controlled waste is, on summary conviction, twelve months' imprisonment or a £50,000 fine and, on conviction on indictment, five years' imprisonment or a fine or both. Since the appellant's offence was committed before 7 July 2005, he fell to be sentenced under the provisions of the 1990 Act . 15. Section 3 of the Criminal Law Act 1977 restricts the maximum custodial sentence for conspiracy to commit an offence or offences to the maximum term provided for the relevant offence. Thus, in the present case, the maximum custodial term available to the judge was two years. 16. There are no sentencing guidelines applicable to environmental offences. Our attention has, however, been drawn to Advice to the Court of Appeal issued by the Sentencing Advisory Panel (SAP) on 1 March 2000. That Advice, entitled "Environmental Offences: The Panel's Advice to the Court of Appeal", pre-dated by five years the 2005 Act and therefore took no account of the increase in the maximum penalties effected by the Act. 17. Paragraph 6 of the SAP Advice identified those factors which tend to enhance the culpability of a defendant and thereby to aggravate the seriousness of the offence: "(a) the offence is shown to have been a deliberate or reckless breach of the law, rather than the result of carelessness; (b) the defendant has acted from a financial motive, whether of profit or of cost-saving, for example by neglecting to put in place the appropriate preventative measures or by avoiding payment for the relevant licence; (c) the defendant has failed to respond to advice/caution/warning from the relevant regulatory authority; (d) the defendant has ignored relevant concerns voiced by employees or others; (e) the defendant is shown to have had knowledge of the specific risks involved, eg when he has knowingly dumped 'special' waste; (f) the defendant's attitude towards the environmental authorities was dismissive or obstructive." 18. Paragraph 7 identified further aggravating factors relating to the actual or potential extent of the damage. They are: "(a) the pollutant was noxious, widespread or pervasive, or liable to spread widely or have long-lasting effects; (b) human health, animal health, or flora were adversely affected, especially where a protected species was affected, or where a site designated for nature conservation was affected; (c) extensive clean-up, site restoration or animal rehabilitation operations were required; (d) other lawful activities were prevented or significantly interfered with." 19. Paragraph 9 refers to aggravating factors specifically relating to the offence of fly-tipping: depositing waste of a dangerous or offensive nature, tipping in certain types of location which might present a particular danger and causing the escape of waste into streams. It is not suggested by the prosecution that any of those factors applies in the present case. Mr Nick Hinchcliffe QC, who represents the appellant before this court but did not appear at the trial, submits that this is an important point in the appellant's favour. 20. Mitigating factors which would tend to reduce the seriousness of any of the offences under consideration were identified at paragraph 11 of the SAP Advice as: "(a) the fact that the individual defendant played a relatively minor role in the commission of the offences, or had relatively little personal responsibility for it; (b) the fact that the defendant genuinely and reasonably lacked awareness or understanding of the regulations specific to the activity in which he was engaged; (c) the fact that the offence was an isolated lapse." Although he did not specifically refer to the matter in argument today, it was indicated in Mr Hinchcliffe's Advice on Appeal, and is evident from the pre-sentence report, that the appellant continues to insist that he played only a relatively minor role in the conspiracy. If that were so, the first of these mitigating factors would apply. 21. Paragraph 12 of the SAP Advice refers to personal mitigating factors which should be taken into account, namely: "(a) the defendant's prompt reporting of the offence and ready co-operation with the enforcement authorities; (b) the defendant's good environmental record; (c) the fact that the defendant took steps to remedy the problem as soon as possible; and (d) a timely plea of guilty." Mr Hinchcliffe submits that the appellant's guilty plea and his lack of any previous convictions (in particular for environmental offences) are powerful mitigating factors in his case. He argues that his good environmental record is of particular significance since he had held a licence to carry waste since the early part of 2002 and there was no previous evidence of any incident before early 2003. 22. Paragraph 14 of the SAP Advice sets out general guidance in relation to the appropriate sentence as follows: "We begin our consideration of the choice of sentence with the fine, which should be the starting point for the sentence of both persons and companies for environmental offences. The fine is generally the appropriate sentence for these offences because: (a) the offences are non-violent and carry no immediate physical threat to the person, and (b) the offences are generally committed in situations where the defendant has failed to devote proper resources to preventing a breach of the law." 23. Paragraph 27 deals with the option of a community sentence: "In cases of greater seriousness involving an individual offender, the court should consider whether there may be merit in imposing a community sentence rather than a fine. Since it contains a requirement of reparation to the community, a community service order may be the most appropriate community sentence, although of course such an order is only available where the offence is imprisonable." 24. Paragraph 29 sets out guidance relating to the circumstances when a custodial sentence might be imposed: "A minority of environmental crimes committed by individual defendants is so serious that only a custodial sentence can be justified. To cross the custody threshold, a case would need to combine serious damage, or the risk of serious damage, with a very high degree of culpability on the part of the offender. Thus, custody should be considered where: (a) the offence is shown to have been a deliberate or reckless breach of the law, or the defendant acted from a financial motive, whether of profit, or of cost-saving; and either (b) (i) human health has been damaged or put at risk; or (b) (ii) the pollutant was noxious, widespread or pervasive, or liable to spread widely or have long-lasting effects." 25. Mr Hinchcliffe concedes that it is clear that the offences involved a deliberate breach of the law. Although he argues that, since the waste materials deposited were not toxic and involved no risk of damage to health or long-lasting effects on the environment, and therefore, strictly speaking, neither of the conditions at paragraph 28(b)(i) or (ii) has been met, he concedes that in the circumstances of this case a custodial sentence was appropriate. However, he complains of the fact that the judge used as his starting point the maximum sentence available for the offence. 26. There are few sentencing examples available to Crown Court Judges who are called upon to sentence in cases under section 33 of the 1990 Act . We were referred to R v Tapscott [2007] EWCA Crim 1787 , where a sentence of 16 months' imprisonment, together with a two-year disqualification from driving, had been imposed for five offences (together with another offence taken into consideration) of depositing waste from house clearances at various sites in rural and residential areas. This case is, however, of little assistance since the appeal was directed only at the disqualification and two of the offences (together with that taken into consideration) were committed after the commencement of the 2005 Act . In his Advice on Appeal, Mr Hinchcliffe draws further distinctions between the current case and Tapscott . By reason of the sites where the waste was left and the nature of the waste, there was a risk to wildlife and to the public in Tapscott which was not present in this case. Moreover, a number of the offences were committed on bail. 27. Mr Hinchcliffe also referred us in his Advice to R v O'Brien and Enkel [2000] 2 Cr App R(S) 358. The appellants in that case pleaded guilty to three offences under section 33 of the 1990 Act . They undertook to dispose of 2,000 used lorry tyres which had been left on a site. They rented another site for three weeks, collected the tyres and dumped them there. They made a profit of over £8,000 on the operation. They were each sentenced to eight months' imprisonment. The Court of Appeal quashed those sentences and indicated that a fine or a community penalty would have met the justice of the case. 28. Mr Hinchcliffe accepted in his Advice that the criminality in O'Brien was of a significantly lower order than that in the present case. However, he relied on a passage in the judgment of Goldring J. After observing that the case was "at the lower end of the scale" and that the appellants had seen "a chance to make a quick profit", he continued: "Having said that, there are some features that need to be taken into account when deciding the appropriate sentence on the facts of this case. Although unsightly, the tyres were not dangerous. There was no long-term effect on the environment. There were no repeated breaches. It may be the appellants thought they could in due course dispose of the tyres to farmers, although we are a little sceptical about that. Neither has a conviction for an offence of this sort. In the final analysis, albeit at the last moment, they pleaded guilty. It is also the case that they were not the only ones who were involved in these offences. In our view, this case does not pass the custody threshold." In his Advice, Mr Hinchcliffe relied on the similar absence of dangerousness and long-term effects on the environment in the present case. He submitted that they rendered a custodial sentence inappropriate although, as we have indicated, he conceded before us that the judge was not wrong in principle to impose a custodial sentence. He points out, however, that the judge's sentencing remarks made no reference to the fact that the type of material deposited was not dangerous and did not have any long-lasting effects on the environment. He suggests that the judge failed to take these matters into account. 29. Mr Hinchcliffe also relies on the personal mitigation available to the appellant. He points out that over four years have elapsed since the period of offending ended, during which time the appellant's business has suffered because of his uncertainty about the outcome of the criminal proceedings. He has, it is suggested, shown genuine remorse and pleaded guilty, albeit at a late stage. These factors, together with his good character, should, he says, have led the judge to impose a lesser sentence than in fact he did. 30. The disposal of waste in accordance with the law involves significant costs. Some individuals attempt to avoid those costs by depositing waste at sites which are not licensed for the purpose, or by employing others to do so. Those individuals or companies who are prepared to make a business out of collecting waste and disposing of it unlawfully stand to make large profits at the expense of the environment and of those whose sites have been polluted. As a result, commercial fly-tipping has become a serious problem. Penalties imposed for breaches of the law in this area must therefore be sufficient to deter profiteering of this sort and must serve to protect the public against the risk of damage to health as well as the inconvenience and eyesore associated with unlicensed and unregulated tips. They must also protect landowners against the costs of reinstating their land after unlawful tipping, and the environment against damage consequent upon the indiscriminate deposit of waste materials. 31. The unlawful depositing of waste in this case was carefully organised and continued over an extended period. Considerable efforts were made to conceal both the fact that the activities were unlawful and the identities of the perpetrators. There was abundant evidence that the appellant and Anderson were the organisers of the operation and that the name "Michael Ryan" was a fiction behind which the appellant and Anderson sought -- and, in the case of the appellant, still seeks -- to hide. The appellant's continued insistence that he played a minor part in the conspiracy and acted under Ryan's instructions serves significantly to undermine his professed feelings of remorse and regret. It also provides further evidence of the dishonesty which characterised this conspiracy. The offences were committed for substantial gain and at a considerable cost to others, in particular to the public purse. The appellant persisted in his criminal activities even after he had been interviewed by the police. 32. It is true that the waste material deposited in this case did not give rise to any risk to health or long-term damage to the environment. Many of the types of waste that present such a risk will be the subject of regulations made by the Secretary of State under section 62 of the 1990 Act and will therefore be "special waste" in respect of which, at the time the offence was committed, the maximum penalty was five years' imprisonment. However, there are some materials presenting a less serious hazard which may not fall into the category of "special waste". It is significant that, in 2005, Parliament considered it appropriate to increase the maximum penalties for the deposit of waste which did not constitute "special waste" to the same level as those for "special waste". This strongly suggests that it was contemplated that significant sentences, including significant custodial sentences, were appropriate even in cases where the waste material deposited did not give rise to a real danger to health or the environment. It seems to us that, in the light of this development, the SAP Advice of March 2000 on this point must be regarded with some caution, even when dealing with offences committed before the commencement of the 2005 Act . In particular, although the SAP Advice correctly identified the aggravating and mitigating factors, it is not the case that a custodial sentence will only be appropriate if all the conditions set out in paragraph 29 are met. A custodial sentence may be appropriate if (as here) the breach or breaches concerned were deliberate, repeated, large scale, highly organised, financially motivated and highly profitable or combined any of these features. 33. We agree with the judge that this was a very serious case of its type. The prosecution proceeded on the charge of conspiracy, rather than on the 15 substantive offences, each of which could potentially have attracted a consecutive sentence. The judge indicated that his starting point was two years, that being the maximum for a single substantive offences. In the circumstances of the case, we consider that he was entitled to do so. The appellant pleaded guilty at a late stage and was entitled to only limited credit (of about one-tenth) for that. The judge indicated that he was giving a further discount for his good character and for the burden of his sentence upon him. He made a clear distinction between the sentence passed on the appellant and that imposed in Anderson's case. In our view, even taking into account the matters urged on us by Mr Hinchcliffe, the sentence cannot be said to be manifestly excessive or wrong in principle. The appeal is therefore dismissed. 34. THE LORD CHIEF JUSTICE: Thank you, Mr Hinchcliffe, and Mr Colman, for your excellent written skeleton arguments which enabled us to think about the case long before we came into court. Thank you.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/3055/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/3055

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[2008] EWCA Crim 1203

EWCA_Crim_1203

2008-05-14

crown_court

No: 200801005/A5 Neutral Citation Number: [2008] EWCA Crim 1203 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 14th May 2008 B e f o r e : LORD JUSTICE KEENE MR JUSTICE SAUNDERS THE RECORDER OF SWANSEA (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v WILLIAM ABBOTT - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet

No: 200801005/A5 Neutral Citation Number: [2008] EWCA Crim 1203 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 14th May 2008 B e f o r e : LORD JUSTICE KEENE MR JUSTICE SAUNDERS THE RECORDER OF SWANSEA (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v WILLIAM ABBOTT - - - - - - - - - - - - - - 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 R Ellis appeared on behalf of the Appellant - - - - - - - - - - - - - - J U D G M E N T 1. THE RECORDER OF SWANSEA: On 16th January 2008 in the Crown Court at Newcastle, this appellant pleaded guilty and in the following month, on 11th February, he was sentenced by His Honour Judge Lowden as follows: on the first count on the indictment, an offence of concealing criminal property, he was sentenced to two-and-a-half years' imprisonment, and an order was also made for forfeiture of a vehicle which the police had seized; on count 2, for possession of a Class A controlled drug, cocaine, he was sentenced to a concurrent term of 6 months' imprisonment; and in respect of count 4, for possession of Class C controlled drug, cannabis, no separate penalty was imposed. Therefore the total sentence was one of two-and-a-half years' imprisonment. In respect of other counts, alleging simple possession of controlled drugs, no evidence was offered and not guilty verdicts were entered. As to the drugs which were seized in respect of counts 2 and 4, orders for forfeiture and destruction were made. There was postponement of a confiscation hearing, the learned sentencing judge setting a timetable for the provision of statements. 2. William Abbott now appeals against sentence by leave of the Single Judge, leave being granted on the second ground of appeal sought to be pursued. Today, before this Court, Miss Ellis, on behalf of the appellant, has sought to renew the application for leave to advance the first ground and that leave was given. 3. The background is as follows. On 17th March 2007 the appellant was first captured on a speed camera driving an Astra van near Newcastle-upon-Tyne. The appellant lived in Bromley, Kent. Eleven days later he was stopped by traffic officers driving a different Astra van, southbound, near Gateshead. A small bag containing just under a gram of cocaine was found in the pocket of a jacket on the front passenger seat of the vehicle (count 2 referred to that finding). The vehicle was searched and concealed behind plastic panelling in the cargo area of it was found a total of £143,725 in cash in bags and boxes (count 1). 4. The appellant was arrested and searched upon his arrival at the police station, and in his pockets were found a small bag containing approximately half a gram of cannabis (count 4 reflected that) and a further sum of £1570 in cash. 5. The appellant was interviewed in March and September and accepted that both the cannabis and cocaine were his, and were for his personal use. He made no comment about the money found behind the panelling in the van or about the van itself, beyond saying it was not his vehicle. He said that he had won the £1570 in a betting shop. 6. On pleading guilty on 16th January, a written basis of plea was submitted on the appellant's behalf and subject to one qualification, which was of no consequence in the context of this appeal the prosecution took no issue with it. It was as follows: "1. I, William Abbot, wish to plead guilty to concealing £143,725 of criminal property. 2. I became indebted to a group of people who asked me to collect money for them. Although I was threatened by them, I accept that I am unable to rely on the defence of duress. 3. I made only a single trip to collect the money for them [there had of course been a previous visit, it is not suggested to be more than that, on the 7th March]. 4. I did not know where the money originated from as I was merely a courier. I also did not know how much money I was to collect." So he was admitting on that basis of plea his knowledge or suspicion that the cash represented the proceeds of criminal conduct but not more specific knowledge than that. 7. In passing sentence the learned judge observed that although the appellant had no previous convictions for serious drug related offences, he did have previous convictions for serious offences of dishonesty albeit some time ago. He was a married man with children and he did not seem to have a lot of money. He had pleaded guilty to concealing nearly £150,000 worth of criminal property and possession of small quantities of controlled drugs for his own use. It might well be, the learned judge remarked, that the appellant had played a relatively small part in what was substantial criminal activity and that he was a courier on this one occasion, but it was one occasion which had been carefully set up, said the learned judge, because he had been sent to the north east on a previous visit simply to meet up with his contact. He was transporting the money on behalf of drugs suppliers, said the learned judge, and it was "as plain as a pikestaff" that he must have known this was drugs money. The learned judge found that he did know, adding: "I simply do not begin to understand how this might be somehow gambling related." Only a custodial sentence could be justified. 8. As far as the appellant is concerned, he was 43 years of age at the time of sentence. He had recorded against him convictions for offences of dishonesty, between 1976 and 1990, dealt with variously including by short custodial sentences. He was dealt with for serious offences of a completely different nature in 1983 and then in March 1992, he received a sentence of 4 years' imprisonment for a series of offences of handling stolen goods and deception. His last conviction was in June 2004, which had been for abstraction of electricity and criminal damage, in respect of which he was dealt with by way of a conditional discharge. 9. There was a pre-sentence report in his case recommending a suspended sentence order, with requirements of supervision and drug rehabilitation. It was said that there was a medium risk of him re-offending, though it was noted that there was in his history a reduced pattern of offending. It was further said that the appellant recognised his actions were wrong and accepted full responsibility for them and had expressed his remorse. He informed the probation officer that he had been pressurised by associates of his drug suppliers to whom he was in considerable debt, so that he should collect this money, otherwise harm would come to his family. 10. He was married with four children, two of whom required considerable care, a man reliant on benefit and unfit for work. The family was affected by debt, worsened by the appellant's problems with gambling and drugs. There was also an assessment report which said that he was suitable for a drug rehabilitation requirement and that he appeared motivated to address his addiction. There were also before the learned judge two character references, from persons who knew the appellant and for whom in the past he had worked. 11. The grounds of appeal are, firstly, the appellant was sentenced on an incorrect basis, that is to say not upon his basis of plea, and secondly, that in all the circumstances the sentence was manifestly excessive. In support of the grounds of appeal counsel has referred, in her written advice on appeal of 15th February 2008, to a number of authorities and has made specific reference today to R v Gray [2001] 1 Cr App R(S) 28, R v Cuenca-Ruiz & Others [2001] EWCA Crim 2418 and the recent case of R v Dao [2008] EWCA Crim 984 . In relation to that last authority it has been submitted by Miss Ellis that that was clearly a more serious case as far as the appellant was concerned because he was directly involved in the cultivation of the drug. The sum involved overall was much larger and there was clear financial gain to the appellant there. 12. First of all, turning to the question of sentencing on the incorrect basis: this is a point of some significance, in the judgment of this court, i.e. whether this appellant knew that he was carrying cash representing the proceeds of drug trafficking. In circumstances where the prosecution takes no issue as to a defendant's basis of plea or some part of it, it is the understanding of this court on clear authority that it is still open to the judge to take a different view; if the basis is manifestly implausible or plainly false, plainly untenable, then the judge may reject it without a Newton hearing. On the other hand, where the basis is not in those realms but the judge is disinclined to accept the defence account, notwithstanding the prosecution stance, it would appear that the defendant should have the opportunity of dealing with the matter by being given notice. 13. Here, Miss Ellis has submitted that it was by no means clear that these proceeds necessarily represented the proceeds of drug trafficking, particularly since it was said the collection was at behest of associates of the appellant's drug creditors rather than those drug creditors themselves. In those circumstances, this court is prepared to proceed on the basis that it cannot surely be said that this appellant knew that the money represented the proceeds of drug trafficking. 14. The furthest that the evidence must therefore go is that this appellant undertook this criminal activity at the behest of others, and that he knew that the money represented the proceeds of some form of criminal conduct. He fell to be sentenced on that basis. 15. We are grateful to counsel for referring to a number of authorities indicative of the level of sentencing here. The case of Monfries [2004] 2 Cr App R(S) 3 is one of those that have been referred to in the advice of counsel. Monfries is helpful in that it contains reference to relevant considerations: firstly, the nature of circumstances and extent of the appellant's laundering activity; secondly, that there is not necessarily a direct relationship between the sentence for the laundering offence and the original antecedent offence but where it is known, some regard will be had to it; thirdly, regard should be had to the extent of the launder's knowledge of antecedent offence; and fourthly, the amount laundered is also a relevant factor. The authorities referred to demonstrate that the circumstances of such offending clearly do vary widely. Here, there was one transaction, albeit that it involved a sum of £143,725 in cash. On the other hand, as has been indicated, we cannot be sure that this defendant knew specifically the source of this cash and therefore that must be interpreted in his favour. We also bear in mind that he carried out this exercise to repay a debt rather than for positive financial gain or other reward. We have to bear in mind, however, that the learned judge was also sentencing in respect of two offences of simple possession of controlled drugs including one for drugs in Class A, for which a concurrent sentence in the event was imposed. There was this appellant's personal mitigation and an early guilty plea, albeit that since the offence in question was triable either way, it was not at the very first opportunity but we accept the submission made that it should attract discount of the order of 30 per cent. In those circumstances, the decision of this court is that a sentence overall of 30 months' imprisonment, following early guilty pleas, would seem to indicate a notional sentence, after a trial, of something in excess of three-and-a-half years. This court considers in all the circumstances, in the light of the authorities that the sentence was too long, particularly in view of our upholding the first ground which was argued in relation to the basis of plea. In those circumstances the sentence does attract the interference of this court and, in all the circumstances, the sentence on count 1 will be reduced to one of 2 years' imprisonment. The concurrent sentence in respect of possession of cocaine will stand. To that extent the appeal is allowed.

2008_05_14-1509.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1203/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1203

fad2911f465eabad6df7e9df15555efc7d704bb7c725884fb580fe045034cb97

[2017] EWCA Crim 1233

EWCA_Crim_1233

2017-08-22

crown_court

Neutral Citation Number: [2017] EWCA Crim 1233 Case No: 2017/03153/B1 2016/1529/B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CARDIFF CROWN COURT His Honour Judge Richards T20157628 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/08/2017 Before : THE RT HON LORD JUSTICE TREACY THE HON MS JUSTICE RUSSELL and HER HONOUR JUDGE CUTTS QC (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Dean Christopher Maxwell

Neutral Citation Number: [2017] EWCA Crim 1233 Case No: 2017/03153/B1 2016/1529/B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CARDIFF CROWN COURT His Honour Judge Richards T20157628 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22/08/2017 Before : THE RT HON LORD JUSTICE TREACY THE HON MS JUSTICE RUSSELL and HER HONOUR JUDGE CUTTS QC (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Dean Christopher Maxwell Appellant - and - R Respondent (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7414 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) Mr J Evans (instructed by Crown Prosecution Service ) for the Respondent Mr T Hartland (instructed by Registrar of Criminal Appeals ) for the Appellant Hearing date : 26 July 2017 Judgment As Approved by the Court Crown copyright © Lord Justice Treacy : Introduction 1. This is an appeal against conviction and sentence. The appellant pleaded guilty in the Crown Court at Cardiff to a large number of offences. He was sentenced on 29 th February 2016 to a total of 7 years and 4 months’ imprisonment. In addition, he was disqualified from driving for 3 years and until an extended test was passed. This penalty was imposed on Count 6. His licence was endorsed in relation to Counts 3, 7 and 15, and also on Charges 1, 2, 3 and 4. 2. The details of the sentences passed are set out in the table below. Ct Offence Sentence Consecutive or Concurrent 1 Theft, contrary to s1 Theft Act 1968 2 months’ imprisonment Consecutive 2 Theft, contrary to s1 Theft Act 1968 2 months’ imprisonment Consecutive 3 Driving whilst disqualified, contrary to s103(1) (b) Road Traffic Offenders Act 1988 2 months’ imprisonment Consecutive 5 Burglary, contrary to s9(1) (b) Theft Act 1968 3 years’ imprisonment 6 Aggravated vehicle taking, contrary to s12 A Theft Act 1968 2 years’ imprisonment Concurrent 7 Driving whilst disqualified, contrary to s103(1) (b) Road Traffic Offenders Act 1988 4 months’ imprisonment Concurrent 11 Attempted robbery, contrary to s1(1) Criminal Attempts Act 1981 8 months’ imprisonment Consecutive 12 Attempted robbery, contrary to s1(1) Criminal Attempts Act 1981 8 months’ imprisonment Concurrent 14 Robbery, contrary to s8(1) Theft Act 1968 2 years’ 8 months’ imprisonment 15 Driving whilst disqualified, contrary to s103(1) (b) Road Traffic Offenders Act 1988 No separate penalty 16 Theft, contrary to s1 Theft Act 1968 2 months’ imprisonment Consecutive 18 Theft, contrary to s1 Theft Act 1968 2 months’ imprisonment Consecutive 19 Driving whilst disqualified, contrary to s103(1) (b) Road Traffic Offenders Act 1988 2 months’ imprisonment Consecutive Charges sent under s51(3) Crime and Disorder Act 1998 1 Using vehicle without insurance, contrary to s143 Road Traffic Offenders Act 1988 No separate penalty 2 Using vehicle without insurance, contrary to s143 Road Traffic Offenders Act 1988 No separate penalty 3 Using vehicle without insurance, contrary to s143 Road Traffic Offenders Act 1988 No separate penalty 4 Using vehicle without insurance, contrary to s143 Road Traffic Offenders Act 1988 No separate penalty Total Sentence: 7 years’ 4 months’ imprisonment Victim Surcharge Order £120 3. It will be seen that, in relation to Count 5, burglary, the table does not specify whether the sentence was to run consecutively or concurrently. That is because the judge failed to do so. However, the judge stated the total sentence and it is clear from that that his intention was that Count 5 should be served consecutively. The Facts 4. The facts show that this appellant and a female co-accused committed a series of offences between 1 st and 10 th November 2015. The co-accused was not involved in all the offences admitted by this appellant. She received a sentence of 3 years and 8 months’ imprisonment. 5. We begin with the four theft offences and allied matters. On Count 1, on 1 st November 2015 the appellant and co-accused stole a quantity of meat of unknown value from a Co-op store in Barry. On 7 th November the co-accused stole clothing valued at about £240 from Tesco in Barry. She ran out of the store pursued by a member of staff, who recovered the clothing but was unable to prevent her from escaping with the appellant, who had waited outside for her in a car driven by him (Count 2). At the time the appellant was disqualified from driving (Count 3) and uninsured (Charge 1). On 9 th November 2015 the pair stole coffee from Sainsbury’s in Barry (Count 16). On 10 th November they stole hair straighteners and clothing valued at about £8 from Poundstretchers in Barry (Count 18). No value was attributed to the thefts in Counts 1 and 16. 6. We next deal with the burglary and associated offences. At about 5.00 p.m. on 9 th November 2015 a Mrs White was at home in Barry with her husband and three grandchildren. The appellant entered her house unseen by anyone and stole her handbag and contents (Count 5). The handbag contained the keys to her car which the appellant took from outside her house (Count 6). He drove that vehicle whilst disqualified (Count 7) and uninsured (Charge 2). He was subsequently identified from CCTV at the scene and by clothes worn on his arrest. 7. About an hour later the appellant was driving Mrs White’s car in Cardiff. He suddenly stopped his vehicle in the middle of the road. The driver of the car behind stopped in time to avoid a collision. However, the appellant then reversed his car into the other vehicle causing considerable damage before driving off and abandoning Mrs White’s car a short distance away (Count 6). Mrs White is disabled and needed her car. She was caused very great inconvenience and upset by the burglary of her home and the taking and damaging of her car. 8. We next turn to offences involving robbery or attempted robbery. On the evening of 9 th November the appellant and co-accused committed two attempted robberies (Counts 11 and 12) and one robbery at a road junction in Ely, Cardiff. In Count 11 the appellant attempted to rob a woman of her car when it stopped at traffic lights. He attempted to get into the car using abusive language and banging on the window. However, the lights changed and the woman was able to drive away. 9. Count 12 took place soon afterwards. A Ms Hobden had parked, waiting to pick up an elderly friend. The friend lacked mobility and was having trouble getting into the car. The appellant approached them just as the friend got inside the car. Ms Hobden locked the door, which the appellant tried to open. Ms Hobden was able to drive away. 10. A few minutes later, Count 14, the robbery, took place. The appellant approached a Ford Fiesta driven by a Ms Harwood when it stopped at traffic lights. He opened the driver’s door and told her to get out. He gripped her face tightly and had his fingers around her throat and mouth, using violent language towards her. Pulling her by her face, he forced her out of her car. When she was half way out he punched her forcibly to her torso. The appellant and his co-accused then got into the car and drove off at high speed. The appellant was disqualified from driving (Count 15) and had no insurance (Charge 3). 11. On the following day the appellant was still driving Ms Harwood’s Ford Fiesta when he was seen by the police in Barry. Once more, he was driving whilst disqualified (Count 19) and without insurance (Charge 4). Police gave chase and the appellant eventually collided with some bollards and made off from the vehicle. He was arrested soon afterwards. When interviewed, the appellant admitted his offending with the exception of the burglary. Failures in Passing Sentence 12. Apart from the failure to specify whether the burglary count was to run concurrently or consecutively there were a number of other problems with the way in which the judge passed sentence. He referred to the four offences of theft as burglaries. He passed a term of 2 years’ imprisonment on Count 6, aggravated vehicle taking, when the maximum was 6 months’ imprisonment, since it was not alleged that the damage done exceeded £5,000. The judge failed to pass any sentence on Count 15 or in relation to the four charges concerning using a vehicle without insurance. The judge imposed a period of disqualification of 3 years without making any adjustment to that term to reflect the fact that the offender would be serving a custodial sentence (see R v Needham [2016] 2 Cr App R (S) 26 ). The judge also required an extended re-test when it appears that there was already an order for such a test in force, thus precluding an order for re-test on this occasion (see R v Anderson [2012] EWCA Crim 3060 ). See also paragraph 43 of Needham . The Appellant’s Past Record 13. This appellant is now 35 years of age. He has a lengthy criminal record involving convictions for 82 offences. He was subject to the minimum term provisions in relation to dwelling house burglary, having been convicted of such burglaries in 2011 and 2012. He had four convictions for aggravated vehicle-taking and two for taking vehicles without consent. There were 11 convictions for driving whilst disqualified. There were seven convictions for theft and a number of drugs convictions. Appeal Against Conviction 14. The appeal against conviction relates to Counts 1, 16 and 18. The submission is that those counts represent low-value shoplifting offences under s.22 A of the Magistrates Court Act 1980 . They are summary-only offences as their value individually and in aggregate is below £200. It was further submitted that low-value shoplifting offences are not listed offences pursuant to s.40 of the Criminal Justice Act 1988 so that there is no provision allowing such offences to appear on the indictment. Accordingly, those counts were wrongly on the indictment and the proceedings in relation to them were a nullity. 15. This point was not taken until very recently. The appellant’s advocate had never considered it until a query was raised by the Criminal Appeal Office. He now seeks an extension of time to argue the point. In the circumstances we grant the necessary extension. 16. Section 22 A provides: “(1) Low-value shoplifting is triable only summarily. (2) But where a person accused of low-value shoplifting is aged 18 or over, and appears or is brought before the court before the summary trial of the offence begins, the court must give the person the opportunity of electing to be tried by the Crown Court for the offence and, if the person elects to be so tried— (a) sub section (1 ) does not apply, and (b) the court must proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998 . (3) “Low-value shoplifting” means an offence under section 1 of the Theft Act 1968 in circumstances where— (a) the value of the stolen goods does not exceed £200, (b) the goods were being offered for sale in a shop or any other premises, stall, vehicle or place from which there is carried on a trade or business, and (c) at the time of the offence, the person accused of low- value shoplifting was, or was purporting to be, a customer or potential customer of the person offering the goods for sale. (4) For the purposes of subsection (3)(a)— (a) the value of the stolen goods is the price at which they were being offered for sale at the time of the offence, and (b) where the accused is charged on the same occasion with two or more offences of low-value shoplifting, the reference to the value involved has effect as if it were a reference to the aggregate of the values involved. (5) A person guilty of low-value shoplifting is liable on summary conviction to— (a) imprisonment for a period not exceeding 51 weeks (or 6 months, if the offence was committed before the commencement of section 281(4) and (5) of the Criminal Justice Act 2003 ), (b) a fine, or (c) both. (6) A person convicted of low-value shoplifting by a magistrates’ court may not appeal to the Crown Court against the conviction on the ground that the convicting court was mistaken as to whether the offence was one of low-value shoplifting. (7) For the purposes of this section, any reference to low-value shoplifting includes aiding, abetting, counselling or procuring the commission of low-value shoplifting.” 17. It is agreed that the appellant was not asked by the magistrates to make an election as to trial in relation to Counts 1, 16 and 18. Nor was there any enquiry into value by them. 18. As to value, the provisions of s.22 A(3)(a) and (4)(b) are relevant. It is possible for there to be aggregation of values where two or more offences are charged on the same occasion. Those two or more offences must be offences of low-value shoplifting as subsection 4(b) states. This means that the value of the goods referred to in Count 2 (£240) must be disregarded for this purpose. The value of the goods in Count 18 was specified at £8. The values of the goods in Counts 1 and 16 were not specified, but it is obvious that they were only worth a few pounds. There was a further offence of theft by shoplifting which had appeared at Count 17 but was left on the file, and which had been charged at the same time as the other low-value shoplifting offences. It specified property stolen to the value of £119. It was thus liable to be included in the aggregation exercise under ss.(4)(b), but even taking that value into account, the three remaining low-value offences would not have exceeded £200 in aggregate. 19. Accordingly, since the appellant had not elected trial, and since the aggregation provision did not apply, s.22 A(1) was not displaced. The three counts alleging low-value shoplifting were triable only summarily. 20. Mr Evans, for the Crown, made an argument that the charge valued at £240 in Count 2 could operate so as to enable the aggregation provisions to apply. The reference to “offences of low-value shoplifting” in ss.(4)(b) negates that argument as, in the end, Mr Evans effectively conceded. 21. Neither party sought to make any argument by reference to s.22 of the 1980 Act which deals with low-value criminal damage offences. They no doubt recognised that the language and structure of that section is markedly different from s.22 A, so that it could not assist in the present matter. 22. Our clear conclusion, therefore, is that in the circumstances, the offences mentioned in Counts 1, 16 and 18 remained summary offences. 23. The next step in the process is to consider s.40 of the Criminal Justice Act 1988 . Section 40(1) provides: “(1) a count charging a person with a summary offence to which this section applies may be included in an indictment if the charge – (a) is founded on the same facts or evidence as a count charging an indictable offence; or (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged, but only if (in either case) the facts or evidence relating to the offence are disclosed by material which, in pursuance of regulations made under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998 (procedure where person sent for trial under section 51 or 51A), has been served on the person charged.” 24. Subsection (2) makes clear that a summary offence included in an indictment under s.40 may only be dealt with by the Crown Court in a manner in which the Magistrates’ Court could have dealt with the matter. 25. Subsection (3) then contains a list of offences to which s.40 applies. Low-value shoplifting does not appear in that list. There is therefore no basis upon which those three counts could have been included in the indictment. In this context we have considered R v McDermott-Mullane [2016] EWCA Crim 2239 at paragraphs 25 and 26. We agree with the result of the analysis in that case that a low-value shoplifting offence which remains summary cannot be added to an indictment containing the main offence. It seems to us, therefore, that these three counts should never have been on the indictment. Accordingly, the guilty pleas tendered to those counts and the resultant sentences are a nullity. Both parties accepted that the fact that those counts were a nullity does not affect the validity of the remaining counts on the indictment (see, for example, R v McGrath [2013] EWCA Crim 1261 ). 26. We invited submissions as to whether the three summary offences were properly before the Crown Court at all. This entails a consideration of s.51 of the Crime and Disorder Act 1988. “(1) Where an adult appears or is brought before a magistrates’ court (“the court”) charged with an offence and any of the conditions mentioned in subsection (2) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence. (2) Those conditions are – (a) that the offence is an offence triable only on indictment other than one in respect of which notice has been given under section 51 B or 51C below; (b) that the offence is an either-way offence and the court is required under section 20(9)(b), 21, 22A(2)(b), 23(4)(b) or (5) or 25(2D) of the Magistrates’ Courts Act 1980 to proceed in relation to the offence in accordance with sub section (1 ) above; (c) that notice is given to the court under section 51B or 51C below in respect of the offence. (3) Where the court sends an adult for trial under sub section (1 ) above, it shall at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged and which – (a) (if it is an either-way offence) appears to the court to be related to the offence mentioned in sub section (1 ) above; or (b) (if it is a summary offence) appears to the court to be related to the offence mentioned in sub section (1 ) above or to the either-way offence, and which fulfils the requisite condition (as defined in sub section (1 1) below). … (11) A summary offence fulfils the requisite condition if it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving.” 27. Since we have determined that the three offences were summary offences the relevant provision is ss.(3)(b). As to that, it was accepted that the condition in ss.(11) was satisfied. However, an issue arose as to whether the three summary offences were related to the indictable-only offences (attempted robbery and robbery) or to an either-way offence. 28. Section 51 E provides: “For the purposes of sections 50A to 51D above – … (c) an either-way offence is related to an indictable offence if the charge for the either-way offence could be joined in the same indictment as the charge for the indictable offence; (d) a summary offence is related to an indictable offence if it arises out of circumstances which are the same as or connected with those giving rise to the indictable offence.” 29. Neither party contended that the robbery offences, or indeed the burglary offence, fell for consideration in this context. However, both parties submitted that the Count 2 theft involving goods to the value of £240 and thus an offence triable either way could be considered as being related. By Schedule 1 of the Interpretation Act 1978 an “indictable offence” means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable, or triable either way. 30. It will be seen from s.51(3) that the sending provisions distinguish between either-way and summary offences, and from s.51 E that the tests for whether those offences are related to an indictable offence are different. The test for summary offences under s.51 E(d) appears to be narrower than that applicable to either-way offences under s.51 E(c). This would be consistent with an intention that only those summary offences which have a close link to more serious offences sent to the Crown Court should trouble that court. Before us, both parties contended that the three low-value thefts were sufficiently connected with circumstances giving rise to the Count 2 theft by reason of the fact that they involved the same two offenders, committing very similar offences of the same type within the same general locality, and within a short time frame. Additionally, the motivation behind the offending appeared to be the same, namely, the acquisition of money for drugs. 31. It may perhaps be open to argument as to whether that is sufficient connection, but we remind ourselves that the language of s.51(3) (b), “appears to the court to be related to the offence…” provides leeway to the Justices. A determination that there is an apparent connection between the circumstances of the offences is something less than a determination that in fact they are connected. In this respect, a contrast is to be drawn with the language of Schedule 3 of the 1998 Act which, at paragraph 6, deals with the power of the Crown Court to deal with a summary offence and which, at paragraph 6(2), places an obligation on the Crown Court to consider whether in fact the summary offence is related to an indictable offence for which he was sent for trial. In those circumstances, we do not think it right to go behind the decision of the Justices to send the three low-value offences to the Crown Court under s.51(3) , particularly when neither party sought to argue to the contrary before us. 32. It follows therefore that the three low-value offences are to be regarded as having been sent properly to the Crown Court but that having arrived there, they were dealt with in an unlawful manner. The correct way of dealing with them would have been under the provisions of Schedule 3 paragraph 6 of the Crime and Disorder Act. The procedure there was not adopted in this case because the court wrongly dealt with the three offences in terms of the indictment. It therefore follows that the joinder, pleas and sentence on those counts were a nullity and that the convictions recorded on Counts 1, 16 and 18 must be quashed, and the appeal allowed. 33. In sending the theft matters to the Crown Court under s.51(3) the Justices did not differentiate between s.51(3) (a) and s.51(3) (b). Those subsections distinguish between either-way and summary offences. As this case has shown, that failure to distinguish may well have led to the wrongful inclusion of the three counts on the indictment. Consideration at the Magistrates’ Court of whether a theft by shoplifting is low-value or not (and whether, if low value, the defendant wishes to elect trial and be sent to the Crown Court under s.51(1) ) would enable the court to identify whether the sending is under ss.(3)(a) or (b), and thus avoid the problem which has arisen. Appeal Against Sentence 34. Mr Hartland’s overall submission is that a sentence of 7 years and 4 months’ imprisonment, even for serious and prolific offending, was too long for an offender who had pleaded guilty at an early stage. He suggested that the Judge had lost sight of totality. We think there is force in that criticism. In addition, the outcome must be affected by the appeal against conviction and a number of failings in the sentencing process itself. 35. We begin with the offences of theft. Having quashed the convictions on Counts 1, 16 and 18, the sentences imposed for those offences, totalling 6 months in all, to run consecutively, must also be quashed. That leaves in place a term of 2 months on Count 2, ordered to run consecutively to other sentences. There can be no complaint about that. 36. We turn to Counts 11, 12 and 14, representing the offences of robbery or attempted robbery. Although these offences took place within a short span of time, they involved different victims, each of whom will have been affected. For the complete offence of robbery (Count 14) a starting point of 4 years under the Sentencing Guidelines Council guideline was appropriate. Unpleasant physical force was used on a vulnerable victim so as to eject her from her car. With credit for a guilty plea there can be no objection to the term of 2 years 8 months’ imprisonment. An additional 8 months for the two attempted robberies was entirely justified. 37. We next turn to the burglary, Count 5, with the associated offences of aggravated vehicle taking (Count 6) and driving whilst disqualified (Count 7). As already stated, the burglary was subject to the minimum term provisions. The Judge said that, given the nature of the offence, there would be no reduction for a guilty plea as the circumstances required a 3 year term. This must mean that but for the guilty plea the Judge had in mind a sentence of 4½ years. Given both the circumstances of the offending and the requirements of totality, we think that this was simply too long. An appropriate term after trial would have been 3 years 9 months. With credit for a guilty plea, this reduces to a sentence of 2 years 6 months, which is compliant with the minimum term provisions. As stated earlier in this judgment, it is clear that that term should run consecutively to other sentences. 38. Counts 6 and 7 were allied to the burglary offence. The term of 2 years imposed on Count 6 for aggravated vehicle-taking was unlawful since it was to be treated as a summary offence by reason of the value of the damage done. The maximum was 6 months, and that should be reduced to 4 months in the light of a guilty plea. We quash the term of 2 years and substitute on Count 6 a term of 4 months, to run concurrently with the other sentences, as was previously ordered. There is no alteration to the concurrent 4 month sentence for driving whilst disqualified on Count 7. There are two further offences of driving whilst disqualified (Counts 3 and 19) which related to different occasions and where the judge imposed individual terms of 2 months consecutive on each count. We order those two counts to run concurrently with the other sentences in the interests of totality. 39. The effect of all this is to reduce the total sentence from 7 years 4 months to 6 years, correcting the errors in sentencing and reflecting totality. 40. Regrettably, that is not the end of the matter. Firstly, the Judge failed to pass a sentence in relation to Count 15, nor did he pass a sentence in relation to any of the four offences of using a vehicle without insurance. There are in any event further difficulties in relating some of those offences as put before the Crown Court to the offences sent, but we can put that to one side since there is a more fundamental problem. As stated, the Judge simply failed to pass sentence for these five offences. The court clerk appears subsequently to have entered results of no separate penalty, with licence endorsement. It is for judges to sentence, not for court staff. Even though the sentences were nugatory, they were not validly passed. The Crown concedes as much, and we quash each of those sentences. 41. These five offences, together with the three offences of theft, were all before the Crown Court, but were either not dealt with, or were dealt with unlawfully. Those cases remain before the Crown Court. Given the way the matter developed before us, leading to a reserved judgment, we were unable to consider whether we had power to reconstitute ourselves, take pleas where necessary, and deal with the offences. In the interests of good administration, the Crown will need to consider what to do about those offences which remain before the Crown Court. It may conclude that the most pragmatic course in all the circumstances is simply to withdraw the charges and have the Crown Court record amended accordingly. 42. As previously noted, the Judge failed to grapple with the requirements of Needham and pass sentence in a way which gives effect to the intention of Parliament that periods of disqualification should be served whilst an offender is at liberty rather than in prison. There is no complaint about the 3-year term of disqualification imposed on Count 6, but without adjustment it will all be served in prison. 43. Since this court has reduced the overall sentence it has power to adjust the disqualification order without falling foul of s.11(3) of the Criminal Appeal Act 1968 . Mr Hartland conceded, after enquiry by the court, that there could be no objection to the court making the disqualification Needham compliant. We therefore amend the order of disqualification on Count 6 by substituting an order of disqualification from driving for 6 years, comprising a discretionary period of 3 years under s.34, an extension period of 2 months under s.35 A and an uplift of 34 months under s.35 B of the Road Traffic Offenders Act 1988 . In addition, we quash the order for an extended re-test since such an order remained extant from a previous sentence. 44. The appeal against sentence is therefore allowed to the extent indicated above. Final Comment 45. This court’s experience in this case calls for a final comment. The original grounds of appeal were confined to the straightforward assertion that the overall sentence was too long, particularly having regard to totality. After the single Judge had granted leave to appeal on that basis, lawyers in the Criminal Appeal Office identified a large number of matters which had gone wrong below and drew them to the attention of the court and the parties. Much time was expended by the Office and then by the individual members of the court in considering the problems identified. The time taken will have been many times that expended in the Crown Court at the original hearing. Those resources could have been much better deployed in dealing with other cases. 46. The problems which have arisen are not untypical of what happens if insufficient attention is given to detail in the lower court. The problems arise from the complexity of modern sentencing legislation, but that phenomenon is well-known and all involved in the Crown Court should therefore be alert to the need for care in technical matters. Sentencing judges who have the primary responsibility for getting things right are often burdened with long sentencing lists. They have a right to expect appropriate assistance from the advocates before them. 47. It is clear that no such consideration or assistance was given by the advocates in this case, either before the Judge came to sentence or indeed after he had sentenced in a flawed manner in a number of respects, or had failed to pass sentence on certain matters at all. Both counsel have apologised to this court for their part in the failures below, but that is small recompense for the disproportionate time and effort involved in correcting errors which should never have taken place. We can only urge greater vigilance on the part of all those involved in sentencing before the Crown Court. Ms Justice Russell: 48. I agree. Her Honour Judge Cutts QC: 49. I also agree.

2017_08_22-4054.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1233/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2017/1233

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[2018] EWCA Crim 2171

EWCA_Crim_2171

2018-09-26

crown_court

Neutral Citation Number: [2018] EWCA Crim 2171 Case No. 2018/03049/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date Wednesday 26 th September 2018 B e f o r e: LORD JUSTICE TREACY MRS JUSTICE ELISABETH LAING DBE and MR JUSTICE FRASER - - - - - - - - - - - - - - - - R E G I N A - v - JESSICA AURORA LINDSAY - - - - - - - - - - - - - - - - Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1

Neutral Citation Number: [2018] EWCA Crim 2171 Case No. 2018/03049/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date Wednesday 26 th September 2018 B e f o r e: LORD JUSTICE TREACY MRS JUSTICE ELISABETH LAING DBE and MR JUSTICE FRASER - - - - - - - - - - - - - - - - R E G I N A - v - JESSICA AURORA LINDSAY - - - - - - - - - - - - - - - - Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr J Morgans appeared on behalf of the Appellant Mr S Spence appeared on behalf of the Crown - - - - - - - - - - - - - - - - J U D G M E N T ( For Approval ) WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. LORD JUSTICE TREACY: 1. Having previously pleaded guilty at the earliest opportunity to an offence of neglecting a child, the appellant was sentenced in the Crown Court at Norwich on 20 th July 2018 to a term of sixteen months' imprisonment. A period of 67 days spent on a qualifying curfew was ordered to count towards that sentence. 2. A co-accused, Shane Riley (the appellant's partner), also pleaded guilty. He was also sentenced to sixteen months' imprisonment. 3. The victim in the case was the baby son of the defendants. The indictment arose from his sudden and tragic death at the age of seven weeks in early February 2017. On the evening prior to the baby's death, both parties had been drinking and they had consumed cocaine. It appears that the appellant had consumed considerably less alcohol than Riley, but the pharmacological evidence showed that both were likely to have been intoxicated with cocaine and alcohol in a way which would significantly have impaired their ability to care for a dependent child. 4. Friends had been present during the evening. They described the appellant as feeling unwell and going to bed, leaving Riley downstairs with the child. At that stage, the plan was for the baby to go and stay with friends. The appellant was present when a bag was packed. Riley, however, later changed those arrangements so that the baby stayed in the couple's home for the night. Riley went to bed, taking the baby with him into the bed which he and the appellant shared. Early the following morning, the baby's lifeless body was discovered in the bed. The appellant immediately called 999. 5. A post-mortem examination found that there were no signs of trauma or violence towards the baby. It did not establish a conclusive cause of death, although what was described as "overlaying" was not excluded. 6. There was evidence that both parties had previously been advised about the dangers of taking a very small baby to bed, and the judge commented that to do so in a state of intoxication could only increase those dangers. It was apparent that the pair had immediately called for assistance when they found the baby's lifeless body and that each immediately accepted responsibility for what had happened. There was very clear evidence of genuine remorse and, as we have said, early guilty pleas had been tendered. 7. The appellant is 30 years of age. She has no previous convictions and there was positive evidence of good character in the form of favourable work and personal references. 8. A pre-sentence report confirmed the appellant's remorse and her acknowledgement that on the night in question she had been in an unfit state to be responsible for her child at a time when her partner was clearly intoxicated and not able adequately to safeguard children. The abuse of drugs and alcohol on this occasion was not typical. Testing has confirmed that, since the incident, the appellant has remained abstinent from any form of substance. 9. The appellant and her partner have three other children, now aged twelve, almost four and seven months. The seven month old was born in February 2018 whilst this case was making its way through the system. Naturally, close consideration was given by the authorities to the position of those children in the light of what had happened and the matter was considered by the Family Court. Reports prepared recognised that there had been no prior concerns about the care provided by the appellant and her partner. The children had not been removed from her care by the time of sentence, albeit that the situation was closely monitored by the relevant authorities. The passing of an immediate prison sentence means that the youngest child has been parted from his mother for the first time. 10. The grounds of appeal advanced by Mr Morgans (who did not appear below) submit that a starting point of two years was too high in the circumstances and did not properly reflect the appellant's culpability. Secondly, it was urged that although the custody threshold had been crossed, any custodial sentence should have been suspended. 11. The judge rightly commented that this was a difficult case to sentence and further commented that it was difficult to fit this sort of offence into the guidelines. By that, we take him to have been referring to the Sentencing Guidelines Council's guideline for cruelty to a child, which does not specifically address the situation where a death has occurred, a feature of obvious significance. The guideline distinguishes between serious long-term neglect, protracted neglect, more than one incident of neglect, and short-term neglect. In our view, this case falls somewhere between protracted neglect and short-term neglect. 12. We think that there is force in the argument that there was a distinction to be made in the relative culpability of the parties. At the hearing below, both parties were represented by a single advocate. It may be that a result of that was that a legitimate distinction between the pair was insufficiently drawn to the judge's attention. It is clear from the evidence that the appellant was not a party to the decision to keep the baby in the home overnight. Nor had she taken the child to bed. She appears to have been unaware that the child was in bed with her, and her culpability is based on the fact that she had left the baby in the charge of the co-accused, who was not in a fit state to look after the child. 13. Mr Spence, who represents the Crown today, has confirmed that the Crown takes no issue with that analysis as to culpability. In the circumstances, we find that the culpability of the appellant was less than that of her co-accused and that, on that basis, a distinction should have been made between them. 14. We have considered R v Ryan [2012] 1 Cr App R(S) 40. That decision bears some degree of similarity to the present case and it considers other cases of neglect where death has resulted. It is apparent from the Sentencing Guidelines Council's guideline and the decision in Ryan that in a case like this a sentence after a trial of around two years' custody is appropriate. It is also clear, and is accepted by counsel, that the custody threshold has been crossed, since society demands punishment for those who, whatever their personal difficulties, neglect their children, with tragic consequences. 15. In this context we have considered the Sentencing Council's definitive guideline on the imposition of custodial sentences. We remain satisfied that the custody threshold has been passed and that a sentence of imprisonment was necessary. We are unpersuaded that there was anything wrong with the sentence passed on Riley. But, given the lesser degree of culpability on the appellant's part, we think that there should have been some distinction made between the pair. In our view, a sentence of eighteen months after trial (which already factors in previous good character and remorse) would have been appropriate and should have resulted in a sentence of twelve months' custody for the appellant after her guilty plea. 16. We then go on to consider whether the sentence should have been suspended. The appellant is a mature woman who does not present a risk or danger to the public; nor, in the view of those who have examined the matter carefully, does she pose a risk to her own children. She is deeply remorseful, has learned from bitter experience, and her rehabilitation is in prospect. Of particular significance in this case is the position of her three children, not least that of the infant third child. It is well-recognised that immediate custody will have a harmful impact upon a child of such tender years when separation occurs. In this case, mother and child have now been separated for a period of about two months. Having regard to the decision in R v Petherick [2013] 1 Cr App R(S) 116 , as well as the imposition guideline, we are satisfied that significant weight should be given to the position of all the appellant's children. 17. The judge's sentencing remarks do not reveal a consideration of those matters. Mr Spence informed us that the judge's attention does not appear specifically to have been drawn to the decision in Petherick . Moreover, we observe that the judge made some inappropriate reference to the draft guidelines for manslaughter by gross negligence prepared by the Sentencing Council. Although he did not place great reliance on them, it was wrong to refer to them at all, firstly, because of their status as draft guidelines, and secondly, because the appellant was not being sentenced for causing a child's death. 18. Having regard to all those matters, we do not feel able to sustain the judge's decision to pass an immediate term of custody. In our judgment, the correct course is to impose a suspended sentence of imprisonment. 19. Accordingly, we allow this appeal. We reduce the term of custody from one of sixteen months to twelve months' imprisonment. We suspend that sentence for a period of two years. In addition, we impose a requirement that the appellant be subject to a supervision order for that period. In the light of the fact that she has already served time in custody, we do not impose a punitive requirement. To that extent, this appeal succeeds. ____________________ Wednesday 26 th September 2018 LORD JUSTICE TREACY: 20. This matter was listed yesterday when the court allowed the appeal and imposed a sentence of imprisonment of twelve months suspended for two years, coupled with a supervision order. 21. After the hearing, it came to the attention of the court that it is now no longer possible to attach a supervision requirement to a suspended sentence order as a result of the provisions of the Offender Rehabilitation Act 2014. 22. The court has given further consideration to the matter and has detCIermined that it will exercise its power, pursuant to section 200A of the Criminal Justice Act 2003, to attach a Rehabilitation Activity Requirement to the suspended sentence. 23. The court has considered the terms of section 200A. We do not impose any days by way of activity participation requirement, as we envisage the Rehabilitation Activity Requirement as being used as a means of ensuring compliance with instructions to attend appointments for a supervisory purpose only. That is a permitted use of a Rehabilitation Activity Requirement, as the wording of section 200A(1) makes plain. 24. We therefore correct the sentence which was imposed yesterday to that extent by substituting the Rehabilitation Activity Requirement in the manner explained for the supervision order which we initially attached. The requirement will run for a period of two years co-terminus with the suspended sentence. 25. We note that today's list shows that an order was made pursuant to section 45 or 45A of the Youth Justice and Criminal Evidence Act 1999. That was expressly discussed at the hearing and the court made plain that it did not propose to make any order. We hope that the records of the hearing will plainly show that. ( Later ) LORD JUSTICE TREACY: 26. We have been asked by the probation liaison officer to give further clarity as to the nature of the order which the court intends to make. The court intends to impose a Rehabilitation Activity Requirement, pursuant to section 200A of the Criminal Justice Act 2003. Such an order may take the form of requiring an offender to comply with instructions to attend appointments, or to participate in activities, or both of those things. If the order is intended to require participation in activities, then section 200A(2) requires the court to specify the maximum number of days for which an offender may be instructed to participate in activities. 27. It is not the intention of this court to require this appellant to participate in any activities at all during the currency of the suspended sentence. The court's intention in making a Rehabilitation Activity Requirement relates to its power to order the appellant to comply with instructions given by the responsible officer to attend appointments. It is our intention that that provision in section 200A(1) is used in this case to enable a probation officer to require the appellant to attend appointments throughout the two year period of the order. It is solely for that purpose, rather than requiring participation in any activities, that this order is made. In those circumstances, there is no obligation upon the court to specify a maximum number of days as subsection (2) requires. 28. Accordingly, it will be for the responsible officer to make a judgment as to the frequency of the requirement to attend appointments as this order progresses. But the requirement will remain in place for the full period of the suspension of the sentence of imprisonment, namely a period of two years. 29. We hope that clarifies the position for the Probation Service to implement. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

2018_09_26-4400.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2171/data.xml

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e9d2b4897afb920da5d4be061dfb82de809fd768343a6972762fe0827e0f25ed

[2008] EWCA Crim 815

EWCA_Crim_815

2008-04-16

supreme_court

Neutral Citation Number: [2008] EWCA Crim 815 Case No: 200706413D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WORCESTER CROWN COURT HHJ MacCREATH T20070185 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2008 Before : LORD JUSTICE LATHAM VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE FORBES and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v - T Respondent - - - - - - - - - - - - -

Neutral Citation Number: [2008] EWCA Crim 815 Case No: 200706413D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WORCESTER CROWN COURT HHJ MacCREATH T20070185 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/04/2008 Before : LORD JUSTICE LATHAM VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE FORBES and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - v - T Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Gareth Walters for the Prosecution Peter Blair, QC & Kerry Barker for the Defence Hearing dates: 3rd March 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham : 1. On 4 October 2007 at the Crown Court at Worcester the appellant pleaded guilty to 12 counts of causing or inciting a child under 13 to engage in sexual activity. He was subsequently sentenced to a 3 year supervision order. He was 12 years old at the time he committed the acts upon which the counts were based. There was no dispute that he had committed those acts. The sole question was whether he was entitled to raise the issue of his capacity to know that those acts were wrong. The judge made a preliminary ruling that section 34 of the Crime and Disorder Act 1998 precluded him from raising that issue. The appellant appeals on the ground that that ruling was wrong in law. 2. Section 34 provides as follows: “The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished.” 3. In line with a Home Office Circular published after the passing of the Act, and most commentaries on the Act, it had been generally assumed until recently that the effect of the section had been to fix the age of criminal responsibility at 10 and to have abolished in respect of all children aged 10 or over the concept or doctrine of doli incapax. However, in the case of the Crown Prosecution Service v P [2007] EWHC (946) Admin , Smith LJ, building on an article by Professor Walker, “The end of an Old Song” (1999) 149 NLJ 64, expressed the view, obiter, that section 34 had merely abolished the presumption, leaving the concept, and therefore the defence, of doli incapax intact. Her view, which she expressly said was tentative, was that in the result, any child between the ages of 10 and 14 could, if there was a credible basis put forward for saying that he or she did not know that what they had done was wrong, require the prosecution to prove that they did indeed know that what had done was wrong. Gross J. declined to give any view, even merely recording his understanding of the position, namely that as he put it, “the presumption and the doctrine has stood together”. The present appeal requires us to face the problem fairly and squarely. 4. On behalf of the appellant, Mr Peter Blair Q.C., in his extremely able submissions, has sought to persuade us that common law has long recognised the concept of doli incapax as a defence, in the same way as self defence, and that it has an existence entirely separate from the presumption which existed up to 1998 which required the prosecution to prove that the child between the ages of 10 and 14 knew that what he or she had done was wrong. Bearing in mind the well-known passages in Bennion Part XV11 entitled The Principle Against Doubtful Penalisation, that concept, Mr Blair submits, could only have been abrogated by clear express words. Section 34 , properly construed, is concerned merely with removing the rebuttable presumption, leaving the defence intact. The consequence, he submits, is as described by Smith L.J., that a child who wishes to raise the defence, has the evidential burden of raising the issue, whereupon it is for the prosecution to establish that the child knew that what he or she was doing was wrong. This construction not only accords with the literal meaning of the words used but, if and in so far as it is necessary to consider the Parliamentary intention, it accords with the words of the Solicitor General, Lord Falconer of Thoroton in closing the debate in the House of Lords, when he said: “To turn to doli incapax, the noble Lord Henley asked rather optimistically whether it was causing any problem at the moment. The position in relation to doli incapax was very well described by the noble and learned Lord Ackner during the course of his remarks. The position is that at the moment it has to be proved that the defendant knows that what he or she is doing is wrong. That process is being used in a manipulative way in many courts by defendants, who say, “You have to bring a teacher social worker or some mature adult in order to prove this. It leads to difficulty with the calling of witnesses; it is hoped on the part of many defendants that this will make the Crown Prosecution Service bring its proceedings to a halt; it clogs up the youth court; and it is simply designed to make the proceedings more difficult. So the answer to question is: yes it is causing real difficulties. It offends against common sense that you have to prove it. The possibility is not ruled out, where there is a child who has genuine learning difficulties and is genuinely at sea on the question of on right or wrong, of seeking to run that as specific defence. All the provision does is remove the presumption that the child is incapable of committing wrong.” 5. On their face, the last two sentences would appear to provide support for the appellant’s case. But, leaving aside for the moment the question of whether or not the Solicitor General was doing any more than indicating that the child would in many, obviously not all, cases be able to argue that his or her immaturity meant that the prosecution had not established the appropriate mens rea, the passage has within it a certain illogicality. It asserts that the purpose of the clause in the Bill is to remove the difficulties perceived to be in the way of successful prosecution, and we shall see that that indeed was the thrust of the consultation paper, and the White Paper which preceded the Act, whereas if indeed the doctrine survives that purpose will be, to a large extent, thwarted. The answer to the question seems to us to depend upon what was understood in 1998 to be the true ambit of the concept of doli incapax, and the extent to which it was coterminous with the presumption. If, at least by the time of the passing of the Act, it was generally understood that when the presumption was referred to, that compendiously referred both to the concept of doli incapax and the way it was to be applied, then reference to the presumption necessarily included reference to the concept of doli incapax as well. 6. The concept, or doctrine, is a common law concept. As far as children under the age of 10 are concerned, section 50 of the children and Young Persons Act 1933 , as amended, provides that: “It shall be conclusively presumed that no child under the age of 10 can be guilty of any offence.” Until 1998, no express statutory provision dealt with the position of children between the ages of 10 and 14 so far as criminal responsibility was concerned. The clearest expression of the concept, or doctrine, is in Stephens Digest of the Criminal Law Chapter III headed “General Exceptions” which provides, so far as children are concerned, as follows: “ARTICLE 25 CHILDREN UNDER 7 No act done by any person under 7 years of age is a crime. ARTICLE 26 CHILDREN BETWEEN 7 AND 14 No act done by any person over 7 and under 14 years of age is a crime, unless it was shown affirmatively that such person sufficient capacity to know that the act was wrong.” 7. This reflected the views of Blackstone who, in his Commentaries on the Laws of England, Chapter 2 of the Fourth Book page 23, entitled “Of the Person Capable of Committing Crimes”. stated as follows: “During the first stage of infancy and the next half stage of childhood, infantiae proxima, they were not punishable for any crime. During the other half stage of childhood, approaching to puberty from 10½ to 14, they were indeed punishable, if found to be doli capaces, or capable of mischief; but with many mitigations and not with the utmost rigour of the law. During the last stage (or the age of puberty, and afterwards) minors were liable to be punished, as well capitally, as otherwise.” 8. In the article by Professor Walker to which we have already referred, there is a useful description of how the law had developed, drawn to large degree from an article by A W Kean, “The Criminal Liability of Children” LQR (1937) CCXI, 364 – 370. “The presumption is so old that firm evidence is not easily to find. Bracton’s 13 th century treatise talks of children as being protected by “harmlessness of intention” (innocentia consilii), but does not specify an age limit (the protection in his day was the practice of pardoning convicted children rather than exempting them from trial and this expedient persisted until at least the 15 th century). As with “insanity” it is not easy to be sure when inability to tell right from wrong became an excuse, because the institutional writers tended to use the ambiguous word “discretion”. But the 1338 Year Book says that Edward III’s Judge Spigurnel decided that a child could be hanged for killing his friend, because by hiding, he had shown that “he could discern between good and evil”. By the time of Lambard’s Erienarcha, designed as a handbook for Justices of the Peace and published in 1581, there could be no conviction of an infant under the age of 12 years, “unless it may by some evident token appeare that he had understanding of good and evill…” Spigurnel’s principle (if it was his), had become a rebuttable presumption; and by Hale’s time (the late 17 th century) its age limit had been raised to 14. Almost certainly it was not confined to homicide, for not many years after publication of Eirenarcha, Pulton is cited as applying it to theft.” 9. These historical references are clearly important as explanations for the way in which the law has developed. But they do not provide the real basis for a proper understanding of the meaning of section 34 . That depends upon what was meant, as we have already said, by “the presumption” in 1998. That is not the word used either by Blackstone or Stephen. As in so many problems of statutory construction, context is all. And the context was the increasing dissatisfaction of the courts and some politicians with the principle which had underlain the doctrine of doli incapax, namely that children between the ages of 10 and 14 did not know that committing an act amounting to a crime was seriously wrong. 10. In JBH and JH (minors) v O’Connell [1981] Crim LR 632, Forbes J is recorded as having said: “… in these days of universal education from the age of 5 it seems ridiculous that evidence of some mischievous discretion should be required if a case of malicious damage is committed as it was in this case.” In A v Director of Public Prosecutions. [1992] Crim. LR 34, Bingham LJ in concluding that the facts of the case were not in themselves sufficient to displace the presumption, said: “… children have the benefit of the presumption which in this case and some others seems to me to lead to results inconsistent with common sense” 11. Encouraged by these judicial dicta, Laws J came to the clear conclusion, expressed with typical robustness, in C (A Minor) v Director of Public Prosecutions [1995] 1 Cr. App R. 118, that: “The presumption relied upon by the appellant is no longer part of the law of England” It is quite plain from the judgment that Laws J was intending, by the use of that phrase, to consign the concept of doli incapax to history. At page 118 he said: “It is no part of the general law that a defendant should be proved to appreciate that his act is “seriously wrong””. 12. Throughout his judgment Laws J talks about the “presumption” as being co-terminus with the concept of doli incapax. There is nothing to suggest that he considered that by dispensing with the presumption, the doctrine or concept of doli incapax had any part to play thereafter in determining criminal responsibility for those aged 10 and over. 13. On appeal the House of Lords considered that Laws J had gone a step too far. The decision, reported at [1995] 2 Crim App R 166, the leading speech being given by Lord Lowry, was to the effect that the presumption was too firmly embedded in the common law to entitle the courts to abrogate or amend it. This case provided the essential background for the proposed changes which ultimately resulted in the enactment of section 34 . It seems to us therefore that it is of the greatest importance to determine what their Lordships considered the status of the presumption to be. 14. As we have said, the main speech was that of Lord Lowry. But it is interesting to note that Lord Jauncey said this about the position in Scotland: “No such presumption operates in Scotland where normal criminal responsibility attaches to a child over 8 and I do not understand that injustice is considered to have resulted from this situation.” It would seem, accordingly that he was contrasting the presumption on the one hand with full criminal responsibility on the other. 17. And that seems to us to be the way in which Lord Lowry approached the question. Much of his speech was for obvious reasons, concerned with determining the extent to which the doctrine remained part of common law. It also contained illuminating and thoughtful comments about the moral and social issues thrown up by the problem of the criminal responsibility of children. In particular, he expressed the view that the arguments against the retention of the presumption expressed by Laws J. were not, it seemed to him, quite so self evident. But more important, in determining the question we have to answer, is a passage in which he deals with the respondent’s case. At page 185Gff. he said: “Mr Henriques QC, presenting the respondent’s case, frankly conceded that the Divisional Court was bound by authority to recognise and apply the presumption, but he submitted that the presumption was illogical in conception and bizarre in its effect. His written case submissions based on the current educational standards of children and on the ever earlier onset of their physical and psychological maturity, as witness by the recent statutory abolition of the irrebuttable common law presumption that boys under 14 are incapable of offences involving sexual intercourse on their own part ( Sexual Offences Act 1993) . The written case also listed examples of legislative and judicial changes of attitude towards young children called as witnesses. Against this background counsel submitted, not that the presumption should be swept away but (echoing the 1954 proposal of Professor Glanville Williams) that in recognition of its frailties your lordships should by judicial intervention effect a change by laying it down that the prosecution’s initial burden of showing a prima facie case against a child should be the same as if the accused were an adult but that the child should then be able by evidence to raise as a defence the issue that he was doli incapax; it would then be for the prosecution to prove to the criminal standard that the child was doli capax. That your Lordships in a judicial capacity could make this change which counsel categorised as merely procedural, was an express and necessary part of his argument. Of course no one could possibly contend (nor did Mr Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or “development”. It is quite clear that as the law stands, the Crown must, as part of the prosecution’s case show that a child defendant is doli capax before that child can have a case to meet. To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought. This reflection must be enough to discourage any thoughts of “judicial legislation” on the lines proposed. Finally, at page 189 A he said: “One solution which has been suggested is to abolish the presumption with or without an increase in the minimum age of criminal responsibility. This, as Mr Robertson pointed out, could expose children to the full criminal process at an earlier age than most countries of Western Europe.” 15. Nowhere in any of these passages, or indeed in any other part of his speech, did Lord Lowry suggest that the concept of doli incapax had any existence separate from the presumption. If he had considered that it had, that must surely have been part of the reasoning and argument in the part of his speech to which we have referred which starts at page 185G. Accordingly, it seems to us, Lord Lowry must have considered that the abolition of the presumption would indeed have had the effect of lowering the age of criminal responsibility to 10, as he intimates in the passage at page 189A. 16. That was the background against which the Labour Party consultation paper Tackling Youth Crime; Reforming Youth Justice was published in 1996 in which it was argued that the law was unsatisfactory as most young people aged 10 -13 were plainly capable of differentiating between right and wrong. After the Labour Party won the election in 1997, the Home Office Consultation paper, again entitled Tackling Youth Crime published in September 1997 boldly stated that the presumption urgently required reform because it “flies in the face of common sense”, was “archaic”, “illogical” and “unfair in practice”. It stated that the mischief to which the abolition of the presumption was aimed was the difficulty of the prosecution having to rebut the presumption in every case. In her judgment in Crown Prosecution Service –v- P , Smith LJ considered that this mischief could be mitigated by the simple abolition of the presumption, leaving it for the child defendant to raise the defence. 17. But, as Mark Telford has pointed out in his article Youth Justice: New Shoots on a Bleak Landscape – Director of Public Prosecutions v P, Child and Family Law Quarterly 1 December 2007, the consultation paper identified two possible options, namely abolition of the presumption on the one hand, and reversal of the presumption on the other. The former was the Government’s preferred option, and was the one which was carried forward into the White Paper, No More Excuses: A New Approach Tackling Youth Crime in England and Wales. It is difficult to see in those circumstances how the abolition of the presumption was intended to result in anything other than the abolition of the concept of doli incapax as having any effect in law. In our view that accords with the way in which the matter was approached by Lord Lowry with unanimous approval of their Lordships, in (C) A Minor v Director of Public Prosecutions . In our judgment, accordingly, Parliament must be taken to have intended “the presumption” to encompass the concept of doli incapax when it was abolished in section 34 . That, appears to us to have been the common understanding of the words at the time that the Act was passed. 18. Assuming, for the moment, that despite the views that we have expressed, the phraseology of section 34 is ambiguous or obscure, the only material which could lead to a contrary conclusion, is the passage in the speech of Lord Falconer to which we have already referred. All other statements made in the course of debates accord with the views expressed in the consultation paper, and the White Paper. We note in particular what Mr Straw said on 3 rd June, 1998; “with great respect, we are abolishing the concept of doli incapax”. The result is, in our view that the question has to be resolved by determining whether or not by 1998, it could properly be said that the concept of doli incapax did indeed have existence separate from the presumption. For the reasons that we have already given, we do not consider that it had. 19. We accordingly dismiss the appeal.

2008_04_16-1458.xml

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b0fdc5f2155236c08d21563e41dce76f30301edac743a6b7fb6c8fc0b42bf0ee

[2009] EWCA Crim 2918

EWCA_Crim_2918

2009-12-14

crown_court

Case No: 2007802315/D2 Neutral Citation Number: [2009] EWCA Crim 2918 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 14th December 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE IRWIN MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON PRICE - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 F

Case No: 2007802315/D2 Neutral Citation Number: [2009] EWCA Crim 2918 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Monday, 14th December 2009 B e f o r e : LORD JUSTICE MOSES MR JUSTICE IRWIN MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - - - - - - - - - - R E G I N A v SIMON PRICE - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr R Wormald appeared on behalf of the Appellant Mr M Sutherland Williams & Ms C Hadfield appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE MOSES: This appeal raises the question of the impact upon a very substantial prison sentence of a period which the appellant was ordered to serve in default of paying the amount he was ordered to pay, pursuant to a confiscation order, a period of 10 years' imprisonment. 2. The appeal raises the question as to what extent it is right for the court to take into account the totality of the period of imprisonment passed by way of punishment and the period in default has been ordered to serve, should he not meet the confiscation order, pursuant to the Drug Trafficking Act of 1994. 3. The appellant is now aged 64. That age is relevant to the questions we have to consider as to the propriety of a lengthy sentence on one of that age, who suffers from ill-health. 4. He was convicted, following a six week trial before His Honour Judge Zeidman QC, at Snaresbrook Crown Court on 13th July 2005. He had attempted to import a huge quantity of cocaine, 693 kilos, the equivalent of 526 kilos at 100 per cent purity. He also pleaded guilty in the presence of the jury of assisting the commission of an offence punishable under a corresponding law, namely exporting the cocaine from Ghana. He was sentenced two days later, on 15th July 2005, to 28 years' imprisonment for the fraudulent attempt at evasion of the prohibition on importation with a concurrent period for the other offence of 11 years' imprisonment. 5. Confiscation proceedings took place in March 2007 and on 20th March 2007 the judge ruled that this appellant had benefited in the sum of £2.34 million. The confiscation order was made that he should pay that sum, pursuant to the Drug Trafficking Act 1994 , within 15 months and he was ordered to serve 10 years' imprisonment in default of payment, consecutive to that substantive offence. 6. The facts are only relevant to demonstrate the gravity of this importation. It is apparent that the cocaine, which weighed in its impure state 693.9 kilos was hidden in palletised drums of molasses. The original molasses had been bought by the appellant under an assumed name, posing as the manager of a molasses firm. There was clear evidence of three previous dummy runs. 7. The judge, who had had the best possible opportunity of observing this appellant during the six week trial, regarded him as the prime mover in the operation, and rightly described the crime as "a major sophisticated attempt to bring a huge quantity of cocaine into the United Kingdom". He spoke authoritatively and correctly of the damage such an importation, had it been successful, would do to the lives of hundreds, possibly thousands of people in this country. The defendant was caught only by the good fortune of a "tip off". 8. The question that arises in relation to the sentence of 28 years is the extent to which the sentence ordered in default of 10 years justifies a decrease in what would otherwise be a sentence fully merited by the facts of this case. In submissions of particular cogency, advanced with fairness and force by Mr Wormald, he draws our attention to a conflict in previous authority as to the question of whether the totality of the terms of imprisonment imposed is a principle which the judge should bear in mind when either sentencing for the offence or when ordering a period of default to be served. 9. In R v Cukovic [1996] 1 Cr App R(S) 131, at page 135, this court, in the judgment of Keene J (as he then was), took the view that in the light of a period of default the totality of the two sentences should be borne in mind and reduced a sentence of 23 years by a period of 2 years, having regard to the total effect of the sentence. From the report it does not appear that the question of the propriety of taking both periods of imprisonment into account was the subject matter of any lengthy or detailed argument. 10. In R v Smith [2009] EWCA Crim 344 , this court, in the judgment of Thomas LJ, took the view that it was wrong in principle to take into account a sentence of imprisonment passed prior to the order of the term to be served in default, when fixing the period of default. The court pointed out that although that originally had been the argument, it was not pursued as: "...it was accepted that it was wrong in principle to take into account in fixing the default term the previous sentence. We consider that that concession was rightly made, as the purpose of the sentence of imprisonment was to punish him for his drug dealing; the purpose of the sentence for confiscation was the purpose we have set out, namely to ensure compliance with the order of confiscation." 11. There is ample authority for the proposition that the purpose of ordering a sentence of imprisonment in default is designed to ensure, so far as possible, that the defendant found to have realisable assets in the amount of the confiscation ordered, should pay that amount and should obtain no advantage by refusing to do so. That authority stems not only from previous cases but also from the statutory provisions themselves. 12. It is clear from section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 that where a confiscation order is made, an obligation is imposed upon the Crown Court to fix a term of imprisonment in default (see section 139(2) ). It is true that the structure of the Drug Trafficking Act 1994 suggests that the approach of the Crown Court should, in the first instance be to identify both the benefit from drug trafficking and the realisable assets before sentence (see section 2(4)). Nevertheless section 3 makes it clear that the court has the power to postpone any order made under section 2. Nowadays, as questions of identifying both benefit and realisable assets become more and more complicated, generally the process of determining the amount of the confiscation order will take place after and often, as in the instant case, long after the process of sentencing. It would be unfair and harsh on any defendant to wait until that process of confiscation takes place before he knows what period of imprisonment will be imposed by way of punishment. 13. Mr Wormald argues, nonetheless, that no one could expect to get in total a sentence of something like 38 years for an offence such as this. He contended that the failure to pay the sum ordered by way of confiscation was equivalent to cheating the Revenue or some other criminal offence and were two criminal offences to be committed, one on the back of the offence of importation, no one would expect in totality a sentence such as 38 years. The principle of totality, whereby sentences which may be justified for individual offences may nevertheless lead to an excessive total, should equally apply in a case such as this. 14. We do not agree. The authority which we have already referred to in Smith itself, the statutory provisions and other cases summarised by this court in R v Pigott [2009] EWCA Crim 2292 , all demonstrate that the purpose of the period in default is designed to ensure that nothing is to be gained by the defendant if he fails to comply with the order (see for example R v Szrajber (1994) 15 Cr App R(S) 821 and R v French (1996) 16 Cr App R(S) 8 and 841). 15. The fundamental objection to allowing a defendant to say that in the light of his sentence he should suffer a lesser period of default, is that it remains his own choice, in his own hands as to whether he serves the period of imprisonment in default or not. It must always be recalled that no period by way of default will be ordered unless and until the judge has found, as a fact, that the defendant has realisable assets sufficient to meet the order of confiscation. Once that has been found as a fact, there remains no reason, save his own choice and unwillingness to divest himself of the proceeds of crime, why the defendant should not pay it. There is, therefore, no reason why, if he refuses to pay, he should not serve the period of imprisonment in default, in addition to the sentence by way of punishment. The period in default is a quite distinct and separate justification. 16. The analogy between a series of offences, the totality of which may prove excessive is false. No such comparison can be drawn. Indeed, as was pointed out by Irwin J arguendo, it would undermine the purpose of ordering a period of imprisonment to be served by way of default, to allow a lengthy period of imprisonment by way of punishment to affect the period in default. 17. There remains the question of whether the period by way of default of 10 years was appropriate in this case. Again, in excellent submissions, Mr Wormald points out that there are many cases where far greater sums are ordered by way of confiscation than the sum here of £2.34 million odd. That is true. But having regard to the justification for the default order, namely to encourage the defendant to pay up, it must be borne in mind that the judge, particularly a judge sitting through 6 weeks of a trial, is in the best possible position to determine what period of imprisonment is most likely to persuade the defendant to pay over the sums of money it has been found he can realise. 18. The judge took the view that 10 years was the appropriate period, notwithstanding that he was prepared to listen to arguments based upon the decision that we have found to be wrong, namely Cukovic . There is no basis upon which we should interfere with that appreciation of the trial judge. 19. There was one disadvantage, however, under which the judge laboured. During the course of his clear sentencing remarks, the judge expressed sympathy for the fact that this defendant suffered, as the judge accepted, from multiple sclerosis. He was just under 60. He recorded that he had suffered a stroke in 1997. Unfortunately, as the judge recalled, there were no medical reports before him and both the judge and his counsel were forced to accept that the question of his health was a matter for the prison authorities. 20. That, so far as it goes is, of course, correct. Where questions of life expectancy, or risks of deterioration arise, that will be, as the authorities show, very much a matter for the administrative authorities (see for example R v Main and Johnson [1997] 2 Cr App R(S) 363.) However, that does not mean to say that a court in sentencing must ignore the impact on a man of a certain age of the condition of his health. It is beyond argument that a prisoner suffering from ill-health may well suffer the impact of a significant sentence to a far greater extent than will a prisoner of the same age, who enjoys good health. In this case it is plain from medical reports now available to us, which were not available to the judge, that this lengthy sentence will have a substantial impact, over and above the impact it would have on a prisoner in good health, as a result of the multiple sclerosis under which he labours. We have the advantage of a full report from Dr Michael, a consultant neurologist, dated 4th December 2009, and a most helpful report from a specialist nurse in multiple sclerosis, dated the same date. The nurse's report shows how his mobility has deteriorated. He is unable to pursue his previous pastimes of tennis or using a rowing machine. He suffers from dizziness, reduced dexterity and weakness in his upper limbs, a deterioration in cognition, fatigue, which he demonstrates by his difficulty in concentration, impaired vision, frequency of micturition and pain. All of those symptoms are recognised by the consultant neurologist, who speaks of a significant reduction in life expectancy as a result of the condition. 21. In those circumstances, we accept Mr Wormald's submission as to the impact that the 28-year sentence of imprisonment will have upon this man and we shall take into account that impact in reducing the sentence. 22. The question still remains, however, as to whether the sentence of 28 years for this offence was appropriate. We say unhesitatingly it was. The judge gave a careful description, fully justified by the facts of the extent to which this man had pursued a criminal career in the past, serving previously a sentence for fraud of 8 years and his experience in pursuing this sophisticated attempt to bring the massive quantity of cocaine into this country. 23. Mr Wormald draws our attention to the consultation paper on sentencing for drug offences dated 22nd April 2009, in which it is clear that the Panel put forward for consultation a considerable reduction, even in the case of a leading role, in respect of importation and exportation which indicates international commercial operation. They recommended for consultation, we underline, a starting point of 12 years custody, having regard, be it noted, to the expectation that there will be proceedings and possibly a sentence in default in respect of asset recovery. We emphasise that these are comments made for consultation. The relationship between sentences in default and sentences by way of punishment was recognised by the Panel to be a difficult one on which it sought assistance by way of consultation. In our view, that consultation paper provides no basis for a reduction of this sentence of 28 years' imprisonment, which absent that consultation paper, would be a sentence in the range that might well be expected in respect of an offence such as this. 24. It provides, in our view, no basis for any reduction. But, as we have indicated, the state of this man's health does not, through no fault of his own, appear to have weighed with the judge in the sense of considering how his life in prison will be made more severe as a result of his medical condition. 25. We do take into account both those helpful reports, by allowing the appeal against the sentence of 28 years' imprisonment, to the limited extent of reducing it by 3 years and making it a sentence of 25 years' imprisonment. 26. We turn next to the question of confiscation. It was not clear to us as to the extent to which the question of the orders made by way of confiscation were the subject matter of leave to appeal, or were merely the subject matter of an application, but we do not think it matters, since it seems to us that the question was fully argued, just as if leave to appeal had been given. 27. There was no dispute as to the figure for the benefit which had been arrived at. The total amount was £2.34 million odd. It was made up by valuing the drugs at 80 per cent purity, at £1.9 million and various other items of expenditure, either through the bank, expenses, gifts and motorcars with some amounts for cash, wine, furniture and a gym. Property, by reason of disputed interests, was left out of account. 28. At the time the judge was considering the amount of the benefit, he believed that he should adopt the approach that the drugs themselves had no market value. That theory expressed in cases such as R v Ajbade [2006] EWCA Crim 368 and R v Hussain [2006] EWCA Crim 621 , has now been exploded by their Lordship's House in R v Islam [2009] UKHL 30 and by the Court of Appeal in R v Sneath [2009] EWCA 1940. But it is relevant in connection with the question of realisable assets to point out that the judge found that the defendant was responsible for purchasing the drugs. There was a suggestion in which Mr Wormald persists before us that because others were involved, the judge himself should have concluded that he only bore a proportion of the expense. As the House of Lords concluded in R v May [2008] UKHL 28 at paragraph 38, it was open to the judge to reach the conclusion that whether others were also responsible for the purchase, the expenditure could be wholly laid at his door. 29. The importance of the investigation into the confiscation proceedings is the light that it casts on this appellant's way of life and in particular the light it casts on the question as to whether he was a reliable source of information or evidence, as to the extent of his realisable assets. It is plain from the amount of drugs which the appellant sought to import that arrangements must have been made as to how they were to be paid for, how they were to be distributed and how the profits were to be shared. To this day the appellant remains silent on those all important features of a drug importation. It underlines how no reliance could be placed upon anything he says about his ability to meet the amount of benefit which was identified by the judge. There remained no reliable source as to the extent of his assets. 30. It is small wonder therefore that the judge was left with the contentions advanced by the Crown, in their statement for the purposes of the Drug Trafficking Act 1994 , in relation to the question as to whether his assets were hidden. The Crown was able to point out that he had, throughout his history of criminality, used a number of false identities, that he owned substantial property or had owned in France and that he had been in a position to either give substantial sums, at least to his daughter, Laura Bond, or to invest using her name. An example was given of almost monthly dealings of substantial sums, through a particular stockbroker. That evidence itself demonstrated an ability to disguise the name of the true beneficial owner of assets and cash. 31. Quite apart from that evidence, there was substantial evidence of the defendant boasting, in circumstances where he could have no justification or reason to boast, of the extent of his assets. To Customs officers, on 30th June 2004, he had stated that he had been a multi millionaire for some 20 years, that he ran a gourmet cookery school, that he imported and exported cars, had property investments and operated both as a private individual and through a company in Luxembourg and Liechtenstein which he declined to name. All of this was a mere puff he told the judge. Further, when meeting officers of the Inland Revenue in March 1996, he had told them that he had stolen some £2 million in 1976 from a London airport and spoke of substantial funds in foreign bank accounts, both then and during the course of other interviews some times referring to £1.2 million, on another occasion in excess of £2 million. 32. The judge scrupulously avoided other rumours about him, reported in a book called "The Untouchables" by the Guardian journalists Michael Gillard and Lori Flynn but was driven to the conclusion that the defendant had simply failed to establish, on the balance of probabilities, that he did not have the assets to meet the sum identified by way of benefit. 33. Mr Wormald contended that there was no evidence that he had ever hidden assets and that having spent some £1.9 million on the cocaine which he did not successfully import, it was obvious that he would have nothing like enough money left, having lost that sum, to meet the sum identified by way of benefit. We do not agree. We repeat, this defendant, from his own decision to contest this case in the way he sought to contest it, deprived himself of any opportunity of providing reliable evidence as to the assets that he had accumulated during his career. In those circumstances the judge was fully justified in concluding that he had not satisfied the burden, which the statute places upon him, of demonstrating that the amount of realisable assets were less than the amount of the benefit. Thus it was his own fault and his own failure to prove that which led to the order that was made. 34. In those circumstances, we reject Mr Wormald's submission that the judge was not justified in rejecting the appellant's claim that his realisable assets were less than the amount of £2.342 million. We reject that ground, whether it be by way of rejecting the appeal or the application, it not being clear which, but were it only an application, we would have refused leave on that ground. 35. The third ground is plainly merely an application. Between the time of the sentence and the time of the confiscation proceedings, there was considerable delay, as the prosecution sought evidence of the amount of benefit and as the defendant sought to meet that claim. The trial had lasted six weeks. As is by no means uncommon, after a trial of that length the trial judge was invited to a case dinner, and accepted. That dinner took place. All counsel involved -- Mr Wormald was not then instructed -- leading counsel for the defence and junior counsel and prosecuting counsel and his junior attended. The defendant apparently learnt of that dinner and contends that no such meeting should have taken place and that the reasonable observer, learning that such a dinner had taken place, might reach the view that there was a real possibility of bias in the confiscation proceedings, since the judge might have learned, through defence counsel who had previously acted for him in other litigation matters adverse to the defendant. We reject this ground. We do not think it arguable. Dinners after a lengthy and complicated case are common and part of the necessary social intercourse between Bar and Bench that ensures that there is goodwill between both, a goodwill and we say trust, essential for the proper running of the criminal justice system. 36. The safeguard for this defendant, as any reasonable observer would well know, is that defence counsel were present throughout and it is, in our view, inconceivable and not arguable to the contrary that they would have allowed anything to happen which might have had an adverse impact upon the interests of their client, whom they were in the instant case continuing to represent. The safeguard for this applicant lay in the presence of both those counsel. We should add, although it is not strictly relevant, that in the subsequent hearing it is plain that the judge conducted the hearing with immaculate fairness, rejecting from time to time the points advanced by the prosecution. No criticism whatever has been made of the judge, either at the trial or subsequently, in relation to the manner in which he conducted the hearing or reached his conclusions. We emphasise, however, that is not ultimately the dispositive point in relation to this application. It is merely that given the context of dinners such as these, that there is nothing which a reasonable, fair-minded observer, familiar with that practice, could base a fear that there was a real possibility of bias subsequently. In those circumstances we dismiss the application based on that third ground. 37. For the reasons we have given, we dismiss the appeal or the application in relation to confiscation proceedings, but we allow the sentence appeal to the limited extent of quashing the sentence of 28 years on the first count and substituting for it a period of 25 years' imprisonment with any period spent in custody to come off that period. 38. MR WORMALD: Thank you my Lord for my Lord's ruling. In respect of the ground relating to totality, I would like to reflect upon my Lord's ruling. My client, the appellant, is not here, and I will need to speak him. I wonder if my Lords are available before the end of term at some point, should it be our wish to seek to certify a question? 39. LORD JUSTICE MOSES: We will be available to the end of term, so you have until next Monday and put in anything in writing, let your opponent have it and then we will consider it. If you want us to certify a question, you have to draft the question as well. 40. MR WORMALD: I know. Thank you.

2009_12_14-2196.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2918/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2918

935b97cc24c308054f23e263badd7b234d7a4e27d315ce101e8af7c64bacd6fb

[2022] EWCA Crim 1095

EWCA_Crim_1095

2022-07-26

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. [2022] EWCA Crim 1095 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202200355/A4 Royal Courts of Justice Strand London WC2A 2LL Tuesday 26 July 2022 Before: LADY JUSTICE CARR DBE MRS JUSTICE CUTTS DBE THE RECORDER OF LEEDS HIS HONOUR JUDGE KEARL QC (Sitting as a Judge of the CACD) REGINA V NICHOLAS GRAY __________ 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 REIZ QC appeared on behalf of the Appellant _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. This is an appeal against sentence brought partly as of right under section 13 of the Administration of Justice Act 1960 and partly with leave of the single judge. 2. Having changed his plea to guilty in June 2021 the appellant, now 42 years of age, was sentenced on 16 January 2022 on a single count of fraud contrary to section 1 of the Fraud Act 2006 by His Honour Judge Taylor QC sitting in the Crown Court at Swindon to 56 months' imprisonment (that is to say, four years and eight months’ imprisonment). The fraud related to the use of company credit cards at a company where the appellant had been Head of Finance over a period of some three-and-a-half years, between March 2014 and December 2017. 3. The appellant failed to attend his first sentencing hearing on 10 September 2021. For that failure the judge sentenced him to an additional one month's imprisonment, to run consecutively to the term of 56 months. 4. On this appeal the appellant has had the benefit of representation by Mr Reiz QC who has advanced the appellant’s case effectively. We are grateful to him for his assistance. The facts 5. The appellant had been employed as Head of Finance at a digital media company known as Equimedia Limited ("Equimedia") founded by Andrew and Louise Burgess in 1999. The company had offices in the United Kingdom and in America and by 2017 had a turnover of £20 million. 6. At the time of the offending the appellant had worked at the company for some 13 years and had access to and the authority to use the company's five main credit cards. Monitoring the use of these cards was one of his responsibilities and he was aware that it was policy that the company auditors would not audit credit card expenditure below £100,000. 7. His offending came to light in November 2017 when serious accounting anomalies were spotted during a meeting between Mr Burgess and his bank manager. A new financial team was appointed and insurers appointed a bookkeeper to investigate matters. It became clear that the appellant had been making a number of substantial purchases on company credit cards for his own benefit. The transactions included payments for items of clothing, watches, cash withdrawals and family hotel accommodation. 8. The appellant had deliberately hidden his fraudulent use of the cards within internal accounting systems using "banners and button" and trafficking account codes. The accounts that he had prepared for the company had been completely fictitious and wholly misleading. Additionally, large sums had gone uncollected from clients and the appellant had failed to chase bills - to such an extent that at one stage the company was placed under a seven-day threat of winding-up. 9. What has been described as the direct loss to the company from the appellant's fraudulent use of the credit cards was £53,600, but it was Equimedia's case that there were further significant additional losses to the company arising out of the appellant's offending. 10. Initially, the appellant had denied any guilt and sought to blame the Burgesses. But on the first day of trial, having indicated his intention to do so a week earlier, he pleaded guilty. As already indicated, he failed to attend court for sentencing on 10 September 2021 and a warrant for his arrest was issued. He was arrested at his home address three days later. 11. He was of previous good character and the judge had before him a number of character references. He was said to be someone devoted to his wife and young children. A pre-sentence report recommended a community disposal with an unpaid work requirement. 12. The judge also had before him victim personal statements from Andrew and Louise Burgess. They spoke of their deep shock, distress and confusion upon discovery of what was a profound abuse of trust. Mrs Burgess spoke of the untold stress that had been caused to them as the evidence became pieced together. 13. The Burgesses referred not only to the direct loss of £53,600 but also to an additional £143,000 in terms of additional costs said to flow from the fraud, including payment of an insurance excess, additional insurance premium costs, £70,000 paid in wages to an individual employed to fill the appellant's role whilst on garden leave and £21,000 in relation to the costs of engaging someone to resolve issues with HMRC. Those costs, in particular the additional insurance premium and wage costs, were the subject of challenge by the appellant. By the time of sentence Mr Burgess had provided further statements increasing the loss alleged to have been suffered by the company in terms of costs to just under £690,000, later reduced to a sum of just over £678,000. That sum included some £368,000 written off as inaccurate in monthly management accounts that the appellant had prepared, and also a sum of £85,000 claimed by way of compensation for Mr Burgess' time spent on a daily basis dedicated to the internal investigation into the appellant's wrongdoing. The sentence 14. The judge placed the appellant's offending in Category A2 of the Sentencing Council Guideline for Fraud Offences. The sum of £53,000 would place the harm in Category 3 but, said the judge, that would not provide a true or accurate picture. The actual and what he described as indirect loss came closer to £700,000 which would place the harm in Category 1. But the judge said he would be cautious as to how that figure had been calculated, and that placing harm in Category 2 was the "fairest way" to approach the situation. Then he moved up the category to reflect what he described as "at the very least" medium impact. Arguably, he said, this was high victim impact. In terms of mitigation the judge recorded that the appellant had no previous convictions, that there were elements of remorse - although they were more to do with the position in which the appellant found himself than any regret for the Burgesses. Indeed, said the judge, the appellant had on occasion sought to minimise or justify his actions. The judge said that he took on board the character references for the appellant and the impact of custody on the appellant's family. After trial the judge said that he would place the custodial term at five-and-a-half years. With credit of 15% for a guilty plea, a term of 56 months' imprisonment was arrived at. As for the failure to surrender at the sentencing hearing, the judge said that this had added to the listing difficulties caused by the pandemic. It was a deliberate attempt to delay or evade justice and one which had a substantial effect on the timing of sentencing. Placing the offending in Category A1 of the relevant part of the Sentencing Council Guideline for Breach Offences, the judge sentenced the appellant to a consecutive term of one month's custody. Grounds of appeal 15. Mr Reiz advances essentially two grounds of appeal. First, he submits that the judge was wrong in principle to include in his evaluation of harm what Mr Reiz describes as "indirect losses". It is said that the judge erred in sentencing on the basis that the loss from the fraud was in excess of £500,000. The actual loss was only £53,608. The starting point chosen by the judge of 66 months was too high as a result. Mr Reiz emphasises that the indictment facing the appellant and to which the appellant had pleaded guilty was specific and limited to fraud. The appellant was not charged with, and did not admit, false accounting. The loss from that fraud and its value was only the £53,000-odd. The additional costs claimed by the company might be said to be relevant to costs and/or a compensation order, but it was wrong as a matter of principle to increase the category of harm as a consequence of them. Mr Reiz informs us that compensation proceedings are ongoing. The matters there to be taken into account should not have been used against the appellant for the purpose of determining the custodial term. The appellant, submits Mr Reiz, was being punished for costs over which the appellant had no control. The offence of fraud was complete before and independently of any additional investigative costs. Further, Mr Reiz points to the evidential lack of clarity as to the precise losses caused as a result of the fraud on the one hand and costs incurred as a result of wider mismanagement issues. Having correctly concluded that the judge could not be sure that the appellant was trying to sabotage the company, he submits that the judge erred in taking account of such alleged additional criminality in reaching the sentence that he did. In terms of specifics, Mr Reiz points to the sum of £368,000-odd written off as a correction to the management accounts. That was simply an accounting exercise and could not conceivably form part of the harm related to the fraud. 16. As for victim impact, Mr Reiz takes issue with the judge's categorisation of the victim impact as medium. This was a company operating as a substantial international business. All but £5,000 was reimbursed by insurers, so far as the loss from the fraud was concerned. This was not a case, submits Mr Reiz, where a considerable detrimental effect was made out. 17. Separately and briefly, Mr Reiz also submits that the judge was wrong to impose a consecutive sentence of one month’s imprisonment for the appellant's failure to surrender. The judge was wrong to conclude that there was a substantial delay and/or interference with the administration of justice. The appellant was arrested only three days later and thereafter remanded in custody. Whilst there may have been further delay due to listing difficulties in the pandemic, that was not the fault of the appellant. Discussion 18. This was a sophisticated fraud with cunning steps taken by the appellant to cover his tracks. He fraudulently used an elaborate accounting methodology to conceal the fact that cash was missing, inflating costs on numerous transactions. It was a calculated methodology used pro-actively to hide his deceit. The appellant was on a good salary of over £65,000 a year as at 2017. His offending was driven by pure greed. 19. As indicated, the focus of this appeal is the judge's categorisation by reference to harm. There is no, nor could there be any, complaint about placing the offending in high culpability. Indeed, there were multiple high culpability factors, namely abuse of position of power, trust and responsibility, sophisticated offending with significant planning, fraudulent activity over a sustained period of time. 20. Under the Sentencing Council Guideline for Fraud Offences, harm is initially assessed by reference to the actual intended or risked loss. The values in the table are for actual or intended loss only, risk of loss being treated less seriously. Having identified value, the court should then take into account the level of harm caused to the victim to determine whether it warrants the sentence being moved up to the corresponding point in the next category or further up the range of the initial category. Three levels of impact are identified: high, medium and lesser. 21. It is clear to us that the judge did not sentence the appellant on the basis that the loss from the fraud was in excess of £500,000. He recognised the need for caution in relation to the suggestion that the loss might be that high. That is why he placed the offending initially in Category A2. He then increased his starting point to reflect what he found to be medium impact. 22. It is right that if one just considers the £53,000, harm would be placed in Category 3. It is also important to remember, as Mr Reiz emphasised repeatedly, that the relevant loss is loss limited to that caused by the appellant's fraudulent use of the credit cards, not the wider issue of potentially seeking to sabotage the business. But it does seem to us, as it did to the judge, unrealistic to ignore directly consequential additional financial losses when considering harm. We do not consider that the judge was wrong to do so as a matter of principle. On the facts, he was entitled to be sure that there was at least additional direct financial loss caused to the Burgesses such as to bring harm at least to the top of the range for Category 3 or the bottom of the range for Category 2 harm. There is overlap there at the level of £100,000. 23. The question of victim impact then fell to be considered. Having placed harm in Category 2, the judge considered victim impact to be medium. That was in our judgment arguably generous to the appellant. Had the judge not taken the additional direct losses into account and placed harm in Category 3, then he would have been entitled to assess victim impact as high, which in itself would have justified moving up a category for harm. This would have been a different way of achieving a similar result. 24. In this context and in response to Mr Reiz's submissions as to the level of victim impact, we remind ourselves of Mr Burgess’ indications of the complexity of the cover-up, something which caused the Burgesses more time and grief as they unpicked the appellant's activities. The distractions led to poor business decisions and they left Mr Burgess regularly questioning his own competency. These events placed (understandably) an enormous strain on the Burgess' marriage. They had championed the appellant's career. They had placed so much trust in him. They lost their belief in trusting people. As the judge put it, the intricacy of the appellant's cover up and the level of breach of trust had had real and salutary consequences for them. 25. For Category A2 offending the starting point of five years is based on harm in the sum of £300,000. Taking all of the above into account, namely the number of high culpability factors, the combination of financial loss and victim impact, we could find no fault with a term of around five years’ imprisonment, before then considering aggravating and mitigating factors. 26. In terms of aggravation not already taken into account in the categorisation process, there was the fact that the appellant initially wrongly placed blame on the Burgesses, something which the judge overlooked. By way of mitigation, there was the appellant's previous good character, some remorse and the effect of custody on his young family. 27. Balancing these factors out, in our judgment an appropriate custodial term before credit for guilty plea, would have been around 54 months (that is to say four-and-a-half years) before applying credit for guilty plea of 15%, resulting in an eventual term of 46 months' custody. 28. In our judgment, therefore, the term of five-and-a-half years before credit for guilty plea taken by the judge was too high and did result in a sentence that was manifestly excessive. As we have said, it must be remembered that five years was the starting point for Category 2 harm based on loss at £300,000. The judge could not be sure on the evidence that the relevant financial loss suffered was that high. The judge must then have gone to the very top of the range because of victim impact, before coming down to five-and-a-half years to reflect the availability mitigation. Even taking into account the number of high culpability factors and victim impact and the aggravation in the form of blaming others, it is difficult to see how a term of around six years before reduction for mitigation and then credit for guilty plea was justified. 29. We move next to the sentence imposed for the failure to surrender. There can in our judgment be no justifiable complaint about the imposition of a consecutive sentence of one month for the appellant's failure to surrender. The judge was entitled to take the view that this was a deliberate attempt to delay or evade justice and one which had a substantial effect on the timing of sentencing. It inconvenienced counsel. We would not interfere with the judge's categorisation at A1 for this offending. Six weeks’ custody with credit for guilty plea resulted in a sentence of one month. It was a different type of offending to the fraud offending and it fell to be marked separately. The imposition of a consecutive sentence of one month did not result in an overall sentence that was disproportionate to the appellant’s overall offending. Conclusion 30. For these reasons we allow the appeal. We quash the sentence on the count of fraud and replace it with a sentence of 46 months’ imprisonment. The consecutive sentence imposed for failure to surrender will stand undisturbed, as will all other aspects of the sentence. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2022_07_26-5399.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/1095/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/1095

2ed16b9f8b4d766a83d277ba8f6d32136da26758888850633cb292cc8d8d9d48

[2009] EWCA Crim 2616

EWCA_Crim_2616

2009-11-20

crown_court

No: 200903207 B4 Neutral Citation Number: [2009] EWCA Crim 2616 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 20 November 2009 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE PENRY-DAVEY RECORDER OF NORWICH (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v FATIH SAHIN - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet St

No: 200903207 B4 Neutral Citation Number: [2009] EWCA Crim 2616 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 20 November 2009 B e f o r e : LORD JUSTICE LEVESON MR JUSTICE PENRY-DAVEY RECORDER OF NORWICH (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v FATIH SAHIN - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 0207 404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Miss J Deuchar appeared on behalf of the Appellant Miss S Booker appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE LEVESON: On 18 May 2009, this appellant stood trial in the Crown Court at Snaresbrook charged with putting a person in fear of violence by harassment contrary to section 4(1) of the Protection from Harassment Act 1997 (" the 1997 Act "), and intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994 . 2. On 21 May 2009 in relation to the first count, he was convicted of the lesser offence of harassment contrary to section 2(1) of the 1997 Act . He was also convicted of intimidation. HHJ Beech subsequently passed sentences of four months' imprisonment in relation to harassment, and 12 months' imprisonment consecutive in relation to intimidation, making 16 months' imprisonment in all. She also made a restraining order pursuant to section 5 of the 1997 Act . The appellant now appeals against conviction by leave of the single judge. 3. The prosecution case can be summarised quite shortly. The complainant in both allegations was the appellant's separated wife. They had married in 2002, but separated in August 2007, after which the relationship was acrimonious, with contact difficult and strained. In relation to the first allegation, Derya Sahin, the appellant's wife, complained that between 20 January 2008 and the 11 February 2008, a period of some 22 days, the appellant pursued a course of conduct which caused her to fear that violence would be used against her. 4. She described these incidents in this way. She alleged that on 20 January 2008 she and her children were at her mother's third floor flat when the appellant arrived and started kicking at the door. He was shouting that he wanted to speak to her face to face. He was also shouting, "I will see you some day outside", which she took to be a threat. She was scared because his behaviour was aggressive. A few hours later, she returned to her own home with her mother and called the police. She complained that day, and the next day attended court and obtained a non-molestation order prohibiting the appellant from using or threatening violence, pestering or harassing her. It also prohibited him from entering or attempting to enter the former matrimonial home. The order was served on the appellant the following day. The solicitor who explained the document was of the view that he understood its contents. 5. The appellant denied that the incident had taken place, saying that he was in the mosque at the time. He was told about the court order, but said that all he understood was that he was not permitted to leave the country or see his children. 6. The second alleged incident was on 5 February, when the appellant attend the former matrimonial home and was said to be verbally abusive to the complainant. She stated that he banged on her window and kicked her door, saying that he wanted to talk to her. She feared that he wanted to do something and so did not open the door. She called the police, but by the time of their arrival ten minutes later he had gone. In relation to this incident also, the appellant simply denied that it had taken place, saying that he had been at the mosque on that day as well. He suggested that the allegation had been fabricated. 7. Five days later, on 10 February, the complainant met a mutual friend to help him complete some forms. She offered the friend a lift to the underground, but as she was getting herself and her children into the car, with the friend by the passenger door, she alleged the appellant approached the friend, grabbed him by the shoulder, and head-butted and punched him. She got herself and the children into the car and locked the door. She and the friend reported the matter to the police. As will appear, a critical question may be whether that report by telephone was in the presence of the appellant. As to this allegation, again the appellant denied that it had taken place, saying he was at the mosque. 8. Finally, on the day following (11 February), the complainant alleged that she received a number of text messages from the appellant demanding that the family proceedings and non-molestation order be dropped, threatening to get social services to remove the children, and saying that if she dropped the case he would leave her alone. She thought all the texts were sent from his phone, but could not recall showing them to anyone. They had not been in English and were neither downloaded or translated. The appellant denied any contact, whether by text or phone calls, and denied threatening the complainant with social services. He had given his mobile to the police, who could have interrogated it. The officer said that he had not arranged for the messages of that day to be translated. 9. There were details which surrounded these incidents which, given the grounds of appeal, it is unnecessary to rehearse in this judgment. Neither is it necessary to recount the evidence proffered by the appellant as to the reasons for the complainant's hostility or the evidence of the Imam of the appellant's mosque, who spoke of his presence, particularly on 10 February, when he said that the appellant was at the mosque all day until he saw him getting into the complainant's car and driving off with her. 10. As to the allegation of intimidation, the complainant said that on 19 March, she left work early and was approaching her car, talking to her mother on her mobile phone, when the appellant approached her from behind, grabbing her bag, phone and keys. He then grabbed her round the front of her neck, and said, "If you don't want anything to happen to your grandma, just drop the case". He was strong and had a knife in his hand. She was scared and screamed. Her mother phoned one of her work colleagues, presumably a friend, who was coming out of work, where upon the appellant ran away. The police were called and she later made a statement at the police station. The appellant also attended the police station. He alleged that she had managed to get into her car and deliberately driven at him, catching his leg and damaging his watch. She denied this. 11. We add only that in August 2008, the complainant made a statement withdrawing her evidence in the case. She explained this was on the basis that she wanted to get on with her life and wanted the appellant to leave her alone. He had promised to return to Turkey. 12. As is clear from this summary, the case was a classic issue of fact for the jury to resolve. Who did they believe? More particularly in relation to count 1, were they sure that the appellant pursued a course of conduct which put his wife in fear of violence by harassment; or alternatively pursued a course of conduct which constituted harassment, and, in relation to count 2, were they sure of the allegation of intimidation. 13. With proper directions, the case could have been brought to a conclusion without difficulty. In the event, the appellant proceeds on the basis that the jury were misdirected in relation to the harassment charge, and that the necessary ingredients for the intimidation charge were not established, and furthermore could not be established. It is to these arguments of law that we now turn. 14. We deal first with the count of harassment which was put in the alternative. The jury were directed in the following terms: "The particulars of the offence are that the defendant did between 19 January 2008 and 20 March 2008, cause Derya Sahin to fear that violence would be used against her by his course of conduct which he knew or ought to have known would cause fear of violence to her on each occasion. Breaking that down into the ingredients of which you will have to be satisfied before you could convict the defendant, you will have to be satisfied that, firstly, the defendant did pursue a course of conduct which caused Mrs Sahin to fear that violence would be caused against her. Course of conduct means that the defendant must have conducted himself in such a way as to cause Mrs Sahin to fear that violence would be used against her on at least two occasions, so you have to have two occasions for there to be a course of conduct. Secondly, you would have to be satisfied that he must have known or ought to have known that his course of conduct would cause her to fear that violence would be used against her on those occasions. Those are the ingredients of that first count. If you are not satisfied that the Crown has proved so that you are sure the defendant has committed the offence of putting Mrs Sahin in fear of violence, it would nevertheless be open to you to consider an alternative and lesser offence of harassment. It is an offence under section 2 of the same Act, the Protection from Harassment Act 1997 , to pursue a course of conduct which amounts to harassment of another. So what are the ingredients about which you must be sure before you could convict of this alternative offence? Firstly, again, you would have to be satisfied that the defendant pursued a course of conduct; that is that he pursued a course of conduct on at least two occasions which amounted to harassment. Harassment should be given its normal meaning, but it includes causing alarm or distress to the victim. Secondly, you would have to be satisfied that at the time that he undertook that course of conduct he did so when he knew or ought to have known that it amounted to harassment of another; that is that it was going to cause alarm and distress to the victim." 15. The judge then went on to speak of the four incidents in this way: "So the prosecution relies upon four incidents in relation to count 1 which the prosecution say taken all together amount to a course of conduct although, as I have said, you only need to be satisfied that at least two incidents occurred and that each incident caused Mr Sahin to fear that violence would be used against her and of course that he knew or ought to have known that his conduct would have caused her to fear that violence would be used." 16. Miss Deuchar, who appears for the appellant in this court as she did at the trial, argues that this direction was deficient in that the jury were not directed that the fewer the incidents proven, the less likely it was that they could be described as course of conduct, and that they were not told that if they did not find that the alleged incidents were proven, then greater consideration should be given to whether the remaining two or three incidents, whilst capable in law of amounting to a course of conduct, in fact did so. She argues that as the jury acquitted the appellant of the more serious charge, the jury must have found failings in the aspects of the evidence of the complainant. In that regard, she relies on Ninin Patel [2004] EWCA Crim 3284 which she argues is on all fours with this case, and in which an identical conviction was quashed for lack of sufficient direction. 17. The starting point is Lau v DPP [2001] 1 FLR 799 , which concerned the situation in which magistrates accepted only two of five alleged incidents occurring in November 1998 and March 1999. Schiemann LJ, giving the lead judgment in the Divisional Court, said at page 801: "I fully accept that the incidents which need to be proved in relation to harassment need not exceed two incidents, but, as it seems to me, the fewer the occasions and the wider they are spread the less likely it would be that a finding of harassment can reasonably be made. One can conceive of circumstances where incidents, as far apart as a year, could constitute a course of conduct and harassment. In argument Mr Laddie put the context of racial harassment taking place outside a synagogue on a religious holiday, such as the day of atonement, and being repeated each year as the day of atonement came round. Another example might be a threat to do something once a year on a person's birthday. Nonetheless the broad position must be that if one is left with only two incidents you have to see whether what happened on those two occasions can be described as a course of conduct." 18. This was followed by Pratt v DPP [2001] EWHC Admin 483 in which again two incidents only were found proved separated by three months. Latham LJ referred to Lau and went on at paragraph 10: "In my view these propositions accurately set out the law and the cautious approach that any court should adopt where the allegation of harassment is based upon either two incidents or any other series of incidents, if few in number and widely spaced in time. The issue for the court is whether or not the incidents, however many they may be, can properly be said to be so connected in type and in context as to justify the conclusion that they can amount to a course of conduct." 19. Ninin Patel also concerned an allegation of putting in fear of violence by harassment contrary to section 4(1) of the 1997 Act , with an alternative of harassment contrary to section 2(1) . The case was based on a number of incidents, eight in number, between October 2002 and July 2003. All but one of these incidents alleged actual violence, but the significant feature of the case is that the jury acquitted of putting in fear of violence and convicted only of harassment. This gave rise to an appeal based on inconsistent verdicts which this court rejected, accepting the construction that the jury may have had doubts about the complainant's evidence, but were willing to accept it where there was some independent support which reduced the incidents to two in number on 2 June (leading to a visit to a doctor) and 22 July (which did not involve violence). Maurice Kay LJ then dealt with the direction (in similar terms to the direction in this case) and said: "If the jury found themselves considering conviction by reference to a much reduced number of incidents –– and we consider that that must have been the case –– then the assistance which they had received by way of the summing–up was, in our judgment, deficient. In essence that assistance came to little more than a direction that there must be at least two or more incidents. Adopting the approach of the Divisional Court, we conclude that if there is any possibility (seen prospectively or retrospectively) that the jury has convicted on the sort of basis to which we have referred, then assistance of the kind prescribed by the Divisional Court is in our judgment essential. It is not just a matter of counting the incidents and saying, "We have two, that is enough." It is necessary for the jury to be given some guidance so that they address the question of whether the incidents give rise to a nexus sufficient for there to be a "course of conduct"." 20. As a general proposition we endorse the observation in each of the cases to which we refer that the better practice in every direction to a jury would be to consider whether the incidents about which they are sure are so connected in type and in context to justify the conclusion that they can amount to a course of conduct. To that extent we accept that there was a failure fully to direct the jury, although we note that counsel were not sufficiently concerned about the direction to bring it to the attention of the learned judge at the conclusion of the summing up. 21. That is not, however, an end of the matter, because every case must be judged on its own facts, and the safety of the conviction must be considered as a free-standing question in light of the way in which the jury were directed. Thus, in this case, the circumstances requiring caution for which Latham LJ spoke in Pratt -- few incidents in number and widely spaced in time -- do not apply. True, there were four incidents, the first being said to have led to a non-molestation injunction, but all four incidents were only over a three-week period, and three of them within six days. Secondly, although the jury in this case also acquitted of the graver offence, there was only one allegation of actual violence, aimed not at the complainant but at the family friend. All other incidents consisted of verbal abuse or threats. It was fully open to the jury to doubt that it was the appellant's intention to cause her to fear that violence would be used against her on those occasions, whether or not she was put in such fear. Thirdly, in the context of this case, all depended on the evidence of the complainant alone along with contemporaneous reporting to the police. Suffice to say that we do not find that, in the context of this case, the failure to provide the additional direction on the meaning of course of conduct renders this conviction unsafe. 22. The second pursued ground of appeal concerns count 2 of the indictment, which alleged intimidation contrary to section 51(1) of the 1994 Act , the particulars alleged being as follows: "FATIH SAHIN on the 19th day of March 2008 knowing or believing that Derya Sahin was a witness in proceedings for an offence, did an act, namely assaulted and threatened to kill, which intimidated, and was intended to intimidate Derya Sahin, intending thereby to cause the course of justice to be obstructed, perverted or interfered with." 23. The indictment does not identify the particular offence in respect of which she was a witness, although in her summing up the learned judge focused the attention of the jury on breach of the non-molestation order, which of course can only arise from one of the incidents following the grant of that order. So what must the Crown prove to bring this offence home and, in particular, what must be the state of any criminal proceedings and the knowledge of the defendant? The starting point is the statute itself. Section 51 of the 1994 Act provides: "(1) A person commits an offence if— (a) he does an act which intimidates, and is intended to intimidate, another person (“the victim”); (b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and (c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with. ... (5) The intention required by subsection (1)(c) ... need not be the only or the predominating intention or motive with which the act is done ... ... (7) If, in proceedings against a person for an offence under subsection (1) above, it is proved that he did an act falling within paragraph (a) with the knowledge or belief required by paragraph (b), he shall be presumed, unless the contrary is proved, to have done the act with the intention required by paragraph (c) of that subsection." 24. It might be thought to be ambiguous whether a defendant needs to have knowledge or belief in the role of a person, or knowledge/belief in the role of the person and the existence of the investigation. In Singh [1999] Crim LR 681, that ambiguity was resolved in favour of the clear view that the Crown must prove both that an investigation is under way, and that the defendant knew or believed that there was such an investigation in addition to proving intimidation. It is only then that the presumption bites. Neither is it clear that it is sufficient simply that there should have been a report to the police. The jury must be sure that there was an investigation under way. 25. How did the learned judge leave this aspect of the case to the jury? She directed them in these terms: "A person commits this offence if, firstly, he does an act which intimidates and is intended to intimidate another person, in this case Mrs Sahin; secondly, he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness; and, thirdly, he does the act intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with. Breaking that down into the various elements of the charge, you would have to be sure of the following before the offence is proved; first of all, that on 19 March the defendant must have known that Mrs Sahin was a witness or potential witness in proceedings in relation to an offence that was to be charged against him by the police. In that context you know, of course, if you are satisfied about all the matters or some of the matters set out in count 1, that there must have been -- if you are satisfied of those -- a breach of the non-molestation order taken out on 21 January. You will see from Exhibit 1, I think, that the non-molestation order clearly states that if it is breached it is a criminal offence. So that is the first ingredient. He must know that Mrs Sahin was a witness or potential witness in proceedings in relation to an offence that was to be charged against him by the police. Secondly, he must have done an act that intimidates and was intended to intimidate Mrs Sahin ... Thirdly, that when he did the act of intimidation he did it intending to cause the investigation or the course of justice to be obstructed, perverted or interfered with ... If you are satisfied that, firstly, the defendant did approach Mrs Sahin in the way that she described on 19 March and assaulted her and threatened her and, secondly, you were also satisfied that when he did so he intended to and did intimidate her, then it is to be presumed that such acts were done with the intention to obstruct, pervert or interfere with the course of justice." 26. The learned judge then went on to deal with the evidence in support of that charge. What is startling by its omission is any assistance in relation to the offence which the police commenced to investigate. As we have said, reference to the non-molestation order suggests this has to be a breach of that order, but there is no evidence, and certainly none that the learned judge referred to the jury, that the police had commenced any investigation into breach of that order before the complaint that followed this incident on 19 March. The only evidence that the police were involved came from the complainant, who reported that she telephoned the police after each of the incidents. But it is not suggested there was evidence that investigation had in fact commenced. In fact, it is not even thought that such an investigation was under way. 27. Trying her best, Miss Booker referred back to the first incident which had been the subject of a statement, and argued that the requirement of an investigation could be linked to that incident. The difficulty with that proposition, however, is, first, that there is no real evidence the appellant was even remotely aware that this first incident had been the subject of a complaint to the police which they were then investigating. The nearest that one can get to what is said to have been evidence of investigation of which the appellant was aware is the evidence of the complaint in relation to the incident of 10 February, to the effect that the appellant was present and the police were called. I say "to what is said to have been evidence" because there is not the slightest mention of it in the learned judge's summing up. Neither, as we understand it, was there evidence that this phone call led to the commencement of investigation, or any focus by the learned judge on the need for such an investigation to have commenced. 28. Miss Booker points to the evidence that the appellant's threats included the words, "If you don't want anything to happen to your grandma, just drop the case". But, with great respect to her, it seems to be much more likely that the appellant was there referring to the civil proceedings which had previously been commenced, and of which he most certainly was aware. That would be consistent with what he had said on 11 February, when he had demanded the non-molestation proceedings be dropped, threatening to get social services to take the children. 29. Finally, and in any event, the learned judge simply did not address this very difficult issue or assist the jury in relation to precisely what had to be proved in this regard, or indeed the facts on which they could rely in order to be sure of this aspect of this necessary ingredient of the offence. 30. Miss Booker recognised the difficulties in the way in which this count was left to the jury, and in the alternative suggested the court could use section 3 of the Criminal Law Act 1967 (" the 1967 Act ") to substitute a conviction under section 39 of the Criminal Justice and Police Act 2001 (" the 2001 Act "), which establishes a similar offence to that contained in section 51 of the 1994 Act , but directed to civil proceedings as opposed to criminal proceedings. Certainly the problems facing the Crown fade away if reliance can be placed on this legislation, because there was not the slightest doubt that the appellant was well aware that civil proceedings had been commenced and had led to a non-molestation order. Given the facts found by the jury, it is, we venture to conclude, inevitable that a conviction for that offence would have resulted. 31. The difficulty, however, is in the language of section 3 of the 1967 Act , which permits a substitution only of an offence in respect of which the jury could on the indictment have found the defendant guilty. Put briefly, the jury could never have convicted the appellant of an offence under section 39 of the 2001 Act when dealing with a count on an indictment alleging breach of section 51 of the 1994 Act . The former deals only with non-criminal proceedings and the latter only with criminal proceedings. Section 3 is not open to assist the Crown in this case. 32. It follows that the conviction for intimidation must be quashed. Given the conduct by the jury to have been proved to the criminal standard, we do not view this result with pleasure, but the case must be taken as a salutary reminder to prosecutors that care must be taken to frame indictments as precisely as possible, with a very close eye to the particular ingredients of the offence charged. It is also a salutary reminder to judges: had an amendment to this indictment been sought, even at a late stage, to charge a breach of section 39 of the 2001 Act , we cannot imagine this appellant, or indeed any defendant, would have been caused the slightest prejudice. 33. In the event, the appeal against conviction for harassment is dismissed. The appeal against conviction for intimidation is allowed. For the avoidance of all doubt, the sentence of 12 months' imprisonment falls away, but the restraining order made pursuant to section 5 of the 1997 Act remains.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/2616/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/2616

c5e35122472677b6afba8532cff5bb24d92ec88e3fc8f081f38c0a55aaf6c82e

[2014] EWCA Crim 690

EWCA_Crim_690

2014-04-09

crown_court

Case No: 201207230 B4 Neutral Citation Number: [2014] EWCA Crim 690 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION S9 CAA 95 HALLETT J T20027191 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/04/2014 Before: LADY JUSTICE RAFFERTY DBE MR JUSTICE CRANSTON and MR JUSTICE STEWART - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - OMAR BENGUIT Appellant - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201207230 B4 Neutral Citation Number: [2014] EWCA Crim 690 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION S9 CAA 95 HALLETT J T20027191 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/04/2014 Before: LADY JUSTICE RAFFERTY DBE MR JUSTICE CRANSTON and MR JUSTICE STEWART - - - - - - - - - - - - - - - - - - - - - Between: REGINA Respondent - and - OMAR BENGUIT Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Nigel Lickley QC and Stephen Climie (instructed by CPS ) for the Respondent Ragveer Chand (instructed by CLP Solicitors ) for the Appellant Hearing date: 25 th March 2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lady Justice Rafferty: 1. The appellant, Omar Benguit, 41 years old, originally faced trial in 2003 with Nicholas Gbadamosi for: Count 1 Murder of Jong-Ok Shin Appellant Count 2 Rape of BB Appellant and Gbadamosi Count 3 Assisting an offender Gbadamosi Count 4 Rape of BB Gbadamosi 2. The jury failed to agree on Benguit, and on Gbadamosi for assisting an offender, but acquitted Gbadamosi of both rapes. At a retrial in 2004 t he jury acquitted Benguit of rape and Gbdamosi of assisting an offender but failed to agree on murder. At the second retrial in 2005 in the Crown Court at Winchester Benguit was convicted of murder and sentenced to imprisonment for life, with a minimum term of 20 years. On 12 July 2005 his appeal against conviction was dismissed. 3. He appeals against conviction upon a reference by the Criminal Cases Review Commission (“CCRC”) under s.9 Criminal Appeal Act 1995 on the following grounds: Inconsistent post trial accounts further undermine the credibility of the main prosecution witness BB; and fresh evidence indicates that Danillo Restivo may have been responsible for the murder. His application for leave to appeal on a ground not related to the CCRC Statement of Reasons, expert evidence as to CCTV, has been referred by the single judge. 4. At approximately 0250 on 12 July 2002, 26 year old Korean language student Miss Jong-Ok Shin was stabbed on Malmesbury Park Road in Bournemouth walking home from a night club. She was sober, no-one witnessed the attack, and the knife was never recovered. Miss Shin told police and medical staff in poor English that her attacker from behind was a man in a mask who ran off. She had been stabbed in the back three times. On 22 August 2002 Benguit was arrested on suspicion of her murder. 5. Residents of Malmesbury Park Road said they heard on the street in the early hours of 12 July 2002 voices, arguing between a male and a female, piercing screams, a disturbance, and then a woman’s voice moaning. Some heard Miss Shin falling against a car. Two found her supine asking for help. She said she had been attacked by a man. 6. Dr Anscombe post mortem found no defensive injuries, no signs of a prolonged struggle and in his opinion she was stabbed unsuspectingly from behind. If the three stab wounds were in quick succession, there would have been little opportunity for the attacker to have been contaminated with blood. The blade was likely to have been single edged and at least 14 to 15 centimetres long. 7. At the appellant’s second retrial, BB’s evidence was that she funded her addiction by prostitution, drug dealing and other crime. In the summer of 2002 she had known Benguit for about a year. She was a regular visitor to a crack house 47 St Clements’s Road, where she got her drugs from Joan Sheridan. 8. Between a day and a week before the murder, she was in the Richmond Arms Public House with a group that included Benguit and Gbadamosi (not another man as she had said previously). They talked generally about Korean girls being pretty and having ‘tight pussies’ and about a particular Korean girl they wanted to ‘fuck’. 9. In the early hours of 12 July 2002, she dropped another addict on Charminster Road. As she pulled away she heard shouting, and saw Benguit, Gbadamosi, and Woolry, a Jamaican national. They flagged her down and hitched a lift to the crack house. 10. As she drove down Malmesbury Park Road, she saw a small figure walking and Benguit shouted out from the window ‘Look at the arse on that.’ The men told her to pull over because they wanted to get the woman to party with them. She stopped a little way down the road, all three went in the direction of the girl. They were not away long. She did not hear any sharp loud screams, but her window was half closed. 11. When they returned they had been running and were sweating, shouting, swearing and arguing. Gbadamosi asked Benguit ‘What the fuck have you done?’ and they told her to drive off and to turn off the lights. They were agitated, had all taken crack, and Benguit was very drunk. Gbadamosi was very annoyed, saying to Benguit ‘You can’t handle your drink. Every time you get yourself into trouble.’ He was also worried about being stopped by the police. 12. Benguit had small patches of blood on his t-shirt and she assumed a fight. He removed his t-shirt, used it to wipe blood from his arm and put it in a creamy carrier bag. Something else was in the carrier bag, wrapped in the t-shirt. He put the bag under the passenger seat. 13. The men did not want her to park outside the crack house. Benguit and Gbadamosi said a handbag snatch went wrong and they got into a scuffle. The men were wound up, stressed out, desperate for crack and, once they smoked their pipe, wanted another lift. (In previous witness statements, she said the men smoked a pipe in the car.) She did not feel able to refuse them. The creamy carrier bag had blood on it so the t-shirt was transferred to a white carrier bag. She took them to a cul-de-sac where she claimed they raped her. Then they went to a flat where Benguit bathed or showered, and changed into a beige t-shirt. She dropped him outside another flat and took Gbadamosi and Darius to the river at Ifford. She parked, they went off with the carrier bag and she did not know what they did with it. 14. She claimed she was petrified by what happened that night and knew all three carried knives. She thought she might be stabbed or killed, as might her daughter. Having been on drugs for so long, she did not trust the police. However, following her arrest for shoplifting in August 2002, she began giving hints to police about who was responsible. 15. She said she had not realised she would be asked about the rape allegations and did not want to go through them again. She maintained her account of rape in the car, a Volvo or a Renault. She was scared, could not get away, did not know what to do and could not call the police. She was also raped by Gbadamosi about a month later when she delivered crack to him. Although she had previously been raped by him, she went to his house because she did what she had to do. In a previous statement, she said that this rape took place on 15 August 2002, but at that time she had a drug habit and was muddled about the dates. 16. Once she began speaking to the police, she did not tell the truth initially though her account was not a pack of lies. Her first, untrue, account was that Ricky Thompson was responsible. She gave further conflicting accounts and named Mike Big, a false name for Gbadamosi. She also indicated Omar Hussain was involved, a false name for Benguit. She claimed to think the police would work out who she meant because there was only one Omar with a glass eye. She said all sorts of other things that were untrue so as to give the police an idea of what happened without admitting that she was with the people responsible. 17. When video interviewed, she finally told the police everything. Although in a previous witness statement she described a police chase on the night of the murder, there was none. She had not enquired about a reward. She was put on a witness protection programme as a result of her disclosures. She said she thought she might have been part of the murder because she gave the men a lift. She felt guilty and as if she had done something wrong. She was scared that if the men thought she was going to turn against them, she would have been in real trouble, so she cooperated. 18. She had never benefited as a result of her involvement. 19. Several addicts gave evidence that Benguit attended the two crack houses (flats in the same building) in the early hours of 12 July 2002. 20. Joan Sheridan who ran one of them remembered 12 July 2002 because it was the Orange Day parades. During the early hours Benguit and Gbadamosi were in her flat. Benguit had blood on his hands, and was looking for a change of clothes. 21. Searches and science did not link Benguit to the murder. 22. To a female addict Benguit said he had stabbed a student in Charminster. The woman found a top splashed in blood and he said something had gone wrong. 23. Shaun Phipson a taxi driver ruled out his having given a lift to Benguit and Leanne Mayers on the night of the murder. 24. Benguit’s telephone call from prison to his brother was alleged to be an attempt to secure a false alibi. 25. In his interview on 22 August 2002 the appellant’s account was that by the early hours of 12 July 2002, alone, perhaps walking home, he saw police cars at the scene and heard about the murder the next day. He did not know Miss Shin, and had not spoken to, commented on or discussed Korean girls. His account on 23 August 2002 was that he did not know anyone who could provide him with an alibi. He was not involved in the murder and did not go to 47 St Clements Road in the early hours of 12 July 2002. 26. His account in interview on 26 November 2002 was that at about 03.00 on 12 July 2002 he got a taxi with Leanne Mayers. They stopped at 47 St Clement’s Road to buy crack and at about 05.00 spent 20 minutes at his house where they smoked it with the driver. He then walked into town. BB might have lied for the reward or because she needed a scapegoat. 27. He told the jury he did not murder Miss Shin. He did not know BB well, and had never been out with her socially. He had never made sexual comments about Korean girls. He was not with Miss BB on 12 July 2002 and had never travelled in a Volvo or Renault with her. He had never gone to a local flat with blood on his hands and t-shirt, or asked to wash his hands or for a change of top. He had not told a female addict that he stabbed a student in Charminster, nor did she find his top with blood on it. He could not be sure where he was on the night of 11/12 July 2002 because his memory had been affected by drug-taking. He gave a detailed account largely foreshadowed in his third interview. In his telephone call to his brother from prison he was not trying to create a false alibi but coming off drugs and anxious to work out his whereabouts. Grounds of appeal 28. Ground 1 Fresh evidence that inconsistent post-trial accounts further undermine the credibility of BB 29. In 2007 in a magazine article about her involvement BB claimed to have seen Benguit stabbing Miss Shin and to have contacted the police four or five days later. In 2008, she appeared on the Jeremy Kyle Show and repeated that, adding that she saw Benguit with the knife when he returned to the car. She gave other details none of which had been part of her earlier accounts or her evidence at three trials. In 2012 she told police that payment for the magazine article was £500, there was none for the Jeremy Kyle show. She said she knew that she had not seen Benguit stab Miss Shin but had come to believe that account over time. 30. There were already numerous credibility issues at trial arising from her lifestyle, admitted lies, changes and inconsistencies in her account. However the submission is that her post-trial false accounts went to the incident itself and were qualitatively different. Had the jury known of them it is likely to have regarded her evidence with significantly greater circumspection and might not have relied upon her. Without her the balance of the evidence was insufficient. The material relating to the media exposure should be admitted as fresh evidence under s.23 Criminal Appeal Act 1968 . 31. Ground 2 Fresh evidence that Danillo Restivo may have been responsible for the murder 32. On 12 September 1993, sixteen year-old Elisa Clapps disappeared the day she had arranged to meet Restivo outside a church in Italy. He was subsequently convicted of perjury in relation to her disappearance. On 17 March 2010, her body was found in the loft of the church. Restivo was subsequently convicted of her murder in absentia in Italy. 33. On 21 May 2002, he took up residence in Bournemouth. On 12 November 2002 Mrs Heather Barnett who lived opposite him was murdered in her home in Bournemouth. In June 2011 he was convicted of her murder. 34. On 12 May 2004, Restivo, in unseasonable clothing, hood pulled up round his face, was watching lone women from bushes near a path. His behaviour was so sinister that surveillance was abandoned and he was arrested on a pretext. A knife, scissors and a balaclava were found in his car but no further action taken. 35. Benguit’s submission is that post-conviction similarities between the murders of Elisa Clapps Mrs Barnett and Miss Shin are such that a jury aware of them might not have convicted. He relies upon the following: 36. All victims were female and attacked during an incident in which a knife featured. Each may have been attacked from behind. All lived near Restivo. All were murdered on the 12 th day of the month. Restivo was arrested when watching lone women on 12 May 2004. He left clumps of cut hair with the bodies of Elisa Clapps and Mrs Barnett. A clump of hair was found near Miss Shin where she fell. Miss Shin and Mrs Barnett were murdered in a small suburb of Bournemouth within six months of Restivo’s arrival. The absence of any scientific evidence in relation to Miss Shin’s murder is consistent with Restivo’s awareness of its importance, demonstrated by the lengths to which he went to guard against identification when murdering Mrs Barnett. Her murder was carefully planned, shown by his waiting until her children left for school. The murder of Miss Shin was prepared and planned, not opportunistic. The murderer waited until she was alone and wore a mask. Nothing was stolen in any of the three murders, pointing to gratuitous violence rather than to a robbery gone wrong. Miss Shin said her murderer was masked. For a Korean with only basic English, ‘mask’ might have meant ‘balaclava’. Following arrest on 12 May 2004 Restivo had a balaclava. 37. Benguit is obliged to concede similarities between the murders of Elisa Clapps and Mrs Barnett not shared with that of Miss Shin. Elisa Clapps and Mrs Barnett were mutilated, Miss Shin was not. There was highly distinctive interference with their clothing, none with hers. Equally, the murders of Elisa Clapps and Mrs Barnett were different the one from the other, albeit Restivo was responsible for both. Elisa Clapps was stabbed repeatedly, Mrs Barnett not at all. Although there were features in common, Restivo did not always adopt the same modus. Benguit submits that in addition to the similarities, other evidence suggests Restivo may have murdered Miss Shin. He has a marked foreign accent whilst Benguit’s is English. We were told that local resident Mr Curtis heard a foreign-sounding male voice. However Mr Lickley QC had with him his note from the trial which read: “Agitated not English voices foreign voices a male voice the other voice not determined.” 38. That does not in our view amount to “a foreign-sounding male”. 39. Also relied upon was Restivo’s knife, said to be capable of having caused the fatal injuries, and scissors which could have been used to cut the hair found near Miss Shin but which belonged to a female resident of Malmesbury Park Road. Restivo had a history of surreptitiously cutting women’s hair and at least one was unaware of him doing so. 40. His behaviour in relation to lone women prior to 12 May 2004 is said to raise the possibility of a preparedness to offend against women not known to him. 41. He was a proven liar by virtue of his conviction for perjury. 42. His partner Ms Marsango originally provided him with an alibi for Miss Shin’s murder subsequently undermined by her lodger who said Restivo lived on the ground floor and Ms Marsango on a different floor. We deal with this briskly. The lodger explained the location of bedrooms, not necessarily where parties slept. Though Ms Jakes who claimed to be a close friend of Ms Marsango told the police soon after Miss Shin’s murder that Ms Marsango said Restivo slept in the sitting room, as we pointed out in dialogue, that evidence sat behind more than one hearsay hurdle and was untested. 43. In the same recounted conversation Ms Jakes said Restivo said it must have been a ‘big chef’s knife which must have gone through her’. The knife had gone in to a depth of 15 centimetres, information Benguit relies upon as known only to the murderer. We are not impressed by this contention. Nothing about the alleged comment suggests more than a guess at the knife used and comes nowhere near establishing that Restivo knew the dimensions of the knife and must have been the murderer. 44. In Italy Restivo was convicted of harassing female students in 1995, said to prove a history of aggression towards female students. Although Elisa Clapps and Mrs Barnett were murdered inside and Miss Shin outside, Restivo’s arrest on 12 May 2004 was strong evidence that he was capable of attack outside. Although he knew Elisa Clapps and Mrs Barnett and there was nothing to suggest he knew Miss Shin, the argument is that it is reasonable to infer he might have known her by sight as they lived a few hundred yards from each other. 45. By Benguit’s trial Restivo was a suspect in relation to Elisa Clapps and Mrs Barnett. No disclosure was made after a public interest immunity application during which the judge was told there were no similarities between the three cases. 46. The evidence upon which reliance is now placed is said to be more compelling, not least because Restivo has now been convicted of the two murders. The argument is that a killer who targeted women lived close to Miss Shin and that had the jury been aware of evidence suggesting Restivo might have been responsible, its assessment of BB could have resulted in a different verdict. 47. Ground 3 CCTV undermines the credibility of BB 48. BB told the jury that in a Volvo or a Renault Megane shortly before the stabbing she picked up Benguit. She explained her route. 49. Miss Shin separated from her companion on Malmesbury Park Road at 0248 and the ambulance was called at 0255. 50. CCTV footage was separately analysed by two experts ignorant of the facts. One was given photographs of the Volvo and the Renault and instructed to compare them with cars on the CCTV between 0230 and 0305 on the night of the murder. He positively excluded both from 02.30 until the ambulance was called at 02.55 and from 02.55 to 03.05. 51. One was shown nothing and instructed to identify all cars between 02.30 and 03.05. He was unable to identify four between 02.43 and 02.55 and considered two others highly likely to be Vauxhall Cavaliers and another likely to be a Vauxhall Vectra. Thereafter he excluded both Volvo and Renault save in one sighting at 02.47 where he considered a car unlikely to be the Volvo but did not exclude it. 52. Ultimately, both concluded that neither car could be seen between 02.43 and 02.55, although they differed as to the period between 02.30 and 02.43. This evidence is said to show that BB’s evidence was false and, had the jury known of it, her credibility would have been further undermined. Discussion and conclusion 53. It is convenient to take Grounds 1 and 3 together. BB undoubtedly exaggerated her account to police, to the jury, and to Hampshire Constabulary’s post-trial exploration of her media involvement when she claimed she saw the stabbing. She did not however exaggerate for monetary gain and she never resiled from her evidence at trial. Her credibility was fully explored before the jury who in our view was best placed to assess submissions that she was inconsistent, unreliable and lying. 54. In addition, the Crown could point to significant circumstantial support for her account from other witnesses and other evidence which aligned with Benguit as the murderer. He carried a knife. BB took him to 47 St Clements’s Road in the period after the murder. On arrival, he had blood on him and washed. He confessed to stabbing a student in Charminster. He telephoned his brother and attempted to create a false alibi. 55. We are not persuaded, against that backdrop, that further cross-examination on her post-trial account would have altered the verdict. We are in no doubt that the jury reached a verdict consistent with the evidence and we have heard nothing in either of these grounds to make us doubt the safety of the conviction. 56. We take Grounds 2 and 4 together. The murder of Miss Shin was very different from those of Elisa Clapps and Mrs. Barnett. Restivo knew Elisa Clapps and Mrs Barnett, he did not know Miss Shin. He meticulously planned his attacks on Elisa Clapps and Mrs Barnett, he was forensically aware especially as to Mrs Barnett, whereas the attack on Miss Shin was on the evidence opportune rather than planned. Striking similarities between the murders of Elisa Clapps and Mrs Barnett did not feature in that of Miss Shin. Their bras were cut in the same place, their trousers partially lowered in the same manner and hair placed in their hands. Hair belonging to a stranger was placed in the hand of Mrs Barnett. Her own hair had been cut and placed under her other hand. Miss Clapp’s hair had also been cut and left near her. They were murdered inside, reducing the risk of immediate discovery, Miss Shin was murdered on the street and her clothing neither damaged nor adjusted. Indeed the risk of discovery was greater, since she spoke to paramedics and doctors. Elisa Clapps and Mrs Barnett were murdered during the day, Miss Shin in the early hours and in darkness. 57. The differences between the murders of Elisa Clapps and Mrs Barnett, as compared to that of Miss Shin, do not persuade us that Restivo should be regarded as arguably a candidate for the latter. 58. Restivo’s possession almost two years after her murder of a balaclava (which he did not wear during surveillance) was too remote to have significance. When observed watching women he was at an isolated location in stark contrast to the residential street upon which Miss Shin was murdered. 59. Neither are we persuaded of relevance attaching to the 12 th day of the month. Only four occasions involved that number, far short of any figure which would begin to alert us to more than coincidence. 60. Although, had he been charged or convicted at the time of trial the PII exercise would have progressed on a different basis, on our analysis the material now relied upon as notionally going before the jury does not persuade us that a different verdict would realistically have been in contemplation. 61. As to the work done by experts on the cars shown on CCTV, the issue is simply disposed of. Neither excludes the cars in which Benguit was on the evidence travelling during a period in which he could have murdered Miss Shin. 62. Thus, for all the reasons given, we dismiss this appeal and reject the application for leave.

2014_04_09-3398.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/690/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/690

edfb78b483dd11ed26460e31f49a029c1fe4a264e18e43a59bb8a5491353db28

[2018] EWCA Crim 480

EWCA_Crim_480

2018-02-27

crown_court

Neutral Citation Number: [2018] EWCA Crim 480 No. 2017/02984/A1, 2017/03305/A1, 2017/03199/A1 & 2017/03 125/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 27 th February 2018 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MR JUSTICE SWEENEY and MR JUSTICE WILLIAM DAVIS __________________ R E G I N A - v - COURTNIE SPENCER OWEN GREENE HARIS MAHMOOD KHAN BRENDAN SLYVESTER MAKUMBI

Neutral Citation Number: [2018] EWCA Crim 480 No. 2017/02984/A1, 2017/03305/A1, 2017/03199/A1 & 2017/03 125/A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 27 th February 2018 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Burnett of Maldon ) MR JUSTICE SWEENEY and MR JUSTICE WILLIAM DAVIS __________________ R E G I N A - v - COURTNIE SPENCER OWEN GREENE HARIS MAHMOOD KHAN BRENDAN SLYVESTER MAKUMBI CHAYCE CHANDLER GREENE __________________ 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 D Burgess appeared on behalf of the Appellant Courtnie Spencer Owen Greene Mr S Reiz appeared on behalf of the Appellant Haris Mahmood Khan Mr S B Sherriff appeared on behalf of the Appellant Brendan Sylvester Makumbi Mr D Cox appeared on behalf of the Appellant Chayce Chandler Greene ____________________ J U D G M E N T (Approved) 1 THE LORD CHIEF JUSTICE: I shall ask Mr Justice Sweeney to give the judgment of the court. MR JUSTICE SWEENEY: 1. This is an appeal against sentence by leave of the single judge. 2. On 23 May 2017, at the conclusion of their trial in the Crown Court at Isleworth before His Honour Judge Matthews and a jury, the appellants were all found guilty of an offence of kidnapping. Courtnie Greene had previously pleaded guilty, for which he received full credit, to offences of violent disorder and having a bladed article. 3. On 26 June 2017 the appellants were sentenced as follows: Haris Khan, to an extended sentence of fifteen years, comprising a custodial term of ten years and an extended licence period of five years; Courtnie Greene, to an extended sentence of fifteen years, comprising a custodial term of eleven years and an extended licence period of four years for the kidnapping and to concurrent terms of two years' imprisonment and twelve months' imprisonment respectively for the violent disorder and having a bladed article; Brendan Makumbi, to an extended sentence of thirteen years, comprising a custodial term of nine years and an extended licence period of four years; and Chayce Greene, to an extended sentence of eleven years, comprising a custodial term of eight years and an extended licence period of three years, which was ordered to run consecutively to a sentence of two years and nine months' custody that had been imposed upon him in March 2017 4. We observe at the outset that, as Chayce Greene was aged 19 at the time of his conviction, the custodial term imposed upon him should have been expressed as being one of detention in a young offender institution, rather than imprisonment. We will correct that in due course. 5. The facts, in short, are these. Khan, Courtnie Greene and Makumbi were all born in the summer of 1995 and were thus aged 21 at the time of the kidnapping; they are now all aged 22. Chayce Greene, who is the brother of Courtnie Greene, was born in mid-February 1998 and was thus aged 18 at the time of the offence and is now aged 20. By the time of sentence, Khan had three previous convictions: two for the possession of cannabis and one for the possession of heroin. Courtnie Greene had six convictions for six offences in the period between October 2010 and September 2013, including affray and, in September 2013, wounding with intent, for which he was sentenced to 36 months' detention in a young offender institution. Makumbi had seven convictions for fourteen offences in the period between June 2011 and September 2014. The last one was for wounding, resulting from a stabbing, for which he was sentenced to two years' imprisonment. By the time of sentence for the instant offences, Chayce Greene had a conviction for affray in 2013 and (as already touched on above) in March 2017 had been sentenced by His Honour Judge Matthews to a total of two years and nine months' detention in a young offender institution - for offences of violent disorder and possession of an offensive weapon, of which had been convicted, and aggravated vehicle taking and dangerous driving, to which he had pleaded guilty. The violent disorder and possession of an offensive weapon were committed during the same incident as the offences of violent disorder and having a bladed article, for which his brother Courtnie Greene fell to sentenced by the judge. 6. That incident occurred on Friday 29 July 2016, when there was an eighteenth birthday party at the Old Isleworthians Rugby Club. About 100 guests attended by invitation. Sometime before midnight, a convoy of three cars arrived at the rugby club. Those in the cars, who included the Greene brothers, were armed with weapons and, as the judge found, were bent on violence, though why that was the case was never discovered. Chayce Greene had a large knife, described by some as a machete. Courtnie Greene had a smaller knife. Others had variously a firearm or imitation firearm, a belt, and two bottles, each containing a noxious substance like an ammonia solution (although not a particularly strong one). 7. What happened next was caught on CCTV. The group from the cars approached the club, armed with their weapons. The cars were moved up to enable a quick getaway. Violent disorder broke out, during the course of which the firearm or imitation firearm was discharged at least once. The Greene brothers brandished their weapons, as did others, and, at the height of the disturbance the noxious liquids were squirted on party goers. It was a terrifying incident during which people could be seen on the footage to run away in fear. At the conclusion of it, the attackers made good their escape. Fortunately, no one was hurt. 8. In due course, both Greene brothers were arrested and bailed. Thus, each was on bail at the time of the kidnapping. 9. The background to the kidnapping was that Khan had fallen out with the victim, Kelvin Farinha. The judge concluded that the falling out was crime related, probably in connection with drugs. In the result, Khan decided to kidnap Farinha and to exact some punishment on him. There was a degree of planning. The Greenes and Makumbi were informed of the need to locate Farinha and then to take him and detain him in a place where he would receive, as the judge found, a good beating. 10. By chance, on Thursday 13 October 2016, the Greenes and Makumbi spotted Farinha in Kingston. He was detained by force and the threat of force, with Chayce Greene playing a leading role at that stage. Farinha was taken to a fast food restaurant, where he was kept. Khan was then informed by telephone of his capture. Khan immediately took his father's Range Rover, without permission, and drove in it to Kingston. On his arrival at the restaurant, all four appellants ensured that Farinha was got into the vehicle. Once inside, he was struck by Khan. Khan drove the vehicle out of Kingston to the vicinity of some garages in the Hampton/Hamworth area. Farinha was punched by him again en route. 11. Once at the garage area, all the appellants, as the judge found, sought to humiliate Farinha by making him strip naked. He did so. Thereafter, Khan assaulted him in various ways, encouraged, as the judge found, by the other three - including beating him with a belt, punching and kicking him to the body and head, beating him with a branch that Makumbi handed to him, and burning the back of his left hand with a lighter. Towards the end of that assault, the Greene brothers used the word "allow" to Khan, to indicate that that was enough, but they did not physically intervene. 12. The assault, which had lasted for some five to ten minutes, came to an end because another vehicle drove by. Khan then told Farinha to put his clothes back on. They all got back into the Range Rover and Khan drove them to the Greenes' address, where he dropped off the other three appellants and Farinha before driving home to return the Range Rover. He then returned to the Greenes' address, where Farinha was still with the other three appellants. The four appellants then got into another car and instructed Farinha to go to another address. By then, the judge found, Farinha's ordeal had lasted for about two hours. However, he took the opportunity that the order to him had provided to escape. Thereafter, he travelled to Manchester, where, on 9 November 2016, he reported what had happened to the police. 13. Farinha's injuries were relatively minor and, it seems, did not require medical attention. 14. The report led to the arrest of their appellants and to their subsequent prosecution and conviction. 15. There were pre-sentence reports in respect of each of the appellants. In Khan's case, the author observed that he had tried to minimise and deny his behaviour, whereas in reality he had played a leading role in the offence. The instant offence represented an escalation in the seriousness of his offending. The author opined that he had limited insight as to the effect on the victim. He was assessed as posing a high risk of serious harm to the victim and a medium risk of serious harm to the public. 16. In Courtnie Greene's case, the author noted that he denied the offence of kidnapping and that he also claimed that he had been refused entry at the eighteenth birthday party, had been threatened with a knife, and had only armed himself to protect his brother and to scare others. He was assessed as posing a high risk of serious harm to known adults and to members of the public. 17. As to Makumbi, the author noted that he had failed to take responsibility for his offending and had failed to demonstrate remorse. He had also shown disregard for previous licence periods. He was assessed as posing a high risk of serious harm to the victim and a medium risk of serious harm to the public. 18. As to Chayce Greene, the author noted that there appeared to be an escalation in his offending. He was assessed as posing a high risk of serious harm to known adults and to members of the public. 19. In his sentencing remarks, the judge found the various facts that we have already summarised above. He concluded that there were a number of aggravating factors common to all the appellants, namely: the degree of planning; the group involvement; the criminal background; the location; the humiliation of the victim; the beating of the victim, involving fists, a stick and a shod foot; the burning of the victim; and the length of his ordeal. The judge concluded that Khan had played the pivotal role; that his previous convictions were not aggravating features but that, notwithstanding some helpful character references, there was no mitigation in Khan's case. Khan had regarded himself in relation to Farinha, said the judge, as someone who could take the law into his own hands and to mete out a form of punishment. Against that background, said the judge, he had come to the conclusion that Khan was a dangerous offender. Thus, from a starting point of eight years, and given the aggravating features, including Khan's leading role, the judge thus imposed the fifteen year extended sentence which we have already detailed above. 20. As to Courtnie Greene, the judge noted that he had previous convictions for violence, including wounding with intent, and that the kidnapping had been committed whilst he had been on bail for the offences of violent disorder and having a bladed article. In his case also, the judge found, there was no mitigation, save for his pleas of guilty to the offences committed at the birthday party. Given his previous offending and the facts of the instant offences, the judge said that he was driven inexorably to the conclusion that Courtnie Greene was a dangerous offender. The starting point, he said, for the combination of the violent disorder and the bladed offences was three years' imprisonment, reduced to two years in light of the guilty pleas. That was then taken into account in calculating the length of the custodial term of the extended sentence for the offence of kidnapping which, from a starting point of eight years and when combined with the aggravating features personal to him, resulted in the imposition of the fifteen year extended sentence, which we have also detailed above. 21. In Makumbi's case, the judge observed that his offence was aggravated by his previous conviction for wounding and the fact that he had handed Khan the branch with which to beat the victim. There was, said the judge, very little mitigation in his case either, and, given the combination of the content of his pre-sentence report, his previous conviction for wounding and the facts of the kidnapping, the judge concluded that he, too, was a dangerous offender. In his case, from a starting point again of eight years, those factors resulted in the imposition of the thirteen year extended sentence detailed above. 22. As to Chayce Greene, the judge recognised that he was aged 19 at the time of sentence, but observed that he had been at the forefront of detaining Farinha at the restaurant in Kingston. Whilst it was accepted that he was one of those who, during the beating at the garages, had indicated to Khan that that was enough, which, said the judge, was some mitigation, it had to be seen in the context of what had gone before. There was no other mitigation in his case, the judge said. In addition, the combination of his offending at the birthday party and the kidnapping indicated a clear pattern of behaviour involving violence to members of the public, such that the judge concluded that he, too, was a dangerous offender. In his case, from a starting point of eight years, the judge imposed the eleven year extended sentence that we have also detailed above. 23. The grounds of appeal are as follows. On behalf of Khan, it is said: first, that the judge erred in passing an extended sentence of imprisonment; and second, that, based on the facts of the offence and the mitigating factors, the custodial term of ten years' imprisonment was manifestly excessive. On behalf of Courtnie Greene, it is said: first, that the judge's starting point of eight years' imprisonment was too high and/or failed to reflect the lesser culpability of the appellant; and second, that the overall custodial element of eleven years was manifestly excessive for a 21 year old. On behalf of Makumbi, it is said: first, that the starting point of eight years' imprisonment was manifestly excessive when the facts and circumstances of the offence were closely analysed; and second, that the sentence was manifestly excessive because, when assessing dangerousness, the judge failed to take proper account of the age of the appellant and (more specifically as a young offender) the possibility that he may change and develop as to his future conduct and may not present a significant risk of serious harm in the future, and should not have been sentenced to an extended sentence. On behalf of Chayce Greene, it is said: first, that the judge failed to make any or any appropriate allowance for the fact that he was aged only 18 at the time of the offending; and second, that in those circumstances, against a background that he was already serving a sentence of two years and nine months' custody, the sentence imposed also failed to respect the principle of totality and was too long. 24. On behalf of Khan, Mr Reiz, combining his written and oral submissions, argues that the conclusion on dangerousness in the pre-sentence report was apparently premised, in part, on police intelligence, which had not been disclosed to the defence or the court; that the judge gave insufficient weight to a passage in the pre-sentence report which indicated that the appellant had displayed a good level of motivation to address his offending and that feedback from prison staff attested to his positive behaviour; the fact that the appellant was aged 21 at the time of the offence and had only modest previous convictions, which were not of a type that was relevant to the offence of kidnapping; that the judge erred in concluding that the appellant posed a significant risk of serious harm, whether to Farinha or to others; that, furthermore, there was no pattern of offending in his background which suggested that such conduct was likely to be repeated; and that, as underlined in R v Lang [2006] 2 Cr App R(S) 3, it is necessary to bear in mind when sentencing young offenders that they may change and develop within a shorter time than adults, which, combined with their level of maturity, may be highly pertinent when assessing their future conduct. Whilst this was, Mr Reiz accepts, an unpleasant offence which undoubtedly justified a sentence of imprisonment, the judge, he submits, was wrong to conclude that an extended sentence was required. Taking into account the matters identified at [19] of the judgment in Attorney General's Reference Nos 92 and 93 of 2014I [2015] 1 Cr App R(S) 44 , to which we will return in due course, Mr Reiz submits that a custodial term of ten years for a 22 year old with no previous convictions was simply too long. 25. On behalf of Courtnie Greene, Mr Burgess accepts that, in his case, the judge was entitled to make a finding of dangerousness and indicates that there is no criticism as such as to the sentences imposed for the birthday party offences. However, he submits that, when the matters identified in Attorney General's Reference Nos 92 and 93 of 2014 are considered, there was in reality little or no planning; the detention was two hours at most; the injuries, whilst undoubtedly unpleasant, were not such as to prevent Farinha from attending and apparently enjoying a birthday party where he was photographed two days later; and to that extent it can be argued that the offence warranted a lower starting point. Further, Mr Burgess submits that the judge's differentiation between Khan and the others, combined with the fact that, on the evidence, Courtnie Greene was the other person mentioned by the judge when dealing with his brother as having verbally intervened to stop Khan's violence, a should have resulted in a lesser sentence. 26. On behalf of Makumbi, Mr Sherriff submits that the correct approach to sentence was the consideration of culpability and harm by the careful analysis of the facts and circumstances, rather than simply by "ticking the boxes" in relation to the matters identified in Attorney General's Reference Nos 92 and 93 of 2014 as, he submitted, may have been the case here. This was, he points out, an incident which lasted for no more than two hours. The victim was not taken from his home; he was not tied up or gagged in any way; the violence was minimal; only improvised weapons were used; no demands were made of others; the effect on the victim was physically modest; there was no real planning; four men were involved; whilst there was also humiliation, there was no photography or any posting on social media; and whilst the offence arose against a background of criminal behaviour of some sort, harsher sentences, such as the instant sentences, should only be imposed when the victim suffers more greatly than was the case here. He also points out that the victim was not particularly vulnerable. Viewed in that light, he submits, the sentence should have been shorter. As to dangerousness, Mr Burgess submits that the judge failed to take sufficient account of the appellant's age (21 at the time of the offence) and the fact that he might change and develop. The pre-sentence report assessed him as posing a high risk only to the victim, who was known to have moved out of London, and the judge erred, therefore, in finding that Makumbi posed a significant risk of serious harm, whether to him or to others. 27. On behalf of Chayce Greene, in his written submissions Mr Cox submitted that the violence was meted out by Khan and, as the judge accepted, Chayce Greene was one of those who had verbally encouraged him to stop. Whilst the incident took about two hours in all, and there was some degree of planning, the weapons used were only improvised; and whilst the victim was humiliated, he suffered only minor injury, which did not place the offence in the highest category of culpability - and it clearly lacked some of the worst features of other kidnapping cases, such as demands for ransom, or a much longer period of detention, or much more serious injuries. Mr Cox submitted that the offences in Attorney General's Reference Nos 92 and 93 of 2014 , and in Attorney General's Reference Nos 102 and 103 of 2014 [2015] 1 Cr App R(S) 55 were much worse than the instant offences and yet, he points out, in both those cases the sentence was increased to ten years' custody, which was the ultimate custodial term imposed on Khan, which reflected on the custodial term imposed on Chayce Greene. Equally, Mr Cox submitted, in Chayce Greene's case it was important to bear in mind that it was accepted that he had encouraged the end of the violence; that it was not suggested that he himself had actually used any violence; most importantly, that he was aged 18 at the time of the offence and therefore the youngest by some three years of the offenders; and that there were some positive factors in his pre-sentence report which the judge did not take sufficiently into account, namely, that he presented with a positive selfimage and view of others and was pleasant, polite and answered all questions and did not display attitudes condoning offending. Finally, Mr Cox submitted, particularly when the appellant's age was taken into account, the judge had taken insufficient account of the important principle of totality. 28. There is no sentencing guideline in relation to offences of kidnapping. However, over the last seven years there have been a number of cases, culminating in Attorney General's Reference Nos 39, 40, 41 and 42 of 2014 [2014] EWCA Crim 1557 , Attorney General's Reference Nos 92 and 93 of 2014 (above), Attorney General's Reference Nos 102 and 103 of 2014 (above), R v Mahmood [2015] 2 Cr App R 18 and R v Kane [2016] EWCA Crim 860 . Those cases give general guidance as to the appropriate starting point and as to the sort of factors to be taken into account in sentencing in cases of this type. In particular at [29] of the judgment in Attorney General's Reference Nos 102 and 103 of 2014 , this Court said: "The authorities establish that every case is fact specific. However, generally speaking, cases involving hostage taking and demands for ransom will attract figures close to the 16 year starting point. Others, where such behaviour has been absent, will still attract double figures, regardless of the degree of violence meted out." At [19] in Attorney General's Reference Nos 92 and 93 of 2014, the Court said this: "It seems to us that relevant factors in assessing the gravity of cases of this type will include the length of detention, the circumstances of detention (including location and any method of restraint), the extent of any violence used, the involvement of weapons, whether demands were made of others, whether threats were made to others, the effect on the victim and others, the extent of planning, the number of offenders involved, the use of torture or humiliation, whether what was done arose from or was in furtherance of previous criminal behaviour and any particular vulnerability of the victim, whether by reason of age or otherwise." 29. The list is plainly non-exhaustive. The reference to previous criminal behaviour originated from R v McLosky [2012] EWCA Crim 1663 , in which the Court said that the commission of this type of offence, done in order to maintain authority in relation to a background criminal enterprise of some sort, is a significant aggravating feature. 30. Here the judge had the great advantage of having presided over the appellants’ trial. He carefully analysed the facts and the ages of each of the appellants. It was, of course, for him to decide whether the appellants were dangerous. 31. It seems to us that the judge was plainly entitled to conclude, having weighed all the relevant factors, that a starting point of eight years’ custody was appropriate. Equally, it seems to us that he was entitled to increase that to ten years in Khan's case, and to conclude, for the reasons that he gave, that Khan was a dangerous offender. Finally, and whilst it was a matter for his discretion, it seems to us that he was equally entitled to conclude that an extended sentence of the length that he imposed was appropriate in Khan's case. 32. Likewise, in the case of Courtnie Greene, the judge was entitled to start at eight years and, via the aggravating factors of Courtnie Greene's record, the fact that he committed the kidnap offence whilst on bail and with totality in mind, to increase that in combination with the birthday party offences to a custodial term of eleven years. Further, in our view, he was also entitled to conclude, again for the reasons that he gave, that Courtnie Greene was dangerous and that an extended sentence was required. 33. The same applies in Makumbi's case, where the aggravating feature of his record and his assistance to Khan in the violence by the provision of a weapon to him, justified an increase from eight to nine years, and the judge was entitled, again for the reasons that he gave, to find that Makumbi was dangerous and to impose the extended sentence that he did. 34. However, insofar as Chayce Greene is concerned, the position is, in our view, different. Had Chayce Greene been a mature 21-year-old, there would have been nothing wrong in the judge's starting point or in his ultimate sentence. However, Chayce Greene was not. Albeit that he took a leading role at the restaurant, and was on bail at the time, he was three years younger than the other appellants. It is clear from the transcript that, notwithstanding that, the judge did not treat him any differently. In our view, he should have done so - in order appropriately to reflect Chayce Greene's younger age at the time of the offence. Whilst, Chayce Greene had verbally encouraged Khan to stop, the judge was plainly entitled to find that he was dangerous and to impose an extended sentence. Nevertheless, it seems to us that the custodial term of that extended sentence was, at eight years, somewhat too long. To reflect his age, it should have been an extended sentence of ten years, comprising a custodial term of seven years and an extended period of licence of three years. 35. Accordingly, we propose to quash the sentence imposed on Chayce Greene and to substitute for it an extended sentence of ten years, comprising a custodial term of seven years' detention in a young offender institution and an extended licence period of three years. As before, that will run consecutively to the sentence imposed upon him in March 2017. 36. It follows that the appeals of Khan, Courtnie Greene and Makumbi are dismissed. But, to the limited extent we have indicated, the appeal of Chayce Greene is allowed. ____________________________________________

2018_02_27-4183.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/480/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/480

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[2013] EWCA Crim 710

EWCA_Crim_710

2013-05-14

crown_court

Case No: 201203492B1 Neutral Citation Number: [2013] EWCA Crim 710 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WINCHESTER Her Honour Judge Evans Q.C. T20117247 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14 May 2013 Before : LORD JUSTICE MOORE-BICK MR. JUSTICE FULFORD and MR. JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - STEVEN EDWARD DOSSETT Appellant - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201203492B1 Neutral Citation Number: [2013] EWCA Crim 710 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WINCHESTER Her Honour Judge Evans Q.C. T20117247 Royal Courts of Justice Strand, London, WC2A 2LL Date: 14 May 2013 Before : LORD JUSTICE MOORE-BICK MR. JUSTICE FULFORD and MR. JUSTICE IRWIN - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - STEVEN EDWARD DOSSETT Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Miss Karen Dempsey (instructed by the Registrar of Criminal Appeals ) for the appellant Mr. Francis Abbott (instructed by the Crown Prosecution Service ) for the respondent Hearing dates : 24 th April 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Moore-Bick : 1. On 18 th May 2012 in the Crown Court at Winchester before Her Honour Judge Evans Q.C. the appellant was convicted of an offence of robbery in respect of which he was sentenced to 9 years’ imprisonment. He now appeals against conviction by leave of the single judge, who referred his application for leave to appeal against sentence to the Full Court. 2. The robbery occurred on 8 th May 2011 at about 10.00 pm when Dee Riley and Michael Ryan were walking home after a meal at the West Ham leisure park in Basingstoke. They noticed two men loitering in the road ahead of them and as they approached them the two men attacked them, knocking them both to the ground and punching and kicking them before making off with Miss Riley’s handbag. A dog unit was called to the scene and various items belonging to Miss Riley were found, including her handbag, which had been thrown into a hedge, and a number of receipts and vouchers which had been in it. The police found fingerprints on some of the vouchers and blood on one of the receipts. A DNA profile taken from the blood stain matched that of the co-defendant, James Ganney, who was a friend of the appellant. 3. The appellant took part in an identification procedure 16 days later and was picked out by Mr. Ryan. He was not identified by Miss Riley, who picked out a volunteer. The prosecution case was that the appellant and the co-accused had carried out the robbery together. The appellant said that he had been at home with his parents at the time of the robbery and that Mr. Ryan was mistaken when he identified him as one of the robbers. The co-accused declined to answer questions in interview and did not give evidence at the trial. He simply put the prosecution to proof of its case. In due course the jury convicted the appellant but acquitted the co-accused. 4. In her evidence at the trial Miss Riley said that when the two men approached her and Mr. Ryan one of them had pushed her by the left shoulder causing her to fall to the ground. He tried to take her bag. She heard Mr. Ryan calling for help and saw him lying on the ground to her left. She then felt a blow to her right and a very sharp pain in her face. The blow had been struck by the same man who had tried to take her bag. As she put up her hands to protect her face her bag was finally wrenched from her grasp. At that point the other man was behind her, but she did not know what he was doing. Mr. Ryan was curled up on the ground. As soon as the attack was over she ran to a nearby house for help. 5. Miss Riley described the two attackers as tall, in their 20’s with what appeared to be local accents, both white with dark hair. The receipt on which the blood stain was found had been deep in her handbag. In his evidence Mr. Ryan said that there had been some street lighting at the scene of the robbery, but that when the attack started his view of the two men had been poor because they had been walking towards Miss Riley and him and the light had been behind them. He said that one of the men had had a hooded top and the other wore dark clothing. He described them both as being slightly taller than himself. 6. Both victims were injured in the course of the robbery. Miss Riley suffered two fractured eye sockets and a fractured nose. Mr. Ryan was kicked in the ribs and head, suffering a fractured eye socket, a significant injury to one of his eyes and a number of broken ribs. All that had happened at an early stage in the incident. He said that at one point he had curled up in a foetal position on the ground with his hands over his face in order to protect himself. He said that he had not seen the blow coming which injured his eye, but that the man wearing the hood had been responsible. He thought that both men had kicked him. 7. When he was asked to describe what he had seen of the attackers Mr. Ryan said that after he had been knocked to the ground the two men had tried to seize Miss Riley’s bag. He had managed to get up from the ground and at that point had had a good view of the face of one of the men who was pinning Miss Riley’s arms back while the other wrestled with her bag. The light was then behind Mr. Ryan, shining on the man’s face, and he got a good look at him. He was wearing dark clothing. In his initial description to the police Mr. Ryan described him as being about 5 feet 11 inches tall. The appellant is about 6 feet 3 inches tall. 8. In addition to the evidence of the witnesses there was DNA evidence that the blood found on the receipt belonging to Miss Riley had come from the co-accused. 9. At the close of the prosecution case Miss Dempsey, relying on the well-known case of R v Turnbull [1977] Q.B. 224 , invited the judge to withdraw the case from the jury on the grounds that this was a classic case of an observation based on a fleeting glance, or at any rate one made under difficult conditions, and that the identification of the appellant was too weak to support a safe conviction. The judge considered the evidence relating to the speed of the attack, the proximity of the victims to their assailants, the quality of the street lighting and the positions of the witnesses at different stages, in particular in relation to the lighting. She also considered specific weaknesses in the evidence: the fact that neither witness mentioned tattoos, although the appellant had tattoos on his neck; the fact that Miss Riley had been unable to pick out the appellant at the identification procedure; the fact that Mr. Ryan was under attack, had suffered injury and might therefore have been distracted; and the discrepancy between the height of the assailant as estimated by Mr. Ryan (5 ft 11) and the height of the appellant (6 ft 3 in). Having considered all those matters the judge concluded that it was not a case of a fleeting glance and that although the identification evidence might not have been of the highest quality, it was not so poor that she should withdraw the case from the jury. 10. That was sufficient for her decision, but the judge then went on to say that the identification was capable of being supported by evidence of the appellant’s previous conviction for an offence of robbery committed with the co-accused, which the prosecution had indicated that it would apply to adduce as evidence of bad character. She indicated that in her view that evidence, together with the evidence that the co-accused’s blood had been found on the receipt from Miss Riley’s handbag, was capable of supporting Mr. Ryan’s identification of the appellant because it made it less likely that he had by chance picked out at the identification procedure an innocent person who happened to have a history of this kind of offending. 11. The next day the prosecution made a formal application to adduce evidence of the appellant’s conviction for robbery and also evidence of a conviction for assault occasioning actual bodily harm arising out of an unprovoked attack in much the same location on a middle-aged man walking home at night, whom the appellant had knocked to the ground and kicked. Although Miss Dempsey submitted that the case was too weak to justify allowing evidence of the appellant’s convictions to be adduced in support of it, the judge held that there was a case to go to the jury in any event and that the two convictions were relevant, so far as the appellant was concerned, to the important issue of identification, because they tended to support the other evidence of identification. She also held that they tended to support the conclusion that the appellant had a propensity to make attacks in that particular area on older people together with his co-accused. Although she accepted that the evidence of the convictions was highly prejudicial, she considered it to be highly probative and did not think that admitting it would have an adverse effect on the fairness of the trial. 12. There are two grounds of appeal in this case: the first is that the judge should have withdrawn the case from the jury because of the weakness of the identification evidence; the second is that the judge should not have allowed the prosecution to adduce evidence of the appellant’s two previous convictions. Identification 13. It is well known that miscarriages of justice have occurred from time to time as a result of the mistaken identification of defendants by honest witnesses and it is for that reason that in Turnbull the court emphasised the importance of withdrawing the case from the jury if the identification evidence is weak. It also emphasised the importance, even in cases which are allowed to proceed, of giving clear directions to the jury warning them of the dangers inherent in evidence of this kind and drawing to their attention particular aspects of the evidence that require careful consideration. The circumstances in which the original sighting of the defendant took place are critical and vary widely from case to case. In the present case it is accepted that the quality of the street lighting was poor and that Mr. Ryan’s observation (which is the only relevant observation for present purposes) took place under difficult conditions, because he had been knocked to the ground at the beginning of the attack and was no doubt shocked. However, his evidence was that he had managed to get up as the two men were trying to take Miss Riley’s bag. He said that the man wearing the dark clothing was standing behind her, so that the street lights were shining on his face and that he had got a good clear look at him as he tried to pull the other man away. After that he was knocked down again. 14. Although the whole incident lasted only a few minutes, this was not really a case of a fleeting glimpse, such as one might have of a person running away from the scene of a crime. Mr. Ryan and the two robbers were all in close proximity and he was able to get a good look, albeit for only a short period of time, at the face of the man standing behind Miss Riley. Experience suggests that it is not necessary to look at a person’s face for long in order to take in its essential features, especially when there is good reason for it to be imprinted on the mind of the observer, as was the case here. It is quite true that neither witness mentions seeing any tattoos, though whether they were clearly visible under the prevailing conditions is uncertain. There is also the discrepancy between Mr. Ryan’s assessment of the attacker’s height and the height of the appellant, but there is a real distinction between the instinctive process of taking in a person’s facial features and the conscious mental process involved in assessing a person’s height in feet and inches. 15. In our view this was a case in which the quality of the original observation was good enough to justify the judge’s leaving the case to the jury provided that she warned them clearly of the dangers inherent in visual identification and drew their attention to the specific weaknesses in the evidence. In the event, no criticism is made of that part of her summing up. 16. When giving leave to appeal the single judge drew attention to the fact that in her ruling the judge had referred to the support that could be given to Mr. Ryan’s identification of the appellant by his previous convictions. In our view it was not open to her to rely on that evidence when she made her ruling, because at that stage there had been no application to adduce it and she had not ruled on its admissibility. However, it is clear from the transcript of the judge’s ruling that her decision did not depend on the admission of that evidence; it stood on the quality of the identification evidence alone, which she considered was good enough to justify leaving the case to the jury as it stood. 17. In those circumstances this ground of appeal fails. Bad character 18. The appeal on this ground rests on two submissions: that neither of the convictions was relevant to any important matter in issue in the proceedings and that, even it was, the admission of that evidence was likely to have such an adverse effect on the fairness of the proceedings that it should have been excluded under section 101(3) of the Criminal Justice Act 2003. Miss Dempsey drew the judge’s attention to the case of R v Hanson [2005] EWCA Crim 824 and in particular to the warning given by this court that judges should not allow evidence of bad character to be adduced in support of a weak case. The prosecution, on the other hand, argued that the convictions were relevant, both because they supported Mr. Ryan’s identification of the appellant and because they demonstrated a propensity to commit robbery in conjunction with the co-accused and a propensity to attack older people in public places in that part of Basingstoke. 19. The judge relied on the decision of this court on R v Eastlake [2007] EWCA Crim 603 as support for the proposition that evidence of bad character which indicates a propensity to commit offences of the kind with which the accused is charged can support identification evidence placing him at the scene of the crime. Dame Heather Steel giving the judgment of the court said (paragraph 19): “The jury had to decide whether the two appellants were the two young men who committed the offence. The evidence of bad character was capable of establishing that they had a propensity to commit an offence of street violence, and to do so together. That evidence was capable of lending support to the conclusion which the Crown invited the jury to reach, namely that the two appellants were correctly identified as those who committed the attack.” 20. Miss Dempsey submitted that the present case differs from Eastlake in a number of respects and no doubt it does, but that does not undermine the principle for which that case stands, namely that evidence of a previous conviction can be admissible for the purpose of reinforcing other relevant evidence. For that purpose it does not need to capable of showing a propensity to commit offences of the kind under consideration; the question, as always, is whether the previous conviction is relevant to an important matter in issue between the prosecution and the defence and, if so, whether its admission in evidence would have an adverse effect on the fairness of the proceedings. 21. Evidence of one or more convictions for offences of a similar kind are clearly capable (depending on the circumstances) of showing that the accused has a propensity to commit offences of the kind with which he is charged and therefore of bolstering a visual identification of the defendant as the person who committed the offence. That was the position in R v Eastlake . It may also reinforce other evidence tending to show that the defendant committed the offence with which he is charged. However, it must be approached with care. In R v Hanson the court gave guidance on the approach that judges should adopt when faced with applications to adduce evidence of the defendant’s previous convictions. Sir Christopher Rose V.-P. giving the judgment of the court pointed out that a single previous conviction, even for an offence of the same description or category, will often not be evidence of a propensity to commit offences of that kind. It may do so if it demonstrates a tendency towards unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged. In other cases, however, it may be very difficult to infer from a single conviction that the defendant has a propensity to commit offences of that kind. The court also pointed out that when considering what effect evidence of a conviction is likely to have on the fairness of the proceedings, the judge should take into account the degree of similarity between the previous conviction and the offence charged even if they share the same description. It will often be necessary, even when considering offences of the same description or category, to examine each individual conviction rather than simply to look at the name of the offence or at the defendant's record as a whole. 22. In the present case the judge recognised that evidence of the appellant’s convictions was highly prejudicial, but she considered that it should be admitted because it was highly probative. In our view that proposition needs to be examined with some care, given that the robbery and the assault shared some common features with the present offence, as well as some dissimilarities. 23. We consider, first, the appellant’s conviction for robbery at a garage in the area of Basingstoke where the attack on Mr. Ryan and Miss Riley subsequently took place. The circumstances of this offence were described to the jury in the summing up as follows: “Now of the conviction together for robbery Mr. Dossett and Mr. Ganney this was a robbery in 2010 and the officer said that the details […] are that both Mr. Ganney and Mr. Dossett and another male entered the Shell Garage in Old Worting Road. One attempted to leave with a basket of goods. The shopkeeper was hit, pushed and pulled and the men left.” 24. It is clear, therefore, that the three men had entered the garage shop together, and certainly the appellant and Mr. Ganney were prepared to use force in order to steal alcohol. Although the violence does not appear to have been particularly great, this was a casual, opportunistic, public offence of theft accompanied by violence and in that sense it bears some real similarity with a street robbery or “mugging”, in which the use of some degree of force is an integral part of the offence. Furthermore, that robbery was committed in the same area as the instant offence. 25. The second conviction, committed against an elderly man, again in the same part of Basingstoke, was described by the learned judge to the jury as follows: “In relation to Mr. Dossett alone in 2010 the ABH on Mr. Gallagher. [The officer] said this was an elderly man out for an evening walk in South Ham Road. He said two men approached him in an alley. He was nudged and stumbled to the ground. He got up. Later he was kicked on the ground and [the officer] … said … that Mr. Dossett and another male gave themselves up in an intoxicated state with blood on them and blood from Mr. Gallagher was found on Mr. Dossett’s shoe and when he was interviewed Mr. Dossett said that he had not punched Mr. Gallagher. Mr. Gallagher had in fact set upon him and the then said, “I was so pissed I kicked him once when he was on the floor” and he said, “I pleaded guilty to ABH”. ” 26. This was an attack by two men on their victim in significantly similar circumstances to the present allegation: they approached Mr. Gallagher and assaulted him by causing him to stumble to the ground, and they then kicked him while he was on the ground with sufficient force to leave Mr. Gallagher’s blood on the appellant’s shoe. It seems that during the attack, as in the instant case, the victim was punched by at least one of the men. The principal dissimilarity is that nothing was stolen. 27. Particularly given the observations of Sir Christopher Rose V.-P. in Hanson that “[a] single previous conviction for an offence of the same description or category will often not show propensity”, it is necessary to consider these two previous convictions together. As indicated in Hanson , the judge should take into account the degree of similarity between the previous conviction and the offence charged even if they share the same description; the name of the offence, taken alone, will often be an insufficient guide. As we have observed, these two previous convictions occurred in the same area of Basingstoke as the instant offence; on each of the two previous occasions the appellant committed the offence with at least one other man and the index offence was committed by two people; they were seemingly opportunistic in nature; and they involved public violence inflicted on strangers. The robbery, although it occurred in a garage shop, entailed the use of violence that ceased – as in the present case – when the robbers had secured the goods they wanted to steal; and the assault on Mr. Gallagher was carried out in broadly similar circumstances to the attack on Miss Riley and Mr. Ryan, save that none of his property was stolen. 28. The admission of previous convictions to show propensity is no longer confined by the common law requirement for “striking similarity” between the previous offending and the offence being tried. It is important that Hanson should not be understood as maintaining that requirement by a different use of language. At the same time it is important that the requirement to show propensity should not be allowed to degrade or diminish to the point where convictions are admissible if they merely show a preparedness to engage in crime of vaguely the same kind as the index offence. This court has repeatedly emphasised the need for care in this. There must be a logical basis for concluding that the previous offending shows that the defendant was more likely to be prepared to commit the specific crime in question. Provided such a logical connection can be made, there is no requirement that the previous offending should consist of or include an offence of a strikingly, or even markedly closely, similar nature to the index offence. 29. Here the appellant’s previous convictions showed that he was capable of using violence of a different kind to ensure the success of a theft, and thus of being guilty of robbery. Further, the conviction for assault demonstrated that, on a separate occasion, he was capable of using similar violence in similar conditions to that of the offence in question, although without the motive of theft. Although not every judge might necessarily have reached the same conclusion, we consider that, taken together, it was open to the judge to conclude that the convictions could logically and properly demonstrate a propensity to behave as the appellant was said to have behaved in the robbery being tried. Whether or not they did so was for the jury to decide. 30. Additionally, in our judgment the previous convictions for robbery and assault were admissible in relation to the identification of the appellant as one of the perpetrators of the offence on 8 th May 2011. As regards the robbery, in the present case there was strong evidence in the form of the blood stain and the DNA evidence that the co-accused had been involved in the offence and the conviction for robbery tended to show that the two of them associated with each other in the relevant area of Basingstoke. The evidence therefore tended to link the appellant to the offence through his links to the co-accused and in that way tended to support Mr. Ryan’s identification by making it less likely that it was the result of pure coincidence. The judge and the jury were entitled to consider that evidence all together. As the crown emphasised, once the link to Ganney was established by the blood on the slip from the handbag and the appellant had been identified by the witness, the previous participation by both of these men in a robbery, even if of a somewhat different kind, took on a logical, not merely prejudicial, significance. 31. Furthermore, the judge was entitled to leave the question to the jury as to the chances of Mr. Ryan’s mistakenly picking out from a line of nine men on an identification procedure the person who had previous convictions for a robbery and an assault committed very close to the scene of the present attack. The identification evidence was good enough to stand on its own and in our view strong enough to justify admitting evidence of bad character in support of it. For these reasons we are satisfied that the judge was right to admit the evidence of the appellant’s previous convictions for robbery and assault. 32. Evidence of a defendant’s previous convictions, especially convictions for offences of the same description, is liable to be prejudicial because it carries with it a risk of diverting the jury away from a careful analysis of the evidence towards finding that the defendant is guilty simply because he has previously committed an offence of the same kind as that with which he is charged. It is important, therefore, for the judge in summing up to explain to the jury the relevance of any evidence of previous convictions and its limitations. 33. We turn in those circumstances to the directions in law relating to the previous convictions, as given during the summing up: “Now what about the Defendants’ previous convictions? Well you have heard that in May 2010 both Defendants pleaded guilty to an offence of robbery that took place at a filling station on Worting Road not far from the scene of the robbery that you are now concerned with. Now that robbery was of a different nature to the one now alleged because […] it involved a basked being filled with alcohol and then an attempt to leave the shop without paying and then the shop keeper being pushed and hit as he struggled with the basket. Now in addition to Mr Dossett you have heard that in the same month in 2010 he was involved with another male in an unprovoked attack on a retired man in which the man was knocked to the group and he was kicked on the ground and that too happened fairly close to the scene of the robbery, an attack that you are now considering. Now the prosecution argues that this evidence is relevant to the question of whether Mr Ryan has correctly identified Mr Dossett as one of the robbers. They say firstly what are the chances that Mr Ryan would mistakenly pick out from a line of nine males on an identification procedure the person who happened to have a previous conviction for robbery and ABH committed very close to the scene of the attack? As well as that they say what are the chances that of all the people that Mr Dossett committed that previous robbery with it turns out to be Mr Ganney who is the man whose blood is found on the receipt that was in Miss Riley’s handbag? Now secondly the prosecution say that the fact that Mr Dossett has that previous conviction for robbery with Mr Ganney and a conviction for ABH committed with another male shows that he Mr Dossett has got a propensity or a tendency if you like to commit an offence of robbery with Mr Ganney and a propensity or a tendency to be violent towards older people having attacked Mr Gallagher in a similar way to the way the prosecution say that Mr Ryan was attacked and they say that those factors make it more likely that Mr Dossett was involved in these offences. [. . .] Now it is for you (to) decide whether in relation to Mr Dossett, the evidence of his previous convictions provides any support for the correctness of the identification by Mr Ryan and/or whether it does in fact show a propensity or a tendency as the prosecution suggest. [. . .] Now the defendants both accept that they do have those convictions. But they say that the robber that the prosecution rely upon is of a very different nature to the one that they now both face. They say in effect that the robbery was a shoplifting gone wrong. Very different to the street robbery now alleged and as well as that they say that they both pleaded guilty to the robbery of the filling station and Mr Dossett says that he pleaded guilty to the ABH upon Mr Gallagher. It is a matter entirely for you to decide the extent to which if at all the evidence of previous convictions establish what the prosecution suggest and if it does the extent to which it assists you in determining guilt. What is very important is that evidence of previous behaviour is only part of the evidence in this case. Its importance should not be exaggerated and you should not convict either or both defendants wholly or mainly upon the evidence of bad character. It does not follow that just because the defendant behaved in a certain way in the past he did so again on this occasion. Bad behaviour in the past cannot alone prove guilt.” 34. Therefore in the course of her summing-up, the judge explained to the jury the central aspects of the two ways in which these convictions had relevance and potential probative value ( viz. supporting the identification of the appellant and propensity). She clearly explained the basis on which the prosecution relied on this material and she emphasised the defence submissions as to their circumstances and certain suggested dissimilarities. The judge made it clear that these were essentially questions of fact for the jury and cautioned them against attributing undue significance to that material. Although the learned judge did not give the jury a specific direction in this discrete context on the burden and standard of proof, her earlier direction on these issues was sufficient. Accordingly, we consider that the judge directed herself and the jury correctly and in this regard it is important to have in mind the direction of this court in Hanson : “If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling […] as to admissibility […]. It will not interfere unless the judge’s judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense (compare R v Makanjuola [1995] 2 Cr App R 469 at 473E).” 35. In our judgment there is no proper basis for concluding that in admitting this material the judge made a “plainly wrong” decision or that she exercised her discretion unreasonably. 36. In all the circumstances, this appeal against conviction is dismissed. 37. Turning to the application for leave to appeal against sentence, Miss Riley was hit hard to her face and she suffered two fractured eye sockets and a fractured nose. She was badly shaken by this shocking and violent crime. In line with the former Sentencing Guidelines Council’s Definitive Guideline for Robbery the judge correctly placed this offence in category 3 to reflect the fact that the victims had been caused serious physical injury as the result of the use of significant physical force. It follows that we reject the appellant’s submission that the injuries summarised above did not amount to injury of a kind falling within this bracket. That led to a sentencing range of 7 – 12 years with a starting point of 8 years’ custody. The judge found that the appellant’s criminal history, considered above, was an aggravating factor. Two offenders were involved, and whichever of them delivered the greater number of blows, they were equally involved in the commission of this offence, each fully engaged in playing his part. The appellant was not entitled to the credit that would have resulted from a guilty plea. In all the circumstances, notwithstanding the fact that the offence was essentially opportunistic, that the appellant was acquitted of the assault on Mr. Ryan and that the judge withdrew the count charging an offence contrary to section 20 of the Offences Against the Person Act 1861 against Miss Riley, a sentence of 9 years’ immediate imprisonment is unassailable. 38. Finally, although at one stage the judge asked for the return of the papers for possible reconsideration of the sentence under the slip rule, See Powers of Criminal Courts (Sentencing) Act 2000, section 155 (1). in the event she decided that that step was unnecessary because, on reflection, she concluded, without convening a hearing, that the sentence was appropriate. The willingness of a judge to revisit a sentencing decision in order to ensure that it was not flawed does not raise an expectation that the sentence will, as a consequence, be varied. It indicates no more, at its highest, than the judge’s preparedness to review her original decision. 39. In consequence, we refuse the application for leave to appeal the sentence.

2013_05_14-3173.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/710/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/710

b86c72ba9d17baaa1910e80d4e2509ba2b0b4c697658efd7b7f9af2683f76a4e

[2008] EWCA Crim 2301

EWCA_Crim_2301

2008-10-07

crown_court

No. 2008/04407/A6 Neutral Citation Number: [2008] EWCA Crim 2301 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 7 October 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE OWEN and MR JUSTICE CHRISTOPHER CLARKE - - - - - - - - - - - - - - R E G I N A - v - ZARA LOUISE McKENNING - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Compan

No. 2008/04407/A6 Neutral Citation Number: [2008] EWCA Crim 2301 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 7 October 2008 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Judge ) MR JUSTICE OWEN and MR JUSTICE CHRISTOPHER CLARKE - - - - - - - - - - - - - - R E G I N A - v - ZARA LOUISE McKENNING - - - - - - - - - - - - - - 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 A Wrattesley appeared on behalf of the Applicant - - - - - - - - - - - - - - J U D G M E N T Tuesday 7 October 2008 THE LORD CHIEF JUSTICE: 1. Zara McKenning is aged 22. She has no previous convictions. On 17 April 2008, in the Crown Court at Sheffield, before His Honour Judge Robinson, she pleaded guilty to doing an act tending or intended to pervert the course of public justice. On 9 May 2008 she was sentenced to two years’ imprisonment. Her application for an extension of time (66 days) in which to apply for leave to appeal against sentence has been referred to the full court by the Registrar. The application for leave to appeal was deferred owing to an error in counsel's chambers. We shall not refuse an extension of time given that explanation. We will concentrate on the merits, or lack of them, in the application. 2. The story begins at about eleven o’clock on the morning of 8 December 2007. A 29 year old man went to a public house with some of his friends. The applicant arrived there about ten minutes later. We note her clothing, not because she was not entitled to wear it, but because it had a significance to the later investigation. Her clothes did not conceal her figure. The applicant sat down next to Mr Holling. They began to chat. After a while their friends all left the public house. They began to kiss, and began to kiss passionately and in public. The kissing was interrupted by two men known to the applicant. 3. At three o’clock in the afternoon the couple (as they now were) decided to leave. They went back to the applicant’s home. At her home they had consensual sexual intercourse. After sexual intercourse had finished the same two men who had talked to the applicant in the public house came to her home. They saw that Mr Holling was getting dressed. He left the room and went into another room in the house. The applicant made an allegation that she had been raped. One of the two men approached Mr Holling and told him of the allegation. Unsurprisingly, he panicked. He knew the allegation was untrue, but he did not know what the consequences of the allegation might be and so he ran away. 4. The matter was reported to the police. At six o’clock that evening Mr Holling was arrested for rape. At the police station he was put into a cell. He was strip-searched in front of police officers. A medical examination was conducted. His penis was swabbed, all of his clothes were taken away, and he was forced to wear police-issue clothing. 5. The investigating officers interviewed the applicant. She maintained that a drug had been put into her drink and she asserted that Mr Holling had taken her to her home in her drugged condition and there had violently raped her. 6. Mr Holling was interviewed. He denied rape. He admitted consensual sexual intercourse. After he had been detained for twenty-seven-and-a-half hours he was released on bail. 7. The investigating officers had two conflicting stories which they investigated. They began by taking statements from people who it was known had been in the public house when the first encounter between these two individuals took place. Fortunately for Mr Holling, because of the clothing the applicant had been wearing, a number of those in the public house had a very vivid impression of the applicant and had noticed her consensual behaviour with Mr Holling when they were there kissing passionately. 8. Eventually (and the investigation took something like three months) it became apparent that the applicant had been lying when she claimed that she had been raped. It is a feature of the way in which the investigation was conducted that the officer in charge of it had rightly maintained regular contact with the applicant, who at that stage at any rate purported to be the victim of a serious rape. She therefore had ample opportunity to withdraw the allegation, to indicate that it was false and that it should not be pursued as a complaint. She said no such thing. 9. On 5 February 2008 it was put directly to her that her allegation was false. When confronted she admitted that she had lied. Accordingly Mr Holling was released from his bail. 10. The consequences to Mr Holling need no amplification. He described how he was devastated and afraid of what might happen to him, particularly because he knew perfectly well that so far as rape was concerned no such thing had occurred. When he was released from his bail he explained, "The sheer relief caused me to collapse on the floor and feel physically sick. I was, however, happy that my ordeal was over”. 11. When the applicant was arrested and interviewed she said that she had made up the allegation because she had been caught by two friends of her boyfriend having had sexual intercourse with Mr Holling. She thought that they would tell her boyfriend (he was in prison at the time), and that he would be violent towards her if he heard that she had had sexual intercourse with another man. 12. The boyfriend was in fact released shortly after this incident. He assaulted the applicant and was in due course returned to prison following that assault. There was, therefore, ample opportunity for her to tell the truth. 13. The pre-sentence report referred to the applicant’s remorse. It explained that she appeared to understand how an innocent victim of such an allegation could have been distressed enough to have thoughts of suicide. She accepted full responsibility for her actions. The assessment was that the offence occurred because she was immature. She displayed a complete lack of understanding of the grave consequences of her lie. The alcohol she had taken on the day in question would have impaired her thinking. There was, it was said, a low risk of re-offending. 14. The judge was rightly concerned about this crime. It was submitted to him, as it has been submitted to us both in written grounds of appeal and now today by Miss Wrattesley in the course of her submissions, that account had to be taken -- and for present purposes it is contended that the judge had failed to take sufficient account -- of the guilty plea tendered by the applicant at the first available opportunity and of her previous good character. It was pointed out that the offence was motivated by the applicant’s wish to protect herself from her boyfriend. There was no other aspect of malice or profit in the allegation. It was not premeditated. It was said in the written argument that although the victim had the allegation hanging over him for a number of months, he was never actually charged with rape. In the submissions this morning it was pointed out that the applicant’s difficulty was, among other things, the lack of insight into her offence. Emphasis was placed on the fact that there would be a low risk of any further offending. 15. Our attention has been drawn to a number of cases. They were not, as far as we are aware, before the judge; but they do not sufficiently focus on the serious policy question which the judge addressed. The judge noted the effect of this offence on the victim, Mr Holling. He pointed out that the full panoply of measures to help women who were genuinely victims of rape had been deployed; all that was wasted; the victim suffered the humiliation to which we have referred in the course of the narrative. There had been ample opportunity for the applicant to tell the truth and bring the ordeal to an end. He referred to the so-called “low conviction rate” for rape, much of which, the judge said, was ill-informed, but he pointed out that when the public knew that people like the applicant were wicked enough falsely to cry rape, that would affect the minds of juries assessing the evidence of genuine victims. 16. Our view can be briefly summarised. We endorse the approach taken by the judge. This was not, as so many cases involving the offence of doing an act tending or intended to pervert the course of public justice, a case of a guilty man or woman seeking to avoid responsibility for a crime -– often and frequently a relatively minor motoring offence. That is bad enough; but of its kind this was a very serious offence. Sexual intercourse with a woman without her consent is a shameful crime. When proved it merits, and it receives, heavy punishment. The reality must, however, be faced that when rape has taken place it is frequently very difficult to prove. It is also the case that when the defendant is truly innocent, a false allegation can be extremely difficult for him to refute. That is why, after sexual intercourse has taken place between adults, the investigation and prosecution of the allegation of rape presents the police and the Crown Prosecution Service, and, if the matter eventually goes to court, the jury with highly sensitive and sometimes desperately difficult decisions. Currently this is a very serious problem. The consequences for an innocent man against whom the allegation is made are very serious. In this case there was enough independent evidence eventually to enable the investigators to discover that the potential defendant was truly an innocent man. In the end he was fortunate. But for the meantime his entire life must have had a nightmarish quality. That lasted for three months. It could have been brought to an end at any time by one word from the applicant. 17. However, quite apart from the consequences to Mr Holling, this allegation involves more than the individual victim. Every false allegation of rape increases the plight of those women who have been victims of this dreadful crime. It makes the offence harder to prove and, rightly concerned to avoid the conviction of an innocent man, a jury may find itself unable to be sufficiently sure to return a guilty verdict. 18. This offence caused great problems for the victim; but it also damaged the administration of justice in general in this extremely sensitive area. In our judgment the sentence imposed by the judge fell within the appropriate range. Accordingly the application for leave to appeal against sentence will be refused.

2008_10_07-1656.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/2301/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/2301

69b8e2f2a57db32935c6994746344d72228e05f7e3faa170a2e0368862b6c3a8

[2003] EWCA Crim 1001

EWCA_Crim_1001

2003-03-27

crown_court

No: 2002/2459/X3 Neutral Citation Number: [2003] EWCA Crim 1001 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27 March 2003 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE MITTING SIR BRIAN SMEDLEY - - - - - - - R E G I N A -v- PAUL EDWARD GRAY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the C

No: 2002/2459/X3 Neutral Citation Number: [2003] EWCA Crim 1001 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27 March 2003 B E F O R E: LORD JUSTICE TUCKEY MR JUSTICE MITTING SIR BRIAN SMEDLEY - - - - - - - R E G I N A -v- PAUL EDWARD GRAY - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR P WILCOCK appeared on behalf of the APPELLANT MR T FORSTER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE MITTING: On 26th February 1997 at about 1.30 pm, an armed robbery took place at Lloyds Bank, Nelson Road, Greenwich. The robber wore a Balaclava helmet, initially rolled up into a woolly hat which revealed his facial features below his hairline. He produced a yellow bag at the counter and demanded that it be filled up. He pulled down his Balaclava to form a mask and pointed a gun at the cashiers. They handed over £2,100 in notes marked with dye. He left the bank with the money in the yellow bag and got into a red Nissan motorcar and drove off. The incident was witnessed by a customer, Colin Macey, who saw him enter and leave the bank and get into the Nissan and drive off, and by three bank employees Emma McDermott, Linda Strudley and John Burnett, who saw and heard what happened inside the bank. The robber's face was also captured, in profile and face on, on the CCTV camera inside the bank. The eyewitnesses described the robber as five foot six to five foot seven inches tall, wearing a jacket which all but Mr Macey described as blue or blue or green. 2. At 1.45 pm a red Nissan motorcar D990 OGP which had been stolen on 9th February was found by P.C. Cole at Gilbert House, MacMillan Street in Greenwich about a mile from Nelson Road. In it was a yellow money bag containing dye stained notes and a blue cotton jacket. It had clearly been the getaway car. Later that day a higher identification officer, Julian Gomm, recovered a Bacofoil box containing a roll of foil from the glove box, on which was a fingerprint impression which was chemically developed and photographed on 2nd March and 7th April. The appellant was arrested on 12th June and interviewed. During interview he was shown the CCTV footage. He denied that it depicted him. He provided specimens of his fingerprints. On 9th July 1997 the fingerprint developed from the roll of foil was compared with his and found to match. An admission was made at the trial that the fingerprint on the roll of foil was his. 3. Identification parades were held on 16th July 1997 during which Colin Macey and Emma McDermott each picked out a volunteer and not the defendant. None of the eyewitnesses noted or gave evidence at the trial of any distinctive facial characteristics of the robber. 4. The Crown called Michael Harrow, an expert in imagery analysis, for two purposes. First, to calculate the height of the robber shown in the CCTV footage, which he put at five foot six and a half inches; and secondly to compare distinctive facial characteristics of the robber with photographs of the appellant. Mr Harrow identified a number of characteristics which were shared by many of the general population, plus six which he said were, "the more unusual and thus individual". They were, first, a mark or dark shadow on the left cheek; secondly, high arched eyebrows; thirdly, dark bags under the inner section of the eye; fourthly, a pronounced nose lip fold on the left hand side of the face; fifthly, a pronounced lip chin fold and associated recess or shadow just below the lower lip; and sixthly, non adherence of the lower part of the ear and the pronounced size and shape of the lower earlobe when seen in profile. He concluded that in his words the "photographic cover" of the robber, in other words the CCTV footage provided "strong support to the Crown's case that the robber and the appellant were one and the same person." 5. Both aspects of his evidence were disputed in detail by Dr Linney, a medical physicist, who has advised or given evidence on facial imaging topics in a number of cases. It is not necessary to set out his detailed objections to Mr Harrow's finding, save to note that he put the robber's height at five foot three to five foot four inches, and certainly less than five foot six inches, and said that he was not sure it was safe to come to the conclusion that the robber and the appellant were one and the same. 6. At the trial the jury were invited to compare the stills from the CCTV footage with the appellant who walked in front of the jury box for that purpose. The appellant elected not to give evidence in his own defence after due warning from the judge. 7. At the conclusion of the evidence the Crown's case rested on four main planks and one subsidiary one. The four main planks were, first, the fingerprint on the roll of foil in the glove box of the getaway car; secondly, the jury's comparison of the CCTV stills with the appellant; thirdly, Mr Harrow's evidence; fourthly, the defendant's failure to give evidence; and the fifth and subsidiary point was the eyewitnesses' estimate of the robber's height. 8. The judge's directions in law were accurate and complete and no material criticism is now made of his summary of the evidence. 9. The jury unanimously convicted the appellant of robbery and of possessing a firearm or imitation firearm with intent to commit robbery. It acquitted him of a similar pair of counts arising out of an earlier robbery of a different branch of Lloyds Bank. 10. Leave to appeal was granted by the single judge because of doubts, properly disclosed by the Crown, about the reliability of Mr Harrow. The same doubts were considered by this court in Stubbs [2002] EWCA Crim. 2254 , and were summarised in the judgment of the court given by Rose LJ at paragraphs 17 to 19. The court described them as founded on: "material which relates to a man called Baker and another man called Brade... It showed that in November 1997 a man called Baker was arrested and charged with a number of offences of indecent assault and robbery allegedly committed in 1996 and 1997 in the Birmingham area. Following one of the assaults the assailant used a cashpoint card from one of the victims and while he did so a CCTV image of the assailant was obtained. Mr Harrow compared that with a surreptitiously taken photograph of the man Baker. He concluded that he (Baker) and the perpetrator of the offence using the victim's card at the cashpoint was one and the same person. Baker pleaded not guilty and was remanded on bail. In November 1998 another man was arrested. He subsequently admitted the relevant offences, including the assault giving rise to the use of the cashpoint card. 18. On 2nd July 2001 the CPS policy directorate issued a memorandum to Assistant Chief Crown Prosecutors noting that Mr Harrow had given unreliable evidence in the Baker case, was generally a poor witness who tended to lose his temper in the witness box and advised them that he should no longer be instructed as an expert witness for the Crown. 19. Thereafter the CPS became aware of a second case of misidentification involving Mr Harrow. In January 2001 he carried out facial mapping comparisons in connection with the investigation of a murder which had occurred in August 2000, following which the victim's car had been used at a petrol station where there was a CCTV camera. At the time the police suspected a man called Brade of being the murderer, although he was never arrested or charged with the offence. They obtained a video from Brade. It was from that that Mr Harrow carried out a comparison with the man who used the car at the petrol station. He concluded that it was highly probable that Mr Brade had been the man at the petrol station and there could be very little doubt that Mr Brade had also been the man at a musical festival at a local community centre. In fact a man called Mowatt was arrested for the murder. He admitted that it was he who was depicted in the various images and subsequently pleaded guilty to murder. It appears that Mr Harrow has now retired from the position he previously held at the Imagery Bureau." 11. Mr Wilcock submits that if this material had been known at the time of the appellant's trial then either the Crown would not have relied on Mr Harrow's evidence or the defence would have so undermined it as to deprive it of any value in the eyes of the jury and in either event says the appellant's conviction is unsafe. 12. Mr Forster for the Crown concedes that the Crown would not have called Mr Harrow, but submits that his evidence was not of decisive importance in the light of other evidence against the appellant and in the light of the judge's comment to the jury about the weight or lack of it which might attach to the expert evidence and he submits the conviction is safe. 13. Both agree that the test is that laid down in Pendleton [2002] 1 WLR 72 , namely was it inevitable that the jury would have convicted if it had heard only the evidence implicating the appellant in the crime and not that of Mr Harrow and by adaptation of Lord Bingham's test at paragraph 19 this court should test its own provisional view by asking whether the evidence might reasonably have affected the decision of the jury to convict. If so the conviction must be thought to be unsafe. 14. Applying that test this court has no doubt the conviction is unsafe for the following reasons: first, Mr Harrow's evidence was an important plank of the Crown's case. Without it all that that the Crown had to prove the identification of the robber was, first, the eyewitnesses' estimate of his height, which corresponded with the appellant's but was hardly a distinctive feature. Secondly, the jury's own comparison of the CCTV stills with the appellant. The material available to this court does not permit us to assess the reliability of that comparison. Thirdly, the defendant's fingerprint on the roll of foil, which undoubtedly proves that an object handled by him had been found in the car which had been stolen 17 days before the robbery and used as the getaway car; but it is impossible to say that a jury would have drawn the inference from that fact that the appellant was in the car as it left the scene of robbery on 26th February 1997. Fourthly, the defendant's silence at trial, which of course can only support other evidence of guilt and not found a conviction. 15. The judge's comments to the jury about the expert evidence was as follows: "You may find the evidence of the various witnesses who saw the robber in the bank and outside the bank as being more persuasive than the scientific evidence as to the robber's estimate of height and facial features. But I emphasiSe that it is a matter for you to decide..." There are difficulties with reliance on that comment. First, the eyewitnesses gave no relevant evidence about facial features; secondly, and therefore, the only expert evidence to which the comment could relate was as to height, which is not a significant identifying feature; and thirdly, the judge emphasised correctly that the assessment of the evidence, including the expert evidence, was a matter for the jury. As Mr Forster conceded in his written skeleton argument, it is impossible to say what weight the jury placed on Mr Harrow's evidence and in the judgment of this court it is impossible to say that it would have convicted if it had not heard it. For those reasons this appeal must succeed and the convictions be quashed. 16. We do not however wish to pass from this appeal without making general observations about the use of facial imaging and mapping expert evidence of a reliable kind. Mr Harrow, like some other facial imaging and mapping experts, said that comparison of the facial characteristics provided "strong support for the identification of the robber as the appellant". No evidence was led of the number of occasions on which any of the six facial characteristics identified by him as "the more unusual and thus individual" were present in the general population, nor as to the frequency of the occurence in the general population, of combinations of these or any other facial characteristics. Mr Harrow did not suggest that there was any national database of facial characteristics or any accepted mathematical formula, as in the case of fingerprint comparison, from which conclusions as to the probability of occurrence of particular facial characteristics or combinations of facial characteristics could safely be drawn. This court is not aware of the existence of any such database or agreed formula. In their absence any estimate of probabilities and any expression of the degree of support provided by particular facial characteristics or combinations of facial characteristics must be only the subjective opinion of the facial imaging or mapping witness. There is no means of determining objectively whether or not such an opinion is justified. Consequently, unless and until a national database or agreed formula or some other such objective measure is established, this court doubts whether such opinions should ever be expressed by facial imaging or mapping witnesses. The evidence of such witnesses, including opinion evidence, is of course both admissible and frequently of value to demonstrate to a jury with, if necessary, enhancement techniques afforded by specialist equipment, particular facial characteristics or combinations of such characteristics so as to permit the jury to reach its own conclusion - see Attorney General's Reference No 2 of 2002 [2002] EWCA Crim 2373 ; but on the state of the evidence in this case, and if this court's understanding of the current position is correct in other cases too, such evidence should stop there. 17. LORD JUSTICE TUCKEY: Mr Wilcock, we canvassed the question of a retrial. I do not know what the Crown's attitude is, but there is no reason why there should not be a retrial in this case. 18. MR WILCOCK: My Lord, the sentence imposed still has a number of years to run. In those circumstances, recognising the balance between public interest and in spite of the delay, I cannot say there should not be a retrial. 19. LORD JUSTICE TUCKEY: Yes. Presumably the Crown want another trial? 20. MR FORSTER: We would welcome the opportunity, my Lord. 21. LORD JUSTICE TUCKEY: I am sure. In those circumstances, we allow the appeal, quash the conviction, direct that a fresh indictment be preferred against the appellant for this robbery and direct that the appellant be re-arraigned on that indictment within two months. We will talk about bail in a moment. We will make a representation order for the retrial, which we can do. So far as the location of the retrial is concerned, that should be determined by the presiding judge for the Southeastern circuit. It may be the Old Bailey but we are not now asked to direct that that should happen because there is no way it can be avoided if it is convenient to have it somewhere else, so we do not make that direction. The only question is bail. What is the position, Mr Forster, was the appellant on bail? (There then followed a short discussion regarding bail) 22. LORD JUSTICE TUCKEY: We refuse bail on the understanding that you can make your application if and when you manage to get a proper one together. 23. MR WILCOCK: Your Lordship there is one other matter I would seek to raise. The defence were represented by counsel throughout the appeal. In fact this appeal and most of the appeals involving Mr Harrow arose out of the interest shown by those who sit behind me in his evidence. The disclosure which resulted in the success of this appeal was as a direct result of them writing a number of letters and making a number of enquiries, both nationally and with the relevant section of the CPS, I wonder whether in the circumstances your Lordships would think it appropriate to order a defendant's costs order so that they might be reimbursed. 24. LORD JUSTICE TUCKEY: They have, am I right in saying, there is a representation order which covers their appearance today? 25. MR WILCOCK: We requested legal aid to cover solicitors, but that was not granted. So they are not even getting reimbursed for their attendance today. They have been of huge assistance throughout this appeal and if your Lordship feels it appropriate I would ask that they be reimbursed for both that and the work before. 26. LORD JUSTICE TUCKEY: Are you saying that they have, as a result of this case or other cases? 27. MR WILCOCK: Their objective being this case and this case alone. It is as a result of their enquiries in this case that the information led to other cases. 28. LORD JUSTICE TUCKEY: This conviction goes back to August 1998. What sort of period are we talking about? 29. MR WILCOCK: Your Lordship from about 2000 onwards. 30. LORD JUSTICE TUCKEY: Mr Wilcock, we will make a defendant's costs order as you ask in respect of your solicitors' representation of the appellant, the amount of such costs to be assessed by the Registrar of this court. But to be churlish I am sure you would think not to include the costs of their attendance today because that was not necessary.

2003_03_27-50.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2003/1001/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2003/1001

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[2019] EWCA Crim 412

EWCA_Crim_412

2019-03-05

crown_court

Neutral Citation Number: [2019] EWCA Crim 412 2018/03358/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 5 th March 2019 B e f o r e: LORD JUSTICE GROSS MR JUSTICE JEREMY BAKER and MRS JUSTICE ANDREWS DBE _________________ R E G I N A - v - MOHAMMED SHAID ____________________ Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Write

Neutral Citation Number: [2019] EWCA Crim 412 2018/03358/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday 5 th March 2019 B e f o r e: LORD JUSTICE GROSS MR JUSTICE JEREMY BAKER and MRS JUSTICE ANDREWS DBE _________________ R E G I N A - v - MOHAMMED SHAID ____________________ Computer Aided Transcript of Epiq Europe Ltd, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. __________________________ Mr C Sherrard QC appeared on behalf of the Appellant Mr O Glasgow QC and Miss D Heer appeared on behalf of the Crown ______________________ J U D G M E N T (Approved) __________________ Tuesday 5 th March 2019 LORD JUSTICE GROSS: Introduction 1. On 13 th July 2018, following a re-trial in the Central Criminal Court before His Honour Judge Katz and a jury, the appellant, now aged 28, was convicted of murder. On 23 rd July 2018, the same judge sentenced him to imprisonment for life, with a specified minimum term of 30 years (less 395 days spent in custody on remand). 2. There were three co-accused: Shah Rahman, Foyzur Rahman and Mozur Ahmed. Each was convicted of manslaughter (the alternative offence) and sentenced respectively to twelve, ten and nine years' imprisonment. 3. The appellant appeals against conviction by limited leave of the single judge. 4. The ground of appeal for which limited leave was granted goes to the refusal by the trial judge to allow the defence to adduce sufficient relevant bad character evidence relating to the deceased. The Facts 5. In short summary the facts are these. On 13 th May 2017, at 4.29pm, the police were called to Eagling Close in Bow, London. Brenton Roper (the deceased) was found lying in the front yard of number 6. He had been shot in the back and stabbed five times to his left side and buttocks. There was no evidence of defensive injuries. The cause of death was shock and haemorrhage caused by a gunshot wound to the chest. 6. Mr Roper was 41 years of age at the time of his death. He lived together with his partner and their children in a flat at 4 Eagling Close. He was addicted to the drug "Spice", a synthetic form of cannabis. It was accepted that this drug made him act erratically and aggressively. He was also known to dislike hard drugs after his sister developed an addiction and began to commit crime to fund it. He was known to object to people dealing drugs in the local area. 7. Mr Roper had convictions recorded against him. By agreement, the jury were told of his conviction at the Central Criminal Court on 24 th January 2011 for an offence of perverting the course of justice. He was acquitted on the same date of attempting to murder or to wound Anton Ekpriko. The incident involved Mr Roper being handed a gun (which he did not fire) and then walking away with it and later hiding it under a Portaloo at a friend's building site, from where it was later recovered by the police. 8. It was the prosecution case that the appellant and his co-accused Shah Rahman had gone to Eagling Close armed with a loaded gun and a knife and had deliberately shot and stabbed Mr Roper, causing his death. The reason for the attack on Mr Roper was said to be his argument earlier in that day with the occupants of a black Audi driven by Foyzur Rahman (the third defendant) and in which the appellant and Mozur Ahmed (the fourth defendant) were present. It was accepted that Foyzur Rahman was in the Audi dealing drugs on that day. 9. One of the issues in the trial was the reason for the initial confrontation between Mr Roper and the appellant and his co-accused. It was the prosecution case that Foyzur Rahman had been dealing drugs on the street where Mr Roper lived and that this was the reason for his hostile reaction to seeing Foyzur Rahman's car. 10. The defence case was that, while it was accepted that the appellant and Foyzur Rahman were in an altercation with Mr Roper, the gun actually belonged to Mr Roper and that he was stabbed by the appellant with a penknife that happened to be to hand in order to stop Mr Roper using the gun. In the event, Mr Roper was shot by accident by the appellant during the course of the brief but ensuing struggle. 11. The issue for the jury was whether they were sure that the appellant had not stabbed Mr Roper in self-defence and/or shot him by accident. Particularly within the context of the fatal shooting, the critical issues for the jury to determine were as follows: (1) Who brought the gun to the scene? (2) Who was the aggressor in the incident? (3) Whether, if he was under the influence of Spice, Mr Roper would have been more likely to be the aggressor and/or to use or threaten to use the gun. 12. We are most grateful for the assistance provided today by Mr Sherrard QC for the appellant and Mr Glasgow QC for the Crown (the respondent). As became clear during the course of the argument today, it is issue (1) that was central: who brought the gun to the scene, which, in turn, relates to the question of who might have had access to a gun. 13. We add this, before proceeding further. There is necessarily considerable material before us relating to the unattractive features of Mr Roper's character. We make plain that, however unattractive he may have been, it is not a justification for the incident which took place. Of course, if the appellant’s case prevails, Mr Roper was shot and killed by accident. But if the Crown are correct – if the appeal is dismissed – we should make it absolutely plain that, however difficult, aggressive, or volatile Mr Roper may have been, that is not a justification for the violent death which befell him. 14. In more detail, the facts were developed as follows. CCTV footage captured Mr Roper's reaction to seeing Foyzur Rahman's car on the street where he lived. There followed an exchange with the local garage owner, Mr Jubayer Ali Ahmed, who gave evidence but on whom very little reliance could ultimately be placed. He was called by the Crown and eventually treated as hostile. 15. Mr Roper could be seen to confront the occupants of the vehicle from which Foyzur Rahman was dealing drugs, and in which the appellant was present, and then to chase the vehicle as it drove away. Mr Roper behaved aggressively towards Jubayer Ali Ahmed and others who stood with him outside the garage. Three local residents who knew Mr Roper overheard his threats. His behaviour was described as "very angry and confrontational". He was heard to shout, "If you want a fight, I'll fight you under the bridge, no weapons" or "I'll come with my fists, no weapons". 16. Jubayer Ali Ahmed apparently tried to calm him down. He realised that Mr Roper was referring to a customer of his, namely Foyzur Rahman. Mr Ahmed called Foyzur Rahman and asked what had happened between them. When he asked whether Rahman had threatened to shoot Mr Roper, Rahman answered "Yes". However, thinking that the threat was not a serious one, Mr Ahmed returned to work. At trial, Mr Ahmed gave a different account in which he said that Mr Roper wat the person who made the threat. As already indicated, he was treated as hostile by the prosecution. 17. The earlier confrontation, we were told, concluded at around 4.05pm. At 4.24pm the appellant returned to Eagling Close driving a VW Golf with his co-accused, Shah Rahman, in the front passenger seat. About 30 seconds later, he and Rahman were seen on CCTV walking with their hoods up along Rounton Road, before disappearing from view in Eagling Close. 18. A Miss Khan, who was in a house at the cul-de-sac end of Eagling Close, saw one man being chased by two others who were wearing hoodies pulled down over their faces. She recalled that, as the first man ran, he was saying "I'm sorry". He was chased to the yard in front of 6 Eagling Close. She then saw the two men in hoodies run off again in the opposite direction. 19. A Mrs Duberry heard a gunshot and looked out of her bedroom window on to Eagling Close, where she described seeing two men dressed in dark clothing, wearing hoodies, bent over near a bin outside 6 Eagling Close. Shortly afterwards, they stood up. One of them pushed a gun into his pocket before running away. 20. A Miss Mirza was in the kitchen of her flat when she heard the sound of her front gate opening, then a thud which sounded like her bin being moved against the wall. She opened the front door. She saw Mr Roper lying on the ground. It was clear that he was badly injured. She made an emergency call. 21. The consultant pathologist, Dr Fegan-Earl, said that it was possible for Mr Roper to have been able to run for a short time after being shot. It was not possible to say from the pathology the order in which his injuries were inflicted. 22. The appellant was later identified as one of the two hooded men who had been seen to chase the deceased along the street and one of whom had been seen with a gun. 23. The following day, 14 th May 2017, the appellant and Shah Rahman flew to Bangladesh using tickets bought that day in cash by Shah Rahman's brother. They returned to the United Kingdom on 20 th May 2017. On 8 th June the appellant and Mozur Ahmed flew to Saudi Arabia on a pre-booked trip. They returned on 24 th June. They were arrested at the airport. 24. The appellant was interviewed under caution. He gave "no comment" answers. 25. The appellant gave evidence at his trial. He accepted presence in the Audi car at the time when it was approached by Mr Roper. He admitted that Foyzur Rahman had been dealing drugs. The appellant accepted that he had lied in his first defence statement in which it was asserted that he had not been present at the time of the killing. It will be recollected that his conviction came in the course of a retrial. In the first week of that retrial, the appellant served a new defence statement in which he admitted responsibility for the killing, but now relied upon self-defence or accident. In between, he had accepted presence but not involvement in the shooting. He accepted that he had shouted abuse at Mr Roper, which had aggravated Mr Roper to the point where he chased away the Audi. He said that it had been Mr Roper who had said that he would shoot them. Foyzur Rahman had then received a call from Jubayer Ahmed while he was still in the Audi. After that call, Foyzur Rahman told him that Mr Roper had been complaining to Jubayer Ahmed and had threatened to burn down the garage and shoot people, unless he received an apology for the abuse. Foyzur Rahman was angry with him (the appellant) for what he had shouted at Mr Roper and blamed him for Mr Roper's behaviour to Jubayer Ahmed. 26. Once he had been dropped off, the appellant decided to go back to Eagling Close to (as it was put) confront Mr Roper. Shah Rahman went with him. The appellant had with him a penknife belonging to Shah Rahman as it was on his car keys. He said that when he saw Mr Roper in Eagling Close, Mr Roper was immediately aggressive and came towards him, as if to attack him. Mr Roper had his telephone in his hand. He moved it from his right to his left hand. He then reached into his pocket and the appellant believed that he was trying to take out a weapon. Initially, he thought that Mr Roper had a knife, but it turned out to be a gun. 27. The defence case was, it may be noted, that after the earlier shouting incident, Mr Roper had returned to his flat and armed himself with the gun. 28. The appellant and Shah Rahman grabbed Mr Roper to stop him. The appellant thought that Mr Roper was still going for his weapon, so he took out the penknife and stabbed Mr Roper with it to stop him. At that point, Mr Roper became free and his weapon dropped to the floor. The appellant saw that it was a gun. Both he and Mr Roper went for the gun. The appellant managed to reach it and pick it up. There was a struggle, which led to Mr Roper pushing him backwards and turning towards Shah Rahman. It was at this point that the gun went off by accident. Mr Roper was hit in the back. Mr Roper then ran towards the cul-de-sac before collapsing in the yard of number 6. Shah Rahman ran after him, followed by the appellant. It was accepted that the appellant and Shah Rahman ran away from the scene. While running away, the appellant discarded the gun. The Judge’s ruling 29. We turn to the judge's ruling as to the admissibility of the evidence of the bad character of Mr Roper. The prosecution conceded that Mr Roper's association with firearms was a relevant issue and agreed in discussion with the judge that his conviction for perverting the course of justice, to which we have already referred, might be of assistance to the jury in determining who had been in possession of the gun which had been used during the fatal attack. 30. The judge noted that there was no dispute that Mr Roper was a Spice addict and that the drug made him aggressive. The CCTV footage supported the proposition that he was behaving aggressively in the hours before he was shot. Evidence on this issue was contained in the statement of Jubayer Ahmed and in the unused statement from Mr Roper's mother and his son, Jayden Roper. The best way to put such evidence before the jury was by agreed facts. 31. The defence applied to admit Mr Roper's conviction on 24 th February 2017 at East London Magistrates' Court for an offence under section 4 of the Public Order Act 1986 . It was reported that Mr Roper's threatening utterance shouted at the staff of the Job Centre was: " You lot are a bunch of wankers. I'm dangerous. You'll see what I can do … I've just come out of prison for a drive-by shooting … I will come back and shoot you guys ". 32. The judge refused to admit this conviction into evidence as he could see no relevance of Mr Roper's conduct, albeit criminal, in a Job Centre after his release from a substantial sentence. In any event, what he had said about his conviction had been untrue. The jury would hear about the conviction involving the gun by way of the agreed facts. There was no relevance to the generality of Mr Roper's criminal record. The assertion that due to his Spice addiction and his connections to that world he carried a gun because he had a price on his head was largely hearsay and of no relevance. It is further to be noted that the judge's ruling excluded various hearsay passages of material to which Mr Roper's mother had been referred about the threats that he had made with regard to the use of a firearm. The rival cases 33. We turn to the rival cases. In the grounds of appeal, Mr Sherrard submitted, as we have already indicated, that the judge erred in his refusal to allow the defence to adduce sufficient relevant bad character evidence relating to the deceased in order to address the sole issue in the appellant's case. Mr Sherrard's particular focus was on the refusal to omit the Public Order Act conviction, together with the threatening utterance. That conviction was relevant in so far as any reference by Mr Roper to guns or to shooting supported the defence case. Moreover, his previous behaviour or actions demonstrated a propensity to threaten and use violence with special reference to firearms. Furthermore, it was relevant to the issue of whether the appellant was telling the truth when he stated that Mr Roper threatened to shoot the occupants of the Audi. This was an important issue between the parties. 34. It was further submitted that the difference in Mr Roper's account of his previous conviction was relevant, as Mr Roper was identifying himself as part of the drive-by shooting that took place, rather than simply the person who disposed of the gun. That was relevant to the issue of who brought the firearm to the scene and who potentially would have access to guns. 35. In contrast, the appellant had no relevant previous convictions and none for the possession of any weapon or firearm. 36. In his written grounds, Mr Sherrard furthermore focused on the evidence of Mr Roper's mother. She had described an earlier incident involving Mr Roper's son and an unknown man, when Mr Roper threatened to "blow their mum's face off". In yet another separate incident involving an unknown Asian man who asked Mr Roper whether he was going to get a knife to "do him", Mr Roper replied that he was going to get a gun and "blow [him] away". Mr Sherrard accepted that the status of arrests or intelligence was not that of convictions. However, he submitted that all these items passed the test of substantial probative value – the relevant test for the admissibility of this evidence. 37. In his oral submissions today, Mr Sherrard highlighted that the question for the jury was: who had brought the gun to the scene? Accordingly, character evidence as to the deceased was fundamental. It was capable of changing the balance of the evidence in the case. The CCTV evidence did not cover the key passages in the fatal incident; circumstantial evidence was key. The jury knew all about the appellant, but they had much more limited knowledge of Mr Roper. Although the Crown put bad character evidence of Mr Roper before the jury, that had been "self-serving", albeit, to be fair to Mr Sherrard, he did not advance that submission in any way critically. His complaint was that the Crown did not put relevant features concerning the deceased before the jury. Those relevant features were to be found in the excluded evidence. Admittedly, this was a question of judgment for the judge, but in assessing the position as a whole, it should not be underestimated how much damage Jubayer Ahmed's unreliable evidence may well have caused to the appellant. The section 4 offence yielded relevant probative material and Mr Roper's mother had been an impeccable source who would have balanced Jubayer Ahmed's unreliable evidence. 38. As to the safety of the conviction, this was a single issue case. If the judge had erred in excluding the character evidence, it followed that the safety of the conviction was irretrievably undermined. 39. In their written grounds, the Crown submitted that the relevant features of Mr Roper's bad character were indeed before the jury – much of it called by the prosecution. That included Mr Roper's previous conviction that was related to firearms, his drug addiction and its effect upon his behaviour, his reputation for dishonesty and his aggressive and volatile temper. The judge had considered all the relevant material and was correct to conclude that much of what the defence wanted to put before the jury lacked the necessary substantial probative value. 40. In his oral submissions, Mr Glasgow focused particularly on the issue which had been highlighted: access to a gun and who brought it to the scene of the incident. Mr Glasgow submitted that nothing about the events at the Job Centre (that is, the Public Order Act offence) assisted. Mr Roper, when arrested, was not found in possession of a gun; nor was one found at his home address. Similarly, so far as concerned the evidence of Mr Roper's mother, all that was entailed were threats. No firearm had been found and no charges brought. Many of the same considerations applied to the yet further incident where there was a threatened use of firearms. There was ample material before the jury as to Mr Roper's character and temperament. In Mr Glasgow's submission, the excluded material fell short of demonstrating any substantial probative value to the key issue in the case. It was, in any event, a matter of judgment for the judge and we should not intervene. If the judge had indeed erred (which Mr Glasgow disputed), then the safety of the conviction remained. In particular, Mr Glasgow drew attention to: (1) the changing nature of the defence; (2) the fact that the appellant had been clearly identified as having returned, hooded, to the area; and (3) the appellant's behaviour in the aftermath of the incident. He said that, even if the judge had erred, we could be satisfied that the conviction was safe. Discussion The Judge's Ruling 41. There was and is no dispute as to the test for the admissibility of the evidence in question. It is contained in section 100(1) (b) of the Criminal Justice Act 2003 ("the CJA 2003 ") and it means what it says. Is the evidence of "substantial probative" value in relation to a matter in issue in the proceedings which is of substantial importance in the context of the case as a whole? 42. Insofar as the evidence sought to be adduced is hearsay, regard may also be had to section 126(1) (b) of the CJA 2003 which provides, so far as relevant, that the court may refuse to admit hearsay evidence if satisfied "… that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence". Typically, a decision to admit or refuse to admit bad character evidence involves an exercise of judgment or discretion on the part of the trial judge – for present purposes, it matters not which – and this court will be slow to interfere. Much hinges on the "feel" of the trial judge for the case. 43. As will already be apparent, there was or would be a plethora of evidence before the jury as to the deceased's addiction to drugs, dishonesty, his erratic and aggressive behaviour, his readiness to threaten others (possibly including with firearms) and his criminal record, in which his conviction for an offence involving a firearm loomed large. Quite apart from local residents and Jubayer Ahmed, there was CCTV footage of the day in question which showed at least something of the earlier confrontation. All this evidence went or was to go before the jury, essentially unchallenged by the Crown, save for aspects of Jubayer Ahmed's evidence after he was treated as hostile. 44. It is, importantly, against this background that the judge made his ruling. As to the exclusion of Mr Roper's conviction for the Public Order Act offence, at first blush Mr Sherrard's submission has attraction. However, upon analysis, we struggle to see what it would have added to the picture already squarely before the jury. It was, it might be said, yet another example of unacceptable behaviour on the part of the deceased. True, it involved a threat to shoot, but we are not at all persuaded that this threat was of any, let alone substantial, probative value in relation to the key issue. It demonstrated Mr Roper's readiness to threaten, not his access to firearms. Moreover, the claim as to his role in the crime to which his threat referred (that is, the earlier crime which was before the jury) did not accurately reflect his conviction and was apt to sew confusion, rather than assist the jury. It is to be underlined that the Public Order Act conviction itself, without the wording of the threat, would not have assisted the jury at all. In the circumstances, we are unable to accept the submission that the judge was in error in declining to admit this conviction into evidence. At most, it might be said that some judges would have admitted that evidence. But it does not follow from that that this judge in this case was in error in not doing so. The judge was entitled to exercise his judgment in drawing a line as to which bad character evidence was admissible and which was not. 45. In our judgment, there was even less justification for admitting the other matters which the appellant sought to introduce. As to the unproven accounts contained in the material from the deceased's mother, they are examples of material readily likely to give rise to side issues or satellite litigation. They were far more likely to take up time, without adding anything of substantial probative value. Again, these are examples of threats. They do not go to access to weapons. We reiterate that before the jury was the evidence of Mr Roper's previous conviction, which squarely indicated access to weapons. We cannot help thinking that, given the material already before the jury, there would have been diminishing returns from all these additional matters, thus reinforcing the decision taken by the judge. 46. It follows that we are not persuaded that the judge was in error in refusing to admit the additional bad character evidence relating to Mr Roper. 47. The Safety of the Conviction 48. If, contrary to our view, the judge was wrong to exclude the additional evidence (or some of it), then it is necessary to consider the safety of the conviction. If so, we entertain no doubt whatever that the conviction was safe. The matter does not admit the stark cut off which Mr Sherrard attractively postulated. The question here would be whether, if the additional evidence was not before the jury but should have been, it impacted on the safety of the conviction in the light of what was already before them and in the light of what was known about the defence case. In our judgment, over and above the evidence as to the deceased's character and behaviour, which was already before the jury, the prosecution case against the appellant was overwhelming. As Mr Glasgow put it: first and foremost, there was the changing nature of the appellant's defence. It had begun by being a denial that the appellant was present. It had moved on to an acknowledgement that he was present, but a denial of involvement in the shooting. Thereafter, it was an admission of shooting, but the assertion that it was self-defence or accident. Such changes of account destroy credibility. In any event and even if plausible in theoretical pathology terms, Mr Glasgow was justified in categorising the account of the incident as advanced finally by the appellant as "palpable nonsense". 49. The second point in this regard is the return of the appellant to the scene. He chose to go back. As we understand his own account, it was to confront Mr Roper. We decline to accept that this was intended to be a peaceful, verbal exchange. If it was, it makes no sense at all that he and his co-accused returned dressed as they were. 50. Finally, the third point relates to the appellant's behaviour in the aftermath. He left the country very promptly indeed – the day after the incident. 51. With all these matters in mind, the difference made by the evidence which was excluded, even if it should not have been so excluded, does not, in our judgment, begin to cast doubt on the safety of the conviction. 52. For all these reasons, the appeal must be dismissed. _______________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ____________________________________

2019_03_05-4528.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/412/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/412

fe62abbe361a08d3c111f73696d5a9d9e31d43624a54e5d807fea9dc6c1dae36

[2019] EWCA Crim 1633

EWCA_Crim_1633

2019-09-03

crown_court

NCN: [2019] EWCA Crim 1633 No: 201902837 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 3 September 2019 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE McGOWAN DBE MR JUSTICE FREEDMAN REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v KAYLEIGH WOOD Mr S Lloyd appeared on behalf of the Attorney General Mr S Parry appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq

NCN: [2019] EWCA Crim 1633 No: 201902837 A3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 3 September 2019 B e f o r e : LORD JUSTICE SIMON MRS JUSTICE McGOWAN DBE MR JUSTICE FREEDMAN REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 R E G I N A v KAYLEIGH WOOD Mr S Lloyd appeared on behalf of the Attorney General Mr S Parry appeared on behalf of the Offender Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London, EC4A 1JS, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. J U D G M E N T LORD JUSTICE SIMON: 1. The Solicitor General seeks leave to refer a sentence passed on Kayleigh Wood (aged 25), under section 36 of the Criminal Justice Act 1988, as being unduly lenient. 2. The sentencing judge was His Honour Judge Berkson and the sentence was imposed at the Crown Court sitting at Chester on 4 July 2019, following the offender's plea to count 2 on an indictment, an offence of encouraging or assisting the commission of an offence, believing that it would be committed contrary to section 45 of the Serious Crime Act 2007. 3. A co-defendant, Jack Robinson, had also pleaded guilty (in his case to count 1), the offence which the offender had encouraged or assisted. This count charged arson with intent to endanger life, contrary to section 1(2) and (3) of the Criminal Damage Act 1971, having deliberately set a fire at a block of flats at Pennine Court, Macclesfield. 4. The offender was initially charged on both counts but at a plea and trial preparation hearing on 15 March she pleaded not guilty to count 1 and guilty to count 2, and that plea was accepted by the prosecution and no evidence was offered on count 1. On 4 July Robinson was sentenced to a 12 year extended sentence of imprisonment, consisting of a custodial term of 8 years and a 4 year extended licensed period. The offender was sentenced to a term of 2 years' imprisonment suspended for 18 months. She was also ordered to carry out 200 hours of unpaid work and to pay a victim surcharge. 5. Since the crimes of the two defendants are closely linked it is necessary to refer to Robinson's offence, although his sentence is not the subject of a reference - a point made by Mr Parry who appears on behalf of the offender. 6. Jack Robinson had previously been in a relationship with Katie Burness, who lived in a high rise tower block (Pennine Court, Carisbrook Avenue, Macclesfield). This consisted of 15 floors and 92 flats (all of which were occupied) and which housed around 246 people, including vulnerable people, some of whom had mobility issues. There were two secure communal doors for access. 7. On the day before the offence Robinson had been sending Ms Burness text messages from about 8.45 pm on 11 February into the early hours of the 12 February 2019. He sent a series of messages threatening to set fire to the flats. He accused her of "shagging someone else" and stated that she never loved him. He said he was going to kill her and burn her alive. During that time Robinson also made it clear in text messages to the offender (with whom he was in a relationship) that he was going to set someone's home on fire. She replied: "No you're not, I'm on my way". Robinson responded "I am. Leave it Kayleigh". The messages indicated that he was initially trying to put her off. He messaged: "Don't come, I'm going to kill this kid. Watch." He later said: "If you love me you'll take me to do this." 8. At 3.26 am on 12 February the offender's car was seen at a Shell petrol station. The offender was driving and Robinson was in the passenger seat. Robinson purchased £7 of petrol and a canister containing the same. He paid using the offender's card. At about 3.45 am Robinson poured petrol over and around the front entrance communal doors to the flats. He set it alight and then fled. In doing so he intended to endanger the lives of the occupants. 9. Having driven him to the scene the offender waited for Robinson and then drove him away. Immediately following the setting of the fire, Robinson sent a text message to Katie Burness telling her to look outside the flat. At 4.20 am he sent another text message telling her that she got what was coming to her. Fortunately the fire did not take hold. It went out once the fuel was spent. 10. A fire officer of the Peaks and Plains Housing Department explained that the tower block had a fire alarm system, it was cladded in non-combustible material with fire rated paint on the walls. She confirmed that damage was caused to the front entrance door and that the surrounding areas were charred. Had the fire spread beyond the entrance the outcome could have been catastrophic. 11. In her police interview the offender made admissions as to her involvement but claimed that she was acting under threat of physical violence from Robinson. She said she had driven to meet him with a view to calming him down. They drove to the forecourt of the petrol station where he bought the fuel although she said that she tried to stop him. She drove him to the scene knowing that he was going to set a fire outside the flat. She drove him away from the scene to the home of one of his friends. It was put to her that there were messages on her phone the next day revealing that she was offering to hide him from the police at her home, and she then commented that she felt controlled by him but she also wanted to be with him. The offender had no previous convictions. 12. A pre-sentence report was prepared. It noted that the offender had been in a number of abusive relationships and it was her intimate relationship with Robinson that linked her to the offending behaviour. The exact cause of her fixation and attachment when entering into new relationships was unclear. Being a victim of domestic abuse would have been a traumatic experience and while Robinson was not physically violent towards her, he made repeated threats to punch her during the commission of the offence. In her circumstances it was understandable that the offender may have believed he would carry out these threats especially when considering his erratic and aggressive behaviour. 13. The author of the report noted that her infatuation with Robinson appeared to have underpinned her willingness to comply with his demand. She did not seek to justify her actions because of the level of coercion Robinson placed on her. She was assessed as a low risk of re-offending and a low risk of causing serious harm in the future. 14. The report noted that she was a single parent to an 8-year-old daughter and her primary concern was for her daughter and the impact on them being separated. Although she confirmed that her mother would be able to care for her daughter, the report observed that custody would have a detrimental effect on the offender and her daughter. Her risk of re-offending and the risk of serious harm could be managed effectively in the community. 15. Katie Burness had declined the opportunity to provide a victim personal statement. 16. A business impact statement was provided on behalf of Peaks and Plains Housing Department. Immediately following the fire the incident was discussed on social media by residents and local neighbours, emotions were running high and the office received calls from concerned residents of the tower block. At that stage the suspect was unknown and staff had to reassure residents, most of whom were elderly and vulnerable including people with mobility issues. As a result a security firm were hired at extra cost during the night-time periods (costing over £1,000 over a period of three nights). Police uniformed patrols were asked to assist in reassuring the community. None of the residents witnessed the fire while it was alight but the impact afterwards was described as "huge". If the fire had caught and the building ignited there would have been loss of life and damage to property. A new main door had been installed at a cost of over £1,000. 17. At the sentencing hearing the prosecution referred the judge to the case of R v Myrie and the suggested starting point of 8 - 10 years for an offence of arson with intent to endanger life. The prosecution identified that the arson offence was motivated by animosity on the part of Robinson towards Ms Burness and was an act of vengeance. The offence was planned; and he had also involved the offender. The use of fuel as an accelerant was itself an aggravating feature in relation to the arson. The building targeted was substantial and had the potential for a large number of vulnerable victims. Furthermore, the prosecution observed that Robinson's antecedent history aggravated the offence: he had 11 previous convictions for 22 offences, including robbery in 2008, 2012 and 2016, and he was on licence in relation to the 2016 robbery at the time of the offence. It was also noted that alcohol played its part so far as he was concerned. 18. In terms of mitigation, the prosecution observed that the fire did not take hold and damage was limited. 19. In relation to the offender the prosecution highlighted that a person convicted of an offence contrary to section 45 of the Serious Crime Act 2007 was liable to any penalty for which he or she would be liable on conviction of the anticipated or reference offence. The judge remarked that he was required to "scale down" the sentence depending upon the encouragement and assistance given whilst having "some reference" to the main offence. 20. During the hearing Robinson said to the judge "she was forced to do it"; and the offender relied on his wider coercive behaviour in mitigation. The prosecution observed that the offender had chosen to participate and had chosen to travel to meet Robinson, although he had made it clear to her what he was planning to do. The prosecution accepted that "to a certain degree she was in his thrall" and that "perhaps there were elements that were threatening in relation to Robinson's behaviour". 21. Counsel for the offender (then as now) Mr Parry relied on the pre-sentence report and the references from family members. He submitted that her role was limited to assisting Robinson to get to the petrol station to obtain the petrol, to driving him to the scene of the incident and then driving away afterwards. She had initially gone to try and calm Robinson down. At the petrol station Robinson had told her to get out, fill the canister and pay for it. She refused. She was crying and hysterical and continued to plead with him not to do it. Threats were made. There was no actual violence but she was frightened and through that fear she drove him onto the address feeling that she had no choice. 22. The offender had, since the incident, sought out Ms Burness to apologise to her for the part she had played in the offending and that apology had been accepted. Counsel observed that the offender had for a number of years suffered with anxiety and depression, and had been receiving counselling. She had been in previous abusive relationships. She came from a close and supportive family. The impact on her daughter of imprisonment would be enormous. The crime was entirely out of character. She set out to try to do the right thing but under pressure became involved to a limited degree and had expressed genuine remorse. 23. In passing sentence the judge noted that the prosecution had recognised by accepting the plea to count 2 that the offender had not been jointly involved in the arson with intent to endanger life. But nevertheless it was a serious case of assisting in a serious crime. Counsel for the offender acknowledged that it passed the custody threshold. 24. The judge gave full credit to pleas of guilty. The offender was aware of what Robinson was threatening to do and was concerned by it. Nevertheless she drove him to a petrol station, then to the scene and then away again after the offence. Robinson had put at risk the lives of every occupant of the flats. 25. The judge took account of the fact that the offender had no previous convictions and the letters written in support. He noted that in contrast Robinson had a number of previous convictions including robbery with weapons. At the time of the index offence he was on licence for a robbery committed in 2016. He noted that Robinson felt guilty about getting the offender involved and had shown remorse. The judge recognised substantial mitigation in the case of the offender. He took account of both culpability and harm in reaching sentences. He found that Robinson's crime was aggravated by the fact that he had, in his own words, "forced" the offender to become involved. 26. In relation to the offender, the judge observed that he must have regard to the main offence in assessing her culpability and the harm caused. It had been accepted by the prosecution she did not have the same motivation as the co-defendant and that she was somewhat in his thrall at the time. 27. The judge also had regard to the impact of any sentence upon the offender's young child for whom she was the primary carer. The judge then passed the extended sentence of imprisonment on Robinson. In relation to the offender the judge observed that her offending crossed the custody threshold "by some margin", particularly in view of the serious nature of Robinson's crime. Having taken account of the mitigation, the appropriate custodial term after a trial would have been a term of 3 years. That was reduced by one-third to reflect the plea of guilty. Due to her exceptional mitigation and the significant impact on others by an immediate sentence the judge suspended the sentence for a period of 18 months. He attached a community order of 12 months with an order that she carry out 200 hours of unpaid work. 28. For the Solicitor General Mr Lloyd drew attention to the aggravating features of Robinson's crime: it was an act of vengeance; preplanned; fuel was used as an accelerant; the property was targeted and was substantial; the premises were occupied at the time and the crime endangered a large number of victims; he had involved the offender; his conduct was affected by substance misuse; he had a bad antecedent history and he was on licence at the time. 29. These points are significant so far as the sentencing of the offender is concerned. First, to the extent that the sentence for assisting the offence must bear a relationship to the sentence for the offence which was assisted or encouraged many of these aggravating features: previous offences; substance misuse and offending while on licence did not apply to the offender. Second, one of the aggravating factors identified by the Solicitor General (involving the offender) is a matter that favours the offender so far as the seriousness of her criminality is concerned. 30. The Solicitor General also identified those factors which reduced the seriousness of Robinson's offending: whatever his intentions the fire in fact did not take hold and the damage was limited. 31. So far as the offender is concerned, it is submitted on the Solicitor General's behalf that the serious nature and characteristics of the reference offence (arson with intent) made the encouraging or assisting offence more serious. Against this it is acknowledged that there was substantial mitigation. A degree of coercion falling short of duress, previous good character, her remorse, the impact of an immediate sentence of custody on her 8-year-old daughter for whom she was the primary carer. 32. The Solicitor General has referred the court to a number of authorities on sentencing for the offence of arson with intent: Attorney General's Reference No 68 of 2008 (R v Myrie) [2009] Cr App R(S) 48; R v Trickett [2016] EWCA Crim 1604 ; R v Young [2016] EWCA Crim 678 and R v McKay [2018] 1 Cr App R(S) 26. Those cases throw light on the appropriate sentence for the Reference offence but, as we have noted, no complaint is made about the sentence passed on Robinson - a term of 8 years with a starting point of 12 years. 33. More directly in point Mr Lloyd submitted that the offence of encouraging or assisting, contrary to section 45 of the 2007 Act, carries by reason of section 58(3) the same maximum sentence as the anticipated or reference offence. It was for this reason that this court in a number of cases has said that it is relevant to consider the potential scale of the anticipated or reference offence (see Watling (Mark ) [2013] 2 Cr App R(S) 37 at paragraph 13; R v Hall [2013] EWCA Crim 2499 at paragraph 29 and R v Woodford (Anthony) [2014] 1 Cr App R(S) 32 , at paragraphs 12 - 13). 34. Mr Lloyd submitted that the sentence imposed on the offender was unduly lenient. The index offence of arson with intent was a preplanned act of vengeance by Robinson knowingly assisted by the offender. A fire was started at the entrance to a large residential block which housed a number of vulnerable people. Although it did not catch or spread, the consequences of a fire could have been catastrophic. Significant custodial sentences were required in relation to both Robinson and the offender. As the authorities indicate the judge was required to have regard to any guidance in relation to the reference offence (in this case the index offence of arson with intent). Robinson's starting point was identified as 12 years' imprisonment had there been a trial. However, the judge did not appear to have any regard to the relevant guidance ( Myrie ) in considering the offender's sentence, nor any regard to Robinson's identified starting point of 12 years' imprisonment. He ought to have considered the sentence the offender might have received had she had been convicted of the index offence herself. Given the nature of the building and the other circumstances to which our attention has been drawn, he should have identified as a starting point a sentence in the region of at least 9 years' imprisonment. The sentence would then have had to be reduced to reflect the offender's mitigation which of course included a degree of coercion, previous good character and the fact that she was the primary carer for her 8-year-old daughter. The sentence would then also fall to be adjusted by virtue of the fact that she was convicted of the offence of encouraging and assisting as opposed to the reference offence of arson with intent. Taking all these matters into account, the judge ought to have arrived at an overall sentence of no less than 6 years' imprisonment and, with full credit for plea, the sentence ought to have been no less than 4 years' imprisonment. 35. For the offender, Mr Parry has submitted today that the judge plainly had in mind the sentence for the reference offence, as is clear from the discussion during the sentencing hearing. He notes that Robinson's sentence of 8 years has not been referenced, and points to the distinction between Robinson's case and that of the offender. The offending by Robinson was very much more serious, and this was properly reflected in the different sentences. He draws attention to the fact that the offender was pressurised by Robinson, that she was of good character, she had been isolated and it was an abusive relationship. There was her remorse, she was in employment and she cared for her young daughter. These matters were strong personal mitigation bore materially on the sentence. In contrast, Robinson was on licence at the time, he was of bad character and he was a dangerous offender. Mr Parry submitted that it was an exceptional case and the sentence, although merciful, was justified by the circumstances. He also informed us that by the end of today the offender would have completed 63.5 hours of work that the sentence required of her. 36. We have considered these submissions. The seriousness of the offence under section 45 of the Serious Crime Act 2007 will depend, as is clear from the cases of Watling , Hall and Woodford , on the seriousness or potential scale of the anticipated or reference offence. This is because as the court explained in Woodford at paragraph 12, where the offending is charged under section 45 the essential element of the offence, unlike that under section 44, is that the offender believed that the full offence would be committed and that his or her action would encourage or assist its commission. 37. In the present case we are satisfied that the judge did have regard to the case of Myrie . However, the seriousness and potential scale of the reference offence is only part of the enquiry. It is also important to assess the degree of the assistance or encouragement. The difference in degree of such assistance or encouragement may be marked: on the one hand, there may be assistance which is close to participation in or conspiracy to commit the Reference offence. In such cases the sentence for section 45 offending maybe close to the sentence for the reference offence . Watling and Woodford were examples of such cases, importing or supplying cutting agents for the use in the supply of Class A drugs. As the court expressed the point in Watling at paragraph 13, the appellant's "culpability was high and his role was pivotal". However, a defendant’s role may not be pivotal and it will be necessary in any event in forming a view about the seriousness of the offending to assess the degree of assistance or encouragement provided. This is what the judge meant when he referred to "scaling down" the sentence depending on the degree of assistance or encouragement provided, while having regard to the reference offence. 38. In the present case there was assistance, much of it unwilling but little, if any, encouragement. Rather the contrary. Robinson told the judge that he had "forced" the offender to become involved. The judge himself noted that she was somewhat in "thrall" to Robinson at the time and the Solicitor General acknowledges there was "a degree of coercion falling short of duress". 39. Of course she should not have assisted Robinson and in becoming involved in the way she did she committed a serious crime which fully justified a custodial sentence. However, we do not accept the Solicitor General's submission as to the way in which the sentencing should have proceeded. The seriousness of the offending was not simply to be measured by reference to Robinson's much more serious offending. 40. In our view, the judge carefully reflected on this sentence and his approach both accorded with principle and resulted in a just and merciful sentence. Although we grant leave, we decline to interfere with this sentence.

2019_09_03-4704.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2019/1633/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2019/1633

6c159ef17ceef704e5ee68a01ec44c385146f78826640c3a93dc7258fe1769bc

[2008] EWCA Crim 1420

EWCA_Crim_1420

2008-06-06

crown_court

No: 2008/01040/A3 Neutral Citation Number: [2008] EWCA Crim 1420 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 6th June 2008 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE BURNETT HIS HONOUR JUDGE ROBERTS QC ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- DANIEL DEAN GLENN CUNDELL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Note

No: 2008/01040/A3 Neutral Citation Number: [2008] EWCA Crim 1420 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Friday, 6th June 2008 B E F O R E: LORD JUSTICE SCOTT BAKER MR JUSTICE BURNETT HIS HONOUR JUDGE ROBERTS QC ( sitting as a judge of the Court of Appeal, Criminal Division ) - - - - - - - - - - - - - - - - - - - - - R E G I N A -v- DANIEL DEAN GLENN CUNDELL - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Palantype Notes of Wordwave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr G Short appeared on behalf of the Appellant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE BURNETT: On 6th February 2008 at the Crown Court at Leicester, His Honour Judge Collis sentenced the appellant to a term of imprisonment of 2 years and six months following a plea to burglary. 2. With the leave of the single judge, he appeals against that sentence on the ground that it was manifestly excessive. 3. The facts giving rise to the offence are relatively straightforward. On the afternoon of 7th July 2007 the caretaker at Loughborough College was called out because an alarm at the college had been activated. Together with a friend called Mr Mills, he went to the college to investigate. Whilst they were walking along one of the corridors, his friend came across the appellant on all fours emerging from a broken glass panel in a door. The appellant was challenged and Mr Mills tried to detain him. In response, the appellant feigned an asthma attack and was able to get away. Mr Mills noted that the appellant had cut his hand in the process of coming through the glass door, and so in due course a DNA check was made and the blood quickly linked to the appellant. 4. On 9th August 2007 the appellant was arrested. He denied being present at the college on the day in question and provided an alibi. He was unable to explain why the blood found at the scene matched his, but indicated that he had once worked at the college as an office technician. 5. As a result of the appellant's denial at that stage, an identification parade was held and Mr Mills identified him. 6. The appellant was charged on 10th August 2007 with burglary. He appeared at Loughborough Magistrates' Court on 21st September. He did not admit his offence at that stage. The magistrates sent the case to the Crown Court at Leicester. 7. The first hearing was to take place on 6th February 2008. However in the meantime, in December 2007, the appellant admitted the offences to the police and asked for a number of other offences to be taken into consideration. They concerned the theft of a number of laptops, worth £4,632 from Loughborough College on 27th September 2007, the theft of a stereo worth £100 from a car on 18th September 2007 and the theft of a stereo worth £200 from a car on 22nd September 2007. It will immediately be clear that all of those offences that were in due course taken into consideration by the sentencing judge were committed whilst the appellant was on bail. 8. The matter came before Judge Collis on 6th February 2008 when, as we have indicated, the appellant pleaded guilty to burglary and asked that the other three matters be taken into consideration. The judge acceded to a request to proceed immediately to sentence, considering that a pre-sentence report was in that case unnecessary. 9. The appellant's antecedents were before the judge. They are appalling. He was born on 12th August 1976, and so was 31 the time he was sentenced. A steady stream of serious offending stretched back to the time when he was 18. They comprise a large number of convictions for theft, handling stolen goods, obtaining property by deception, and burglary. There are 25 such offences. Additionally there are sexual offences, fraud and other like offences, public disorder offences and offences relating to his dealings with the criminal justice system. There are also some drugs offences. 10. At the time of his being sentenced by Judge Collis, the appellant had just completed a short sentence of imprisonment imposed on him in December 2007 for a sexual offence. He was also the subject of a community order which had been imposed by Leicester Magistrates' Court in September that year. That order was revoked by the judge. 11. In May 2005 the appellant had been sentenced to a total of 34 months' imprisonment. Twenty months of that total resulted from two non-domestic burglaries, thus similar to the offence for which the judge was sentencing him, and a further ten months for other offences of dishonesty. 12. In his sentencing remarks, the judge recognised that he was concerned with a non-domestic burglary, as well as taking account of the other offences to which we have referred. He noted all the relevant features, including that the burglary had taken place during daylight hours when the college was closed. He identified the underlying problem suffered by the appellant as being one of drug addiction. It was to feed his drug habit that the appellant engaged in crimes of dishonesty. He had regard to the appellant's appalling antecedents. He also referred to the appellant's guilty plea in these terms: "The great problem is, as far as mitigation and credit is concerned, your plea is extremely late. It is very, very late in the day. It is not the day of the trial but it would have been. You denied it right up until very, very recently and that caused a lot more work for the police and everybody else." That observation appeared to overlook that the appellant had come clean two months earlier. 13. Two grounds are advanced in support of the appellant's contentions. First, it is argued that the judge was wrong to consider the plea as very late, but should have instead given the appellant a discount for his plea of one-third; that is to say, full credit. Secondly, it is said the judge took the period of imprisonment imposed in 2005 as a starting point and should not have done. 14. In giving leave, the single judge saw nothing in the second point and neither do we. 15. So far as the first point is concerned, it is clear that the judge considered the plea to be a very late one. It is reasonably to be inferred from the language used by the judge that he had in mind a reduction from his notional starting point of about ten per cent. We say that because that is the recommendation set out in the Definitive Guideline on this matter provided by the Sentencing Guidelines Council. 16. As is well known, the maximum discount of one-third is usually available in circumstances where a defendant in criminal proceedings accepts his guilt at the earliest opportunity. That may be at the first hearing before the Magistrates' Court, but it is well recognised that the earliest reasonable opportunity may come rather sooner. In our judgment, this is one of those cases. When the appellant was arrested he was confronted with the account of what had happened and the DNA evidence. He persisted in his denials, causing an identification process to be gone through, and then he failed to take the opportunity of accepting his guilt when he appeared before the Magistrates' Court. As we have indicated, he first accepted responsibility in December 2007, when speaking to the police about other matters, and then of course he confirmed it at his first appearance at the Crown Court, at which time a trial date would have been set. 17. Taking account of all those factors, in our judgment a discount of about 25 per cent would have been reasonable. That is consonant with the recommendations of the Sentencing Guidelines Council. He was not entitled to full credit. 18. We do not believe that the judge's implicit starting point of about 33 months can be criticised at all on the facts of this case. The appellant's offending history demonstrates that he is a menace to the public. The recent history suggests that it is likely only to be whilst he is in prison that he ceases offending. 19. However, taking account of the fact that in our judgment a rather higher discount was appropriate than allowed by the judge, we allow the appeal to the extent of quashing the sentence imposed and substituting a term of imprisonment of 2 years in its place. 20. MR SHORT: I am obliged. ______________________________

2008_06_06-1530.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1420/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/1420

59cabd772e4ea8e405d9a48f59d35b639043951c777f31204ecd1e5766812780

[2006] EWCA Crim 2698

EWCA_Crim_2698

2006-10-26

crown_court

No. 2006/00280/B1 2000/02734/W3 Neutral Citation Number: [2006] EWCA Crim 2698 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 26 October 2006 B e f o r e: LORD JUSTICE RICHARDS MR JUSTICE GRIGSON and SIR JOHN BLOFELD - - - - - - - - - - - - - R E G I N A - v - SANDRA MORPHY GERALD DAVIDSON MORPHY - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street,

No. 2006/00280/B1 2000/02734/W3 Neutral Citation Number: [2006] EWCA Crim 2698 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Thursday 26 October 2006 B e f o r e: LORD JUSTICE RICHARDS MR JUSTICE GRIGSON and SIR JOHN BLOFELD - - - - - - - - - - - - - R E G I N A - v - SANDRA MORPHY GERALD DAVIDSON MORPHY - - - - - - - - - - - - - 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 DONNE QC appeared on behalf of THE APPELLANT SANDRA MORPHY THE APPLICANT GERALD MORPHY was not represented MISS KATE MALLISON appeared on behalf of THE CROWN - - - - - - - - - - - - - J U D G M E N T Thursday 26 October 2006 LORD JUSTICE RICHARDS: I will ask Mr Justice Grigson to give the judgment of the court. MR JUSTICE GRIGSON: 1. On 19 October 1999, at the Crown Court at Aylesbury, Sandra and Gerald Morphy pleaded guilty to keeping a disorderly house between 1 January 1998 and 24 April 1999. On 24 February 2000, both admitted a further offence in the same terms, the dates on this occasion being 1 October 1999 and 25 November 1999. As regards Sandra Morphy, a charge of controlling prostitutes was left on the file; and in respect of Gerald a charge of living on the earnings of prostitutes was similarly dealt with. Both were sentenced to eight months' imprisonment on each count to be served concurrently. In Sandra Morphy's case the sentence was suspended for two years. After a hearing the judge made a confiscation order against both in the sum of £142,186 under section 71 of the Criminal Justice Act 1988 , with a sentence of three years' imprisonment in default. He had calculated the benefit at £595,840, and the realisable property at £284,362, which he halved and so arrived at the figure of £142,176 for each. Both applied for leave to appeal against sentence in respect of the confiscation order. Leave was refused. It appears that an application for leave to appeal against conviction was also refused. Thereafter it seems that nothing happened, and eventually the Registrar stayed the application. Sandra Morphy now appeals against sentence only, and specifically the confiscation order, upon reference by the Criminal Cases Review Commission. Gerald Morphy's application for leave to appeal, which had been stayed, has been referred to this court by the Registrar for consideration following R v Gooch [1998] 2 Cr App R 130 and R v Charles and Tucker [2001] 2 Cr App R 15 . His position is in effect the same as Sandra Morphy's. 2. The facts are straightforward. In the period specified in the two charges, Mr and Mrs Morphy ran a brothel at Briars Bush House, Ivinghoe, Aston. These activities attracted the attention of the News of the World, who sent in an undercover reporter and kept observations. They reported their findings in the newspaper. This prompted the police to raid Briars Bush House on 21 April 1999, which resulted in the first indictment. 3. Having been bailed, the Morphys carried on their activities. That again excited the attention of the News of the World, who kept further observations, made a further visit, and published a further article. The police were prompted to strike again on 24 November 1999, which resulted in the second indictment. 4. Although technically described as a "disorderly house", the evidence disclosed a discrete and well-run organisation in which the prostitutes were entirely volunteers. The Morphys provided the facilities and the accessories for the prostitutes, who paid the Morphys £30 per day. The evidence suggested that the girls charged between £40 and £100 for their services, money which ordinarily the clients paid directly to them. If the client paid by cheque, the payee was left blank. The girls were provided with lockers in which they kept their money. 5. This appeal turns on a single and narrow point. The confiscation proceedings were brought under section 71(4) of the Criminal Justice Act 1998, which provides: "For the purposes of this Part of the Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained." The judge ruled that the Morphys had benefited by the whole of the sum paid to the prostitute. He rejected the defence argument that the Morphys only benefited from the £30 rent that the girls paid to them per day. 6. Having heard argument and having seen some evidence in the form of the prosecution written submissions, the judge made a series of findings. His ruling concluded: "Therefore, in my view, the proper definition of 'obtaining' here, having considered various aspects of this case with some care now, and having gone through them with counsel, is that the Morphys did indeed obtain the sums which were paid to the prostitutes, but I do not accept the officer's calculation. It has to be re-calculated. He has calculated on £90 per girl, and the section 71 evidence does not support that." 7. The Commission referred Mrs Morphy's case to the court because it was satisfied that there was a real possibility that this court would find that the judge misdirected himself in acceding to the prosecution argument that if he found that Mr and Mrs Morphy exercised control over the activities of the prostitutes, then he could go on to find that they had obtained all the monies paid to the prostitutes by their clients. 8. Mr Anthony Donne QC adopts the views put forward by the Commission. He asserts that the judge was wrong in law to find that the Morphys obtained the whole of the sum paid by the client to the prostitutes and that his finding that the Morphys controlled the prostitutes was flawed. We do not need to determine that second issue. 9. In the course of argument before the trial judge, prosecution counsel sought to rely on the decision at first instance of Auld J in R v Rees . In that case the primary offence was obtaining under the Theft Act 1968 . We are satisfied that it is of no assistance here. The approach to be adopted in relation to section 71(4) is that of Buxton J (as he then was) in R v Gokal , which he tried at first instance, where he said: "On the basis of that statement, therefore, the prosecution argues that Mr Gokal equally has obtained for the purposes of section 71 the whole sum of £548 million, which he caused to be obtained by the Gulf Group. It is, however, important to note that the defendant in Rees was, as Auld J pointed out, charged under section 15 of the Theft Act and in that section the word 'obtains' has a particular meaning which is specifically there stated to be applied for the purposes of that section. It may well be that where the question under section 71(4) of the 1988 Act is whether the defendant has obtained property as a result of or in connection with the commission of that offence under section 15 of the Theft Act, obtains in section 71(4) does indeed, as Auld J ruled, carry the meaning that he attributed to it, the meaning which he drew from the underlying offence of which the defendant in that case had been convicted. I do not, however, find it easy to see that that reasoning follows where the offence that is the basis of the compensation claim is not a section 15 offence. In those circumstances, as here, I do not see any obvious reason for reading the Theft Act definition as found in 15(2) of the Act into the Criminal Justice Act of 1988. Indeed, the fact that that definition is said to be specific to that section would suggest that the ordinary meaning of the word 'obtains' is not set out in section 15(2) of the Theft Act. I therefore hold that the phrase 'if he obtains' in section 71(4) of the 1988 Act requires what can fairly be described as an obtaining by the defendant." That quotation is taken from the judgment of this court in R v Patel [2000] 2 Cr App R(S) 10. In fact the confiscation order in Gokal was the subject of an appeal. No criticism was made in the course of that appeal of Buxton J's approach either by the prosecution or the defence. The court accepted (albeit implicitly) that it was right. 10. Miss Mallison, who appears on behalf of the Crown, argues that the judge was entitled to find that the Morphys controlled the activities of the prostitutes. She seeks to persuade us that the control exercised was sufficient to justify a finding that the Morphys had obtained the whole sum as the prostitutes were in effect acting as agents. She has referred us to the judgment of Laws LJ in J v Crown Prosecution Service [2005] EWCA Civ 746 . 11. We do not say that such a conclusion is impossible. We take the view that that was not the approach that the learned judge adopted. Nor is the second limb of the argument supported by the evidence as put before the judge. As it seems to us, there has been a confusion between "control" and "benefit". It may be a proper inference that where there is a sufficient degree of control the brothel keeper obtains the whole fee and simply pays a proportion of it to the prostitute, but it is not a necessary inference. In this case, while there might have been evidence upon which the judge could have made such a finding, he did not direct himself to that issue. 12. It follows that, in our judgment, the way that he calculated the benefit obtained was flawed. As we understand it, the figure which is effectively agreed, based on the sum of £30 per girl per day, is £48,060. It follows that the finding in relation to the confiscation order against Sandra Morphy must be quashed. 13. The position of Gerald Morphy is exactly the same as Sandra Morphy. Common sense would dictate that we grant him leave to appeal and treat this hearing as the appeal. We make a similar finding in respect of him. 14. The figure, therefore, which would appear to be the appropriate figure is half of that sum, which is £24,030. To that extent the appeal is allowed in respect of both. 15. The question then arises whether there are realisable assets. That is a matter about which we wish to hear from counsel now. LORD JUSTICE RICHARDS: Is it a matter that strictly need concern us? The question of whether there are realisable assets is strictly one for a Certificate of Inadequacy going back to the Crown Court. Is that right? MR DONNE: Yes. I do not have any instructions on that. If the appeal had failed, then Mrs Morphy could have applied for a Certificate of Inadequacy. MR JUSTICE GRIGSON: The Commission say that she has no assets at all, in which case, if that is accepted, it is simply a waste of money, is it not, for this court to make an order which is inevitably going to fail? MR DONNE: Those are my instructions. MISS MALLISON: My Lord, my instructions are that the assets have all gone. One does not know how. The term in default for the sum of £24,000 odd will be eighteen months, and if the defence are going to argue that they would like a Certificate of Dissipation of the assets, then the Crown would like an order of disclosure of their means because the Crown are concerned that this amount of money just seems to have slipped through their fingers. MR JUSTICE GRIGSON: Sorry, you are talking about "they". There are two appellants. Gerald Morphy, as far as we know, is not here and is not represented. MR DONNE: He is in Thailand and has been for some time. MR JUSTICE GRIGSON: You cannot simply lump them together. If you have read the Commission's report, which I am sure you have done, Mrs Morphy is reported as saying that he has gone and taken the assets with him. MISS MALLISON: Those who sit behind me have not been able to find any assets either for him either, so to that extent -- forgive me for lumping them both together -- but the position is that we cannot find the money. What I am going to ask the court to do is that if in fact the defence on behalf of Mrs Morphy are going to ask for some certification that the monies have been dissipated, we would like some directions given as to the disclosure of her finances and how the money has come to be dissipated because the properties were in joint names and I am not clear as to how, therefore, one person could have got hold of all of the money without any reference to the other person's interest. LORD JUSTICE RICHARDS: Let us consider what our function here is. We have considered an appeal against the confiscation order. We have quashed the order, we have substituted in each case an order for just over £24,000. It is right that we must as part of our order set a default term of imprisonment of eighteen months. Is there anything more that strictly it is within our jurisdiction or our proper function to do? MISS MALLISON: I do not think there is, my Lord. LORD JUSTICE RICHARDS: If the appellants wish to contend that they do not have the assets to meet the order in the sum which is now specified by this court, there is a proper procedure in place for them to apply, not to us but to a lower court. MISS MALLISON: My Lord, that is right. LORD JUSTICE RICHARDS: It sounds to the court as though that is the right course to adopt. MISS MALLISON: It rather took me by surprise that anyone would think otherwise. I assume that this will be a preclude to Mrs Morphy making the appropriate application. LORD JUSTICE RICHARDS: That will be for her to decide. So there is nothing more that is required of us? MR DONNE: No, thank you. LORD JUSTICE RICHARDS: Can I thank you both for your assistance and in particular for the commendable brevity and succinctness of your submissions? MR DONNE: My Lord, Mrs Morphy is not legally aided. Can I ask for a defendant's costs order to be assessed? LORD JUSTICE RICHARDS: Yes, we will grant such an order. MR DONNE: Thank you.

2006_10_26-949.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2698/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2698

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[2010] EWCA Crim 470

EWCA_Crim_470

2010-02-24

crown_court

Neutral Citation Number: [2010] EWCA Crim 470 Case No. 2009/5142/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 24 February 2010 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE OUSELEY MR JUSTICE MACDUFF - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 80 OF 2009 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript o

Neutral Citation Number: [2010] EWCA Crim 470 Case No. 2009/5142/A5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 24 February 2010 B e f o r e : LADY JUSTICE HALLETT DBE MR JUSTICE OUSELEY MR JUSTICE MACDUFF - - - - - - - - - - - - - - - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL'S REFERENCE NO 80 OF 2009 - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - The Attorney General, Baroness Scotland QC, appeared in person together with Mr J Laidlaw QC Mr S Sandhu appeared on behalf of the Offender - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1 LADY JUSTICE HALLETT: Her Majesty's Attorney General, Baroness Scotland QC, seeks the leave of the court to refer a sentence which she considers unduly lenient. 2 The background to her application is as follows: the offender is Harpal Singh Moore. He is 36 years of age. He was charged on 7th October 2007 with causing grievous bodily harm to his wife with intent to do so contrary to section 18 of the Offences Against the Person Act 1861 . He pleaded not guilty at the plea and case management hearing in January 2008, his defence at that time being that the complainant's injuries were inflicted accidentally during a heated argument. 3 The trial was fixed to start on 2nd June 2008. On that date the defence applied successfully for an adjournment on the grounds the offender was suffering from depression. The trial was then listed for August 2008 but did not proceed on that day because the offender's legal advisers were professionally embarrassed. A third trial date was set for December 2008 but the complainant was then ill. A pre-trial review was held in July 2009 when the offender confirmed his intention to contest the charge. On the first day of trial, 13th July 2009, after the complainant had attended court to give evidence, the offender pleaded guilty. There was no basis of plea presented to the sentencing judge. Sentence was adjourned for a pre-sentence report and on 4th September 2009 His Honour Judge Walsh, sitting at the Wolverhampton Crown Court, sentenced him to two-and-a-half years' imprisonment. 4 It is necessary, given the nature of the submissions made by Her Majesty's Attorney General, to rehearse in a little more detail the relationship between the offender and his wife leading up to and including the day of the offence. 5 The offender met the complainant, who was born in 1979, in the year 2000. They married two years later. On any view the marriage was turbulent and the complainant alleged that the offender had been violent towards her. The police were called to their home on a number of occasions and injuries on the complainant were noted. However, on each occasion the complainant declined to give evidence against her husband. The offender was later to tell the police that the complainant was often responsible for inflicting violence upon him. He also claimed that she was responsible for injuring herself, for example burning herself with a cigarette. Both parties claimed that the other drank to excess and was overly jealous. 6 On 5th October 2007 the offender came home to find his wife was not there. When she eventually returned he accused her of being with another man. He went out to a local public house and returned two hours later. He continued to drink and continued to make accusations that she was seeing another man and having an affair. She decided the best course was to leave him and go upstairs to bed. The offender followed her and asked her further questions. He went through her handbag and extracted her mobile telephone to seek proof of his suspicions. She went into a smaller room, where the iron and the ironing board were kept, in order to change for bed. The offender followed her and blocked her path to the door. He switched the iron on and said that he had found out something about her. He then said: "You watch what I do to you now." He picked up the iron and he held it to her face, four or five times, leaving it on her skin for two to three seconds each time. He also managed to burn her hand during the course of the attack. The victim initially told the police that he had done this deliberately by placing the iron on top of her hand, but it is right to say that she told the doctor who treated her injury that the burn to her hand occurred when she tried to defend herself. She managed to get away from the attack and she went into the matrimonial bedroom. The offender followed her and said to her: "That's what happens when you get out of line." 7 Unfortunately branding his wife with an iron did not satisfy the offender. He jumped on top of her, called her a 'slag' and punched her repeatedly resulting in severe bruising. Eventually the attack subsided and the offender left. 8 The next morning the offender realised that, not surprisingly, the complainant was in great pain. He apologized to her and said he could not believe what he had done. However, he neither sought medical treatment for her himself or insist that she should do so. She claimed that he prevented her from contacting anyone or seeking treatment. He left the house to go to work, leaving her alone. She said she was too scared to leave the house. He returned at lunchtime with antiseptic cream, painkillers and a sandwich. He left again for work. When he came back in the evening he suggested that she was responsible for applying the iron to herself. 9 On 7th October 2007 she was eventually able to speak to her mother and sister on the telephone. They went round to see her. When they saw her injuries they were horrified. Her sister called the police. According to a statement made by her sister the offender told the complainant's mother that the complainant deserved what happened to her. When the distressed mother remonstrated with him, he told her to 'shut up' and not to disrespect him. 10 When the police arrived the offender lied to them. He told them that the victim had thrown the iron at him and he had thrown it back at her, hitting her by mistake. He said he had not realised the iron was switched on. He described the incident as "just a domestic". 11 The victim was taken to the accident and emergency department at the local hospital. She was provided with painkillers and dressings. She had extensive injuries to her face and hand, plus bruising to other parts of the body. She was referred to the plastic surgery team. They found a burn wound to the left side of her face measuring two by five centimetres. She had a second burn wound to the left side of her face extending onto the ear and the side of the neck. This was five by fifteen centimetres. The burns were treated and healed within three weeks. However, the scar which remained was problematic. The doctors had to inject it with steroids to try to flatten it and the victim was given silicone gel. She was warned that there was a risk of permanent scarring. Her Majesty's Attorney has put before us today original copies of the photographs of the complainant's injuries at the time she was seen in hospital and two years on when the scarring was still very apparent. 12 The victim made a statement in December 2007 in which she described constant pain which required her to take at least six painkillers per day. She was unable to leave the house because of the way she now looked and she had been prescribed anti-depressants. No up-to-date medical information was provided to the sentencing judge or indeed to this court, but he had the benefit of the photographs shown to us. 13 The offender was interviewed and maintained his lies. He told the police that he had come home to find the complainant drunk. He said that she had started to attack him and he had pushed her over. He said she had then thrown the iron at him and he had thrown it back. He insisted the iron was not switched on. He said he then went out for the evening and when he returned the complainant was in bed. He only saw the burn marks to her face the following morning and he claimed that they were self-inflicted. He denied that he had had a conversation with the police outside his home when arrested in which he told them that the burns had been caused accidentally. Essentially to the police and later to the author of the pre-sentence report he portrayed himself as the victim in the matrimonial relationship. He told the latter that he had hit the victim with the iron after she had shouted at him and made derogatory comments about his mother, their marriage and his sexual libido. This account did not form part of the mitigation put forward at the sentencing hearing nor put forward to us. We were invited to proceed on the basis that the offender switched the iron on and deliberately applied it to the complainant's face on more than one occasion provoked by his anger at her alleged infidelity. 14 Before this offence the offender had two previous convictions. In 1990 he was given a conditional discharge for possessing a weapon in a public place. In 1997 he was given a community punishment and probation order for two offences of driving with excess alcohol. 15 The sentencing judge was shown a number of written references upon the offender. They spoke of a caring, hardworking young man who had been involved in voluntary work with young people and who had contributed positively to his local community. Mr Sandhu has invited this court to have regard to prison reports which also describe a pleasant and well-behaved young man. He is said now to be remorseful, well-motivated, polite and punctual. 16 The following aggravating features appear to Her Majesty's Attorney General and Mr Laidlaw QC (who appeared with her) to be present. First, the offence occurred against the background of a failing relationship and of previous complaints of domestic violence and in those circumstances represented an abuse of power and trust. Her Majesty's Attorney reminded the court properly that this was not simply a case of the offender picking up an object close to hand to use as a weapon. He turned the iron on and allowed it to heat up before he applied it deliberately to the complainant's face. She also observed the iron was applied on more than one occasion and its use was plainly intended not simply to injure but to disfigure and to punish. She argued that the victim was vulnerable because the attack was carried out in the evening and in the complainant's own home when the parties were alone together. We were also invited to note that not only did the complainant suffer serious physical injuries but there has been a profound psychological effect upon her. She has described herself as a broken woman. 17 As far as mitigating features are concerned, there appeared to Her Majesty's Attorney to be but one and that was the belated plea of guilty. She invited us to note the length of time it took for the offender to admit what he had done to his wife. 18 On the offender's behalf, Mr Sandhu urged the court to bear very much in mind a basic principle of sentencing namely that the offender must be sentenced only for proven or admitted conduct. Here, he argued, the only proven conduct was the one offence of causing grievous bodily harm with intent to do so. He also asked the court to bear very much in mind that, as is so often the case, there are two sides to this particular story. He accepted that the relationship between the offender and the complainant was stormy, but he submitted, on instructions, that the aggression did not go all one way and it was not always the offender who was the first to react to an argument with violence. The offender’s present explanation for his violent reaction on this occasion was that he had discovered evidence of the complainant's relationship with another man. 19 Pausing there, we observe that if there is anyone in or outside the criminal justice system who still believes that infidelity can justify or mitigate violence of this kind, they are mistaken. Whatever the hurt or anger that a betrayed partner feels, they must understand that they should not resort to violence. If they do, they do so not only at the peril of their victim but at their own peril. 20 Nevertheless, Mr Sandhu invited the court to bear very much in mind the positive side to the offender's character and the references that have been provided for him. He is now separated and/or divorced from the complainant. He is in a new relationship and it is said there have been no instances of violence or aggression within that relationship. 21 Her Majesty's Attorney General submitted that the sentence was unduly lenient because the judge erred in selecting a starting point of three years' imprisonment. She drew our attention to the Sentencing Guidelines Council's Definitive Guideline on Assault and Other Offences Against The Person and also their Definitive Guideline: "Overarching Principles: Domestic Violence". According to the Definitive Guideline for Assault, she submitted that the starting point - and emphasised the words starting point - for an offence of this gravity was one of five years' imprisonment. She wished us to note that the offender's plea of guilty was offered almost two years after he was first charged, thereby subjecting the complainant to further stress. She suggested his delay in pleading guilty was because he doubtless hoped that the complainant would withdraw her complaint as she had done in the past. Whatever the reaons for the belated plea, Baroness Scotland and Mr Laidlaw agreed that the credit for the guilty plea should have been no more than ten per cent. 22 They further submitted that it is clear from the judge's sentencing remarks that he has failed properly to have regard to the nature of the offending, the background against which it occurred and the aggravating features. She argued that where, as here, there is a documented, albeit unproven history of violence towards the victim, in those circumstances the offender could not be said to have the benefit of positive good character. Thus, the judge appears to have erred in giving undue weight to the positive aspects of the offender's character as described by his friends, work colleagues and relations. Further, the judge failed to identify any significant mitigating factors sufficient to depart from the Definitive Guideline and explain the lenience of the sentence. 23 We see considerable force in the submissions advanced by Her Majesty's Attorney General and Mr Laidlaw. Unfortunately, there appears to have been no reference in the Crown Court to either of the two Definitive Guidelines which applied to this case and to which the judge was obliged to pay heed. We have no explanation therefore as to why the judge decided to depart from them, which of course he was entitled to do in an appropriate case. However, to our mind this could never have been an appropriate case. As the Sentencing Guidelines Council makes plain in the Domestic Violence Definitive Guideline: cases of domestic violence committed in a domestic setting should be regarded as no less serious than offences committed in a non-domestic setting. Indeed there may well be circumstances where aggravating features of the domestic setting will make the offence more serious. To our mind it is simply unarguable that had the offender picked up an iron, deliberately switched it on and repeatedly applied it to the face of an unrelated person, intending to cause really serious bodily harm and then contested his guilt, he would have received a sentence considerably longer than the three years suggested by the sentencing judge. The starting point, as Her Majesty's Attorney General pointed out, must have been at least five years. Thus, the judge either selected the wrong starting point or selected the right starting point and reduced it to three years in the light of the glowing references and the offender's so-called good character. If so, he fell into error. Technically the offender did not have the benefit of a previous good character, but far more importantly the history of the relationship between offender and victim in this case makes unhappy reading. As the Sentencing Guidelines Council observed, in a case of domestic violence the history of the relationship is relevant. The couple had a stormy relationship and frequent arguments during which there may well have been fault and violence on both sides; we know not. One thing seems clear, however, the complainant nearly always came off substantially worse. The offender is described as having occasional scratches and bruises. The complainant suffered burns, severe bruising and broken bones. The police have been involved on a number of occasions and the complainant's injuries documented. We also note that this is not the first time that the offender had accused the complainant of burning her own face during the course of a row. It is true to say that none of the previous allegations resulted in a conviction. The complainant says that on previous occasions she felt unable to pursue proceedings. It is not for us to determine why this was so. It may have been because she was lying (as the offender would have it), it may have been because she was too afraid of her husband, or it may have been for other personal or cultural reasons. The fact remains that an incident of violence between these two people resulting in injury to the complainant and the involvement of the police was not an isolated incident and to that extent the offender's involvement in a violent situation with his wife cannot be characterised as out of character. 24 We wish to emphasize that we are not for one moment suggesting that where, as here, allegations of a history of unprovoked physical assault throughout a marriage are denied and remain unproven, the alleged violence can amount to an aggravating feature. We endorse the judge's comment that this offender stood to be sentenced for this offence and this offence alone. However, that is a very different matter from concluding, as the judge appears to have done, that the offender's character as described by his friends and family amounted to positive good character which coupled with the fact this was the only offence before the court entitled him substantially to reduce the sentence imposed. The referees may have thought the offence was out of character but sadly it is far from uncommon for someone who assaults their partner to present very differently to the outside world. As the Definitive Guideline puts it, one of the factors which can allow domestic violence to continue unnoticed for lengthy periods is “the ability of the perpetrator to have two persona”. In this case, it was common ground violence was a feature of the offender’s relationship with his partner. 25 We fear the judge may not have borne all this sufficiently in mind. Thus, although the glowing references upon the applicant may well have been relevant and in other circumstances may have amounted to powerful mitigation, they must be seen in the context of this offence which was yet another violent row between the parties where the complainant came off worst. The offender must have known what might happen if he persisted in the row. Nevertheless he chose to do so. Despite the fact the complainant tried to get away from him, he followed her upstairs, he took hold of an iron, he turned it on, allowed it to heat up and then deliberately and repeatedly held it to his wife's face as some kind of punishment and or as a means of ensuring she would become unattractive to other men. He told her this is what she got for being "out of line". In other words he wished to disfigure and punish her. This attack did not suffice. He kept on punching her as she lay on the bed and caused serious bruising. He caused her huge pain and permanent and very unsightly facial scarring in what can only be described, on his present version of events, as a jealous rage. His expressions of regret thereafter were hardly consistent and he made no attempt to get his wife help, despite knowing how bad her injuries were. The authors of the various testimonials upon him would no doubt be shocked and horrified to learn that the Harpal Singh Moore they know could behave in this fashion. Thus, this is not a case, as Baroness Scotland observed, of someone who, in the middle of a heated argument, grabs the nearest object and throws it, thereby injuring their partner. This is not a case of somebody who punches or slaps out in anger. This was an incident of sustained and determined cruelty. It is the kind of offence where even a previous excellent character would pale compared to the gravity of the offending. 26 Given all the aggravating factors, and the starting point provided by the Definitive Guideline on Assault, the sentence that we would have expected to see imposed, subject to mitigation, for an offence such as this was at least five-and-a-half years if not longer. The only relevant mitigation sufficient to reduce that sentence on these facts, in our view, is the plea of guilty. It came very late in the day and we share Her Majesty's Attorney's cynicism about why it was the offender waited so long before admitting his guilt. We also note his change of heart came after several changes of story. The credit for his plea of guilty must be limited. We are driven to the conclusion, therefore, that whatever the positive side to the offender's character there is a very negative side which must be severely punished in the hope that his punishment acts as some kind of deterrence to others. We give Her Majesty's Attorney leave to refer the sentence. We quash it as being unduly lenient and we substitute for it a sentence of five years' imprisonment, which in our view is the very least sentence that we can impose. 27 Before leaving this case we should mention that Her Majesty's Attorney invited us to make a number of general observations on the subject of domestic violence. Had the Sentencing Guidelines Council not issued their very helpful Definitive Guideline on domestic violence we might have been tempted to do so. However, given the contents of the Guideline, which we whole-heartedly endorse, we do not feel it necessary to go further than to say this: the days when incidents of violence within the home were dismissed by many as "just another domestic" are long gone. Her Majesty's Attorney reminded the court of the many worthy initiatives designed to emphasise to criminal justice agencies and all those involved in the criminal justice system that victims of domestic violence need and are entitled to the protection of the courts as much as any other victim of violence. It may be frustrating for all concerned when repeated complaints of domestic violence are made and the alleged victim refuses to go to court. However, it is in the nature of domestic abuse that it may well take some time and a considerable amount of courage for a victim to speak out. When they do, their complaints must be taken seriously and they must be treated appropriately. Investigators, prosecutors, defenders and sentencing judges should read and in our view re-read the Sentencing Guidelines Council's Definitive Guideline on Domestic Violence and ensure they are truly aware of its implications.

2010_02_24-2297.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/470/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/470

2f1e96c125c93b3bce6191a0d8e8bfac679bc672e92b1e7f52e9480157f2e66d

[2007] EWCA Crim 307

EWCA_Crim_307

2007-01-18

crown_court

Case No. 2005/04332/C5 , 2005/04786/C5 , 2005/04803/C5 , 2005/04785/C5 & 2005/04787/C5 Neutral Citation Number: [2007] EWCA Crim 307 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 18 January 2007 B e f o r e: LORD JUSTICE HOOPER MR JUSTICE GIBBS and MR JUSTICE RODERICK EVANS - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - SHAH NAWAZ KHALID LATIF MOHAMMED KHALID SHAHZAD MOHAMMED OSMAN GHULAM RASOOL - - - - -

Case No. 2005/04332/C5 , 2005/04786/C5 , 2005/04803/C5 , 2005/04785/C5 & 2005/04787/C5 Neutral Citation Number: [2007] EWCA Crim 307 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 18 January 2007 B e f o r e: LORD JUSTICE HOOPER MR JUSTICE GIBBS and MR JUSTICE RODERICK EVANS - - - - - - - - - - - - - - - - - - - - - R E G I N A - v - SHAH NAWAZ KHALID LATIF MOHAMMED KHALID SHAHZAD MOHAMMED OSMAN GHULAM RASOOL - - - - - - - - - - - - - - - - - - - - - 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 R BRANDER appeared on behalf of SHAH NAWAZ and MOHAMMED OSMAN MR D FRIEDMAN appeared on behalf of KHALID LATIF, MOHAMMED KHALID SHAZHAD and GHULAM RASOOL MR A BIRD and MR J ASHLEY-NORMAN appeared on behalf of THE CROWN - - - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE HOOPER: Introduction : 1. In all of these cases the respondent, the Revenue and Customs Prosecutions Office, has decided, rightly in our view, not to resist the appeals. Before giving more detailed reasons we would like to record the thanks of the court to Mr Ashley-Norman and Mr Bird, who are instructed by the Revenue and Customs Prosecutions Office, and to those from that office who have assisted the preparation of these appeals. We would also like to give our thanks to Miss Brander and Mr Friedman, and to Osmani Solicitors. But for the diligent and sensible way in which these appeals have been approached, this court would have been left with a massive task of trying to untangle what has occurred. 2. The judgment that we are about to give takes the form in large measure of various agreed notes which have been prepared for us today. We have taken that agreed note, made some minor and usually only stylistic corrections to it to reflect that it is a judgment rather than a note. For the reasons we now set out all the appeals are allowed and the convictions quashed. R v Mohammed Osman 3. On 19 March 1993, at the Inner London Crown Court, before His Honour Judge Prendergast and a jury, Mohammed Osman was convicted of conspiracy to evade the prohibition upon importation of a controlled drug of Class A. He was sentenced to ten years' imprisonment. He appeals against his conviction following a reference under section 9 of the Criminal Appeal Act 1995 by the Criminal Cases Review Commission, the reference being dated 5 September 2005. 4. The drug concerned was 10kgs of heroin, half of which was at 50% and half at 25% purity. It was in fact imported from Pakistan by a Customs Officer, as part of an international controlled delivery operation from Pakistan. The operation was given the name "Operation Nordic". 5. Co-defendants Mohammed Saddique and Asher Hayat Khan were also found guilty. The Agreed Facts 6. The case involved a participating informant called Asif. He approached the British drug liaison officers ("DLOs") on 3 July 1991, having earlier been referred to them by the German DLOs. It was not until 31 July 1991 that he agreed to comply with the DLOs' terms for a controlled delivery. 7. Permission was obtained from the Pakistani authorities and the drugs were handed over by Asif to the DLOs in two tranches on 15 and 19 August 1991. They were imported into the United Kingdom by an officer on 30 August 1991. 8. It was not until 24 March 1992 that Asif came to the United Kingdom. In the meantime there were, according to Asif, several changes of personnel within the supply chain and a number of different United Kingdom buyers were advanced, before the ultimate recipient was identified. This was the appellant's co-defendant Saddique, whom Asif claimed to have met in Pakistan in January 1992. 9. Once in the United Kingdom Asif was installed in an hotel in London. On 26 March Saddique and the appellant came to the hotel. They spoke about "carpets" which Asif said in evidence was the code word for the drugs. Ultimately, on 28 March 1992 Asif delivered two holdalls containing the dummied-up drugs to a car containing the appellant (who was the driver) and Saddique. At that point they were arrested. 10. In interview the appellant generally exercised his right to make no comment. He denied being involved in drugs but asserted no positive case as to why he had come to London from Birmingham or as to what he was doing with Saddique and Asif. The Trial 11. At the start of the trial submissions were made in support of applications for disclosure of material suggesting Asif's involvement in other operations, on the basis that this would assist the defence of set-up. In reliance upon a newspaper article the defence asserted that a group of informants existed in Pakistan who were manipulating the system for their own rewards. The defence at the same time applied for disclosure of Asif's true identity. 12. As a result of these applications the judge was shown a document described as the original informant log and was enabled to compare it with the edited version that had been provided to the defence. The Crown is no longer able to locate a copy of the original informant file and it is therefore not possible to establish precisely what material was shown to the judge. However, a note of the judge's ruling records the following: "In light of the answers given to my questions and result of scrutiny of original am satisfied passages that are blanked out are irrelevant to this trial or apply to identity of Asif -- apart from line 8 of page 15 that will be disclosed." In a supplementary ruling the judge said: "This may change during trial as case unfolds; at this stage take line as before." 13. It is clear that the defence were not made aware of the two other controlled deliveries proposed by Asif between the time of the arrests and the time of trial. This is significant in light of the evidence Asif subsequently gave at trial. 14. The roles of the defendants were put by the Crown as follows: Saddique was the United Kingdom principal, based in Birmingham, the intended buyer of the drugs. Asher Hayat Khan (aka Nami) was an intermediary, based in London, between Saddique and those in Pakistan. The appellant Osman (also referred to as Uzman in some of the papers) was an associate of Saddique and took part in telephone calls and travelled from Birmingham to London to meet Asif. 15. Asif gave evidence at the trial. There is a transcript of part of his cross-examination, but no complete transcript of his evidence. Thus reliance is place in part upon the judge's summing-up in order to establish what evidence was given. One element of Asif's evidence was summed up by the judge as follows: "Other than this case I have had no connection with drugs. I am sure of this." 16. The high point of direct evidence of knowledge of drugs came when Asif offered Saddique a sample, at which Saddique kicked him away. This activity was recorded on video and, notably for this appeal, took place between Asif and Saddique at a time when the appellant Osman was out of the hotel room. Precisely what happened in the hotel room was clearly the subject of challenge at trial, and of particular interest to the jury. Osman was present in the car when the two holdalls were handed over by Asif, but this occurred only moments before the arrests. 17. The defendants did not give evidence. Their general defence was lack of knowledge of the heroin and that Asif was setting them up for personal gain so as dishonestly to obtain a reward. 18. The appellant's particular defence was that he had gone along with Saddique, had heard the reference to "carpets" and was at all times under the belief that carpets were the commodity that was being imported. His defence was therefore one of set-up in two respects: (a) that he genuinely believed he was dealing in carpets, and (b) that Asif had an improper motive to find an unwitting recipient for heroin. 19. As part of their support for that substantive defence, it was the defence case at trial, put firmly to Asif and denied by him, that Asif was manipulating the reward system to his own ends: that he needed a "result" in order to get his reward and so he (perhaps with the connivance of the suppliers) had needed to contrive the involvement of these men as unwitting recipients for the drugs when no other recipient was forthcoming. The Grounds of Appeal 20. The grounds of appeal set out particular respects in which it is said that the proceedings were and are an abuse of process. The principal complaints are: (1) that Asif payed a major and active role in the commission of the offence, indicating that this was not an infiltration of a genuine, pre-existing conspiracy to import and the DLOs were aware of the factors that showed this to be the case; and (2) that there was material non-disclosure relating to this issue at trial. The Crown's Position 21. The Crown do not accept that the appellant's case involved an abuse of process. 22. However, the Crown do accept that Asif gave false evidence in the witness box when he said that he had no other involvement with drugs. This was untrue because, unknown to the defence, he had in fact proposed two other controlled deliveries between his return from London in March 1992 and the trial in February 1993. Entries appear for them in the controlled deliveries book on 19.5.92 and 4.1.93. 23. The Crown maintain that it is less clear whether Her Majesty's Customs and Excise officers knew that Asif had given this false evidence at the time. The Crown maintain that neither of the DLOs (nor for that matter the case officer Mr Donald) had been present in court when Asif gave his evidence. 24. Asif was "de-briefed" when he returned to Pakistan after giving evidence. As a result of that a DLO (it is not clear whether it was Bragg or Ansell) sent a telex 28/93 back to London on 9 March 1993. This telex referred to Asif having given "unreliable evidence". 25. The Crown contends that it has not been possible to establish exactly what the DLO was referring to in this phrase. There were certainly some inconsistencies in Asif's evidence, which had been exploited in cross-examination. Furthermore Asif had had a "wobble" or reluctance to continue, over a weekend, in the middle of giving evidence. 26. In the absence of any recollection on the part of the DLOs as to precisely what this "unreliable evidence" was, the Crown has had to accept the possibility that the telex referred, at least in part, to the evidence from Asif that he had had no other connection with drugs. 27. In any event, when Asif said this, it should have triggered the Crown's obligation to review the disclosure that had been made, and at the very least to draw the judge's attention to the fact that the Crown was in possession of material that showed this answer to be false. The Crown has not been able to establish why this did not occur. It has been able to establish that the DLOs brought the fact of the "unreliable evidence" (whatever that was) to the attention of Her Majesty's Customs and Excise in London, where it was considered at high level, but in relation to aborting the latest controlled delivery proposal rather than in the context of the ongoing trial. 28. When the judge had been shown an unredacted version of Asif's informant log, this may, as with other contemporaneous informant logs, have simply cross-referred to notebooks and telexes without itself containing any detail. It is not clear that the judge had been shown the content of any notebooks which post-dated March 1992. The handwritten notes of the submissions made on 18 February 1993 suggest that counsel for the Crown said that there were entries after 24 March 1992 but that they "do not have anything to do with this case". 29. The judge said that he would look at the original log. The note states that the judge rose "to read through both unedited and edited log". Following his ruling approving the redactions, defence counsel observed that it was "obvious Asif [was a] professional informant by virtue of blanked parts and pages 13 to 15 involve later dates involving other investigations". There is no note that the Crown replied to this proposition, and the judge's ruling stood. 30. The Crown has not been able precisely to reconstruct the documents shown to the judge. For the redacted log to have contained 15 pages then it must have included a complete page after page 14 (which contained the last entry referring to Operation Nordic in June 1992). Defence counsel's observations were therefore correct, but in accordance with normal practice they were neither confirmed nor denied. 31. At that stage prosecuting counsel's observation that the post-arrest material was irrelevant may well have been correct. Certainly the judge seemed to agree. However, this changed when Asif said something in evidence which the post-arrest material would contradict. 32. Thus a combination of non-disclosure by the Crown and false evidence by the witness allowed the jury to have a false impression of Asif. They were then reminded of the evidence of the judge in the summing-up. 33. Admissions to this effect were made in the Crown's "Umbrella Document" dated 29 September 2006. The Crown conceded that this could have affected the jury's verdict, but maintained that the new material went primarily to credibility and that other evidence meant that the guilty verdict was correct. 34. This court is required under the law as it currently stands to consider what impact the undisclosed material might have had on the jury's verdict had it been available to them at trial. In R v Pendleton [2002] 1 Cr App R 34 the House of Lords set out the test as follows: ".... the test to be applied was whether the conviction was safe, not whether the accused was guilty; and under section 2(1) of the Criminal Appeal Act 1968 the question whether the conviction was unsafe was a matter for the judgment of the Court of Appeal, no particular thought process being required. Further, that test should be applied from the viewpoint of the effect of the fresh evidence upon the minds of the members of the court, and not on the effect of the minds of the jury. The court was not the primary decision-maker and had an imperfect and incomplete understanding of the full process which had led the jury to convict. However, where fresh evidence was adduced it would usually be appropriate for the court to test its provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict; if so then the conviction should be considered as unsafe." 35. Considering the material objectively, the Crown now concedes that it would be unable to persuade the court that the new material might not reasonably have affected the jury's decision to convict the appellant. Therefore, the Crown does not propose to resist the appeal. 36. Both parties agree that the above concessions made by the Crown show the appellant's conviction to be unsafe and are content that the appeal be allowed on this basis. We agree. 37. However, the appellant asks that it be recorded that he expressly maintains that the pro-active role of the participating informant in his case and the systemic non-disclosure amount to an abuse of process. This is denied by the Crown. 38. Both parties accept that in view of the detailed analysis of the controlled delivery system already conducted in R v Choudhery & Others [2005] EWCA Crim 1788 , and taking account of the observations in R v McIlkenny (1991) 93 Cr App R 287 at 310, it is not necessary for the court to adjudicate on these further issues once the lack of safety, as conceded, has been established. The approach taken in Choudhery , for the reasons wholly justified in that appeal, was exceptional. We, as requested, record in our judgment (1) that there were other grounds of appeal and (2) that these have not been adjudicated upon. In the light of McIlkenny , it is not necessary in the context of this appeal for the appellant's additional grounds to be considered. 39. For these reasons the appeal is allowed and the conviction quashed. R v Mohammed Khalid shahzad and Mohammed Latif 40. We turn to the appeals of Mohammed Khalid Shahzad and Mohammed Latif. "Operation November Skewer" was a controlled delivery of 19.8kgs of heroin from Pakistan, involving a participating informant named Hanif Honi. According to contemporary contact sheet records, Hanif was introduced to the relevant DLO, Malcolm Bragg, by officers from the United States of America Drugs Enforcement Agency, based in Pakistan, on 19 December 1989. The case which subsequently developed resulted in the conviction of Shahzad and Latif on 8 March 1991 before His Honour Judge Laurie and a jury. The convictions were subsequently upheld both in the Court of Appeal ( [1995] 1 Cr App R 270 ) and in the House of Lords ( [1996] 1 WLR 270 ). Shahzad and Latif made an application to the European Court of Human Rights. The Commission declared their application to be inadmissible (App No 24225/96). 41. This case has now been referred back to the Court of Appeal by the Criminal cases Review Commission. The appellants have submitted detailed grounds of appeal in which they sought to challenge the safety of the verdict of the jury and raised the question of abuse of process by reference to the decision of the Court of Appeal in Choudhery and Others . The abuse asserted arose out of material misrepresentations that were said to have been made by witnesses and officers of Customs and Excise. Closely allied in the grounds of appeal to the alleged abuse of process was the potential issue of entrapment. 42. In a letter dated 17 November 2006, the Crown indicated that it would not resist this appeal. the basis of this decision was that the non-disclosure of material within the possession of the Crown at the time meant that the verdict of the jury could no longer be considered safe. The appellants for their part recognised in the face of this concession that they would not seek to persuade the court to adjudicate upon the other abuse-related grounds of appeal. Such an adjudication was sought and made in Choudhery and Others after the Crown indicated that they would not contest those appeals. That approach was adopted as an exceptional resort because of the public interest in determining certain matters that went beyond the basis upon which the Crown were prepared to concede those appeals. Here the appellants recognise that many of the systemic issues have already been dealt with in Choudhery . In the circumstances they accept that it would not be justifiable for the court and the parties to expend time in dealing with other grounds when the conviction was accepted to be unsafe. They have asked the court to make it clear in any judgment that (1) there were other grounds and (2) the fact that those other grounds were not adjudicated upon should not be taken to be a judgment on their merit. We do so. Brief Facts -- The Prosecution Case 43. Hanif Honi was introduced to Malcolm Bragg, then DLO Islamabad by officers from the United States Drugs Enforcement Agency. Bragg's notes record this meeting as having taken place on 19 December 1989. Bragg was the first officer appointed to the newly created post of DLO Islamabad. Hanif told Bragg first of a planned importation of heroin involving a man named Malik Akhtar. Later in February 1990, Hanif reported to Bragg that he had met two men named Adnan and Mehboob, and that they wished to effect an importation of heroin into the United Kingdom. In due course Adnan and Mehboob introduced Hanif to Shahzad. Shahzad subsequently arranged to meet Hanif without Adnan and Mehboob, and asked Hanif to act as a courier of drugs in an importation independent of Adnan and Mehboob. 44. On 1 April 1990 Hanif received 20kgs of heroin from Shahzad, who delivered them to his home in the early hours of that morning. Hanif was unable to contact Bragg, who was on leave, and called a Pakistani Customs officer named Yousaf Khan. Yousaf Khan collected the drugs from Hanif, and later that morning, contacted Gill Howard, the DEA officer who had introduced Hanif to Bragg. Howard collected the drugs from Yousaf Khan, and retained them until 10 April when they were collected by Bragg. 45. Hanif later assisted Shahzad to obtain a visa for a trip to London, and eventually Hanif left London on 7 May 1990. Hanif was installed by the Customs at the Kensington Close Hotel in London, from where he made a number of telephone calls to Pakistan which were recorded. He spoke with Shahzad and other persons as well. Amongst the persons with whom he spoke was a man named Malik Naji. This person was said by Hanif to be related to Shahzad. During the trial, Hanif was to say that he first met Naji after he had received the drugs on 1 April. Shahzad disputed this and said that he, Shahzad, had met Naji playing cards some two years earlier, and it was through Naji that Shahzad had met Hanif. 46. On 19 May 1990 Shahzad travelled to London and made his way to the hotel. He spent a considerable period in the hotel room with Hanif. Important and incriminating conversations were recorded. Latif arrived on the following day. Again important conversations were recorded. 47. An undercover Customs officer delivered a bag containing the dummied-up drugs to the hotel room. Latif followed the Customs officer out of the room and downstairs. He was arrested. Shahzad was arrested in the hotel room. Both Shahzad and Latif lied in their subsequent interviews in respect of their movements. Both said they believed that they were involved in the importation of gold. The defence was therefore one of set-up. 48. They were tried in February and March 1991 and both were convicted on the unanimous verdict of the jury. Shahzad was sentenced to 20 years' imprisonment, and Latif to 16 years. As indicated above, their convictions were upheld in the Court of Appeal and the House of Lords, and an application to the European Court of Human Rights was found to be manifestly ill-founded. Hanif's Lie 49. Pursuant to the reference and this appeal, the Crown has subjected this case to the closest scrutiny. As a result of that scrutiny, material has been uncovered which suggests that Hanif lied about the circumstances in which he met Naji. Whereas Hanif maintained that he first met Naji after having met Shahzad, there is material, the effect of which is now appreciated, which suggests that this was not true and that Hanif had met Naji at a rather earlier date, and before he, Hanif, had met Shahzad. 50. The newly appreciated material relates to telephone numbers. Amongst the monitored calls placed by Hanif from the Kensington Close Hotel were calls to a Pakistani number 010-9242 30 4823. This number was described in Hanif's witness statement as being "for a person who is in Pakistan whose name is Akhtar Sultan -- and was given to make contact with Mohammed Khalid Shazad -- Papa". 51. On this number Hanif spoke to various persons apparently able to convey messages to Naji, and eventually on 17 May 1990 Hanif is recorded as having spoken to 'Malik Naji'. Naji assured Hanif that Shahzad was coming to London. It appears from the cross-examination that Malik Naji was another name for Akhtar Sultan. 52. Contrary to the impression given by Hanif in his witness statement, there is material to suggest that he was in fact in possession of the 4823 telephone number long before February 1990, when on his account he met Shahzad. 53. Undisclosed at trial, but now available are documents entitled 'Reports of Information' from the DEA. They record contact between Hanif (known to the DEA by a different codename) and DEA officers in Islamabad. In those reports Hanif is recorded as having conveyed information relating to a prolific heroin smuggler named Malik Akhtar. The DEA officers were provided by Hanif with a Lahore telephone number for Malik Akhtar, 30 4823, the same telephone number later described by Hanif as having been given to him as a contact number for Shahzad in February 1990. The meetings between Hanif and the DEA were in November 1989. 54. The 4823 telephone number is carried over into Bragg's notebook record of his first meeting with Hanif, and the contact sheet record, and the telex relaying the information back to London. 55. This appears to make it plain that Hanif lied about the provision to him of the telephone number. It cannot have been supplied to him in February 1990 as a contact point for Shahzad. Hanif had already supplied the same number to the DEA in November 1989. The clear inference is that he knew Malik Naji (aka Akhtar Sultan, aka Malik Akhtar) before February 1990, when on his case he met Shahzad. 56. At the very least, the failure to disclose the notebook, contact sheet and telex deprived Shahzad of the opportunity to deploy Hanif's premature possession of the central telephone number in the cross-examination of Hanif. Such cross-examination could have supported the defence case that Hanif was lying about the circumstances in which he met Naji, which in turn would have undermined Hanif's account of the circumstances in which he met Shahzad. 57. Those circumstances were vital. If Hanif were revealed to have lied about his introduction to Shahzad, it would undermine the totality of his evidence. In particular, events described by Lord Steyn as "undeniable facts" could no longer be confidently designated as such. Chief amongst these was the suggestion that Shahzad had requested a meeting with Hanif independently of Adnan and Mehboob, an apparently compelling counter to any defence suggestion of set-up. 58. Where a defendant alleges set-up, the circumstances in which the defendant and the participating informant come to meet are clearly extremely important, and lying about those circumstances raises correspondingly important issues about the credibility of the participating informant. 59. The newly disclosed material is capable of supporting the inference that Hanif lied about those circumstances in this case. Therefore the Crown is constrained to accept that this failure of disclosure deprived the defence of potentially significant material upon which to cross-examine Hanif. 60. It follows that, irrespective of other evidence suggesting a strong case against the appellants, the newly disclosed material could have caused the jury to come to different verdicts to the guilty verdicts which were reached. The inability of the Crown to exclude this possibility obliges the Crown to decline to resist this appeal. We agree. The appeals are allowed and the verdicts quashed. R v Shah Nawaz 61. We turn to the appeal of Shah Nawaz. Shah Nawaz was convicted at Birmingham Crown Court before His Honour Judge Harris QC and a jury on 26 September 1994. He was sentenced to nine years' imprisonment. He appeals against his conviction following a reference under section 9 of the Criminal Appeal Act 1995 by the Criminal Cases Review Commission dated 8 August 2005. 62. He was convicted of an offence of conspiracy to evade the prohibition upon importation of a controlled drug of Class A. The drug concerned was 2kgs of heroin at 25% purity. It was in fact imported from Pakistan. The operation was given the name "Operation Pair". 63. A co-defendant Mohammed Yousef Rafiq was also found guilty. A third defendant Ashaiq was acquitted. Agreed Facts 64. The operation leading to the appellant's conviction began on 10 June 1993 when a DLO in Pakistan, Malcolm Bragg, was approached by a man named Roshan. Roshan was a Confidential Informant ("CI") and a prolific introducer of other confidential informants to the DLOs. Roshan informed the DLO that he had been asked to take 2kgs of heroin to a man in the United Kingdom called Yousaf. Roshan gave Mr Bragg a piece of paper with a United Kingdom telephone number on it and said that he would provide further details to the DLO in due course. 65. On 15 June 1993, Roshan's son, Kiramat, visited DLO Bragg and told him that Roshan was too busy to proceed with this case and so had suggested to the supplier that Kiramat act as his courier instead. Kiramat was accorded participating informant status, and the rules for controlled deliveries were explained to him by the DLO. His account was that he had been approached by Haji Mehboob Khan and asked to take 2kgs of heroin to "Yousuf" in the United Kingdom. He said that Mehboob was a friend of his father. 66. Kiramat explained to the DLO that he had been provided by Mehboob with a telephone number for "Yousuf" and that he had already rung and spoken to someone answering as Yousef. The DLO told Kiramat that this should not have happened as calls with the recipient should be recorded. 67. Kiramat was subsequently provided with a mobile telephone number which turned out to be the number of the appellant. He called that number and spoke to the appellant. The conversation was recorded and Kiramat referred to "two kilos" and "brown, not white". The appellant told Kiramat not to speak openly on the phone. 68. Permission to conduct a controlled delivery was obtained from the Pakistani authorities and on 8 July 1993 Kiramat collected the drugs from the supplier and handed them over to the DLO. The collection of the drugs by Kiramat was not witnessed by the DLO. 69. Permission to export the drugs was obtained from the Pakistani authorities and on 27 July 1993 they were imported into the United Kingdom by an officer. 70. On 29 July 1993 Kiramat travelled to the United Kingdom and was installed in a house in Birmingham. There were further telephone calls and on 31 July 1993 the appellant came to the house with Rafiq. 71. The conversation between him and Kiramat was recorded; they spoke about Mehboob and the appellant said that he had stayed with Mehboob but had only spoken to Mehboob about "business" for "two minutes in [his] whole life". The appellant also spoke about drugs and his (the appellant's) brother being involved in the delivery of drugs. The appellant handed over £200, and he was provided with a sample of approximately 3.2 grams of heroin. He was arrested in possession of the sample as he left the house. 72. In interview the appellant said that he was a heroin user and so, when Kiramat had mentioned the drug, he thought he would bluff along with the conversation and see if he could get a smoke. He denied asking anyone to smuggle heroin from Pakistan for him. The Trial 73. The case came on for trial in September 1994. An application was made at trial firstly to stay the proceedings and secondly to exclude Kiramat's evidence on the basis that Kiramat and/or Mehboob had acted as agents provocateur. Those submissions failed. 74. Prior to trial the appellant's solicitors had sought information from the prosecution in relation to both Kiramat and Roshan. Some material was clearly disclosed, but it is also clear that other material, notably Roshan's and Kiramat's involvement in other controlled deliveries was not disclosed. Her Majesty's Customs and Excise solicitors wrote to the appellant's solicitors stating that Kiramat had not ever been involved in a similar role with police or Customs. This was not strictly correct. Kiramat had indeed not been involved in any earlier controlled deliveries, and had not given evidence before. But he had been involved with deliveries which post-dated the appellants's arrest but preceded his trial. 75. Ex parte PII hearings were held before the judge on 22 April 1994 and 15 July 1994, and a schedule and paginated bundle exists showing what documents were made available to him. No transcript of the hearing has been located, but notes exist, and it seems that the judge was shown material relating to this controlled delivery, but only limited material relating to Roshan's earlier history. In relation to Kiramat the paginated bundle shows that he was provided with a complete copy of the Informant File (up to June 1994) but not the notebooks or telexes relating to other operations. The undisclosed material would have shown Kiramat's post-arrest involvement in other controlled deliveries. The Judge ordered some limited disclosure in redacted form. Roshan was made available for interview by Pakistani agents of the appellant's solicitors, but the interview never in fact took place. 76. Kiramat gave evidence and was cross-examined. During his evidence on 14 September 1994 Kiramat stated (according to a handwritten note): (i) that his father had been informing to Customs for five to six years, but that he does not make any money from informing, "he does it out of principle"; (ii) that it was not well known that his father works for Customs; (iii) that he (Kiramat) was just acting to "help the law" and had not known whether he would receive any reward or not. 77. This testimony must be viewed in light of the following material: (i) the report of Tasmina Ahsan dated June 1995, following "Operation Zulu Crescent". This report records the following allegations about Roshan: "[he] takes payment of 50,000 rupees on introducing new confidential informants"; "[he] is known in the local community for this and the fact that he is a reputed confidential informant with most of the consulates"; "the locals appear to regard him as a respected man and a passport to western countries for a payment of money which ranges from 25,000 to 50,000 rupees". The report concludes: "It appears that this is a violation of the confidential informant/participating informant arrangement where Khan is abusing his role and position as a confidential informant for his own personal financial gain and control over the locals"; (ii) the report of Richard Lowe (undated, but clearly after May 1995) along similar lines. This concludes: "It would appear [Roshan's] introduction should be treated with caution. [The] account of the fee for introduction was believable, giving the confidential informant an incentive to mislead potential couriers and the DLOs alike"; (iii) a letter from DLO Barker to Immigration Section dated 20 June 1995, describing Roshan as "acting as an agent and introducing knew informants". The letter states: "I have no doubt that he expects a percentage of any reward as payment for his services". (iv) a handwritten memo (undated), apparently from one of the DLOs to the Home Office which describes Roshan as "dodgy CI12"; (v) a telex dated 2 October 1989 from DLO Bragg stating: "The Dutch DLO has done cases in the past with [Roshan], but can no longer do controlled deliveries because of legal problems in Holland. He suspects CI purchases the heroin himself and possibly sets up the recipient". (vi) the telex dated 3 December 1990 from DLO Bragg proposing a controlled delivery to Ghana, in which he states that if Her Majesty's Customs and Excise do not run this as a controlled delivery, Roshan may well go ahead and supply the heroin in any event. (vii) the notebook entries of DLO Ansell in January/ February 1994 recording Roshan, with Kiramat, seeking to blackmail the DLOs that if they did not facilitate a visa for Kiramat's friend to accompany him to the United Kingdom, Kiramat would refuse to give evidence at the appellant's trial. 78. The above is a selection of the material calling into question Roshan's integrity. Clearly not all of it predates the appellant's trial. The Crown submits that it cannot be criticised for not disclosing material that was not in existence at the time. This is, of course, correct but the appellant does not accept that the conclusions expressed in the later documents were not already apparent to the DLOs by the time of his trial. It is the appellant's contention that much of the evidence underpinning these conclusions, for example, Roshan's prolific role as an introducer of other informants, was already well established by the time of the appellant's case. Subject to the views of the court, the parties do not consider it to be essential to the disposal of this appeal for the court to resolve this issue. We agree. 79. In the present context, it suffices to say that the material, as it is now known, strongly suggests that the true picture of Roshan's activities was different to the impression given by Kiramat. The Crown contend that it cannot be known whether Kiramat knew the full extent of what his father was up to. This is not accepted by the appellant. 80. The appellant gave evidence, and admitted having met Mehboob Khan, having given him Rafiq's number and having told him to ask for "Yousaf". He denied having agreed to buy drugs from him and said that he had later been told that Mehboob was a bad person who set people up. The gist of his defence was that he was the unwitting victim of an unscrupulous attempt to dump unwanted heroin. The Summing-up 81. In summing-up the judge warned the jury not to let the evidence be obscured by "some of the flights of fancy that had been put before them". In relation to the DLOs and participating informants he described a war being waged in relation to drug trafficking from Pakistan, and of Kiramat said, "one possible view that you might have in mind is that he is in fact a very brave man doing what he can to help those exposing those criminals who export drugs from his country to ours". The Appeal 82. The principal ground of appeal is that a false picture of Roshan and Kiramat was presented to the court and the defence. Neither the defence nor (as far as can be established) the judge knew of the concerns about Roshan expressed in the material already referred to, or that in August 1993, after the appellant's arrest but before his trial, Kiramat had sought to become engaged in another controlled delivery which had been rejected by the DLOs, because it was proposed, by Roshan and Kiramat, that 20kgs of heroin should be released to the United Kingdom recipient before any arrests could be made. The Crown's Response 83. The Crown do not accept that the matters complained of in the grounds of appeal mean that the proceedings were an abuse of process. The Crown do not accept that the appellant was in fact not guilty. 84. It is clear that the fact that Roshan was an informant had been disclosed to the defence and to the judge. It is, however, equally clear that they had not been provided with the full and complete picture. 85. A view had been taken by the Crown as to the scope of disclosure that was required, and material was only disclosed if it related to the operation in question, rather than in relation to the broader picture and history of the confidential informant and participating informant involved. With hindsight, and in particular with the overall knowledge of Pakistani controlled deliveries that is now available, this approach cannot be justified. 86. The defence was one of "set-up" and material relating to the character of Roshan and Kiramat and to other controlled deliveries in which they were involved may have supported that defence. It would also have called into question the veracity of Kiramat's account of his father's activities. 87. If the judge had been provided with the full picture then he might well not have summed up the character and possible motives of Kiramat in the glowing terms in which he did. 88. The court required under the law as it currently stands to consider what impact the undisclosed material might have had on the jury's verdict had it been available to them at trial: see Pendleton . 89. Considering the material objectively, the Crown concedes that it would be unable to persuade the court that the new material relating to Roshan and Kiramat might not reasonably have affected the jury's decision to convict the appellant. Therefore, the Crown does not propose to resist this appeal. Points of Agreement/Disagreement 90. Both parties agree that the above concessions made by the Crown show the appellant's conviction to be unsafe and are content that the appeal be allowed on this basis. We agree. 91. However, the appellant would ask that it be recorded that he expressly maintains that the pro-active role of the participating informant in his case and the systemic non-disclosure amount to an abuse of process. This is denied by the Crown. 92. Both parties accept that in view of the detailed analysis of the controlled delivery system already conducted in R v Choudhery & Others [2005] EWCA Crim 1788 , and taking account of the observations in R v McIlkenny (1991) 93 Cr App R 287 at 310, it is not necessary for the court to adjudicate on these further issues once the lack of safety, as conceded, has been established. The approach taken in Choudhery , for the reasons wholly justified in that appeal, was exceptional. We, as requested, record in our judgment (1) that there were other grounds of appeal and (2) that these have not been adjudicated upon. In the light of McIlkenny , it is not necessary in the context of this appeal for the appellant's additional grounds to be considered. 93. For these reasons the appeal is allowed and the convictions quashed. R v Ghulam Rasool 94. We turn to the appeal of Ghulam Rasool. "Operation Payload" was a controlled delivery concerning the importation from Pakistan of 5.6kgs of heroin at 100% purity. These drugs had an estimated street level value of £962,000. the drugs arrived in the United Kingdom on 11 April 1995. The participating informant was Hanif Honi, who had previously been the participating informant in Operation November Skewer (Shahzad and Latif). The court has quashed the convictions in that case. Ghulam Rasool was arrested on 21 April 1995 after he had collected the heroin from Hanif at a flat under the control of Customs. On 6 December 1996, Ghulam Rasool was convicted on the majority verdict of the jury and sentenced to serve twelve years' imprisonment. 95. This appeal has been referred to the Court of Appeal by the Criminal Cases Review Commission. The appellant has submitted detailed grounds of appeal in which he challenged the safety of the verdict of the jury and the propriety of the prosecution process. The grounds were based on matters pertinent to the appellant's case but also the wider criticism of the conduct of controlled delivery operations made by the Court of Appeal in Choudhery and Others . In the "umbrella document" dated 5 October 2006, the Crown conceded that the appeal should be allowed. Recent researches and disclosure have revealed the clearest evidence that Hanif had lied about the circumstances leading to the abandonment of an earlier operation in ways which, as will be explained below, substantially undermined his credibility in relation to the importation which is the subject of this appeal. 96. The Crown was therefore constrained to accept that a jury aware of the new material might have properly reached a different verdict and that therefore the verdict was unsafe. There is good evidence to support the suggestion that one or both of the relevant DLOs, Barker and McElligott, knew of the lie, and were instrumental in its corroboration and dissemination. This gives rise to another potential basis of appeal, namely abuse of process/prosecutorial misconduct. The Crown is unable to call these officers to deal with this particular point, and does not know what explanation they might have. 97. However, for reasons set out in the judgment in Latif and Shahzad, this appellant has not asked the court to adjudicate upon the potential abuse of process and other grounds of appeal. He has asked the court to make it clear in any judgment that (1) there were no other grounds and (2) the fact that those other grounds were not adjudicated upon should not be taken to be a judgment on their merit. We do so. The Facts 98. On 11 January 1995 Hanif presented himself at the British High Commission in Islamabad and gave the British Customs Drugs Liaison Officers, Barker and McElligott, details of a plan to import heroin into the United Kingdom. Hanif, Barker and McElligott all provided witness statements. None of the witness statements described the contents of the information supplied on that first visit, nor the second visit, which took place on 23 January. It did appear, however, in the notebook accounts of those meetings, which were disclosed prior to trial. 99. A significant difference is apparent between the witness statement accounts and the notebook records. Whereas the notebook entries described the role of a man named Jalal Uddin in events leading up to the delivery of the drugs, his role was omitted from the witness statement accounts. 100. Hanif's witness statement described that he was introduced to the men who would eventually be the suppliers of the drugs the subject of Operation Payload. They were men named Iqbal, Tariq and Khalid. With them he was introduced in Pakistan to the eventual recipient of the drugs in the United Kingdom, Ghulam Rasool. 101. On 13 March 1995 a Phase 1 application was made to the Pakistan authorities, seeking permission for the heroin to be collected. 102. In due course, on 27 March 1995, the drugs were delivered to Hanif, and passed by him to Barker. The circumstances of the handover to Hanif were not observed by Barker. A request for Phase 2 authority, permitting the export of the heroin, was made on 9 April 1995. 103. On 11 April 1995 the drugs were collected by a UK based Customs officer, and conveyed back to the United Kingdom. Hanif reported subsequently that he had received 30,000 rupees towards his expenses from Musrat Begum, Tariq's partner. This money was passed to the Customs. 104. On 18 April 1995, Hanif flew from Pakistan to Manchester. He was met by Customs officers and established in a flat at 149b South Road, Erdington. There was telephone traffic between Hanif and Iqbal, and eventually Rasool telephoned in to Hanif. On 21 April, Rasool arrived at the flat. Conversation in the flat was recorded, and the events the subject of a video recording. Amongst the items captured on the video was Rasool inspecting the packages containing the heroin. Rasool was arrested as he left the flat in possession of the heroin. Various items connecting him to Hanif and Iqbal were found in his car and home address. 105. In his later interview, Rasool denied knowledge of the content of the packages. By the time of the trial, his defence had crystallised into an allegation of 'set-up'. He had believed that he was being asked to assist in the importation of medicines. On this point, Rasool was clearly disbelieved by the jury. Grounds of Appeal 106. The principal ground of appeal is the assertion that Hanif had misrepresented the evidence concerning the supply chain. The Crown now accept that it is unable to refute this ground of appeal. Of itself, this ground is sufficient to dispose of the appeal. 107. The misrepresentation concerns the role of a man named Jalal Uddin, and in order to understand it, it is necessary to consider an earlier approach made by Hanif to the then DLO, Jeff Ansell, which in the event did not lead to a controlled delivery. This earlier approach was in June 1994. In his notebook record of the meeting on 11 January 1995, McElligott referred back to June 1994 in the following terms: "Repetition of info given to JA (31/93 pg 13) Jalal Uddin pulled out because his cousin got beheaded in Saudi : JU now wants CI to take stuff to UK poss 20kgs". (Emphasis added) 108. Jeff Ansell's notebook record of June 1994 does not correspond with that explanation for the cancellation of the earlier potential delivery. It records merely that the intended recipient of that run was "not prepared to do business because of what had happened to his son". The notebook record left open what had happened to his son, but Ansell had given a fuller report in the telex which he had sent back to London recording his meeting with Hanif. 109. That telex revealed that the event that had befallen the son of the intended recipient of the June 1994 importation was not his beheading. It was that he had been the subject of an arrest in another otherwise unconnected controlled delivery operation. 110. Furthermore, Ansell went on to write to the Pakistani authorities cancelling the Phase 1 authority he had previously obtained for the intended June 1994 operation. In that letter he explained to the Pakistani authorities that the operation had ceased because "the informant in this case has advised us that the suppliers are concerned about the possibility of him working with the authorities". 111. It can be seen therefore that the contemporaneous explanation given for the withdrawal of the June 1994 operation was quite different to the explanation subsequently given in January 1995. 112. The material to establish the alternate explanations for the withdrawal of the earlier operation was not disclosed. The jury had only the "beheading" explanation, upon which defence counsel poured some scorn in the course of his cross-examination. 113. It is accepted that a shift in explanation was an extremely significant one. The new explanation permitted of Uddin and Hanif working again together in January 1995. The contemporaneous explanation makes it difficult to countenance that Uddin would again act with Hanif, having believed him to be working with the authorities. 114. The Crown is unable to establish whether the shift in the explanation was appreciated by the DLOs Barker and McElligott. Both appear to have had access to material, and possibly knowledge, that would have made the shift apparent to them. However, their knowing complicity in Hanif's misrepresentation is not necessary to the decision the Crown has reached. In any event the Crown have previously made it clear that they have formed the view that Barker and McElligott cannot be called to give credible evidence. 115. A jury aware of the full picture might have struggled to conclude that Uddin had been reconciled to Hanif; if that were the case why should Hanif lie about the beheading? Why not simply explain the reconciliation? Similarly, a jury aware of the full picture could have concluded that Uddin was working with Hanif knowing that Hanif was working with the authorities. A supplier and participating informant acting in concert increase significantly the risk of set-up. Since Rasool's defence was set-up, the Crown accepts that had the jury known what has now been revealed, this might reasonably have affected the decision of the trial jury to convict. 116. Without reference to the other grounds, the Crown therefore do not propose to resist this appeal. We agree. The appeal is allowed and the conviction quashed. ______________________

2007_01_18-1008.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/307/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/307

2883923f93095b4c23f8811b8cd268fae2c3ede87d1a8d6f1d652bc2d3d3eade

[2013] EWCA Crim 2526

EWCA_Crim_2526

2013-12-11

crown_court

Neutral Citation Number: [2013] EWCA Crim 2526 Case No. 2012/03202/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 11 December 2013 B e f o r e: LORD JUSTICE JACKSON MR JUSTICE HOLROYDE and HIS HONOUR JUDGE MILFORD QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - LUKE MATTHEW HAZELL __________________ Computer Aided Transcription by Wordwave International Ltd (a Merri

Neutral Citation Number: [2013] EWCA Crim 2526 Case No. 2012/03202/B3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Wednesday 11 December 2013 B e f o r e: LORD JUSTICE JACKSON MR JUSTICE HOLROYDE and HIS HONOUR JUDGE MILFORD QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - LUKE MATTHEW HAZELL __________________ 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 F J Laird QC appeared on behalf of the Appellant Mr T Sapwell appeared on behalf of the Crown ____________________ J U D G M E N T ( Approved ) LORD JUSTICE JACKSON: 1. This judgment is in four parts, namely: Part 1. Introduction; Part 2. The facts; Part 3. The criminal proceedings; Part 4. The Appeal to the Court of Appeal. Part 1. Introduction 2. This is an appeal against conviction and an application for leave to appeal against sentence. The central issue in the appeal is whether there was a jury irregularity which renders the appellant's conviction on one count unsafe. 3. There is now available to judges guidance contained in the Criminal Practice Direction (Trial) 39M. The prosecution have kindly drawn our attention to these provisions in their skeleton argument. However, this practice direction and the protocol which preceded it did not exist at the time of the trial with which we are concerned. Therefore we shall say no more about those provisions. 4. Having dealt with those matters by way of background, we must now turn to the facts. Part 2. The facts 5. In November 2011 the police were looking for a man called Shepherd, who was suspected of driving his car at a police officer and knocking her to the ground. The police believed that Shepherd may be at 27 Batsman Close, Cradley in the West Midlands. A number of police officers arrived at 27 Batsman Close at 5.30am on 30 November 2011. Sergeant Webster knocked loudly on the front door. He also called through the letter box that the police were there and wished to enter. Only one person was in the house, namely Mr Luke Hazell, the appellant in the present proceedings. His brother was the owner of the property, but the appellant was staying their alone that night. The appellant heard the knocking on the front door and looked out of an upstairs window. The police asked him to open the front door, which he did after some delay. 6. On entering the house the police discovered that Shepherd was not there. They did, however, find a collection of live ammunition in the sitting room. They arrested the appellant for the offence of possessing ammunition without a firearm certificate and took him to the police station. Police officers subsequently searched the house. They found a revolver handgun in the kitchen bin. It was loaded. They also found paraphernalia for drug dealing elsewhere in the kitchen. In the appellant's bedroom they found small quantities of heroin, ecstasy and TFMPP (a Class C controlled drug). They also found £2,200 cash in that bedroom. In the loft the police found 198 grams of heroin. 7. The police interviewed the appellant about all these matters. His responses were "no comment". Unsurprisingly, the police did not find this explanation satisfactory. Criminal proceedings followed. Part 3. The Criminal Proceedings 8. The appellant was charged on an indictment containing six counts: possessing a prohibited firearm without authority, contrary to section 5(1) of the Firearms Act 1968 (count 1); possessing ammunition without a firearm certificate, contrary to section 1 of the Firearms Act 1968 (count 2); possessing a Class A controlled drug with intent (the 198 grams of heroin found at the house), contrary to section 5(3) of the Misuse of Drugs Act 1971 (count 3); possession of a small quantity of crack cocaine (found in the appellant's bedroom) (count 4); possession of MDMA, a Class A drug (count 5); and possession of TFMPP, a controlled Class C drug (count 6). He pleaded not guilty to counts 1 to 3. He pleaded guilty to counts 4 to 6 on the basis that the three separate drugs found in his bedroom were in small quantities and were for his personal use. 9. In relation to the three contested counts the appellant stood trial at Wolverhampton Crown Court before His Honour Judge Challinor and a jury in April 2012. The appellant's defence was that on 29 and 30 November 2011 he was staying at his brother's house overnight. He did not know that there was a gun and ammunition in the house. He did not know that there was a quantity of heroin in the loft. He had no intention to supply that heroin to anyone. He admitted possessing the small quantities of drugs in his bedroom, but maintained that they were for his personal use. 10. At the end of the case the judge summed up. No complaint is made about the summing-up. The jury retired to consider their verdict. At 3.14pm on Thursday 19 April 2012 the jury returned with verdicts of guilty on counts 1 and 2. Those guilty verdicts were unanimous. The judge then gave the jury a majority direction in respect of count 3. At 4.13pm that afternoon the judge sent the jury home for the night. He asked them to return at 10am the following morning. 11. The jury duly returned into court at 10.02am on Friday 20 April. The judge asked them to retire and continue their deliberations. 12. The judge and counsel remained in court in order to discuss what would be a mutually convenient date for the sentencing hearing. By then the appellant had been convicted on two counts, and so on any view there would be a separate sentencing hearing. 13. During the discussion between the judge and counsel the usher brought in a note from a juror which read as follows: "Last night I was in the reception. I was standing waiting for a lift and one of the public gallery approached me and stared me out and made me feel very uncomfortable and I didn't want to leave the building." 14. The trial judge said that he would make enquiries through security staff about what had happened. There was further brief discussion between the judge and counsel about other matters. The court adjourned. Soon after that adjournment, shortly before 10.20am, a message was sent through that the jury had reached a verdict. The court convened. Defence counsel applied for the jury to be discharged on the basis that one of their number had been subjected to intimidation; other jurors may be aware of it; and in those circumstances the jury might have been influenced and they should not be permitted to return the verdict which apparently they had already reached. In making his application defence counsel did not know whether the verdict was guilty or not guilty. Prosecution counsel, Mr Sapwell, opposed the application to discharge the jury. He pointed out that, in sending the note in question, the juror had complied with the judge's direction to draw to his attention any irregularity which occurred. There was no reason to doubt the safety of the verdict and no reason to doubt that the jury had completed their deliberations properly and in accordance with their oaths. 15. After considering the submissions of counsel the judge ruled as follows: "It seems to me that the juror, as you say, is acting in accordance with the direction that I gave that in the event that anyone sought to speak to them or communicate with them, which I suppose this would be said to be, they must report it and that is outside the question of deliberation. As to whether or not that has had any effect upon the juror in question, I am not able to say and I am not prepared to make the enquiry. In a lot of trials things happen. There are reactions from the public gallery. Judges often have to deal with them. I was not able to deal with this because I did not know about it. But we all agreed last night that a rest overnight may well clear the air for the jury and we may get a verdict this morning and I remember both of you appeared to assent to that. In relation to whether or not I discharge the jury, there has to be a real need. It does not seem to me that there is a real need in this case to discharge the jury and although I will make enquiries about this in relation to whether there has been jury interference, I am not prepared to take any further course and I shall take the verdict now." 16. The jury then filed back into court. They delivered their verdict on count 3; it was a unanimous verdict of guilty. 17. In due course the judge proceeded to pass sentence. He imposed a sentence of eight years imprisonment on count 1, five years imprisonment concurrently on count 2, and five years imprisonment consecutively on count 3. He imposed no separate penalty on counts 4 to 6. In the result, therefore, the judge imposed a total sentence of thirteen years imprisonment. The judge explained his reasoning in his sentencing remarks. In his opening paragraph the judge said: "Possession of prohibited weapons when found connected to drugs supply is extremely serious. Your culpability I find to be very high. This was a deliberate arming of yourself in order to protect your drug trafficking. The harm and foreseeable harm is very considerable; not only were you in possession of a significant amount of heroin, which causes immense damage to our community, but you were in possession of a loaded gun ready to use to protect your stash by the use of potentially lethal force." 18. In relation to count 3 the judge said that he regarded the culpability of the appellant as significant. He was a trusted and armed guardian. The judge took the view that he had played a significant role. By reference to the sentencing guidelines the judge noted that this was a category 3 case. It was a Class A drug. The appellant had played a significant role. The starting point provided in the guidelines is a term of four years six months imprisonment, with a range from three years six months to seven years imprisonment. The judge looked at the seriousness and the circumstances of the offending and he alighted upon a consecutive sentence of five years imprisonment for count 3. 19. The appellant was aggrieved by his conviction on count 3, and by the sentence imposed. Accordingly, he appealed to the Court of Appeal. Part 4. The Appeal to the Court of Appeal 20. The appellant served a Notice of Appeal in which he challenged his conviction on count 3 on the ground that there was a jury irregularity before the verdict on that count had been returned. The grounds of appeal contended that the judge erred in proceeding to take the jury's verdict without first investigating the incident described in the juror's note. In relation to sentence, the appellant contended that the sentence on count 3 was too long and that the total term of thirteen years was too long. The appellant obtained the leave of the full court to pursue the appeal against conviction. His application for leave to appeal against sentence was left over for a decision by this court today, leave having been refused by the single judge. 21. We turn to the appeal against conviction. Mr Francis Laird QC, who appears for the appellant, draws our attention to the decision of the House of Lords in Re Medicaments and Related Classes of Goods (No 2 ) [2001] 1 WLR 700 , and to the decision of the House of Lords in Porter v Magill [2002] 2 AC 357 . The House of Lords laid down a now well-known test for bias and apparent bias in Porter v Magill . That case arose out of the well-known homes for votes saga in Westminster. Westminster City Council's auditor certified that certain councillors had caused approximately £31 million loss to the council by their wilful misconduct. The House of Lords held that the auditor's decision was valid. Despite the fact that the auditor had issued a press statement in the course of his investigations, the House of Lords dismissed the allegations of bias or apparent bias against the auditor. In reaching this conclusion the House of Lords modified the common law test for bias in the light of the Strasbourg jurisprudence on article 6 of the European Convention on Human Rights. In paragraph 88 of his speech, Lord Hope noted that there was a close relationship between the concepts of independence and impartiality. He continued: "In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities." Lord Hope formulated the test for apparent bias in these terms: "103. .... The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." Mr Laird submits that in this case the fair-minded and informed observer would consider that there was a real possibility that the jury was biased; accordingly, the conviction is unsafe. 22. Mr Laird began his submissions by contending that probably the whole jury became aware of the incident which had concerned the single juror who wrote the note. As Holroyde J pointed out in argument, that by no means follows. The standard direction which the judge gives to the jury is that if there is an incident of the kind that occurred here, the juror affected should send a note to the judge without reporting the matter to his fellow jurors or discussing it with them. We have no reason to doubt that the juror in this case complied with the judge's directions. 23. It is a significant feature of this case that, so far as we can see, the jury were diligent in complying with the directions that they were given. They were told that if they had a query on a matter of law they could send a note to the judge about it. They did have a query concerning the mental elements involved in count 3, namely possession and intent to supply. They dutifully sent a note to the judge and they received his correct explanation of the two elements of intent which had to be proved. One juror was subjected to the incident described in his note. It was by no means the worst instance of intimidation which occurs in the Crown Courts. That juror dutifully sent a note to the judge recording what had occurred. Therefore we have no reason to believe that the juror did discuss the matter with his fellow jurors. 24. On the other hand, even if he did discuss it, one must look at this matter realistically and in its proper context. The incident occurred after the jury had returned verdicts of guilty on counts 1 and 2. We are told that friends and associates of the appellant were in the public gallery. It is understandable that they were displeased by the verdicts on counts 1 and 2. It appears from the juror's note that one of the persons in the gallery took the opportunity after the close of business that day to stare at one juror in the public area of the court. Of course, it was an unfortunate incident. The juror was right to report it. The judge was right to say that he would make enquiries of security, no doubt to find out what the security officers had seen and, hopefully, to identify the perpetrator. However, this was not as serious an incident of jury intimidation as many other such incidents which, unfortunately, have had to be considered by the criminal courts. 25. It appears that such intimidation as there was did not sway the juror in question, or, if they knew it, any other jurors to acquit the appellant. They unanimously returned a verdict of guilty on count 3. That shows that none of them had, in fact, been intimidated. The question remains, however, whether the incident of staring caused the jury to be hostile to the appellant, prejudiced against him, and to return a guilty verdict which otherwise they might not have returned. 26. Mr Laird submits that the judge fell into error in not properly investigating the matter; the judge should have called the individual juror into court and made enquiries of him in order to ascertain whether he had told his colleagues; the judge should then have enquired of that juror, and of all of the jurors, whether, despite the incident which had occurred, they were in a position to return a true verdict according to the evidence and in accordance with their oaths. In making this submission, Mr Laird very fairly accepts that the judge was not assisted by counsel. No counsel drew the judge's attention to the authorities which Mr Laird has cited to us both in his skeleton argument and in his oral submissions. Furthermore, the relevant protocol for dealing for such matters, did not exist in April 2012 at the time of the appellant's trial. 27. We think that the judge was in a difficult position. He was quite right in the first instance to investigate the facts by making the enquiries which he set in train through the security officers. But events moved quickly. We can see from the transcript that, soon after the judge indicated that the security officers should make enquiries, the jury sent a message to the effect that they had arrived at a verdict. 28. It is more difficult, and a more delicate matter, for a judge to make enquiry of individual jurors, or of all the jurors, once they have sent a message to the effect that they have reached their verdict on all remaining counts in the indictment. In this case there was only one count, namely count 3. Mr Laird draws our attention to one sentence in the judge's ruling, in which the judge acknowledged that he did not know whether the incident had any effect on the juror. That sentence is relevant to consider, but we must read it in the context of what follows, where the judge pointed out that in trials lots of things happen; there are reactions from the public gallery; the jurors have all had a rest overnight, and so forth. It is quite clear that the judge came to the conclusion that the incident which had occurred was not such as to impair the jury's ability to return a true verdict on the basis of the evidence and in accordance with their oaths. The judge was well placed to reach this conclusion, having presided over the trial, having seen who was in the public gallery, and having observed the appellant, the jury and everyone else involved in the case. 29. We do not accept that the judge fell into error in the circumstances in which he found himself in proceeding to take a verdict. 30. The question remains, would the "fair-minded and informed observer" sitting in court on 20 April 2012 have come to the conclusion that the jury was biased? That fair-minded and informed observer would be someone who had sat through the whole of the trial. We know from other authorities that the fair-minded and informed observer is deemed to have all the relevant background knowledge. He would have heard the contents of the juror's note read out. He would have noted that very soon afterwards the jury were in a position to return a verdict. There was no indication that the jury felt unable to return a verdict. The fair-minded and informed observer would take note of the fact that the jury seemed to have diligently complied with all the directions given to them by the judge. 31. It is always difficult to ascertain what a fictional character would have decided in a particular situation. This is, however, a test which courts are required to undertake in a number of situations. An allegation of apparent bias is one of them. In our view there is no evidence to suggest that the jury were or might have been biased. We do not think that the fair-minded and informed observer in this particular case would have come to the conclusion that there was a real possibility that the jury was biased. We think that the judge was entirely correct to proceed to take the verdict. We regard the verdict as safe and we dismiss the appeal against conviction. 32. We turn to the application for leave to appeal against sentence. Mr Laird developed his submissions on this aspect clearly and concisely. He accepted that he could not challenge the eight year sentence imposed on count 1 or the five year sentence imposed on 2. He merely observed that it was at the top of the bracket. Mr Laird submitted that on count 3 the term of five years imprisonment was excessive. He drew our attention to the sentencing guidelines. He accepted that the starting point for the appellant, if in category 3, was four years six months' imprisonment. He submitted that the appellant did not, in fact, have a significant role, as the judge said, and that therefore it was not appropriate to take that starting point. 33. We do not agree. We think that someone in possession of a loaded revolver with spare rounds of ammunition, who is spending the night in a house guarding a consignment of heroin of high value, intended for onward supply, is performing a significant role. In our view there can be no doubt but that the correct starting point for count 3 was four and a half years. 34. It seems to us that this was a particularly serious case of possession with intent to supply. The appellant was, as the judge observed, an armed custodian of the quantity of heroin. Mr Laird submitted that, even if in isolation five years were correct for count 3, there should have been some reduction for totality. Mr Laird put his submissions moderately. He did not say that there should be any substantial discount for totality; he recognised that there had to be a consecutive sentence. The way he put it was that the judge should have made a "small discount" in order to reflect the totality principle. 35. We stand back from this case and look at the total sentence of thirteen years imprisonment for the package of offending comprised in counts 1 to 3. It must be recognised that the combination of guns and drugs make for very serious offences and merit substantial sentences. As we say, the appellant was guarding a valuable consignment of heroin. He was guarding it with a loaded revolver, with spare rounds of ammunition. This is precisely the kind of situation which can often lead to yet more serious offending. 36. We accept that a total sentence of thirteen years imprisonment may well be at the top end of the appropriate sentencing range. However, we do not regard it as arguable that a total sentence of thirteen years imprisonment is manifestly excessive. In the result, therefore, we refuse the renewed application for leave to appeal against sentence. ____________________________

2013_12_11-3309.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/2526/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/2526

607f25e954cf658fc79401a81ca88b7264e311e47634c0eba2d1642adedfcc5e

[2004] EWCA Crim 2278

EWCA_Crim_2278

2004-08-11

crown_court

Case No: 200303744/C4 Neutral Citation Number: [2004] EWCA Crim 2278 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 11th August 2004 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE GRIGSON SIR EDWIN JOWITT - - - - - - - R E G I N A -v- MARK WAKEFIELD AND MARK ANDREW PURSEGLOVE - - - - - - - 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 88

Case No: 200303744/C4 Neutral Citation Number: [2004] EWCA Crim 2278 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 11th August 2004 B E F O R E: LORD JUSTICE LATHAM MR JUSTICE GRIGSON SIR EDWIN JOWITT - - - - - - - R E G I N A -v- MARK WAKEFIELD AND MARK ANDREW PURSEGLOVE - - - - - - - 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 LIVING appeared on behalf of the APPELLANT WAKEFIELD MR J BOUMPHREY appeared on behalf of the APPELLANT PURSEGLOVE MR S BLACKFORD appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE LATHAM: On 6th June 2003 in the Crown Court at Reading after a seven day trial, these appellants were convicted of six counts of unauthorised use of trade marks contrary to sections 92(1) and 104(1) of the Trade Marks Act 1994 and were sentenced to four months' imprisonment on each count concurrently. 2. They appeal against conviction with leave of the single judge. 3. The facts out of which the charges arose can be very shortly stated. The appellants traded together under the name Bionic Records. In August 1999 a trading standards officer purchased a number of compact discs from the appellant Wakefield at the Bionic Records store at the Reading Festival. Having looked at those, he was suspicious as to their authenticity and he seized the stock on the stall. Originally the seizures and the enquiry thereafter were in fact taken pursuant to the provisions of the Copyright Design and Patents Act 1988 ; but ultimately the appellants were charged, as we have said, under the Trade Marks Act of 1994. 4. When the appellants were questioned about the material, they denied the offences. They in effect accepted that the relevant material consisted of what were described as "bootleg" items, that is unauthorised recordings of concerts. They both accepted that they operated in what they described as a "grey area", but believed that trading was permissible. 5. When the prosecution was first brought against these two appellants, the prosecuting authorities considered that it was appropriate to charge the partnership under which they were at the time trading, namely Bionic Records, and the original indictment consisted of a number of paired counts, charging, firstly, Bionic Records with unauthorised use of a trade mark and, secondly, the two individual appellants in separate counts. 6. When it came to the trial date it was accepted that the partnership had been wound up and no longer existed. As a consequence the judge gave leave to amend the indictment so that the paired counts were essentially consolidated and were phrased in the following form, and we can use the first count of the indictment as the example: "Statement of Offence Unauthorised use of a trade mark; contrary to sections 92(1) and 104(1) of the Trade Marks Act 1994 . Particulars of Offence Mark Andrew Purseglove and Mark Wakefield were partners in Bionic Records on the 27th August 1999 on which date at Richfield Avenue, Reading in the county of Berkshire Bionic Records did with a view to gain for itself and without the consent of the trade mark proprietor, sell to Andrew Charles Bustin certain goods, namely a compact disc entitled 'U2 - More Melon' which bore a sign, namely 'U2 ', which was identical to or likely to be mistaken for a registered trade mark of U2." 7. The form of the indictment was dictated by the wording of the relevant sections of the 1994 Act , which provide as follows: "92(1). A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor -- ... (b) sells or lets for hire, offers or exposes for sale or hire or distributes goods which bear, or the packaging of which bears, such a sign, or (c) has in his possession ... in the course of a business any such goods with a view to the doing of anything ... which would be an offence under paragraph (b). ... 5. It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark. ... 101(1). Proceedings for an offence under this Act alleged to have been committed by a partnership shall be brought against the partnership in the name of the firm and not in that of the partners; but without prejudice to any liability of the partners under subsection (4) below. ... (3) A fine imposed on a partnership on its conviction in such proceedings shall be paid out of the partnership assets. (4) Where a partnership is guilty of an offence under this Act , every partner, other than a partner who is proved to have been ignorant of or to have attempted to prevent the commission of the offence, is also guilty of the offence and liable to be proceeded against and punished accordingly." 8. As we have said, leave was given by the trial judge for the indictment to be amended in the terms to which we have referred and the jury proceeded to consider the matter on the basis of that indictment. 9. At the conclusion of the evidence the judge summed up the issues to the jury in the following general terms. He directed them that the first ingredient that the prosecution had to prove was that both defendants were partners in Bionic Records. The second ingredient he directed them to consider was whether the partnership, with a view to gain for itself, undertook the commercial activities that were alleged. Third, that the discs bore a sign which was identical to or likely to be mistaken for a particular registered trade mark. Fourth, that the commercial activity was carried out without the consent of the trade mark proprietor. Fifth, that the sign was used as an indication of trade origin. The jury were then directed that they should consider whether or not the defence under section 92(5) had been established, namely, as the judge put it, that the defendants believed on reasonable grounds that the use of the sign in the manner in which it was used was not an infringement of the registered trade mark. It was in the light of those directions that the jury convicted the appellants of the counts with which we are concerned. 10. On behalf of the appellants there are two issues raised. The first relates essentially to the form of the indictment. It is submitted that this particular Act sets out a procedure which carries within it the seeds of duplicity on the basis that there is a distinction between section 92 and section 101 as to the defences which are available, particularly where the defendants are the partners, where the issue which may have to be determined is whether a defence under section 92(5) is available to that individual, or whether there is a defence only under section 101(4). 11. The next point that is made in relation to the form of the indictment is that it was inept, because the section under which the prosecution purported to proceed, that is section 101(4), requires there to have been a conviction of the partnership before the partners themselves can have liability by reason of the wording of the Act . 12. The second general ground of appeal relates to a discrete issue relating to evidence that was called on behalf of the prosecution to which we will return. 13. As far as the first ground of appeal is concerned, we consider that the arguments are misconceived. The section which sets out the offence is section 92 ; that is the offence creating section. Section 101 deals with the question which arises if the prosecution are confronted with the fact that a partnership is involved in the alleged offence, and the procedural steps which should then be taken if they choose to proceed against the partnership. 14. In the present case the partnership did not exist at the time of the trial. Accordingly, no proceedings could be pursued at the date of trial against the partnership. Nonetheless, the prosecution were entitled to, and did, proceed on the basis that the partnership could be said to have been guilty of the offence under section 92 at the time the offence was committed. The consequence of that was that the appellants were liable pursuant to the provisions of section 101(4) if the prosecution established that the partnership was guilty. That is precisely what took place at the trial in the way the judge's summing-up indicated. 15. The argument that there was duplicity is also, in our view, wholly unfounded. There was only one offence which these two appellants faced. It was an offence under section 92 which they were proceeded against pursuant to the provisions of section 101(4). The only condition precedent to their conviction as a result was that the partnership should have been guilty itself of the offence. The subsection does not require there to have been a conviction of the partnership. It simply requires that the court should be satisfied that the partnership is guilty of the offence. That is, as we have said, the way the judge directed the jury. In determining whether or not the partnership was guilty of the offence, clearly one of the issues that the court had to consider was the extent to which the defence under section 92(5) was made out on in the case of these appellants. In cases where a partnership is said to be liable, the actions of the person or persons who commit the actus reus of the offence will be the relevant actions and it will be his or their mens rea in the section 92(5) sense which will be relevant in this instance. The judge considered that on the facts of this case both appellants were entitled to have the issue put before the jury in order for the jury to determine whether that defence was made out. The jury decided that it was not made out and it was in those circumstances they convicted. 16. There is nothing, therefore, in this case about which these appellants can, in our judgment, complain in relation to the form of the indictment, or the way the matter was put to the jury by the judge in his summing-up. 17. We turn then to the discrete issue which relates to evidence which was called on behalf of the prosecution. The evidence was that of a Mr Vernells. He gave factual evidence in relation to the discs which were seized, but he also gave expert evidence to this extent. He described to the judge why it was that he considered that the discs were what were described as bootleg discs. He further gave evidence that major trade mark proprietors did not consent to the making of bootleg recordings of any of the artists in respect of whom they owned the trade marks. It seems to us that Mr Vernells was entitled to give that evidence as an expert. It went directly to the issues raised by the defence, in particular under section 92(5) , and accordingly was capable of being of assistance to the jury in their determination of that issue. It was further evidence which could assist the jury to determine whether or not there was in fact any consent by the proprietors of the trade marks to the use that was being made of their trade marks on the discs in question. In those circumstances, we cannot see that the evidence that Mr Vernells gave could in any way be said to have been irrelevant. 18. It is said that the context in which he made his original statements upon which his evidence was based was essentially in relation to consideration at that time of breaches of copy right. It seems to us that the evidence as presented to the jury by both Mr Vernells and by the judge in his summing-up adequately indicated to the jury the distinction between the two, which was, therefore, not something which, in our judgment, could have been said to have raised any question marks in the jury's mind, or to have confused the jury in any way. In any event, the appellants' own evidence was essentially to the effect that they were aware that bootleg recordings were not recordings which were likely to have been recordings approved by the holders of the trade marks, and, indeed, were recordings capable of being sold at an enhanced price, one can only surmise, for that very reason. 19. In those circumstances, we do not consider that there is anything in the argument that the evidence of Mr Vernells should not have been admitted, or that the way in which it was given could in any way render the convictions of these two appellants unsafe. Accordingly, we dismiss these appeals. 20. Now that has this consequence that, as I understand it, if they took the benefit of it, both of these appellants have been on bail at some stage and accordingly they must be returned to custody to complete their sentences. 21. MR BLACKFORD: My Lord, I think that is clearly correct. In fact Mr Purseglove is now in custody in relation to another matter, which is a conspiracy in relation to trade marks, which was tried at the start of this year, or there was a plea of guilty at the start of this year. So he is in fact in custody in any event. My Lords, I do have an application for costs. 22. LORD JUSTICE LATHAM: Yes. 23. MR BLACKFORD: I can advise the Court that the amount of costs is £1,250. I ask that an order for half of that amount be made in relation to each of the defendants. 24. LORD JUSTICE LATHAM: Yes. Have you anything to say about that, Mr Boumphrey, Mr Living? 25. MR LIVING: My Lord, I have not been given a schedule of costs. I have only just found out the amount of it, so I can't comment on what has been charged, simply to say that Mr Wakefield will have to go back to prison. He is self-employed. He can't earn whilst he's not working in his shop and I would ask you to take that into account. It is -- whilst I understand the prosecution in this case is not the CPS, but is a trading standards organisation, it is still, in my submission, open to the court to take the defendant's personal circumstances into account when deciding what, if anything, to award in costs. 26. LORD JUSTICE LATHAM: Mr Boumphrey. 27. MR BOUMPHREY: My Lord, two matters. Firstly, Purseglove's current conviction relates to a conspiracy in relation to copy right matters rather than trade mark matters. I say that just for the sake of the record. Mr Purseglove is currently serving three and a half years on that conspiracy with a five year possible sentence in default if he fails to make a £1.8 million confiscation order that has been made against him. I expect in the circumstances a cost sum of £1,250 will make little difference to his total position. But my expectation is that if an order is made for that sum, it is likely to join the end of the queue -- a long queue of creditors, and in those circumstances it might be something that the prosecution might not wish to take any further steps in relation to. 28. LORD JUSTICE LATHAM: Yes. 29. MR BOUMPHREY: The situation so far as Mr Purseglove is concerned is that there is a restraining order on behalf of this Court in relation to him and the money he can spend. I am expecting the situation to arise where the receivers are appointed in relation to his existing assets. So if there is an order made against him, that would be a matter that they will have to consider as to where it falls in the queue for Mr Purseglove's assets. 30. LORD JUSTICE LATHAM: Yes. 31. MR BLACKFORD: My Lord, I should have said that the amount that I mentioned is purely counsel's fees and -- 32. LORD JUSTICE LATHAM: Sorry, remind me, is it £1,250 or £1,500? 33. MR BLACKFORD: £1,250. And in relation to Mr Wakefield it is fair to say that only a few weeks ago an order was made in relation to the costs of the trial in this case in the sum of, I think, £13,000. I don't think, despite where he is going to spend the next two months, I don't think that there is a problem as to means and I don't think really that that is -- 34. LORD JUSTICE LATHAM: Yes. 35. MR BLACKFORD: -- suggested is in any detail by my learned friend. 36. SIR EDWIN JOWITT: Is there a confiscation order made in his case? 37. MR BLACKFORD: Not in relation to Mr Wakefield. That was not the -- there was an application for a confiscation order, but in the event that was not proceeded with because of the other matter in relation to Mr Purseglove, and that's why the orders for costs were made so recently, because the confiscation order proceedings were only dropped that recently. 38. LORD JUSTICE LATHAM: Right. 39. MR BLACKFORD: But in relation to Mr Purseglove I say that the prosecution is entitled to its costs. There may be some difficulty in recovering them, there may not. But it is a small sum in relation to the £1.8 million confiscation order that has been made and quite clearly Mr Purseglove is a man of some considerable means. 40. LORD JUSTICE LATHAM: We will retire. (Short adjournment) 41. LORD JUSTICE LATHAM: We consider that in the circumstances it would be appropriate to make an order that the appellants pay the costs of the prosecution today in the sum of £1,250 which will be divided equally between the two appellants. 42. I don't know in those circumstances, Mr Living, whether there is any application in relation to time to pay as far as Wakefield is concerned? 43. MR LIVING: My Lord, there certainly will. I didn't know -- I have discussed it with my learned friend. There certainly will be an application for time to pay the whole of the costs. There wasn't an application in front of His Honour Judge Playford, because, of course, he stayed the order pending the outcome of this appeal. 44. LORD JUSTICE LATHAM: Yes. 45. MR LIVING: My learned friend is of the opinion that the application is better made to the magistrates who will -- 46. LORD JUSTICE LATHAM: My personal view is that the right way to deal with it is to -- or is likely to be to roll all the liabilities up and for consideration to be given to time to pay the whole of that by the appropriate Magistrates' Court on enforcement. 47. MR LIVING: My Lord, yes. That is ... 48. LORD JUSTICE LATHAM: Yes, thank you. Thank you all very much.

2004_08_11-313.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2278/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2278

21116299f18eeb9e1804c623b1ba609ec2c48f87a6952af6ca914a43cb2d5bed

[2005] EWCA Crim 2031

EWCA_Crim_2031

2005-07-19

crown_court

No: 2003/00869/C5 Neutral Citation Number: [2005] EWCA Crim 2031 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday, 19 July 2005 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE GOLDRING MR JUSTICE WALKER - - - - - - - - - - R E G I N A - v - HASSAN TALAL YOUSEF ASSALI - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Offic

No: 2003/00869/C5 Neutral Citation Number: [2005] EWCA Crim 2031 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday, 19 July 2005 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( The Lord Woolf of Barnes ) MR JUSTICE GOLDRING MR JUSTICE WALKER - - - - - - - - - - R E G I N A - v - HASSAN TALAL YOUSEF ASSALI - - - - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - MR E FITZGERALD QC and MR K GLEDHILL appeared on behalf of THE APPELLANT MR S HESLOP QC and MR M KHAMISA appeared on behalf of THE CROWN - - - - - - - - - - J U D G M E N T Tuesday, 19 July 2005 THE LORD CHIEF JUSTICE: 1. On 24 May 1985, in the Crown Court at St Albans, before Blofeld J, the appellant was convicted of making explosives contrary to section 4 of the Explosive Substances Act 1883. He was sentenced to nine years' imprisonment. Four counts of possession of firearms and ammunition, which were contained in a separate indictment, were left on the file. There was no dispute about the possession of those items. 2. Having been convicted, the appellant made an application for leave to appeal. On 17 October 1986, that appeal came before Lord Lane CJ, who granted an application made by the appellant's counsel to abandon his application for leave to appeal against conviction and refused all other applications. Following correspondence between the appellant and the Criminal Appeal Office, in which the appellant alleged that counsel had acted without authority in withdrawing the application for leave to appeal, he applied for his abandonment to be treated as a nullity. On 8 May 1989, the full court, presided over by Croom Johnson LJ, refused that application. 3. The matter comes before this court today having been referred for consideration under section 9 of the Criminal Appeal Act 1995 by the Criminal Cases Review Commission. 4. The appellant is a Libyan born British citizen who was educated in this country. In 1978 he had opened his own company which was based in Borehamwood. It manufactured various electronic devices, including a burglar alarm system, safe equipment, sophisticated security devices, infra-red alarm detectors and tracker devices. It was the prosecution case that he had been using his company to produce timers which were explosive devices. 5. The appellant had taken on a Mr Bidwell as a technician. In April 1984 Mr Bidwell alleged that the explosive devices were being made at the appellant's business premises. In addition he referred to the firearms that were there. In May 1984 the police and Customs officers searched the appellant's home and factory. They found seventeen timers in an airing cupboard in his home and seven half-assembled timers at the factory. The appellant was interviewed on various occasions when he was asked about how and why he came into possession of the timers. 6. At the trial the appellant gave evidence. The effect of his evidence was that these were not timers designed to be used in conjunction with explosives. Clearly that evidence at that time was not accepted by the jury. There is no doubt that an important part of the Crown's case against the appellant depended on the evidence of Mr Fereday, who was a principal scientific officer at an organisation at RARDE and a specialist in improvised explosive devices. He examined all the devices that had been recovered. His evidence supported the Crown's case with regard to the nature of those devices. 7. However, the defence now have further evidence following R v Berry , which had similarities to this case. On the appeal in that case evidence was given by Major Lewis and Colonel Wyatt, together with Dr Bora, who were highly experienced and impressive experts who concluded that similar devices to those in this case were simply timers. Mr Fereday had also given evidence in the case of Berry . The evidence which was given by the three experts to whom we have just referred rebutted the evidence of Mr Fereday that the absence of safety devices in the timers prevented their use for legitimate purposes. Accordingly, the Court of Appeal concluded in Berry that Mr Fereday's opinions were central to the trial and were open doubt at the very least. They therefore quashed Mr Berry's conviction. 8. As the evidence of Mr Fereday was equally crucial to the prosecution in this case, the implications for this case were obvious. At the time of his trial the appellant had had difficulty in obtaining expert evidence. The only person he found to give evidence in his defence deferred to the expertise of Mr Fereday. In view of the fact that there is now available expert evidence which this court gives to adduce under section 23 of the Criminal Appeal Act 1968 , the position is now very different from that which existed at the time of the previous trial. 9. Having had an opportunity to consider the case referred to this court by the Criminal Cases Review Commission, and following an earlier directions hearing, Mr Heslop QC has put before this court a document which refers to an ELOKA report which is the report of the additional experts to whom we have referred. The document says this: "3. The question of admissibility of new/fresh evidence under section 23(1) of the Criminal Appeal Act 1968 is entirely a matter for the discretion of the court. However, bearing in mind the test of admissibility is whether it is 'necessary or expedient in the interest of justice', the Crown do not feel able to object to the admissibility of the evidence of Colonel Wyatt, Major Lewis and squadron leader Hoyes, as set out in their joint report, dated 9th May 1997 and will not do so." Under the heading "Safety of Conviction" the statement goes on: "4. In deciding whether it is in a position to resist the appeal, the Crown has reviewed all the material in its possession and, in particular, taken full account of the potential impact of the aforesaid ELOKA experts' report upon the trial jury, and its likely effect upon the verdict. Critical to the case against the appellant was Allen Fereday's evidence. The Crown is of the view that there is a reasonable argument to suggest that the ELOKA material might well have left his evidence open to reasonable doubt. 5. In the circumstances, the Crown does not feel it is in a position to advance argument to support the safety of the conviction on this basis and will not seek to resist the argument of the appellant that this material renders his conviction unsafe. 6. This decision relates to the particular facts of this case alone and should not be taken to have any wider significance beyond this appeal. Nor are any concessions made as to the correctness, or otherwise, of the ELOKA experts' report. 7. The Crown's decision is based upon the perceived impact that this material would be likely to have had upon the jury and the inability now to call evidence to contradict it in rebuttal. 8. In relation to the remaining matters raised in the appellant's grounds of appeal, the Crown's response remains as set out in their response dated 22 May 2005." As is indicated in that response of the Crown, wider and other allegations were made on behalf of the appellant by his counsel in the documents which they prepared for the appeal. 10. This court has considered all the material put forward on the appellant's behalf in his amended grounds of appeal. For the purposes of disposing of the appeal it is not necessary for this court to make any findings over and above those conceded by the Crown, and we do not do so. It is sufficient that on the basis of the expert evidence that is now available to the appellant, this appeal must be allowed and the appellant's conviction set aside. Accordingly, we make the appropriate orders to achieve that purpose. 11. We are very grateful to the legal advisers on both sides for preparing the matter in the way that they have which enabled us to deal with this case in a relatively summary manner. It is right also to point out that it was as long ago as 24 May 1985 that Mr Assali was convicted. It is unfortunate that, through no one's fault, it has taken all the time that has elapsed since then for the result which has occurred today to be brought about. 12. MR FITZGERALD: My Lord, there is one other matter, which is the issue of costs. I understand that there have been some incidental costs incurred. It may be that they are not very substantial, but would your Lordships make an order for costs out of central funds for such costs as have been incurred by the defendant in bringing this matter back? He is legally aided for the purpose of his legal proceedings, but along the way I understand there have been some costs. 13. THE LORD CHIEF JUSTICE: Mr Heslop, there can be no objection to that, can there? 14. MR HESLOP: No, my Lord. 15. THE LORD CHIEF JUSTICE: So be it. Mr Fitzgerald, you have your order. 16. MR FITZGERALD: Thank you very much, my Lord. 17. THE LORD CHIEF JUSTICE: Thank you for your assistance.

2005_07_19-559.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/2031/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/2031

c10efad311512b5da530267740a3ed660817e7f14a2ebb3f04d9eb407786c98c

[2020] EWCA Crim 1190

EWCA_Crim_1190

2020-08-27

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 No. [2020] EWCA Crim 1190 CASE NO 201901644/C1 Royal Courts of Justice Strand London WC2A 2LL Thursday 27 August 2020 Before: LORD JUSTICE HADDON-CAVE MR JUSTICE JEREMY BAKER MRS JUSTICE MOULDER DBE REGINA V MATTHEW DEREK CLARKE __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ NON-COUNSEL APPLICATION _________ J U D G M E N T MR JUSTICE JEREMY BAKER: 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these proceedings. Therefore, no matter relating to the complainant shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as a victim of these offences. 2. On 16 February 2017 the applicant, Matthew Clarke, appeared at Lincoln Crown Court. He was legally represented and pleaded guilty to 18 counts on a 28-count indictment alleging various sexual offences against a single female complainant. The offences to which he pleaded guilty included offences of rape of a child under 13. 3. The proceedings were adjourned to allow the prosecution to consider the sufficiency of those pleas and the matter next came before the Crown Court on 7 April 2017, by which time the prosecution had notified the defence that the pleas were insufficient and a trial would be required. Moreover, the prosecution had reviewed the original indictment and having noted that it contained drafting errors, including references to dates and statutory provisions, they had drafted a new indictment. However, as the defence had not had sufficient time to consider this indictment the proceedings were adjourned so as to enable them to do so. 4. The matter next returned to the Crown Court on 12 April 2017 before Mr Recorder Mann QC and although he initially considered staying the first indictment and granting leave to prefer the new one, ultimately, he granted the applicant leave to vacate his pleas on the first indictment, and for that indictment to be amended in the terms of the new indictment. Once this had been done the applicant then entered pleas of guilty to all the counts on the amended indictment and the matter was adjourned for sentence. 5. The final hearing took place at the Crown Court on 22 June 2017 when HHJ Pini QC sentenced the applicant on the various counts to which he had pleaded guilty resulting in a special custodial sentence, under section 236A of the Criminal Justice Act 2003 , of fifteen-and-a-half years, comprising a custodial period of fourteen-and-a-half years and an extended licence period of 1 year. 6. The applicant now seeks to renew his application for an extension of time (some 721 days) to apply for leave to appeal conviction after refusal by the single judge. 7. The explanation for the considerable delay in this case is set out in a letter from the applicant dated 20 December 2019, in which it is stated that he had originally consulted fresh solicitors, who provided him with erroneous advice, following which he had sought to deal with the matter on his own and had encountered delays in receiving the necessary documentation from them. 8. We do not consider that given the limited nature of this appeal this explanation justifies the delay and accordingly refuse the renewed application for an extension of time. Nevertheless, like the single judge, we too propose to deal with the merits of the renewed application for permission to appeal. 9. The original grounds of appeal are contained in a document dated 29 April 2019, which were perfected in a 10-page document with reference to the transcripts of the hearings. There is also a document entitled "Additional grounds of appeal against conviction" and more recently these had been updated in a document dated 20 December 2019. 10. Essentially what is submitted is that after the applicant had entered pleas of guilty on 16 February 2017 the judge should have proceeded to sentence either on that occasion or on 7 April 2017. It is submitted that the court's failure to do so and instead its decision to permit the vacation of the applicant's original pleas of guilty and the amendment of the indictment amounted to an abuse of the process of the court. 11. It is suggested that the indictment was not signed and that this results in the subsequent proceedings being a nullity. Moreover, that the indictment is bad for duplicity and/or lacking in sufficient particulars to afford the applicant knowledge of what was being alleged against him. 12. It is apparent from section 5(1) of the Indictment Act 1915 that an indictment may be amended at any stage either before trial or during it. Moreover, in R v Love and Hyde [2013] 2 Cr App R 4 , this court refused leave to appeal against conviction where, after an accused had pleaded guilty to a count of burglary of a building, the judge had permitted the applicant to vacate his plea so as to enable the prosecution to amend the indictment by specifying that the building was a dwelling, thus raising the maximum sentence for the offence from 10 years to 14 years under section 9(3) of the Theft Act 1968 . 13. Moreover, in R v MJ [2018] EWCA Crim 2485 , this court determined that the effect of the provisions of section 116 of the Coroners and Justices Act 2019, which amended section 2 of the Administration of Justice (Miscellaneous) Provisions Act 1933 , resulted in the previous rule that an unsigned indictment was a nullity, being abrogated and that regardless of whether the indictment was signed or not, providing section 2 had been complied with, that the indictment would be valid, such as was the case in the present case. 14. We have had the advantage of reading a note from counsel who represented the applicant throughout these proceedings. It is apparent from the outset that the applicant had signed a Proof of Evidence dated 16 February 2017, which made it clear that he accepted having a full blown sexual relationship with the complainant which commenced when she was 8 years of age with kissing and cuddling, progressing to performing oral sex on the applicant when she was 12 years and continued thereafter with various sexual assaults up to the age of 15. 15. Thereafter, on 16 February 2017 counsel had a conference with the applicant, following which he pleaded guilty to 18 of the counts on the original indictment including, as we have said, pleas to rape of a child under 13, which qualified him as an offender of particular concern under section 236A of the Criminal Justice Act 2003 . What then took place is that during the period of adjournment, which was granted to the prosecution to consider the sufficiency of the pleas which had been entered by the applicant, it became apparent that some of the dates and statutory provisions which had been referred to in the original indictment were in error and the decision was made to seek to rectify these by way of amendment. 16. This is what took place on 12 April 2017 and having permitted the applicant to vacate his pleas of guilty to the original indictment, the Recorder permitted the prosecution's application to amend the indictment in accordance with its draft and thereafter, following a further conference with counsel, the applicant decided to plead guilty on all counts on the amended indictment and did so on further arraignment. 17. As we have already pointed out, this was an entirely permissible procedure to adopt and one that caused no unfairness to the applicant, such that it is unarguable that any abuse of process took place. 18. Moreover, having regard to the extensive admissions which the applicant had made in his proof of evidence and the manner in which he thereafter was dealt with by the court on 22 June 2017, there are no arguable grounds that the amended indictment was either duplicitous or lacking in sufficient particulars to afford the applicant knowledge of what was being alleged against him. 19. Accordingly, there is no merit in any of the applicant's grounds of appeal against conviction and we would have refused permission to appeal if we had not already refused him the necessary extension of time. 20. Given the persistence of this application, notwithstanding the refusal by the single judge and the wholly unmeritorious nature of the applications, both for an extension of time and for renewed permission to appeal, we will make a loss of time order in this case of 28 days. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2020_08_27-4961.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/1190/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/1190

cf4bffb013a27844c092ab00293713820be190835614154f99b7a6ef6b6e451a

[2023] EWCA Crim 981

EWCA_Crim_981

2023-08-16

crown_court

Neutral Citation Number: [2023] EWCA Crim 981 Case No: 202302076 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH His Honour Judge Johnson 01ID1035123 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/08/2023 Before : LADY JUSTICE THIRLWALL DBE MR JUSTICE WALL and MRS JUSTICE ELLENBOGEN DBE - - - - - - - - - - - - - - - - - - - - - Between : ROGELIO AHUMADA Y OTERO Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2023] EWCA Crim 981 Case No: 202302076 A4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT ISLEWORTH His Honour Judge Johnson 01ID1035123 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/08/2023 Before : LADY JUSTICE THIRLWALL DBE MR JUSTICE WALL and MRS JUSTICE ELLENBOGEN DBE - - - - - - - - - - - - - - - - - - - - - Between : ROGELIO AHUMADA Y OTERO Appellant - and - REX Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R Kovalevsky KC and T Harris (instructed by Cohen & Gresser (UK) LLP ) for the Appellant M Paltenghi (instructed by the Crown Prosecution Service ) for the Respondent Hearing date : 10 August 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 10.30am on 16/08/2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Mrs Justice Ellenbogen DBE : 1. This matter was referred to the full court by the Registrar of Criminal Appeals, to determine whether leave to appeal against sentence ought to be granted and, if so, the substantive appeal. At the end of the hearing on Thursday, 10 August, we granted leave and reserved judgment. 2. The facts may be briefly stated. On 7 May 2023, the applicant and his wife were due to fly from London Heathrow to Madrid. The applicant’s carry-on luggage was passed through the airport scanner. Inside, within one pocket, was found an automatic pistol and, within another, a magazine loaded with eight cartridges, together with a further five loose cartridges. The gun was in working order and the cartridges were compatible with it. The applicant is a Mexican national who, during the previous week, had travelled from Mexico City to Paris and, from there, by Eurostar, to London. His position throughout has been that the weapon and ammunition lawfully belonged to him but that he had not known that they had been in his suitcase. He was arrested at Heathrow airport and subsequently charged with four offences. He was remanded in custody. On 5 June 2023, he pleaded guilty to possessing a prohibited firearm, contrary to section 5(1) (aba) of the Firearms Act 1968 (count 2) and to possessing ammunition without a firearm certificate, contrary to section 1(1)(b) of the same Act (count 4). The Crown offered no evidence in relation to counts 1 and 3, in relation to which not guilty verdicts were entered, in accordance with section 17 of the Criminal Justice Act 1967 . 3. Before us, as below, it was common ground that, pursuant to section 311 of the Sentencing Act 2020 , count 2 related to an offence to which (given the applicant’s age at the date of conviction) a minimum custodial term of five years applied, unless the court was of the opinion that there were exceptional circumstances, which related to the offence or to the offender, and justified it in not imposing that minimum term. 4. On 15 June 2023, in the Crown Court at Isleworth (HHJ Johnson), the applicant was sentenced to 26 months’ imprisonment, on count 2, and to a concurrent custodial sentence of three months, on count 4. Those sentences followed a basis of plea unchallenged by the Crown and a Newton hearing, at the instance of the sentencing judge, to determine the applicant’s state of knowledge at the material time, following which, as we shall explain, the judge made a finding that there were exceptional circumstances in this case. The grounds of appeal 5. The applicant seeks permission to advance three grounds of appeal, on the basis of which it is said that his sentence was manifestly excessive: i) The judge erred in refusing to be guided by Table 2 within the Sentencing Council’s guideline, Firearms — possession of prohibited weapon, in consequence of which he selected an excessive starting point; ii) The judge insufficiently discounted the sentences imposed, having regard to the applicant’s ignorance of the fact that he had been in possession of the prohibited weapon and ammunition; was of exceptional character; and had complications arising from his medical conditions (metabolic syndrome; hypothyroidism; cortical atrophy; frontotemporal dementia; severe arthritis of the hands and chronic pain throughout his body) and advanced age (74, at date of conviction); and iii) The judge erred in concluding that, had he imposed a sentence of or below 24 months’ imprisonment on count 2, it would not have been appropriate to suspend it. The judge’s sentencing remarks 6. In his detailed sentencing remarks, the judge stated as follows: ‘I watched the CCTV of the finding of the gun and the reaction of both you and your wife. I find it very surprising the gun was not detected at either Mexico City or Paris. Having heard your account I concluded that I could not be sure you knew the gun was in that bag; that is not to say that I accept every word of your account. In all, you have given three accounts, one by way of prepared statement to the police; one in a letter to me; and when you gave oral evidence before me. I should add that in your interview, you declined to answer questions, so, no further material came from that source. You have always maintained that you did not know the gun was in that bag. How that gun came to be in your bag is of some importance. In your prepared statement you said that, in Mexico, you would travel with the same bag to your country house, sometimes referred to as your cabin, and you said this, ‘When I got back to Mexico City, I asked my maid if they had seen the same gun. She said I probably left it at the cabin. I assumed this was the case because I searched the bag and could not find it.’ In what I will call your mitigation statement to me, you do not go into further details save to say the incident was accidental and happened because of completely innocent carelessness. When you gave evidence before me earlier this week, you told the court that the gun was stiff and on account of your arthritis, you wanted it oiled and serviced in Mexico City. Accordingly, you put the gun into the same case. On the same day you travelled back to Mexico City. It was normal for the maid to remove your laundry the following day. You then told me that you asked the maid where the gun was and you said that she told you that she had not found it and you must have left it in the cabin. You went on to say that you had presumed that you had left it there. In my judgement, that account is not credible. I accept that you may have taken the gun to Mexico City in the bag but even with a poor memory, I do not accept you simply accepted a maid’s word that the gun was not there. There is a conflict in these two accounts even taking into account words that may have been lost in translation. Incidentally, I accept having heard evidence from …the interpreter that, when you said it was not in working order in your prepared statement, this was an example of a misunderstanding and not a deceit. In your prepared statement, you said that you searched the bag for the gun. In evidence you said that you simply accepted her word that it was not there. I do not accept that when speaking of a firearm …you would simply have accepted her word. In my judgement you have brought the gun back and recklessly left it in a bag that you later used for international travel some two to three weeks later. It may be the case that, on the medical evidence, …your memory is poor. That matter aside, I accept your account. I also acknowledge that you are a hugely experienced traveller who would be well aware of security measures at travel hubs such as London Heathrow and this, together with the wealth of character evidence, your age, and your good character, is why I cannot be sure you knew the gun was in that case. I, nevertheless, felt it was important to follow the guidance given in the case of R v Rogers [2016] EWCA Crim. 801…as to the procedure to be followed when exceptional circumstances were being advanced, namely, that the court should hear evidence.’ 7. The balance of the judge’s sentencing remarks bears reciting in full: ‘With these facts in mind, I turn to the Sentencing Council Guidelines for this offending. This was a type 1 weapon, it being an automatic pistol. The Crown in its sentencing notes submit that there was no intention to use the weapon, therefore, placing it in Category 3. Accordingly, the range is five to seven years’ imprisonment; that categorisation is accepted by your counsel, Mr Kovalevsky, KC. Mr Paltenghi, who appeared for the prosecution, went on to submit originally that there were no aggravating features. I am bound to say that I do not accept that submission as I said during the course of the submissions. First, there was a substantial amount of ammunition with the weapon and, secondly, this offence took place as you were due to board a commercial flight. In the ordinary case, I consider that the starting point would be much closer to seven years’ imprisonment than five, with those two seriously aggravating features. Having said that, I accept that in your case there is considerable mitigation. Not only do you have no previous convictions as you approach your 75th birthday but you are a man of exemplary character. This is evidenced in the large number of references that I have read and which are uploaded on the digital case system. These are documents that go well above what are often seen in this court. Your referees include a Nobel laureate for peace, a former ambassador, and the President of the Mexico City Supreme Court. Clearly, you are also highly regarded by the young who you have taught over a number of years, as well as the mature and distinguished referees who have taken the trouble to write on your behalf. You are, in short, a good man who has contributed to many people, charities, and good causes. I do not underestimate how impressive the character evidence is and nor, indeed, does the prosecution in its sentencing note. I take into account your age, your remorse, which I accept is genuine, and your poor health. In this regard, I have read the letter from Dr Sinencio Herrera which your wife exhibits in her statement, and I have obviously heard from your wife, read her statement, and read the statement from your son. I also take into account the state of British prisons and the added hardship that a man of your age and health will suffer. Last but certainly not least, I take into account my finding that you were not aware that you were carrying a prohibited weapon. Accordingly, I turn to step three which is to address the minimum term and exceptional circumstances. It is accepted that count two attracts the provisions of section 311 of the Sentencing Act 2020 ; section 311(2) stating, ‘The court must impose, here five years, unless the court is of the opinion that there are exceptional circumstances which relate to the offence or the offender and justify it not passing the minimum sentence’. In addressing the topic of exceptional circumstances, therefore, I have to address both the circumstances of the offence and your circumstances as the offender. In doing so I have had the advantage of hearing your evidence and I have already given my factual findings, the most important of which was in your favour. The approach that I now take – must take — as regards exceptional circumstances is set out not only in the Guideline but in a helpful paragraph in Archbold, a leading text on criminal law, which bears reading out. … ‘The court in R v Nancarrow [2019] 2 Cr.App.R.(S) 4 reviewed the previous authorities on the issue of exceptional circumstances…noting they established the following principles: 1. The purpose of the mandatory minimum term is to act as a deterrent; the authority for that is Rehman . 2. Circumstances are exceptional if to impose five years’ imprisonment would amount to an arbitrary and disproportionate sentence. 3. It is important that the courts do not undermine the intention of Parliament by accepting too readily that the circumstances of a particular offence or offender are exceptional. In order to justify the disapplication of the five year minimum, the circumstances of the case must be truly exceptional; the authority for that is R v Dawson [2017] EWCA Crim. 2244. 4. It is necessary to look at all the circumstances of the case together, taking a holistic approach. It is not appropriate to look at each circumstance separately and conclude that, taken alone, it does not constitute an exceptional circumstance. There can be cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances makes the case exceptional. 5. The court should always have regard, amongst other things, to the four questions set out in the well-known case of Avis, albeit there are now definitive guidelines. Those questions are: (a) ‘What sort of weapon was involved?’ Here an automatic pistol; a very serious weapon. (b) ‘What use, if any, was made of it?’ None. (c) ‘With what intention did the defender possess it?’ The answer to that is without any criminal intention. (d) ‘What is the defendant’s record?’ I have already said that it is exceptionally rare to see anything as exemplary as yours. 6. The reference in the section to the circumstances of the offender is important. It is relevant that an offender is unfit to serve a five year sentence or that such a sentence may have a significantly adverse effect on his health. 7. Each case is fact specific and the application of the principles depended upon the particular circumstances of each individual case. Limited assistance is to be gained from referring the court to the decisions in cases involving facts that are not materially identical; and, finally, 8. Ultimately, the test is whether the imposition of the minimum sentence would lead to a sentence that is arbitrary or disproportionate. In his helpful submissions, Mr Kovalevsky addresses the first of these principles. He submits that deterrence is an important factor in cases where a minimum sentence applies. In that he is quite right, but in my judgement deterrence to the possession of firearms is not simply directed at those who may be loosely described as criminals and who may have the inclination to use weapons for unlawful purposes. The case of R v Burrows [2004] EWCA Crim. 677 deals with a case where the defendant, an experienced traveller, who was treated as a man of good character, had overlooked the fact that he had used a bag as a hiding place to prevent any accidental use by his young daughter of a gun. As in the instant case, that is your case, this central feature of mitigation was accepted by the Crown and the court. In Burrows , the gun in question was not even classified as a firearm, let alone a prohibited firearm. No minimum sentence applied. In that case the Court of Appeal cited with approval the remarks of the sentencing judge that all air travellers should be concerned with the possibility of boarding an aircraft with such an article, that the oversight was criminal and that the public had to be assured that all possible steps had been taken to ensure that nobody had a weapon such as this — in Burrows it was a BB gun — … in their immediate possession when travelling on an aircraft. The court accepted that the offence was one which had arisen out of forgetfulness following a careless, inadequate check of the appellant’s luggage. The court went on to say, and I do not consider this to be obiter; it was part of the judgment, ‘The importance of the need to ensure security in the air cannot be exaggerated and the travelling public has its own part to play in ensuring that security’. The court went on to state that an immediate custodial sentence for a man of good character was merited. I am not impressed by the submission that the composition of the Court of Appeal was, by inference, weak nor that this case has not been approved in later judgments. As I said to counsel during the course of submissions, happily guns found at Heathrow Airport are extremely rare occurrences. Having said all this, taking into account the substantial mitigation in your case, I do find that there are exceptional circumstances which apply. I have had my attention drawn to paragraph 14 under step three of the Guidelines which reads as follows, ‘The court may find it useful to refer to the range under culpability A of table two in step two above, namely, the starting point and category range. The court should impose a sentence that is appropriate to the individual case’. During the course of submissions, Mr Kovalevsky pointed out that, immediately before the two tables in the Guidelines there is stated this, ‘Table 1 should be used if the offence is subject to the statutory minimum sentencing provisions. Table 2 should be used for all other cases’. He submits, therefore, that I should use Table 2. I consider that this submission is based on a misunderstanding. The offence of the prohibited weapon is subject to the minimum provisions, and, further, later in the guideline step 13 states, ‘If there are exceptional circumstances that justify not imposing the statutory minimum sentence, then the court must impose either a shorter custodial sentence or an alternative sentence’. Paragraph 14, which I have already cited, follows. On the facts of this case and taking into account the aggravating features that I have found to be present and the case of Burrows , I do not consider that, in deciding the appropriate sentence, I should follow the suggestion to apply Table 2. Clearly, to move to Table 2 is discretionary. I have to consider what the appropriate sentence is looking at the case and yourself as a whole. Taking a bag onto a scheduled flight with a prohibited weapon and compatible ammunition is clearly a very serious offence. In my judgement, even with all the mitigation that is available here a significant custodial sentence must be passed. Having found exceptional circumstances, I have to consider the reduction for your guilty pleas. Here I give you the benefit of the doubt, as I have already indicated as to what credit I can give you. Normally, when a not guilty plea is indicated at the lower court this credit is limited to 25%. In view of what I have heard, the fact that your native language is Spanish, and the Crown’s concession that is made on this topic, I am prepared to give you full credit. Taking into account my finding that there are exceptional circumstances, I consider that the starting point can be reduced by as much as 50% to three years and four months, and, with the reduction of one third for your guilty plea, the sentence will be one of 26 months’ imprisonment… … I would finally add this, that, even if I had been able to reduce the sentence to within the range of a suspended sentence and that there would be at least two factors in favour of suspending such a sentence, I would not have done so as I consider that only an immediate custodial term could do justice to this case. The sentence, therefore, is 26 months’ imprisonment in total.’ The applicant’s submissions 8. In his written submissions in relation to ground one, Mr Kovalevsky KC submitted that the position as agreed below between the Crown and the Defence had been that, in the event of a finding of exceptional circumstances owing to ignorance of the fact of possession of the prohibited items, Table 2 of the sentencing guideline would apply at step two, and that the offence would be categorised as 3B as corrected in oral submissions (having a starting point of a medium level community order and a sentencing range of a Band C fine to a high level community order). 9. Whilst, formally, not abandoning that contention, the focus of Mr Kovalevsky’s oral submissions in relation to ground one was that paragraphs 13 and 14 of step three of the sentencing guideline reflected the dicta of Lord Woolf LCJ, in R v Rehman [2005] EWCA Crim 2056 , at paragraphs 12, 14 and 15, to the effect that: (1) the statutory imposition of a minimum sentence is to ensure that, absent exceptional circumstances, the court will always impose deterrent sentences, ‘However, it is to be noted that if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent effect upon him’ ; and (2) the statutory reference to the circumstances of the offender is most important; ‘ We have no doubt that the fact that an offender is unfit to serve a five-year sentence may be relevant, as is the fact that he or she is of very advanced years. This is necessarily to be read into the words used, otherwise a sentence may be inappropriately harsh and even fall within the language of Art 3 of the European Convention.’ Considered in that context and in light of the findings of fact which the judge had made, he submitted that the judge had been wrong not to have had regard to Table 2, at step three of the sentencing guideline. His starting point had been selected from Table 1 and had exceeded all sentencing ranges set out in Table 2, resulting in a manifestly excessive total sentence. Furthermore, the judge had been wrong to find aggravating factors; the parties had been agreed that none had applied and that many of the factors identified in the guideline as reducing seriousness and reflecting personal mitigation had been present. In Mr Kovalevsky’s submission, whilst it had been open to the judge to place reliance upon Burrows , that case had been decided before Rehman and the court had not been referred to Avis , to each of which authorities it had been obliged to have regard. Furthermore, the court in Burrows had not been dealing with a prohibited firearm which would now fall within section 311(4) (b) of the Sentencing Act 2020 , or with Table 1 of the sentencing guideline, and had reduced the sentence from one of 4 months’ imprisonment to one of 28 days, allowing for the offender’s immediate release. The aggravating factors as found by the judge and said to justify the selection of Table 1 had included an uplift for deterrence which had been inappropriate in light of the judge’s finding of the applicant’s ignorance. 10. In relation to ground two, Mr Kovalevsky submitted that the judge had been referred to various authorities emphasising the importance of the fact of ignorance and of the rarity of such a finding. In particular, the Defence had relied upon R v Zhekov [2013] EWCA Crim 1656 [17] : ‘We think however that the very exceptionality of this particular case at least requires one to approach the question of deterrence with some degree of caution. Those hereafter carrying to the United Kingdom such stun guns as disguised weapons will know, if there is publicity of this case or of any other such case, that it is illegal to do so and will know that there is a clear prospect of facing immediate custody if they are detected. But this appellant did not know that. He was to be described as at fault, in that he had not checked.’ In the circumstances of this case, he submitted, the judge’s emphasis on Burrows , coupled with his characterisation of the applicant’s behaviour as ‘reckless’, might have distracted inappropriately from those factors (ignorance and personal mitigation) which had called for a significant reduction in penalty. 11. As to ground three, Mr Kovalevsky submitted that the penalty which ought to have been imposed would have been capable of suspension, as a matter of principle, and should have been suspended. There had been no suggestion that the applicant had been in possession of the prohibited items in a criminal context and he had been ignorant of their presence in his luggage. None of the factors rendering suspension inappropriate, as set out in the overarching definitive guideline on the imposition of community and custodial sentences, applied in this case. This court should suspend any sentence which it substituted, having regard to the time already served, including on remand since the date of arrest. 12. The court’s stated finding that the applicant had been reckless had been made following a Newton hearing in which the applicant, his wife and the interpreter had given evidence. In the absence of any issue between the Crown and the Defence, the Crown’s cross-examination had been short. The court had asked no questions, nor had it given any indication of any particular concern or issue. Its only stated conclusion, when asked for a formal ruling on the issue the subject of the hearing, had been that it could not be sure that the applicant had known that he had been in possession of the prohibited items. No reasons for that conclusion had been given and neither party had been afforded the opportunity to address the court in relation to any perceived important conflicts between the accounts of events variously given by the applicant. In those circumstances, whilst, as a matter of principle, it is open to a sentencing judge to consider reckless conduct an aggravating factor, the judge had been wrong to sentence the applicant on the basis that he had been reckless. The Crown’s position 13. In relation to ground one, Mr Paltenghi submitted that the focus of Mr Kovalevsky’s oral submissions on ground one itself demonstrated that the judge had approached the sentencing exercise correctly. Step 3 of the sentencing guideline reflected the applicable principles, as set out in the Sentencing Act 2020 and in domestic and European jurisprudence. It was clear, from a combined reading of paragraphs 13 and 14 of step 3 of the sentencing guideline, that, where it finds exceptional circumstances which justify not imposing a minimum sentence to exist, the court has a discretion to have regard to Table 2, but is not obliged to do so where it considers that that table does not meet the gravity of the offending in question. The judge had been alive to that discretion and had decided, on the facts, that it was inappropriate to have regard to Table 2. Contrary to the position advanced by the applicant on appeal, the Crown had made clear that it disagreed with the Defence interpretation of the application of Tables 1 and 2. The Crown’s position had been that, if the judge considered it appropriate to have regard to Table 2, category 3A in that table would apply. 14. In Mr Paltenghi’s submission, whilst the matters raised by grounds 2 and 3 were essentially matters for this court, it was clear, from paragraph 13 of step 3 of the guideline, that, in the event that Table 2 is deemed not to be a useful point of reference, the extent of the adjustment required to the relevant sentencing range in Table 1 is in the judge’s discretion. Irrespective of the label properly to be applied to it, the judge had been entitled to have had regard to the conduct on the part of the applicant which he had considered to have been reckless, namely the applicant’s failure properly to have checked his luggage before travelling. It had not been incumbent upon the judge to have communicated any provisional conclusions in that respect, whether during the Newton hearing, or at sentencing stage. Counsel for the applicant had had suitable opportunity to address the conduct in question in evidence and/or in the course of his submissions. Discussion and conclusions Grounds One and Two 15. It is convenient to take grounds one and two together and, in so doing, we must be faithful to the judge’s findings that there were exceptional circumstances in this case. 16. The sentencing guideline relating to the possession of a prohibited firearm came into effect on 1 January 2021. At step one, the court is required to determine the offence category, by reference only to the factors identified in the table within that section of the guideline. Culpability is determined by reference to the type of weapon and to the offender’s own culpability factors. 17. Step two then provides for determination of the starting point and category range. The guideline states that, ‘Table 1 should be used if the offence is subject to statutory minimum sentencing provisions. Table 2 should be used for all other cases. See step 3 for details of the minimum sentencing provisions and the approach to be taken to consideration of exceptional circumstances.’ Table 1 is headed ‘Offences subject to the statutory minimum sentence ( Section 5(1) (a), (ab), (aba), (ac), (ad), (ae), (af), (ag), (ba), (c), section 5 (1A)(a))’ . Table 2 is headed ‘Offences not subject to the statutory minimum sentence’ . In this case, by reference to the judge’s assessment of culpability (which is not subject to challenge), if Table 1 was applicable at step two, as the judge concluded, a category 3B offence had a starting point of five years six months’, and a range of five to seven years’, imprisonment. 18. In the usual way, the guideline then sets out non-exhaustive lists of aggravating factors and those reducing seriousness or providing personal mitigation, by reference to which the sentencing judge is to decide whether the sentence arrived at thus far should be subject to upward or downward adjustment. 19. Step three is headed ‘Minimum term and exceptional circumstances’ and is replicated below, with original emphasis: ‘ Minimum term 1. Where the minimum term provisions under section 311 and Schedule 20 of the Sentencing Code apply, a court must impose a sentence of at least five years’ custody irrespective of plea unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so . Applicability 2. The minimum term provisions apply when sentencing an offence under the Firearms Act 1968 , section 5(1) (a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or section 5 (1A)(a) committed on or after 22 January 2004 and to an offence under section 5(1) (ag) or (ba) of that Act committed on or after 6 April 2022. Note: the minimum term provisions do not apply to offences charged as conspiracies. 3. The minimum term applies to all such offences including the first offence. Where it applies the sentence cannot be reduced below the minimum term for a guilty plea (see step 5 – Reduction for guilty pleas). 4. The minimum term of five years applies to offenders aged 18 or over when the offence was committed. See below for guidance when sentencing offenders aged under 18 when the offence was committed. 5. Where the minimum term applies, this should be stated expressly. Exceptional circumstances 6. In considering whether there are exceptional circumstances that would justify not imposing the statutory minimum sentence, the court must have regard to: • the particular circumstances of the offence and • the particular circumstances of the offender either of which may give rise to exceptional circumstances. 7. Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing. 8. Where the issue of exceptional circumstances has been raised the court should give a clear explanation as to why those circumstances have or have not been found. Principles 9. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence. 10. The circumstances must truly be exceptional. It is important that courts do not undermine the intention of Parliament and the deterrent purpose of the minimum term provisions by too readily accepting exceptional circumstances. 11. The court should look at all of the circumstances of the case taken together. A single striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances. 12. The mere presence of one or more of the following should not in itself be regarded as exceptional: • One or more lower culpability factors • The type of weapon or ammunition falling under type 2 or 3 • One or more mitigating factors • A plea of guilty Where exceptional circumstances are found 13. If there are exceptional circumstances that justify not imposing the statutory minimum sentence then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence. Note: a guilty plea reduction applies in the normal way if the minimum term is not imposed (see step 5 – Reduction for guilty pleas). 14. The court may find it useful to refer to the range of sentences under culpability A of Table 2 (Offences not subject to the statutory minimum sentence) in step 2 above. The court should impose a sentence that is appropriate to the individual case.’ 20. For current purposes, it is not necessary to set out the remaining steps in the guideline. 21. From the framework and drafting of the guideline, it is clear that, at step two, the application of Table 1 or 2 is determined by the nature of the offence itself and that consideration of the existence or otherwise of exceptional circumstances does not arise before step three. That is clear from the explanation provided as to when each table should be used; the heading to each table; and numbered paragraphs 1 to 5 in step three. Thus, in this case, the judge was correct, at step two, to conclude that Table 1 applied, before going on to consider the issue of exceptional circumstances in accordance with numbered paragraphs 6 to 12 of step three, which reflect the earlier caselaw. 22. The judge having found that exceptional circumstances which justified not imposing the statutory minimum sentence did apply, paragraph 13 of step three obliged him to impose either a shorter custodial sentence, or an alternative sentence, to which credit for the applicant’s guilty plea would apply (at step five). As paragraph 14 of step three makes clear, the court ‘may’ find it useful to refer to the range of sentences under culpability A of Table 2 in such circumstances, but is not obliged to do so. We consider that the statutory duty to give reasons for the sentence imposed encompasses a need to explain any decision not to do so in particular cases, as the judge did in this case. It follows that the judge adopted the approach for which the guideline provides at steps one and two and the real issue raised by ground one is whether, on the facts of this case, he improperly declined, at step three, to refer to the relevant sentencing range in Table 2, including when having regard to the aggravating factors which he had identified. 23. As indicated by his sentencing remarks, the judge declined to refer to Table 2 ‘on the facts of this case and taking into account the aggravating features that I have found to be present and the case of Burrows. Taking a bag onto a scheduled flight with a prohibited weapon and compatible ammunition is clearly a very serious offence. In my judgement, even with all the mitigation that is available here a significant custodial sentence must be passed.’ As the structure of the guideline makes clear, the presence of aggravating factors could not itself determine the relevance of either table; aggravating factors increase the seriousness of the offence as categorised and enable the judge to identify the need for any upward adjustment to the sentence arrived at by reference to the relevant table, but do not themselves assist in the identification of the appropriate starting point and category range. Nevertheless, we consider that, read as a whole, the judge’s remarks were intended to communicate his view that, having regard to all of the circumstances, the category range for which Table 2 provided (being, under culpability 3A — per paragraph 14 of step 3 — a high level community order to two years’ custody) was inadequate to reflect the gravity of the applicant’s offending, as the judge viewed it to be. As he put it, ‘I have to consider what the appropriate sentence is, looking at the case and yourself as a whole.’ That led him to conclude that, making a suitable adjustment to take account of the aggravating factors which he had identified (being the quantity of ammunition found with the weapon and the fact that the applicant had been about to board a commercial flight), he should move up from the starting point in the guideline at Table 1 (five and a half years’ custody; category range five to seven years’ custody) to six years and eight months, which term ought then to be reduced by fifty per cent to reflect the exceptional circumstances and mitigating factors, before full credit was given for the applicant’s guilty plea. 24. We consider that the judge was entitled to conclude that the matters which he had identified had aggravated the applicant’s offending, as, ultimately, Mr Kovalevsky acknowledged, in the course of his oral submissions. 25. Nevertheless, having found that exceptional circumstances applied and, hence, by definition, that the imposition of the minimum term would result in an arbitrary and disproportionate sentence, we consider that the judge erred in his application of the sentencing guideline, paragraph 13 of step three of which obliged him to impose either a shorter custodial sentence, or an alternative sentence. Once he had concluded that it was not appropriate to refer to Table 2, he could only sentence by reference to Table 1, the starting points and category ranges within which relate to offences to which the statutory minimum sentence applies and do not encompass non-custodial sentencing options. Accordingly, when moving from the starting point applicable to the applicant’s category 3B offence to take account of aggravating and mitigating factors and the relevant exceptional circumstances, he had been obliged, first, suitably to reflect the fact that the starting point had been fixed by reference to the minimum term, and so was higher than would be appropriate in light of his finding of exceptional circumstances, such that the aggravating factors which he had identified could properly result in only a modest upward adjustment, if any. Secondly, he had been obliged to make a very substantial downward adjustment to reflect the exceptional circumstances and mitigating factors which he had identified, consistent with the requirement imposed by paragraph 13 of step three and Parliament’s rationale for imposing a minimum term, as explained in Rehman . 26. In Rehman , this court was concerned with section 51 A of the Firearms Act 1968 , in terms materially the same as those of the successor provision with which we are concerned. At paragraph 4, it defined the term ‘deterrent sentences’ to mean ‘sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider’ . At paragraph 12, Lord Woolf LCJ said: ‘…So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers. This makes the provision one which could be capable of being arbitrary. This possibility is increased because of the nature of section 5 of the Firearms Act. This is different from most sections creating criminal offences. In the majority of criminal offences there is a requirement that the offender has an intention to commit the offence. However, firearms offences under section 5 are absolute offences. The consequence is that an offender may commit the offence without even realising that he has done so. That is a matter of great significance when considering the possible effect of section 51 A creating a minimum sentence.’ At paragraph 16, he went on to state, ‘It is clear in our judgment that, read in the context to which we have referred, the circumstances are exceptional for the purposes of section 51 A(2) if it would mean that to impose five years' imprisonment would result in an arbitrary and disproportionate sentence.’ Apposite, too, are the dicta of this court in Zhekov [17] , cited at paragraph 10, above. 27. In fact, so far as apparent from his sentencing remarks, the judge moved up from the starting point to reflect the applicable aggravating factors, stating, ‘In the ordinary case I consider that the starting point would be much closer to seven years’ imprisonment than five with those two seriously aggravating features’ , before reducing the sentence by fifty per cent to reflect the exceptional circumstances and mitigation. This was not an easy sentencing exercise, but, in our judgement, the judge’s approach to the aggravating factors was wrong. This was not the ordinary case and we consider that the aggravating factors here warranted an upward adjustment from the starting point for category 3B of Table 1 of six months. It was to the resulting six year custodial term that the fifty per cent reduction reflective of the exceptional circumstances and mitigation as found ought to have been applied. Accordingly, the appropriate sentence on count 2, following a trial, would have been one of three years’ imprisonment. After full credit for the applicant’s guilty plea, that would have been reduced to two years. Ground three 28. Whilst stating that he would have imposed an immediate custodial sentence even if the sentence passed had been capable of suspension, the judge did not set out his reasons for that view. On the facts of this case, it is only in circumstances in which appropriate punishment can only be achieved by immediate custody that it would not be appropriate to suspend the applicant’s concurrent sentences. Having given the matter very careful consideration, and having regard to the overarching definitive sentencing guideline, we consider that, in the very unusual circumstances here, appropriate punishment can and should be achieved by the imposition of concurrent suspended sentences. It follows that the original sentence was manifestly excessive. 29. We, therefore, allow the appeal. We quash the sentences which the judge imposed on counts 2 and 4. On count 2, we substitute a custodial sentence of two years, suspended for a period of two years. On count 4, we substitute a custodial sentence of three months, also suspended for two years, to run concurrently with the sentence imposed on count 2. Given the time already served by the applicant, we do not impose any requirements. 30. It follows that the applicant can be released.

2023_08_16-5791.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/981/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/981

9a72165b414d5aa9a3b3669cc8f7581124af0b842ec282196367518d24ff3617

[2007] EWCA Crim 971

EWCA_Crim_971

2007-04-27

supreme_court

Neutral Citation Number: [2007] EWCA Crim 971 Case No: 2007/00985 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT MR JUSTICE MACKAY Royal Courts of Justice Strand, London, WC2A 2LL 27 April 2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION LADY JUSTICE HALLETT and MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - - - Between : Appeal from the Crown Prosecution Service Under Section 58 of the Criminal Justice Act 2003 Sub no

Neutral Citation Number: [2007] EWCA Crim 971 Case No: 2007/00985 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT MR JUSTICE MACKAY Royal Courts of Justice Strand, London, WC2A 2LL 27 April 2007 Before : THE PRESIDENT OF THE QUEEN'S BENCH DIVISION LADY JUSTICE HALLETT and MR JUSTICE HEDLEY - - - - - - - - - - - - - - - - - - - - - Between : Appeal from the Crown Prosecution Service Under Section 58 of the Criminal Justice Act 2003 Sub nom R - - I.K.,A.B., and K.A. - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Ltd A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Ian Burnett QC, Mr Nicholas Hilliard and Mr S. Larkin for the Crown Mr Edward Fitzgerald QC and Mr D. Friedman(instructed by Birnberg Peirce) for the I.K. Mr H. Blaxland QC and Mr E. Grieves (instructed by Birnberg Peirce) for A.B. Mr T. Munyard and Miss R. Refahi (instructed by Birnberg Peirce) for K.A. Hearing dates : 14, 15 and 20 March 2007 - - - - - - - - - - - - - - - - - - - - - Judgment President of the Queen's Bench Division : 1. These are prosecution appeals against orders made by Mackay J at Woolwich Crown Court on 21 st February 2007, staying proceedings against IK, AB and KA. For convenience, we shall refer to them as the defendants. On 31 st March the appeals were allowed. These are our reasons. 2. The indictment, as summarised by the judge, contained three counts. Count one charged the defendants with conspiring together and with persons unknown to provide property for the purposes of terrorism, knowing or intending that it would be used for the purposes of terrorism, before 3 rd October 2005: the property in question was money and false identification and travel documents. Count two charged them with entering into or being concerned in arrangements by which property was made available to others, on the same dates and with the same knowledge or belief, contrary to section 17 of the Terrorism Act 2000 ( the 2000 Act ). Count three charged IK alone with providing money for the purposes of terrorism on the same dates and with the same knowledge or belief, contrary to section 15(3) of the same Act. 3. Mackay J upheld an application by IK to stay the proceedings against him as an abuse of process, and applications by AB and KA, on substantially the same grounds as each other, but different grounds from IK. Following his ruling he gave the Crown leave to appeal on the following grounds: a) whether it was appropriate to extend principles of “double jeopardy” to proceedings in SIAC and subsequent criminal proceedings. This issue concerned the proceedings against IK. b) What material is to be considered in deciding whether criminal charges are founded on the same or substantially the same facts? This ground related to AB and KA. On analysis this question, too, required us to address further aspects of the principles relating to double jeopardy. The allegation 4. The defendants are alleged to be members of an organisation known as the Libyan Islamic Fighting Group (“LIFG”). The primary aim of LIFG is the overthrow of the Gadaffi regime in Libya, but it is said to support a much wider notion of Islamist terrorism aimed at targets beyond the current regime in Libya, and to be actively linked with a wide range of terrorist groups. Operating from the United Kingdom, between 2001 and 2003, the defendants conspired to send significant sums of money to others who were engaged in terrorism within the meaning of section 1 of the 2000Act, and have directly or indirectly provided support for the families and other dependants of those who were so engaged. They also provided important false identification documents for the purposes of terrorism. 5. For the purposes of the applications before him Mackay J assumed that the prosecution was in a position to produce evidence which would entitle the jury to conclude that all three defendants: a) “were complicit in or party to the making of some or all of certain transfers of money between May 1999 and September 2003 to the thirty three recipients set out in a schedule of money transfers dated 31 st January 2007”; b) “were likewise engaged in the manufacture and distribution of false documents of identification and/or travel documents supplied or intended to be supplied to persons who shared their aims, or who were the dependents of such persons”; c) “were at the relevant time members of LIFG and supported its aims which were primarily regime change in Libya, but which also included support for the activities of a wider trans-national Jihad, in the sense of an armed struggle with governments of other countries perceived as enemies of true Islamic beliefs”; He added: d) “These activities, engaged in by the defendants, fall within the meaning of terrorism as defined by section 1 of the 2000 Act .” In his judgment Mackay J recounted the relevant history and made a number of findings of fact. We gratefully adopt, and where appropriate effectively repeat his meticulous analysis, supplemented in a limited way by further information provided during the hearing. The defendants deny all the allegations against them. We must, therefore, emphasise that we are here considering unproved allegations and assumptions. The Statutory Regime 6. The Anti-Terrorism, Crime and Security Act 2001 (ATCSA) was enacted following the notorious events of 11 th September 2001. Section 21(1) of the Act provides: “The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably (a) believes that person’s presence in the United Kingdom is a risk to national security; and (b) suspects that the person is a terrorist.” 7. These provisions are amplified, and defined. Power is given to deport a person in respect of whom a certificate has been granted, with further power to detain him pending deportation or, if he cannot be deported, indefinitely. Section 25 provides a right of appeal against certification to and vests exclusive jurisdiction to cancel certification in the Special Immigration Appeals Commission (SIAC). This is a superior court of record, with an appeal to the Court of Appeal on questions of law. 8. When these powers were created, they were said to be subject to the important limitation that they would be exercised only in relation to individuals who could not otherwise be prosecuted in the criminal courts. Further, the certification decision required that a link should be established between the individuals in question and the terrorist organisation, Al Qaeda and its associates. This arrangement is clearly explained in the SIAC judgment in A and Others v SSHD (SC 1-7/2002 30 th July 2002) , at paragraph 48: “…there are two reasons for supposing that the provisions of sections 21 and 23 of the 2001 Act are to be applied only to those said to be linked to Al Qaeda and its associates. First, the 2001 Act falls to be interpreted in the light of section 3 of the Human Rights Act, which would tend to prevent the powers of detention being exercised in the absence of a connection with the state of emergency. Secondly, the Attorney General indicated to us on behalf of the government that if the powers under sections 21 and 23 of the 2001 Act were exercised against a person not said to be linked with Al Qaeda or its associates, that would be a proper basis for this Commission to set aside the certificate under section 25(2) (b) of the Act . ” Part 4 of the 2001 Act , which provided the relevant legislation, was repealed after the decision of the House of Lords in A and Others v SSHD [2005] 2 AC 68 . However, it was in force at all times material to the history of this case. History, as it relates to IK 9. K is Libyan by birth and nationality. In 1994 he arrived in the United Kingdom from Saudi Arabia. His claim for asylum was refused. He made further claims for asylum in 1997, and in 1999 he was granted indefinite leave to remain in the United Kingdom. On 21 st November 2002, he was arrested and his premises were searched. Two days later the Secretary of State for the Home Department (SSHD) issued a certificate under section 21 of ATCSA, and he was detained. The certificate stated: “You are a member of a group of Mujahideen engaged in active support for various international terrorist groups, including networks associated with Osama Bin Laden. Your activities on behalf of these networks include the provision of material support”. 10. IK appealed to SIAC. SIAC’s proceedings were regulated by statute. They included some unique features. There were concurrent “open” and “closed” proceedings. In the “open” proceedings the appellant could participate, receive disclosure and be represented in the familiar way. In “closed” proceedings he could do none of these things. His interests were safeguarded by a special advocate. Paragraph 7 of the SSHD’s “open” statement asserted that “he cannot be prosecuted because the nature of the case against him is based on intelligence, disclosure of which in open court would cause damage to national security”. Deportation was not an option because IK’s rights under article 3 of the European Convention of Human Rights (ECHR) could not be guaranteed if he were returned to Libya. 11. IK indicated that he would not participate personally in the appeal process. However he lodged his own “open statement” in response. He accepted that he had been a member of LIFG until his arrest, asserting as was then the case, that LIFG was not a proscribed organisation, and claiming that its sole interest was opposition to the regime in Libya. He said that the group was totally opposed to the views of Al Qaeda. Those who became refugees from the Libyan regime required false documentation to enable them to travel and he acquired photographs “to try to get travel documentation for people for whom I was asked to acquire it who were trapped in very difficult situations where they were at risk in particular of being sent to Libya”. In short, there were no terrorist aspects to his activities, and the material relied on against him did not sustain any such contention. 12. The SSHD submitted a second “open” statement. He accepted that IK had been engaged in legitimate fund-raising as well as fund-raising for extremist Islamists. He also accepted that there were factions within LIFG which did not support Al Qaeda, and that as an organisation LIFG continued to focus on affairs in Libya. However he suggested that at least one of the recipients of money sent by IK had links with Al Qaeda, and the position was maintained that IK was extensively involved in support of associates “assessed to be Islamic extremists”. 13. On 8 th March 2004 IK’s appeal was allowed by SIAC. Consequently the certificate issued by the SSHD was cancelled. For present purposes the most important aspect of the judgment was SIAC’s focus on the question whether the SSHD had established to the standard of reasonable suspicion “that the appellant has links to Al Qaeda or has knowingly provided support to extremists who belonged to loosely affiliated Al Qaeda networks”. Although SIAC concluded that it would be “enough that he has supported one who in fact belonged to such a network if he has turned a blind eye”, it was not so satisfied. In effect, although SIAC did not “doubt that the respondent was entitled to suspect that the appellant is a terrorist within the meaning of the 2001 Act ,” it rejected the argument that there was sufficient material which made it reasonable to suspect that IK was engaged in any kind of active support either for Al Qaeda, or groups loosely affiliated to it. 14. The SSHD sought leave from the Court of Appeal to appeal against SIAC’s decision. On 18 th March 2004 the application was refused. After a period of sixteen months in detention K was released in April. On 3 rd October 2005 he was detained in connection with a notice of intention to deport, and on 11 th December 2005 charged with the offences for which he now stands trial. He has been in custody since October 2005. His appeal in respect of the deportation proceedings is outstanding. 15. The striking feature of this narrative is that notwithstanding that IK was deprived of his liberty for sixteen months, he was not charged with or prosecuted for criminal offences until the start of the present proceedings. The position of AB and KA is markedly different. History, as it relates to AB and KA 16. AB and KA are Libyan by birth and nationality. AB entered the United Kingdom in July 2002. He was followed in October by KA. On 27 th November 2003, in the course of a routine investigation, packages addressed to their homes were intercepted, and on examination were found to contain false passports. On 8 January 2004 their addresses were searched. Both were arrested. They were interviewed and charged with two offences under section 5 of the Forgery and Counterfeit Act 1981 . KA was also charged with possessing a prohibited weapon. 17. Sixty four exhibits were recovered from KA’s home. Describing them broadly, they included the equipment and stock in trade of a passport forger, as well as a computer, discs, cassettes and similar equipment. A significant document, exhibited in the current proceedings as PEB/48, was identified at the time for what it was, a form of accounting document, which was translated by 5 th February. At AB’s premises, thirty five exhibits were seized. Again these included a personal computer, cassettes as well as books and other documentary material, and a ledger, PJQ/13 in the present proceedings. Both men were interviewed. There were ample admissions to forgery offences, but their motives were said to be humanitarian. 18. Criminal proceedings went ahead at speed. After transfer to the Crown Court, on 5 th March 2004 the case was listed before the Recorder of Birmingham for a preliminary hearing. By then the process of translating the material seized at both premises was well under way, and the list of exhibits included all the material relating to the production of false passports, together with translations of some of the Jihadist material, and the two important accounting documents, PEB/48 and PJQ/13. 19. The indictment was ready to be preferred and counsel asked that it be put. The Recorder’s initial reaction was hesitant, and he was concerned at the proposal. Count one charged them with having false instruments under their custody and control. These were passports, passport stamps, blank birth certificates, identity cards and other documents which could be used instead of passports. Count two charged them with custody or control of equipment and materials with which such false instruments could be made. After counsel on both sides indicated that it was appropriate for the defendants to be arraigned, they pleaded guilty to both counts. 20. The case was re-listed before the Recorder on 12 th May 2004. He ordered re-arraignment. The defendants confirmed their pleas. The prosecution described both defendants as “part of what has to be a highly …organised group”. A written basis of plea was provided. This had three features. First, the defendants did not make financial gain from the provision of false travel documents; second, the images of people recovered during the police search were not used in order to create false travel documents, but merely showed some of the people who had suffered under the regime in Libya; and third, KA did not know the nature of the CS gas canister which was the prohibited weapon found in his possession. The prosecution said that they “could not gainsay” these assertions. The mitigation suggested that both men were acting out of political conviction, and on a charitable basis to help those who had undergone persecution. 21. Having considered the basis of the plea, as well as the mitigation, the Recorder plainly felt a degree of sympathy for the defendants. In his sentencing remarks he described AB and KA as “perfectly decent men” who had suffered in a way “which could only be imagined.” He accepted the mitigation that their motivation was not financial profit, but the provision of assistance to others who held views similar to their own. Accordingly he imposed sentences of three and a half years imprisonment which, without the basis of plea in mitigation, might well have been considered lenient. They were released from their sentences in July 2005. They were re-arrested, with IK, on 3 rd October in connection with proposed deportation, and on 11 th December, again with IK, they were charged with the current offences. They too have remained in custody since their arrest in October 2005. 22. Self evidently the proceedings involving AB and KA, unlike those involving IK, were criminal proceedings, conducted in open court. They were convicted on their own guilty pleas, and duly sentenced. The relationship between IK, AB and KA 23. The case against IK before SIAC was largely based on material found by the police when they searched two addresses which were associated with him. The police found financial and travel documents, and importantly, an accounting log which showed the collection and distribution of significant quantities of money. No new documents of any major significance were seized from IK after his arrest in 2002. However the material seized from AB and KA following their arrests in January 2004, and the developing analysis of them, and the further evidence which became available to the prosecution, now form a central part of the present criminal prosecutions against IK. 24. Investigations into the activities of LIFG had been continuing for some time, but at the time of the SIAC proceedings involving IK, the Court was told that LIFG was not then regarded as a threat to national security. However it was proscribed on 18th October 2005. All three defendants now accept that they were members of LIFG. In the case of IK, that has always been so. So far as AB and KA are concerned, they have always admitted an association with LIFG, but claimed to belong to a group which was not a “fighting” group. The essential foundation for the evidence to support the findings of fact which would be open to the jury to make (as summarised in paragraph 5 of this judgment) came from the searches of their respective homes. This included evidence of money sent abroad, and the means to create false passports and travel documents together with what was referred to as “Jihadist material”. The conspiracy allegation in count one is based on the links between the three defendants which were gradually built up in the course of and as a result of the analysis of the product of the searches. 25. IK has always admitted sending money to persons overseas, some of whom are alleged to be terrorists, and he has also admitted creating the ledger known as PEB/48, which it will be remembered was found in the possession of KA, or at his address when KA was arrested in January 2004. IK’s fingerprints have been identified on it. The last two entries on PEB/48 relate to a name which can be shown to be AB. As to AB, the ledger known as PJQ/13 was found in his possession. The facts are necessarily very complex. However, given the issues which arise in these appeals, it is sufficient to indicate that, quite apart from the evidence on which a jury could make the findings of fact summarised by Mackay J, there is also clear evidence linking these three defendants in the alleged conspiracy. Mackay J’s decision IK 26. Mackay J’s decision was reached on the grounds of double jeopardy arising from the SIAC proceedings. He acknowledged that they were not criminal proceedings, whereas the leading cases, with the possible exception of the most recent, arose from consecutive criminal proceedings. He found that the mere fact that different parties were involved did not preclude “double jeopardy”. He acknowledged that he was being asked to extend the principle of “double jeopardy”, and, as we shall see, he was prepared to do so. 27. At the same time Mackay J rejected the argument that the issue of the section 21 certificate should be taken as an implied promise that there would be no prosecution. He found in terms that no such assurance “can possibly be read into the Crown’s conduct in this matter”. The defendant and his advisors were “very far from believing he was immune from prosecution”. 28. The critical passages in Mackay J’s judgment read: “My conclusions…are that the position he faces in this trial, unusual and unprecedented though it is, ought to be recognised as double jeopardy, and of a type which would make the current trial oppressive to a degree which requires the powerful remedy of a stay. The reality of his position is that on substantially the same or significantly overlapping facts the charges he now faces have been the subject of a decision by a superior court. As well as being unjust to him, relitigating these issues runs the risk of producing inconsistent decisions contrary to the broader interests of justice. Though SIAC is not a criminal court, I consider that its function, and the potential consequences of its exercise of them, was so close to that description as to indicate that the double jeopardy principle should be applied and my discretion should be exercised in favour of the application”. AB and KA 29. The applications on behalf of AB and KA were also advanced on the basis of double jeopardy arising from the proceedings in Birmingham Crown Court during 2004. Mackay J began by rejecting arguments based on bad faith or malpractice by or on behalf of those responsible for the prosecution, saying at para 70: “I am quite satisfied that the police here acted in good faith throughout, and reject Mr Munyard’s suggestion that the lesser charges were used, after pleas of guilty were entered, as a type of holding exercise, to have the defendants imprisoned while the more serious charges were considered at leisure ”. 30. Mackay J was prepared “fully” to accept that the cases against all three defendants were “complex and require time and manpower to investigate”, but he felt that this would or must be a feature common to many such cases. DS Lloyd gave evidence that the material seized continued to be studied after they were sentenced “to support the original warrants” by which he meant “to see if (the exhibits) are providing any evidence of terrorism”. But Mackay J was “struck by the fact that no attempt was made at any stage to slow down or adjourn the first prosecution, which proceeded at a brisk pace throughout, to permit further investigation as to whether more serious charges were warranted”. 31. Basing himself on R v Beedie [1998] QB 356 Mackay J concluded: “I am also satisfied that before these men’s cases were disposed of in the Birmingham Crown Court, while the Crown may not have had a complete case against them under the terrorism legislation there was ample material in their hands to alert them to the more serious implications of these men’s activities ” 32. The precise significance of these observations was disputed. Mr Blaxland QC for AB and Mr Munyard for KA sought to argue that the absence of an express finding, meant that Mackay J had come to no concluded view whether there was sufficient evidence with which to charge AB and KA with the instant offences. Certainly, he did not expressly reject their submissions that there was sufficient such evidence. However, we have examined his language in the context of his analysis of the submission that these defendants had been deliberately “undercharged” and the process abused by the police, as well as the later observations in his judgment. It is clear that the judge concluded that as at May 2004 the material available to the Crown was insufficient to justify terrorism charges. If he had concluded otherwise, he would have said so expressly, first, because such a finding would have been highly relevant to the way in which he addressed the submission that the defendants had been deliberately undercharged, and second, because it would have provided significant additional support for his eventual ruling that the prosecution should be stayed. 33. Mackay J finally considered whether this should be treated as a double jeopardy case in which any “special circumstances” might arise. However, notwithstanding the “new facts” which post-dated the convictions at Birmingham Crown Court, and which had come from abroad, and were indeed slow in coming and difficult to obtain, he exercised his discretion to order a stay. The submissions 34. We must start with three broad observations on the submissions addressed to us on behalf of the defendants. First, we recognise that the summary of counsel's submissions will not do justice to the immense amount of learning deployed. Given the nature of these proceedings, we have sought to do no more than briefly summarise the essential contentions. 35. Our second observation is that from time to time we have had some difficulty in understanding precisely what was being urged on behalf of the defendants. Sometimes the focus was clear and obvious, the ground was double jeopardy. Sometimes the focus was some rather wider aspect of abuse of process, and sometimes, the forensic appeal was directed to a broad concept of fairness. At times indeed there were concentric circles to the argument, with double jeopardy as the inner ring, and unfairness and abuse of process the outer. More than once we had to remind ourselves that Mackay J gave leave to appeal on two specific issues. 36. On the basis that we might conclude (as we now have) that Mackay J did not find that there was sufficient evidence available to the prosecution to justify terrorism charges before the conclusion of proceedings at Birmingham Crown Court, Mr Blaxland and Mr Munyard submitted that he came to the right result, but for the wrong reasons. He should have concluded that there was sufficient admissible evidence to require the defendants to be charged with terrorist offences. This raised the third problem, and we adjourned the hearing for argument both on the question of jurisdiction, and the merits. 37. The right given to the prosecution to appeal a terminating ruling was introduced by Part 9 of the Criminal Justice Act 2003 (“ the 2003 Act ”). This supplemented the right to appeal interlocutory rulings in preparatory hearings in serious or complex fraud cases ( section 9(11) of the Criminal Justice Act 1987 ) and interlocutory rulings in preparatory hearings for complex, serious or lengthy cases ( section 35(1) of the Criminal Procedure and Investigations Act 1996 ). Sections 57 and 58 of the 2003 Act make general provision for an appeal to this court by the prosecution with leave of the judge, or the Court of Appeal. Section 61 provides: “ (1) On an appeal under section 58, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates. (2) Subsections (3) and (5) apply where the appeal relates to a single ruling. (3) Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence. (4) Where the Court of Appeal reverses or varies the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following- (a) order that proceedings for that offence may be resumed in the Crown Court, (b) order that a fresh trial may tale place in the Crown Court for that offence, (c) order that the defendant in relation to that offence be acquitted of that offence, (5) But the Court of Appeal may not make an order under subsection 4(a) or (b) in respect of an offence unless it considers it necessary in the interest of justice to do so.” 38. Our attention was particularly focussed on sub- section (5 ). Essentially, the argument came to this: if the court decides to reverse or vary a ruling under section 61(1) it may only exercise its powers under sub-section (4) (a) or (b), where it is “necessary in the interest of justice to do so”. Inevitably, therefore, this requires consideration of whether the judge should have come to the same conclusion that it was right to stay the proceedings, but for different reasons. 39. The point is a short one, and the argument was limited. Parliament has made no express provision for any defence “cross appeal”. Appeals by the prosecution usually require urgent attention, which, unless there is an appeal from a decision to withdraw a case from the jury, would not normally permit a wide ranging review of the evidence. However, we see some force in the submission that the “interests of justice” test would be sufficiently broad to encompass, on a particular set of facts, consideration of an issue upon which the judge had ruled against the defence, but which was integral to the ruling and to the ground of appeal upon which leave was given. Mr Hilliard for the Crown on this issue conceded as much. We wish to emphasise, however, that this approach does not lead to the conclusion that an appeal by the prosecution enables the defence to raise issues which are not the subject of and at the heart of the ground of appeal upon which leave to appeal was given. Those issues are to be determined in the normal course of the trial, and any appeal following conviction. 40. Mr Hilliard did not argue that this was a clear case in which the defendants were seeking to raise an issue which fell well outside the proper ambit of the present appeal. He suggested that this case should be treated as “borderline”. Given that the only ground of appeal upon which leave was given so far as AB and KA were concerned was: “What material is to be considered in deciding whether a criminal charge is founded upon particular facts”, this was perhaps a generous concession. However, in the light of the Crown’s stance, in the particular circumstances of this case, we decided to hear submissions from counsel for the defendants on the question whether it was open to Mackay J to rule that there was insufficient admissible evidence upon which to charge AB and KA with terrorist offences in the Spring of 2004. IK 41. Mr Ian Burnett QC, on behalf of the Crown, submitted that in relation to the proceedings involving IK, the principle of double jeopardy was confined to criminal proceedings and that Mackay J was wrong to extend them as he did. He pointed to the significant, and acknowledged, differences between proceedings in SIAC and in the Crown Court, arguing that as a matter of principle, the double jeopardy rule should be confined to criminal proceedings, or at its lowest, should not be applied either to deportation decisions or cases decided under the anti-terrorism statutory scheme. Moreover, he argued that the SIAC decision was based on quite different grounds from those relied on by the prosecution in the present proceedings, focussed as it was on the SSHD’s failure to establish a sufficient link with Al Qaeda, something which is irrelevant to the present prosecution. 42. Mr Edward Fitzgerald QC suggested that the judge was entitled to exercise his discretion as he did. He accepted that the decision applying the principles of double jeopardy to the proceedings before SIAC, extended the boundaries of that concept. However, he pointed out that the circumstances in which double jeopardy may come into play do not admit of exhaustive definition, and he particularly emphasised that under the ATCSA regime, a person was at risk of losing his liberty, and that such loss, whatever its intended purpose will be suffered as a penalty. Accordingly, since the underlying facts relative to both sets of proceedings are broadly similar, it was fair that the concept of double jeopardy should be applied, and unfair that it should be withheld. 43. He raised a number of other matters relating to statements made by IK in the SIAC proceedings, on the basis (it was said) that IK understood that he would not be prosecuted. Such statements would now be deployed against him if he were to be tried. This and a number of subsidiary issues raised by Mr Fitzgerald about the possible fairness of any criminal proceedings were considered by Mackay J. He found, in our view rightly, that they fall within the ambit of the trial judge’s control and discretion, and his overriding responsibility for the proper conduct of the trial. 44. The essential question was, therefore, the application of the principle of double jeopardy in relation to the SIAC proceedings. Mr Fitzgerald however further submitted that if his submissions did not find favour, the entire certification process should be deemed to have involved the determination of a criminal charge within the “autonomous meaning” of article 6 of European Convention of Human Rights. He drew attention, by way of analogy, to the proper categorisation of a decision relating to the enforcement of the community charge. ( Benham v UK [1996] 22 EHRR 293. AB and KA 45. Mr Burnett’s submission in relation to Mackay J’s decision in AB and KA focussed on two aspects of the factual context, first, the rejection of any suggestion of bad faith or malpractice, and second that the judge accepted that at the time when A and B tendered their pleas at Birmingham Crown Court and indeed when they were sentenced in May 2004, there was insufficient evidence to justify the police charging either of them with terrorist offences. His essential submission was that Mackay J had wrongly elided two distinct issues, the facts on which the prosecution at Birmingham Crown Court depended, and the facts which were or could have been known to the police, but which were not then relied on or available to be used by them. Mr Burnett asked rhetorically, if by error it was only appreciated after the events that one of the persons to whom the passport had been supplied was a terrorist involved in the 11 th September atrocity, it would surely be permissible for a prosecution based on a terrorist offence to be pursued. He pointed out that the trial at Birmingham proceeded with unusual alacrity. Much of the evidence now relevant to the present prosecution emerged after May 2004. 46. Mr Blaxland, whose submissions were adopted by Mr Munyard, supported Mackay J’s decision on the basis that the material available to the Crown at the time of the proceedings before Birmingham Crown Court was sufficient to alert them to the possibility of bringing charges under the 2000 Act . He suggested that AB and KA had co-operated throughout the proceedings at Birmingham, and having served their sentences, were now being prosecuted for offences based on substantially the same course of conduct as that alleged against them in the proceedings arising from their admitted involvement in forgery activities. The judge was accordingly entitled to conclude that this would be oppressive. As we have already indicated, he further submitted that the judge should have found that by May 2004 the evidence required to charge the terrorist offences now under consideration already existed. That was sufficient to justify the terminating ruling. 47. Mr Hilliard in response to these submissions argued that after Mackay J’s careful examination of the facts, and all the relevant evidence, he plainly rejected the contention that these defendants should have been charged with terrorist offences by not later than May 2004. A number of important matters justifying the charge had come to light after that date. Of these, perhaps the most significant, was evidence which linked these defendants with the terrorist aspect of LIFG. At Birmingham Crown Court, their contention, and the Crown could not gainsay it, was that their objective was to provide humanitarian assistance, not engage in or promote terrorism. At that stage the Crown could not prove otherwise: from subsequent analysis of the available material, coupled with further information, much of it from abroad, it can now do so, and the proceedings should continue. The Legal Principles 48. The plea in bar of criminal proceedings on the basis that the defendant had been exposed to double jeopardy is rare, not least because the principles are familiar and clear. The continued survival of the principle is confirmed for the purposes of extradition proceedings by references in sections 11 and 12 of the Extradition Act 2003 to the “rule against double jeopardy”. Express legislation was introduced in the Criminal Procedure and Investigation Act 1996 to address and disapply the principle where an earlier acquittal was tainted. A further statutory exception to the rule was created for specific qualifying offences by section 75 to section 77 of the Criminal Justice Act 2003 . Accordingly, unless abrogated by statute, the continued application of the double jeopardy principle as a plea in bar is not in doubt. 49. In this appeal the clearest analysis of the principles is to be derived from the decision of the House of Lords In Connelly v DPP [1964] AC 1254 , and in particular, the now repeatedly cited passages in the speech of Lord Devlin at 1359-1360: “As a general rule a judge should stay an indictment…when he is satisfied that charges therein are founded on the same facts as the charges in the previous indictment on which the accused has been tried, or form or are part of a series of offences of the same or similar character as the offences charged in the previous indictment…but a second trial on the same or similar facts is not always unnecessarily oppressive and there may be in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of that particular case, exercise his discretion as to whether or not he applies the general rule”. 50. Consideration of the principles relating to double jeopardy lead naturally to consideration of the question whether any particular set of criminal proceedings constitutes an abuse of the process of the court. The power of the court to protect its processes from abuse, and to order that a criminal prosecution should be stayed is sufficiently well established to preclude any anxious parade of legal authorities which support the principle. Again, however, it would be helpful to the argument advanced before us to note the further observation of Lord Devlin in Connelly that : “If the Crown was allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, it would be a grave danger of abuse and injustice to defendants…. There is another factor to be considered, and that is the courts’ duty to conduct their proceedings so as to command the respect and confidence of the public. For this purpose it is absolutely necessary that issues of fact that are substantially the same should whenever practicable be tried by the same tribunal and at the same time…no system of justice can guarantee that every judgment is right, but it can and should do the best to secure that there are not conflicting judgments in the same matter”. 51. We must refer to two cases cited to Mackay J. In R v Beedie [1998] QB 356 a defective flue in a gas fire caused the death of a tenant. The landlord was prosecuted for breaches of the relevant Health and Safety Regulations. He pleaded guilty before the Magistrates. He was fined. Further proceedings were taken against him by the local authority under the Housing Act 1985 . Again, he pleaded guilty. He was granted a conditional discharge. In both sets of proceedings the death of the tenant was opened as part of the prosecution case. At the inquest into the death the Coroner ordered the defendant to give evidence, indicating that as he had already been prosecuted he was no longer in criminal jeopardy, and he therefore could not suffer prejudice by answering incriminating questions. A verdict of unlawful killing was returned. Later, the defendant was charged with manslaughter. An application to stay the indictment on the ground of autre fois convict was rejected. Accordingly he pleaded guilty. On his appeal, this court concluded that the proceedings should have been stayed “because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions, and gave rise to prosecution for an offence of greater gravity, no new facts having occurred, in breach of the principle in R v Elrington [1861] 1 B and S 688”, and the observations of Cockburn CJ that “whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form”. The appeal did not succeed on the basis that the judge was wrong to reject the plea of autre fois convict. This would apply only where the same offence was alleged in the second indictment as in the first. Rose LJ considered Lord Devlin’s observations in Connelly, and reminded himself of the further observation by Lord Reid that he could not “disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial”. In short, the essential feature of the decision was disapprobation of a prosecution for an offence of greater gravity in the absence of new facts. Nothing in Beedie suggests, for example, that a defendant who has been convicted of inflicting grievous bodily harm with intent may not be prosecuted for murder if the victim of the attack dies after the defendant’s conviction of the section 18 offence.( R v Thomas [1951] KB 26 ) 52. In Fofana and Belise v Deputy Prosecutor Thubin, Tribunal de Grande Incidents de Meoux, France [2006] EWHC 744 the Administrative Court considered whether the appellants’ extradition was barred on the ground of double jeopardy. The appellants were arrested in June 2005 taking delivery of a consignment of computer equipment. The authorities in France, who were anxious to achieve the appellants’ extradition, issued a warrant which proceeded on the basis that the arrest in this country was connected with a serious and widespread conspiracy to defraud. Before the extradition proceedings could go ahead, it was decided that the appellants should be prosecuted “in respect of substantially the whole range of transactions” alleged with varying particularity in the warrant. In the end, however, the CPS sought committal to the Crown Court on a single charge of using a false instrument, effectively confined to the offence which had led to the arrest June 2005, but supporting the allegation by reference to allegedly false documents relating to the transactions originally charged. After considering Connelly and Beedie , and a passage in the speech of Lord Hutton in R v Z [2000] 2 AC 483 , it was agreed by both sides that for the purposes of the Extradition Act “double jeopardy” should “be taken to include both the plea in bar and the long established jurisdiction of the court to stay proceedings as an abuse of process. Either constituent is a means of protecting a defendant from “double jeopardy”. 53. Auld LJ continued, after analysing the essential features of the case, at para 28 that “The fact that it (the Crown Prosecution Service) chose to frame a prosecution on only one transaction, notwithstanding the material as to others available to it and lying, albeit unused, in the prosecution papers, would, I think, make it difficult for an English judge to resist an application for a stay of an abuse of process such a prosecution as that now sought by the French authorities in these extradition proceedings”. 54. This sentence can be misunderstood. Even if his language was appropriate to describe double jeopardy as it applies to a plea in bar and was not confined to proceedings under the Extradition Act, Auld LJ was not addressing material of which the CPS was ignorant, or which it had no chance to analyse and assimilate or which it should have analysed and did not. The CPS was fully possessed of all the relevant information which would have enabled it to proceed with the prosecution on a very wide basis, but it “chose to frame the prosecution on a single transaction”. The relevant material was actually available to it, in the sense that it was considered, and the CPS decision was made when it was fully informed of all the essential facts. 55. Mackay J’s attention was also drawn to the then recent decision of this court in R v L [2006] 1 WLR 3092 . A baby died while in the care of his parents. In care proceedings it was held that, while the death was undoubtedly culpable, it was not possible to say which of the two parents had caused the fatal event. The father was subsequently prosecuted on what were accepted to be the same essential facts and convicted of manslaughter. He sought to appeal on the basis that the prosecution, having regard to the finding in the care proceedings, should have been stayed as an abuse of process. This court concluded that the trial judge had been right to refuse a stay. Para 60 of the judgment reads: “…..In our view, once it is appreciated that in the care proceedings the appellant was not being prosecuted, and that he was never at risk of conviction, and that the judge who decided those proceedings lacked jurisdiction finally to exonerate or condemn the appellant and, if to condemn him, to pass sentence, any such concerns would be quickly extinguished. Indeed public concern might be greatly engaged if it were thought that criminal proceedings affecting the public interest, and in this case the death of a baby, had in effect been decided by a court lacking due authority, and not “competent” for the purpose. These concerns would be that much greater, if, as here, the determination were made in private.” Conclusions in relation to IK 56. It was accepted before Mackay J, and he acknowledged, that previous successful applications for a stay based on the fact of previous proceedings (whether on the grounds of double jeopardy, or broad abuse of process or fairness grounds) have been restricted to those cases where both sets of proceedings were criminal proceedings. 57. It is true that, as Mr Fitzgerald cogently argued, the consequence of the certification proceedings under section 21 , as they affected IK, was that he was deprived of his liberty, and that this continued until SIAC decided that the certificate should be cancelled. However, IK was not being prosecuted, and he was never at risk of conviction. When he was detained, he was not being punished for any offence. Indeed one of the great concerns about the certification process was the detention of an individual when a prosecution, and therefore conviction, were out of the question. In our judgment, the proceedings before SIAC were indubitably not, and did not determine, criminal proceedings. 58. Moreover, if IK were to be convicted of these present terrorist charges, there would be no inconsistency between SIAC’s decision (reached on the basis it was) and the verdict of the jury (which would be reached on completely different evidence.) The present proceedings will involve the deployment of a considerable body of additional evidence, much of it obtained following the searches of the premises of the other defendants, and on the basis of which the joint charges are now made against all three of them. Furthermore, the issues in the SIAC proceedings were different and are not replicated in these proceedings. In particular, it was a specific feature of the certification decision that IK was associated with Al Qaeda, and the absence of sufficient evidence to establish this contention to the satisfaction of SIAC was critical to the decision that the certificate should be cancelled. The issues raised in these proceedings are considerably broader, and the allegations of terrorist activity go well beyond any alleged association with Al Qaeda. 59. The reality is that SIAC was not a “competent” court for the purpose of criminal proceedings, just as the family court was not a “competent” court for these purposes in R v L . There are obvious differences between care proceedings and those which engage the attention of SIAC. However both are non-criminal proceedings, held in private, and the essential public interest features which underpinned the decision in R v L apply to this case. 60. In our judgment, as a matter of principle, double jeopardy is not available as a plea in bar unless both sets of proceedings under consideration are criminal proceedings. Given the developing jurisprudence in relation to abuse of process there is no realistic scope for, nor any purpose in, developing the concept of double jeopardy beyond its established limits. Anything falling outside these limits which savours of abuse of process, or unfairness, or oppression, can be addressed and decided on now well established principles which retain a valuable measure of flexibility to allow for further development, as and when necessary. 61. In these circumstances it was inappropriate for the principles of “double jeopardy” to be extended and applied to the proceedings before SIAC and these present criminal proceedings. As this formed the essential foundation for the conclusion that the current trial of IK would be oppressive, the stay order made by Mackay J should be set aside. Conclusions in relation to AB and KA. 62. Mackay J’s decision proceeded on the basis that the case involving these defendants amounted to double jeopardy within the ambit described in Beedie. It was not, as the decision in IK was, based on a purported extension of double jeopardy principles. Both sets of proceedings were criminal, but they addressed quite different offences. The material used in the forgery prosecutions will again be deployed in the present proceedings, but the forgery proceedings did not include any allegation, direct or indirect, relating to terrorist activities, and although investigations were in progress, the self-proclaimed humanitarian motivation of the defendants formed a critical ingredient of them. The Crown suggests, and will seek now to prove, that these claims were utterly misleading. Based on the evidence currently available it is alleged that these defendants were involved in terrorist activities, and that these activities are now linked to IK. 63. We have specifically addressed the question whether there was sufficient evidence available to the police either by March 2004 (when the defendants pleaded guilty to forgery offences) or May 2004 (when they were sentenced) which would have justified charging them with these terrorist offences. It is, of course, a well understood obligation of the prosecution that a defendant should not be detained without charge when sufficient evidence to charge exists. We have considered the material drawn to our attention. We can see no basis for interfering with Mackay J’s conclusion on this issue. In particular, we reject the suggestion that either defendant made admissions in interview which would have supported terrorism charges. The stark reality is that the evidence to justify prosecution for these terrorism offences was not available in May 2004. In any event, we do not consider that the question of double jeopardy is answered by considering whether or not there was evidence in existence, and available to be analysed by the prosecution, which would, if so analysed, have justified charging the defendants with the present offences, at the time when they pleaded guilty and were sentenced for forgery offences. 64. In essence Mackay J’s decision was based on the premise that the material available to the Crown during the early part of 2004 should have been sufficient to alert the police to the fact that there might have been more serious implications to the proved activities of the defendants than forgery, and that no attempt was made to hold up the forgery proceedings while the further material was properly investigated. It was conceded in argument that this amounted to a considerable extension of the principles of double jeopardy. So it did. We can see no warrant or necessity for any such extension, in effect for the same reasons which led to our decision in IK. If on the basis of bad faith, oppression, or a high degree of police incompetence conducive to a miscarriage of justice, these proceedings amounted to an abuse of process, Mackay J would have halted them. Such grounds were not established. 65. Further the evidence relating to the forgery offences was not the same or substantially the same as the evidence supporting the terrorist offences. The facts are different, significantly so. AB and KA were not directly or indirectly in “jeopardy” for these offences, and they are not facing sequential trials for offences on an ascending order of gravity on the same facts. Accordingly, we are unable to accept that Beedie has any application to the present case. Double jeopardy was not available as a plea in bar. The decision to stay the proceedings against AB and KA was not justified, and should be set aside. 66. We also question the premise that the prosecution was under a duty to delay the original forgery proceedings. If the prosecution had sought an adjournment of the sentencing decision in May 2004, we have no doubt that the defendants, and those acting for them, would have protested vigorously. They would have been fully justified in demanding to know, and would have demanded to know, the basis for the allegations of terrorism which would have justified an adjournment, and would have extracted a concession from the Crown that there was insufficient material to justify charges. Interests of Justice 67. Finally we turn to the question of whether or not the interests of justice demand that these three defendants be tried in the Crown Court for terrorist offences. These are grave offences. It is in the public interest that they be tried unless there are compelling reasons to the contrary. Here there are none. Most of the points put before us have already been addressed by Mackay J in considering the applications to stay the proceedings on the grounds of abuse of process. He rejected them and so do we. There may have been a period of uncertainty for each of the accused, but they could have been under no illusion that they would never be prosecuted for these offences. The delay between arrest, charge and trial has not been exceptional and has not been the fault of the prosecuting or investigating authorities. By their very nature international terrorist offences are complex and take longer to investigate than most domestic offences. The authorities are dependent to a considerable extent on foreign agencies who will have their own priorities. 68. Accordingly, Mackay J’s rulings in relation to all three defendants will be reversed and in the interests of justice we order that the proceedings against each of them be resumed in the Crown Court.

2007_04_27-1090.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/971/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/971

5dbda6b780b71c3475429a6832af3edca363c9cffcce2fc224ecdfeaf39eda30

[2019] EWCA Crim 1457

EWCA_Crim_1457

2019-08-06

crown_court

Neutral Citation Number [2019] EWCA Crim 1457 No: 201802137/B1 & 201802758/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 6 August 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GOSS MR JUSTICE KNOWLES R E G I N A v ROBERT HALLIDAY 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 Co

Neutral Citation Number [2019] EWCA Crim 1457 No: 201802137/B1 & 201802758/B1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday 6 August 2019 B e f o r e : LORD JUSTICE HOLROYDE MR JUSTICE GOSS MR JUSTICE KNOWLES R E G I N A v ROBERT HALLIDAY 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 A Hamilton appeared on behalf of the Applicant J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: There are before the court renewed applications for leave to appeal against conviction and leave to appeal against sentence. One of the grounds of appeal against conviction is based upon submissions as to the significance or otherwise of the circumstances in which an earlier prosecution of this applicant was brought to an end by the prosecution's offering no evidence. In the court below submissions were made in that regard by Miss Hamilton, then (as now) appearing for the applicant, in the course of which reference was made to her understanding of what had happened in a different court on the earlier occasion. 2. Yesterday afternoon there was lodged with the court a small bundle of documents, including an unsigned written statement from counsel who represented the applicant in the earlier proceedings. This morning, unexpectedly, oral application has been made for former counsel Miss Tate to give oral evidence to this court. 3. In our judgment, that can only be regarded as an application to adduce fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968 . It immediately runs into insuperable obstacles. No proper application to adduce fresh evidence has been lodged, no notice has been given to the respondent, the respondent is not represented, and - as is readily conceded by Miss Hamilton - it is not possible for her to say that the evidence of Miss Tate could not have been placed before the lower court earlier in these proceedings. 4. We are bound to say that it is quite unacceptable for an application of this nature to be made without warning at the outset of a hearing of renewed applications for leave to appeal, no proper steps having been taken and no notice having been given. 5. The merits of the points which Miss Hamilton wishes to advance about the circumstances in which the previous prosecution ended will no doubt be the subject of further submissions from her and they will of course be considered by the court, but so far as the application to adduce oral evidence before this court is concerned, it is refused. (There followed submissions on the applications for leave to appeal against both conviction and sentence) 6. LORD JUSTICE HOLROYDE: This applicant was convicted of two offences of rape. He was sentenced to an extended sentence comprising a custodial term of 13 years and an extended licence period of seven years. His applications for leave to appeal against conviction and against sentence were refused by the single judge. They are now renewed to the full court. 7. The victim of the rapes, to whom we shall refer as VA, is entitled to the protection of the provisions of the Sexual Offences (Amendment) Act 1992 . So too is a prosecution witness who also complained of being sexually assaulted by the applicant, to whom we shall refer as SP. Accordingly, during their respective lifetimes, no matter may be included in any publication if it is likely to lead members of the public to identify either of them as a victim of any of the offences. 8. For present purposes the salient facts can be summarised briefly. On the night of 17 November 2017, VA went out with a female friend. She had a lot to drink and became separated from her friend. In the early hours of the following morning she was clearly intoxicated. Taxi drivers at a rank refused to take her as a passenger. A nearby restaurant refused her entry and CCTV footage showed her walking bare foot carrying her boots. 9. Around 1.30 am she again tried, without success, to hail a cab. CCTV showed that the appellant then drove his car, which had been stationary nearby, towards VA and pulled up beside her. VA got into the car. Her evidence at trial was that she could not remember exactly what happened, but must have thought that she was getting into a taxi. 10. An hour or more later the applicant dropped VA off at a McDonald's take-away some considerable distance away. Customers saw that VA was plainly distressed. On her lower half she was wearing only her knickers. She immediately complained that she had been forced to have sex. 11. Her evidence at trial was that in the intervening period the applicant had driven her through an area she did not recognise and had eventually come to a cemetery which she did recognise. She had said that she needed the toilet. The applicant had stopped and, she alleged, had pushed her head down towards her crotch and made her take his penis in her mouth. She in consequence wet herself, which she said made him angry. He told her to get into the back seat of the car. She did so and there he raped her vaginally. 12. The applicant was arrested later on 18 November. He said that he had given VA a lift, in the course of which he had simply followed her directions as to where she wanted to go. She had asked him to stop because she needed to relieve herself, and when she got out of the car for that purpose he said he had noticed a damp patch on the passenger seat. He had pointed this out to her on her return to the car and she had been embarrassed. As he then drove on, he said she had started kissing him and had suggested that they have sex. He denied the allegation of oral rape and said that the vaginal intercourse which admittedly occurred was consensual. 13. The witness SP gave evidence of an incident in July 2015 when in the early hours of the morning, after she had been drinking heavily, the applicant had given her a lift in his car. She alleged that in the course of doing so he had digitally penetrated her vagina without her consent. She had reported this to the police. The applicant was charged but the prosecution offered no evidence in 2016 and the applicant was accordingly acquitted of that allegation of assault by penetration. 14. The first ground of appeal against conviction, advanced in detail both in writing and in oral submissions by Miss Hamilton, who represents the applicant before this court as she did in the court below, challenges the ruling by the judge permitting the prosecution to adduce SP's evidence as evidence of the bad character of the applicant. She submits that the decision to offer no evidence in the case relating to SP was taken wholly, or at least in part, because SP was regarded by the prosecuting authority as an unreliable witness. Miss Hamilton submits that the prejudicial effect of SP's evidence in this trial outweighed any probative value and rendered the trial unfair. She says that the prosecution were wrongly permitted to use a weak allegation by SP, which had been the subject of a prosecution which had ended in acquittal, to bolster a weak allegation now made by VA. Moreover, she submits the adducing of SP's evidence introduced undesirable satellite litigation which required the calling of a number of witnesses in addition to SP and diverted the jury from focusing on the real issues in the case relating to VA's allegations. 15. The second ground of appeal complains that prosecuting counsel, contrary to an express ruling by the judge, wrongly addressed the jury in his opening speech in terms which asserted that SP had become unable to give evidence in 2016 because she had been traumatised by what the applicant had done to her. It is submitted that there was no evidence which could support such an assertion, quite apart from the judge's ruling prohibiting the drawing of any such causative link. Miss Hamilton submits that the references made to such a causative link by prosecuting counsel severely prejudiced the applicant in the eyes of the jury. She points out that this occurred at a very early stage of the trial. The judge, she submits, should have granted the application which she made immediately after the opening speech to discharge the jury and to start afresh with a new jury. 16. The third ground of appeal challenges the refusal by the judge to grant defence applications made pursuant to section 41 of the Youth Justice and Civil Evidence Act 1999, and also put forward as a bad character application, in relation to evidence concerning SP. The defence wished to adduce evidence to the general effect that SP had on occasions in the past behaved in a sexually uninhibited way after she had been drinking, and that on the night in question in 2015 had been described by one of her companions as being "all over" a man in a bar shortly before she got into the applicant's car. 17. The fourth ground of appeal challenges a ruling by the judge refusing to exclude prosecution evidence to the effect that nine days before his encounter with VA, the applicant had been driving in the early hours of the morning in an area of Leicester known to be the location of prostitution. The prosecution's case was that this outing was in the nature of a reconnaissance mission or a dummy run for what was to follow on the night the applicant picked up VA. The defence submitted that the evidence served no legitimate purpose whatsoever and was an invitation to speculation by the jury which was prejudicial to the applicant. 18. Finally, the fifth ground of appeal against conviction contends that the cumulative effect of the various challenged rulings was to render a straightforward trial unduly complex, to add substantially to its length and to distract the jury from the real issues, all of which worked to the severe prejudice of the applicant and had the consequence that he could not and did not receive a fair trial. 19. These various grounds of appeal against conviction were all resisted in a Respondent's Notice which we have considered. 20. We have read each of the relevant rulings given by the judge, His Honour Judge Head. As to the first ground of appeal, the judge accepted the prosecution's submission that SP's evidence was capable of showing that the applicant had a propensity to commit serious sexual offences against vulnerable women and was accordingly admissible under section 101(1)(d) of the Criminal Justice Act 2003 , notwithstanding that the applicant had been acquitted of the alleged offence against SP. The judge was further satisfied that the evidence did not fall to be excluded on grounds of fairness. 21. Having reflected on Miss Hamilton's submissions, we are satisfied that there is no basis on which this first ground of appeal can be argued. VA and SP were unknown to one another. Neither knew of the other's complaint and yet, as the prosecution submitted, they each gave accounts which were very similar in a number of respects. Both gave evidence of events which occurred late at night and which involved the applicant having driven significant distances from his home to cities in the East Midlands. In each case the applicant had travelled alone. In each case he had remained in his vehicle loitering for no apparent reason in busy city centre areas, frequented by persons socialising and drinking. In each case he had observed, approached and picked up a lone female. In each case that lone female was visibly intoxicated, stranded and extremely vulnerable. In each case she believed that the applicant was a taxi driver. In each case she had been driven to a secluded location and there detained against her will and subjected to a serious sexual assault, one involving digital penetration, the other involving penile penetration. Thereafter the applicant had in each case left the women far from their intended destinations. In each case he had taken items of their property, including their mobile phones, making it necessary for each of them to seek the assistance of members of the public in order to contact the police. After each of these incidents, the applicant had returned directly to his home. In each case when questioned by the police he had claimed that the woman concerned had not only consented to, but had actively instigated, the sexual activity which he agreed had taken place. 22. We do not see how the detailed submissions which have been made as to the circumstances in which the prosecution offered no evidence in 2016 can assist the applicant. Although there were differing accounts before Judge Head as to the reasons for that course being taken, it was not and is not alleged that either the CPS or prosecuting counsel had condemned SP as a witness who was deliberately giving an untruthful account of events. Given that she was plainly intoxicated and had expressed doubt about her ability to remember matters, and given also that at that stage her evidence of course fell to be considered in isolation, it is understandable that the prosecution decided that the case should not proceed. But this is not a case in which it can be said that the prosecution acted unfairly by first asserting that a witness was untruthful and then seeking to rely upon the same evidence in different proceedings. The decision in R v Z [2000] 2 AC 483 shows that a witness may give admissible evidence of the bad character of an accused even where that witness has previously given the same evidence as a complainant in a trial and even where the jury in that trial has not been sure of the guilt of the accused. Here, SP's evidence never had been considered by a jury, and the jury trying this applicant were able to assess her credibility and reliability for themselves. 23. In those circumstances, the judge was entitled and in our view correct to find that SP's evidence was admissible, because it was relevant to issues in the case as to whether the applicant had a propensity to behave in the manner alleged and whether VA's evidence was true. Miss Hamilton submitted that the judge's ruling contravened principles laid down in a familiar passage from the judgment of the court in Hanson [2005] 2 Cr.App.R (S) 21 given by Rose LJ at paragraph 9. We are not persuaded by that point. It seems to us that SP's evidence in the present case had obvious probative value in rebutting the innocent explanation which the applicant put forward for his encounter with VA. The jury were correctly permitted to consider the unlikelihood of similar accounts being given by two women who had no knowledge of one another. The applicant was not exposed to double jeopardy. In our judgment no arguable unfairness arose from the jury considering the evidence of SP, and although that evidence necessarily added to the length of the trial it did not constitute satellite litigation which adversely affected the fairness of the trial. 24. As to the second ground of appeal, the judge indicated that he had been given an express assurance by prosecuting counsel that there had been full disclosure of any material in the hands of the prosecution which could have undermined SP's credibility or reliability. He agreed that prosecuting counsel when addressing the jury had gone beyond the limits of that which the judge had permitted him to say. The judge did not however take the view that counsel's remarks to the jury could have caused such unfair prejudice as to make it appropriate to discharge the jury. The opportunity would arise during the trial, as the judge noted, for SP to be cross-examined about her reasons for not wishing to give evidence in 2016. The jury would again be able to form their own view as to her reliability. 25. Whilst the conduct of prosecuting counsel in saying something which he had expressly been told not to say is to be deprecated, the judge in considering the application to discharge the jury was not exercising a punitive jurisdiction against counsel. As the judge with conduct of the trial, he was in the best position to assess the extent, if any, to which an inappropriate remark by counsel would give rise to unfair prejudice. We see no basis for challenging the decision reached by the judge that discharge of the jury was neither necessary nor appropriate. 26. As to the third ground of appeal, the judge ruled that the evidence which the defence wished to adduce would plainly contravene the provisions of section 41. It would clearly amount to the type of cross-examination which section 41 was intended to prevent, by suggesting that because a complainant had consented to sexual activity on another occasion, she must therefore have consented to sexual activity with the accused on this occasion. We agree. The judge's ruling in relation to section 41 was plainly correct. In so far as the application was coupled with a bad character application, no separate relevant considerations arise. There is, in our judgment, no basis on which the judge's ruling could be challenged. 27. Turning to the fourth ground of appeal, there was no factual challenge to the evidence that the applicant had some nine nights earlier been driving in an area known for prostitution. The explanation he had given when asked about what he was doing was that he had gone there to meet a woman for sex, but he refused to name the woman concerned. His explanation for visiting Leicester on the night of the alleged rapes of VA was that he had gone there to visit a friend who lived in that area. However, he admitted at trial that that explanation was untrue and that not only had he not been going to visit the friend but the friend did not live in that area at all. The jury were in those circumstances entitled to consider whether the two trips to Leicester nine nights apart were connected. The evidence was admissible and relevant to support the prosecution case that when the applicant picked up VA he was acting as a predator, not - as he claimed - as a good Samaritan. Again, we can see no ground on which the judge's ruling could be challenged. 28. We have considered these several grounds of appeal collectively as well as individually and we have reflected upon Miss Hamilton's submission that the cumulative effect was to deprive the applicant of a fair trial. We are satisfied that whether taken individually or collectively these grounds do not even arguably cast doubt on the safety of the convictions. The renewed application for leave to appeal against conviction accordingly fails. 29. We turn to the renewed application in relation to sentence. The applicant had previous convictions including for offences of soliciting and indecent assault, but those convictions had been recorded many years ago. The judge in his sentencing remarks placed these offences of rape into Category 2A of the relevant sentencing guideline, for which the starting point is 10 years' custody and the sentencing range is from nine to 13 years. The judge held that the features of the offences and the fact that there were two offences rather than one made it appropriate to uplift that starting point to the top of the relevant category range. The judge found the applicant to be dangerous, having regard to the circumstances of the case, his findings of fact, the pattern of previous behaviour and the contents of the pre-sentence report which was prepared before the sentencing hearing. 30. The grounds of appeal against sentence are, first, that the judge should have placed the offences into Category 2B, rather than Category 2A; secondly, that the judge was wrong to find that there were Category 2 harm features of severe psychological harm, abduction and prolonged detention; and thirdly, that the judge was wrong to make the finding of dangerousness. 31. The judge assessed the culpability as falling into Category A because he found there was a significant degree of planning. He said at page 3D to E of his sentencing remarks: "I am also sure that there was a significant degree of planning that went into this attack. It was no mere happenstance that you were in this city centre in the early hours. The jury rejected your explanation that you were just taking your comparatively new car for a spin at that time and distance. The CCTV footage shows you lying in wait in Humberstone Gate until this victim drew your attention by her state, barefooted, weaving and failing to hail a taxi. That there was no long planning with regard to this victim is irrelevant. There was long planning to scout for and abduct a victim." 32. Miss Hamilton submits that there was no evidence properly capable of supporting that assessment and she contends that the applicant's conduct in picking up VA when she walked towards his car "could not have been more random." 33. We are quite unable to accept that submission. For the reasons which he gave the judge was plainly entitled to find that there was a significant degree of planning, not initially directed specifically against this victim but directed to looking out for, and when opportunity arose moving in on, a vulnerable lone woman. 34. In relation to the second ground of appeal, Miss Hamilton complains that she was given insufficient notice of a victim personal statement which was only shown to her on the day of the sentencing hearing and in which VA asserted that following the offences of rape she had made an attempt upon her own life, though had quickly regretted doing so and had formed the view that it was not she but the offender who had problems. 35. The complaint that Miss Hamilton was only shown the victim personal statement at a late stage is a legitimate one. In Chall [2019] EWCA Crim. 865 at paragraphs 34 and 35, this court emphasised the importance of compliance with the requirement in Part 7F of the Practice Direction that a victim personal statement should be served in good time so that the defence can consider whether any steps need be taken either to challenge it or to obtain contrary evidence. In the circumstances of this case, however, it appears to us that Miss Hamilton was well able to deal in her submissions with the points which she wished to make in response to the victim personal statement, and it is not a case in which the defence sought any adjournment. Chall also shows that expert evidence is not a necessary precondition of a finding of severe psychological harm. Other evidence may suffice, including the contents of a victim personal statement, although whether such evidence is sufficient will depend upon the circumstances of the particular case. 36. The judge indicated in his sentencing remarks that further reasons for placing the case into Category 2 harm were that VA had been abducted and that this was a case of "prolonged detention/sustained incident". We acknowledge that this was not perhaps a typical case of abduction, but in our view that term can properly be applied to the applicant's conduct. On the judge's findings the applicant was on the lookout for a victim and when he found one he took her into his car under the false pretence that he would take her home, whereupon he then drove in the opposite direction and continued to do so when she began protesting. Moreover, although the two acts of rape were in themselves of comparatively short duration, they were encompassed within a period of between one and one-and-a-half hours of detention. In those circumstances, we are not persuaded by Miss Hamilton's submissions that those harm factors were not present as additional reasons for placing the case into Category 2 harm, and therefore as reasons for moving upwards from the category starting point. But even if her submissions be well-founded, and even if the judge was wrong to rely on those factors as additional reasons for placing the case in Category 2 harm, they would undoubtedly be serious aggravating features. The case plainly did fall into Category 2 harm because, as Miss Hamilton realistically acknowledges, the heavily intoxicated victim VA was particularly vulnerable due to her personal circumstances. 37. The judge, as we have indicated, found this to be a case of Culpability A because of the significant degree of planning and in our judgment he was plainly entitled to reach that conclusion. In those circumstances, and looking at the case overall, the custodial term of 13 years, coming as it does at the top of but within the Category 2A range, cannot in our judgment even arguably be said to be manifestly excessive. 38. Turning to the issue of dangerousness, the judge indicated in his sentencing remarks that he was sure that the applicant had committed the offence of assault by penetration against SP and he was also sure that the incident represented the start of a pattern of planned offending which was repeated against VA. At page 5D to G he went on to say this: "I am wholly satisfied on all the material I have considered that you are dangerous in the statutory sense. You have an entrenched history in your twenties of soliciting prostitutes from a car and an indecent assault. In your evidence you told the jury of your engaging in casual sex while in an established sexual relationship with another partner. You have twice within two-and-a-half years sexually attacked women in strikingly similar circumstances amounting to targeting drunkenly vulnerable women late at night, a long way from your home, abducting them by pretending to be a compassionate lift-giver, but taking them to a secluded spot and then penetrating them with digits or penis. So far as VA is concerned, you then went to very great lengths with your car and your clothes to suppress evidence of your encounter with her. You are clearly convinced that you are a misunderstood and compassionate man and painted a picture of yourself on each occasion of giving way to sexual advances by your victim. I am sure that your emerging from the prosecution for the SP matter unscathed gave you a feeling of invincibility." 39. Notwithstanding Miss Hamilton's submissions, the judge in our view was plainly entitled to make those findings and, for the reasons which he gave in such compelling terms, to assess the applicant as dangerous. The author of the pre-sentence report had made a similar assessment, but we reject the submission that the judge was doing no more than adopting the view of a probation officer who had himself wrongly had regard to evidence of the SP matter. 40. For those reasons, we see no arguable ground on which it could be said that the sentence imposed was either wrong in principle or manifestly excessive. Accordingly, both 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

2019_08_06-4693.xml

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1f3bdea55e16261f1f8d2d8c9b268ff931a70380cb67cc75af950e88580e2e90

[2018] EWCA Crim 1856

EWCA_Crim_1856

2018-08-01

crown_court

Neutral Citation Number: [2018] EWCA Crim 1856 Case No: 201802593 A2, 201802867 C4, 201802865 C4 & 201802864 C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT CANTERBURY AND CROWN COURT AT LEEDS Her Honour Judge Norton and His Honour Judge Marson QC S20170102 & S20180448 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/08/2018 Before: THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON LORD CHIEF JUSTICE OF ENGLAND AND WALES and THE HONOURABLE MR JUSTICE TURNER and

Neutral Citation Number: [2018] EWCA Crim 1856 Case No: 201802593 A2, 201802867 C4, 201802865 C4 & 201802864 C4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT CANTERBURY AND CROWN COURT AT LEEDS Her Honour Judge Norton and His Honour Judge Marson QC S20170102 & S20180448 Royal Courts of Justice Strand, London, WC2A 2LL Date: 01/08/2018 Before: THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON LORD CHIEF JUSTICE OF ENGLAND AND WALES and THE HONOURABLE MR JUSTICE TURNER and THE HONOURABLE MRS JUSTICE MCGOWAN - - - - - - - - - - - - - - - - - - - - - IN RE: STEPHEN YAXLEY-LENNON (aka TOMMY ROBINSON) Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Jeremy Dein QC and Kerrie Ann Rowan (instructed by Carson Kaye Solicitors ) for the Appellant Louis Mably QC as Advocate to the Court Hearing dates: 18 July 2018 - - - - - - - - - - - - - - - - - - - - - Judgment Approved The Lord Burnett of Maldon CJ: 1. To secure a fair trial for some accused of crime it is from time to time necessary for judges to make an order under section 4(2) of the Contempt of Court Act 1981 ("the 1981 Act") postponing the reporting of the proceedings before them. In doing so they must balance the interests of justice in securing a fair trial to an accused together with other interests, including free speech and open justice. Such orders are not lightly made and are subject to the application of strict rules most recently discussed in R v Sarker [2018] EWCA Crim 1341 between paragraphs [20] and [36]. 2. The appellant, Stephen Yaxley-Lennon, who uses the pseudonym Tommy Robinson for political purposes, was committed to prison for a total of 13 months on 25 May 2018 for breach of an order made under section 4(2) of the 1981 Act. The order had been made by His Honour Judge Marson QC in at Leeds Crown Court in a trial proceeding before him. In doing so the judge activated a suspended committal order of three months detention imposed by Her Honour Judge Norton at Canterbury Crown Court on 22 May 2017 for contempt of court. That arose from his filming in the precincts of the court. 3. The appellant initially appealed in time against only the sentence imposed in Leeds, but in due course expanded the appeal to seek extensions of time to appeal against the findings of contempt in both Leeds and Canterbury, despite his having accepted on both occasions that he was in contempt of court, and also against the sentence imposed in Canterbury. He contends that both sets of proceedings against him were unfair and, in particular, failed to comply with the requirements of the Criminal Procedure Rules ["the Rules"] governing applications to commit for contempt of court. He suggests that the sentences individually and cumulatively were too long. 4. On his behalf, Mr Dein QC points out that the records of proceedings in both Crown Courts treat the sentence as if it were one of imprisonment made under the Criminal Justice Act 2003 following conviction for a criminal offence with the consequences that entails. Those include the regime under which the prisoner is held in prison and release provisions. Those committed for contempt are entitled to be released having served half of the sentence and, by contrast with those sentenced for criminal offences, without condition or licence: section 258 of the Criminal Justice Act 2003. The court records are also inaccurate in referring to "conviction" as if the contempts were criminal offences. We accept that they should refer to findings of contempt and that the contemnor was committed to prison for the period in question (or record the suspended committal order). These criticisms, whilst justified, are of form not substance. A victim surcharge was also imposed which has no application to findings of contempt. 5. Appeals to this Court against any order or decision of a court in the exercise of its jurisdiction to punish for contempt of court are brought under section 13(2) of the Administration of Justice Act 1960. Leave is not required, but the appeal must be brought within 28 days (section 18A of the Criminal Appeal Act 1968) unless time is extended by the court. The challenge to the Leeds finding of contempt is 20 days out of time. With respect to all issues arising from the Canterbury committal, the applications are over a year out of time. The approach to an extension of time to bring an appeal under section 13(2) should be no less rigorous that when considering a similar question in a criminal appeal. The issues on the findings of committal 6. Part 48 of the Rules governs the procedure to be followed by the Crown Court when it deals with the conduct of a person alleged to have acted in contempt of court. The appellant contends that both the Crown Court in Canterbury and the Crown Court in Leeds proceeded in breach of the provisions of Part 48 of the Rules. 7. First, the appellant’s central position is that any failure to comply with the provisions of Part 48 is fatal to a finding of contempt, whether or not there has been an admission, and irrespective of its impact on the fairness of the proceedings. A technical or objectively inconsequential failure to comply with the Rules has the same effect as one that goes to the heart of the matter. In the alternative, he contends that even if the Court were to take a less absolutist approach to the consequences of failure to comply with Part 48 of the Rules then, on the facts underlying this appeal, the proper remedy remains to reverse the decisions of the Courts below. 8. Secondly, the appellant argues that neither court should have proceeded to deal with the alleged contempts in the way they did, that is summarily. The sentence of committal in Leeds was pronounced within five hours of the alleged contempt having occurred; in Canterbury there was an adjournment for two weeks, but still the matter was dealt with summarily rather than being referred to the Attorney General. 9. Thirdly, the appellant contends that at Leeds he was punished for matters falling outside the scope of his material contempt. The contempt related to the postponement of reporting order made under section 4(2) of the 1981 Act. The judge referred to conduct which did not fall within the scope of the section 4(2) order when sentencing and failed, in the course of the proceedings, to identify specifically or put to the appellant the conduct which he was treating as a contempt of court. 10. We are grateful to Mr Dein QC for the full arguments advanced in support of the appeal both in writing and orally; and to Mr Mably QC for his comprehensive arguments as Advocate to the Court. For the reasons which follow, we have concluded that the appellant has no legitimate complaint about what occurred in Canterbury Crown Court. However, we are satisfied that the finding of contempt made in Leeds following a fundamentally flawed process, in what we recognise were difficult and unusual circumstances, cannot stand. We will direct that the matter be reheard before a different judge. The Facts Canterbury Crown Court 11. On 8 May 2017, the appellant attended Canterbury Crown Court during the trial of four defendants for rape. The jury had already been sent out to consider their verdicts. There, he carried out filming on the steps of the court and then inside the court building. He did not enter the courtroom itself. He filmed two pieces to camera during the course of which he commented on the trial which he described as being of "Muslim child rapists". His interest in that trial, and indeed the one in Leeds, was apparently sparked by the ethnicity or religion of the defendants by contrast with the alleged victims. He published the footage he had taken on the internet. By his own admission, he had intended to film the defendants but, in the meantime, his activities had been brought to the trial judge’s attention. She took immediate steps to ensure that the defendants were escorted out of the building by another exit. On learning this, the appellant referred in his recordings to “going round their house” with the intention of capturing the defendants on camera there. Notices throughout the court building had made it clear that filming or taking photographs at court amounted to an offence and might also amount to a contempt of court. Furthermore, the appellant had been told by security staff to stop filming and that if he continued he might be committing an offence or be in contempt of court. 12. He was arrested at his home on 10 May 2017 and appeared later that day back at Canterbury Crown Court. Contempt proceedings were initiated against him but were adjourned until 22 May 2017 on which occasion he was represented by both leading and junior counsel. The judge emphasised that the contempt hearing was not about free speech, legitimate journalism or whether one political viewpoint was right or better than another. It was about ensuring that a trial could be carried out justly and fairly. The appellant had used pejorative language in his broadcast which prejudged the outcome of the case and could have had the effect of substantially derailing the trial. The appellant apologised to the court. The contempt, however, arose from filming in the precincts of the court. The judge considered that the seriousness of the contempt called for a custodial sentence. She committed the appellant to a period of three months’ imprisonment but suspended for eighteen months. She took into account the risks that the appellant might face if required to serve a term of immediate custody, given his well-known views which are deeply offensive to many. The judge made it clear that if he were to embark upon similar conduct in future it was likely that he would face immediate custody. 13. As we have noted, the proceedings resulted in the generation of documents which were appropriate to a criminal conviction but not for a finding of contempt. They comprised a certificate of conviction for “taping a court record without permission” and the recording of a sentence of three months’ imprisonment suspended for eighteen months. Neither was accurate. Leeds Crown Court 14. On the morning of 25 May 2018, the appellant attended Leeds Crown Court. He recorded a video of himself standing outside the court building which he livestreamed on the internet via Facebook. The recording, which lasted for about an hour and a half, concerned a trial which was the subject of a postponement order under section 4(2) of the Contempt of Court Act 1981. This order, the validity of which is not in dispute, prohibited the publication of any report of the proceedings until after the conclusion of that trial and of a related trial which was yet to take place. It was made on 19 March 2018 and stated: "Since it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in these proceedings, the publication of any report of these proceedings shall be postponed until after the conclusion of this trial and all related trials." 15. The reference to "these proceedings" was probably more narrowly drawn than intended, because the concern of the judge was to protect the integrity of two subsequent trials, the fairness of which would be prejudiced by contemporary reporting of the earlier trials. 16. The jurors had retired to consider their verdicts. 17. The appellant recorded the video close to the entrance used by the defendants and jurors. In it he referred to the trial, the identity of the defendants, the charges against them and to charges which had not been proceeded with against some of the defendants. He had confronted some of the defendants as they arrived at court. The judge was alerted to what the appellant was doing and, shortly after 10.00, the appellant was brought into court. The judge referred to the "ban on publication" and then viewed part of the recording in the presence of the appellant. The appellant offered to delete the video from Facebook. The judge required this to be done because he was understandably concerned that should the jurors come across it the trial might be derailed, quite apart from its potential impact on the trial yet to start. The judge's initial action was both necessary and commendable. 18. The judge informed the appellant that he was going to pursue proceedings for contempt of court and would try to find him a lawyer to represent him later that day. He adjourned at 11.45. Proceedings resumed at 12.18. Over the next four minutes the judge identified for the benefit of counsel, the appellant having been formally identified, his concerns about the appellant's conduct. He explained that he was conducting the second of three trials involving a total of 28 Asian men, with the third expected to start in September. He had made an order "prohibiting the publication of anything relating to these trials". During his livestreaming the appellant had referred to the supposed religion of the defendants, the ethnicity of the alleged victims, the costs of the prosecutions and questioned why publication was prohibited. The judge said he considered it a seriously aggravating factor that the appellant was encouraging others to share the video. "So that is the nature of the contempt", he said. 19. Counsel indicted that he had seen part of the video and said "I anticipate that the instructions I have … will form mitigation … as opposed to a defence to the contempt." There was then a reference to the suspended committal order in force. 20. The court reassembled at 1.10 for one minute when the judge made an order postponing all reporting of the contempt proceedings until the conclusion of the trial and adjourned the matter at counsel's request until 14.00. That hearing began with reference to the appellant’s antecedents and was followed by mitigation. At no stage were particulars of the alleged contempt put to the appellant for him to accept or deny them. Through counsel, the appellant expressed deep regret for the “breach of integrity of the court system” which his actions had caused. In mitigation it was emphasised that the appellant had known there was a reporting restriction but had believed that he was not falling foul of the order by what he had done. Indeed, when he first arrived at court that morning he had asked to read the order. In the course of his broadcast the appellant refers to the order and appears to be trying to abide by its terms. Counsel referred to the appellant's wife and three young children. Some further detailed mitigation was advanced, as it had been in Canterbury, as to the dangers the appellant might face if committed to immediate custody. 21. Counsel reminded that the judge that the appellant had throughout referred to alleged offences and that the defendants in the trial might be not guilty. The judge was not impressed by that argument because the appellant had confronted the defendants as they arrived at the court. Indeed, the opening sequence of the video shows the defendants, in robust terms, refusing to engage with the appellant. 22. Counsel suggested that in referring to the defendants and the charges, the appellant had been reading from a local newspaper report, still freely available online, which predated the reporting restriction, and which identified the defendants and the charges they faced. Counsel went on to acknowledge that what the appellant did in challenging the defendants was provocative and unpalatable. Counsel concluded his mitigation by emphasising that the appellant had not adopted an "I don't care" attitude to the order and did not consciously intend to breach it. He was deeply remorseful. 23. In considering the appropriate punishment, the judge proceeded on the basis that the appellant had admitted his contempt. He continued: "This morning, well knowing that the jury in this trial were in retirement and well knowing that there was a prohibition on publication because you referred to it in your video, you stood outside this building where jurors pass in order to get into it and defendants arrive. Over a prolonged period, because this is a long video, you are referring to this case, the previous case and to the subsequent case and, whilst I accept that there are on a number of occasions times when you refer to the defendants being not guilty until the jury say so, the vast majority of what you were saying, particularly at the beginning at the part I saw, was reference to cases like this, to Asian men, to the grooming of 11-year-old girls and the number of cases like this. No one could possibly conclude that that was likely to be anything other than highly prejudicial to the defendants in the present trial. … If the jurors in my present trial get to know of this video, I will no doubt be faced with an application to discharge the jury." 24. The judge continued by explaining the consequences of that for the alleged victims and the public purse. He explained that publication was being postponed, not prevented, to ensure that all the trials were fair. He repeated that he regarded the encouragement of others to share the video as an aggravating factor and that there had been hundreds of thousands of hits. "It is entirely prejudicial." He regarded custody as inevitable, despite the mitigation, and identified 15 months' as the appropriate starting point for the Leeds contempt which he reduced to 10 months on account of the immediate acceptance of guilt before activating the three months which had been suspended in Canterbury. 25. In our judgment, it is clear from the breadth of these remarks that the judge had regard to matters beyond the breach of the section 4(2) postponement of reporting order. The passage we have quoted from his sentencing remarks shows a wider concern that the appellant's broadcast was prejudicial to the interests of justice in the trial just coming to an end. His reference to a possible application to discharge the jury could not have stemmed from the appellant repeating anything the jury had heard in the course of the trial, but rather from other prejudicial matter. The more generally prejudicial remarks included generically derogative remarks on the ethnic and religious backgrounds of the defendants. The Law 26. The law of contempt exists to protect the course of proceedings from interference, to safeguard the fairness and integrity of proceedings and to ensure that orders of the court are obeyed. It comes in many forms, both statutory and under the common law. Courts may themselves initiate proceedings for contempt in some circumstances when it is necessary to do so to protect the interests of justice in extant proceedings before that court. But the more general practice is for the Attorney General to be invited to initiate proceedings to safeguard the public course of justice. The enforcement of orders made in private proceedings is generally a matter for the parties. Contempt proceedings initiated by the court 27. It has long been the case that that a judge may, but not must, deal with a contempt committed in the face of the court summarily, albeit after ensuring a fair hearing. So too may a judge deal summarily with a contempt which amounts to an interference in the course of the proceedings he or she is conducting. The power to punish such contempt arises under the common law in addition to statute. Its purpose is to equip the court with the means to protect its processes and penalise those who seek to impede or subvert them. Common examples include noisy and intemperate interruptions from the public gallery and witnesses improperly refusing to answer questions during the course of giving oral evidence. Because of the need to respond quickly and decisively in such cases, the court is empowered to act summarily and, if necessary, impose of a term of immediate imprisonment. However, this jurisdiction should be exercised sparingly. As Lawton LJ observed in Balogh v St Albans Crown Court [1975] Q.B. 73 at page 93: “In my judgment this summary and draconian jurisdiction should only be used for the purpose of ensuring that a trial in progress or about to start can be brought to a proper and dignified end without disturbance and with a fair chance of a just verdict or judgment.” 28. Even in cases where a court considers it necessary to proceed summarily to deal with a contempt it is often wise, having sorted out the immediate concern, to adjourn the contempt hearing to a later date and sometimes before a different judge. That avoids any question of the judge being judge in his own cause. In most cases concerning an interference with the public course of justice, the judge will refer the matter to the Attorney General. 29. Procedural fairness has always been a requirement in contempt proceedings, including the need to particularise the alleged contempt at the outset. An alleged contemnor must know what it is he has done which is said to amount to a contempt of court so that he can decide whether to accept responsibility or contest the allegation. Whilst that is a common law requirement, it chimes with article 6(3) of the European Convention on Human Rights which requires, amongst much else, that anyone charged with a criminal offence must " (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; and (b) to have adequate time and the facilities for the preparation of his defence." 30. Such safeguards are now to be found in Part 48 of the Rules. Contempt under section 1 and 2 of the Contempt of Court Act 1981 31. Sections 1 and 2 of the Contempt of Court Act 1981 provide, in so far as is material: “1 The strict liability rule. In this Act “the strict liability rule” 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. 2 Limitation of scope of strict liability. (1) The strict liability rule applies only in relation to publications, and for this purpose “publication” includes any speech, writing, programme included in a cable programme service or other communication in whatever form, which is 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 in question will be seriously impeded or prejudiced.” 32. Section 7 of the 1981 Act provides: “Consent required for institution of proceedings 7. Proceedings for a contempt of court under the strict liability rule (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it.” 33. Although section 7 of the 1981 Act gave the court jurisdiction to deal with contempts of this nature of its own motion, the almost invariable course would be for the matter to be referred to the Attorney General. There is a strong hint in the sentencing remarks of the judge in Leeds of concerns about the appellant's broadcast which might more readily have been dealt with under these provisions. Conduct calculated to interfere with the course of justice 34. The strict liability rule created by the 1981 Act defined and confined a species of contempt of court with a long history in the common law, namely conduct calculated to interfere with the course of justice in proceedings. Some of these might be prosecuted on the court's own motion (contempt in the face of the court being the most obvious example) but as the guardian of the integrity of the administration of justice the Attorney General has often been asked to consider bringing proceedings for contempt. Section 41 of the Criminal Justice Act 1925 35. Section 41 Criminal Justice Act 1925 provides: “Prohibition on taking photographs, &c., in court. (1) No person shall— (a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or (b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof; and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine…” The penalty on summary conviction is a fine not exceeding level 3 on the standard scale. 36. The offence under section 41 of the 1925 Act can be charged as a criminal offence in accordance with the Director’s Guidance on Charging, or the underlying behaviour can be dealt with by the court as a contempt in accordance with the summary procedure under Part 48 of the Rules. An example of the latter is R v Vincent D [2004] EWCA Crim 1271 where at paragraph [15] Aikens J set out the vice of recording in court buildings. Alternatively, an application could be made to the High Court by the Attorney General. 37. The judge at Canterbury made specific reference to section 41 in her sentencing remarks. Postponement orders under section 4(2) of the Contempt of Court Act 1981 38. Section 4 of the 1981 Act provides, as material “Contemporary reports of proceedings. (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. 39. Thus, section 4(2) of the 1981 Act provides for an exception to the general rule permitting a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith. 40. This provision is aimed at postponement, not prohibition, of publication of what has happened during court proceedings. It is most frequently deployed where subsequent related trials might be prejudiced by reports of the evidence, argument or outcome of earlier trials. Once all the trials have concluded, the period of postponement will come to an end and full publication can follow without risking adverse consequences to the fairness of the proceedings. Procedure 41. Where a court decides to deal with an alleged contempt touching a Crown Court trial of its own motion the procedure to be followed is set out under Part 48 of the Rules which provides, as material: “CONTEMPT OF COURT BY OBSTRUCTION, DISRUPTION, ETC. Initial procedure on obstruction, disruption, etc. 48.5.(1) This rule applies where the court observes, or someone reports to the court— (a) in the Court of Appeal or the Crown Court, obstructive, disruptive, insulting or intimidating conduct, in the courtroom or in its vicinity, or otherwise immediately affecting the proceedings; (b) in the Crown Court, a contravention of— …(e) any …conduct with which the court can deal as, or as if it were, a criminal contempt of court…” (2) Unless the respondent’s behaviour makes it impracticable to do so, the court must— (a) explain, in terms the respondent can understand (with help, if necessary)— (i) the conduct that is in question, (ii) that the court can impose imprisonment, or a fine, or both, for such conduct, (iii) (where relevant) that the court has power to order the respondent’s immediate temporary detention, if in the court’s opinion that is required, (iv) that the respondent may explain the conduct, (v) that the respondent may apologise, if he or she so wishes, and that this may persuade the court to take no further action, and (vi) that the respondent may take legal advice; and (b) allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise. (3) The court may then— (a) take no further action in respect of that conduct; (b) enquire into the conduct there and then; or (c) postpone that enquiry…” Postponement of enquiry 48.7.(1) This rule applies where the Court of Appeal or the Crown Court postpones the enquiry. (2) The court must arrange for the preparation of a written statement containing such particulars of the conduct in question as to make clear what the respondent appears to have done. (3) The court officer must serve on the respondent— (a) that written statement; (b) notice of where and when the postponed enquiry will take place; and (c) a notice that— (i) reminds the respondent that the court can impose imprisonment, or a fine, or both, for contempt of court, and (ii) warns the respondent that the court may pursue the postponed enquiry in the respondent’s absence, if the respondent does not attend. Procedure on enquiry 48.8.(1) At an enquiry, the court must— (a) ensure that the respondent understands (with help, if necessary) what is alleged, if the enquiry has been postponed from a previous occasion; (b) explain what the procedure at the enquiry will be; and (c) ask whether the respondent admits the conduct in question. (2) If the respondent admits the conduct, the court need not receive evidence. (3) If the respondent does not admit the conduct, the court must consider— (a) any statement served under rule 48.7; (b) any other evidence of the conduct; (c) any evidence introduced by the respondent; and (d) any representations by the respondent about the conduct. (4) If the respondent admits the conduct, or the court finds it proved, the court must— (a) before imposing any punishment for contempt of court, give the respondent an opportunity to make representations relevant to punishment; (b) explain, in terms the respondent can understand (with help, if necessary)— (i) the reasons for its decision, including its findings of fact, and (ii) the punishment it imposes, and its effect; and (c) ... (5) The court that conducts an enquiry— (a) need not include the same member or members as the court that observed the conduct; but (b) may do so, unless that would be unfair to the respondent." 42. The reference to "criminal contempt" in rule 48.5(b)(e) recognises the distinction between criminal and civil contempts of court. It is unnecessary for the purposes of this judgment to explore the detail of the distinction. It is sufficient to note that criminal contempts are those which broadly involve acts that threaten the administration of justice. Civil contempts involve disobedience to court orders or undertakings by a person involved in proceedings. The categorisation does not depend upon the type of proceedings in which the issue arises. 43. For much of the twentieth century, the courts took a rather mechanistic view of the consequences of any failure to comply with the rules relating to the procedure to be followed in cases of alleged contempt. Such rules existed in civil and family proceedings long before they were introduced into the Criminal Procedure Rules. However, in M. v. P. (Contempt of Court: Committal Order) [1993] Fam. 167, the Court of Appeal sought to clarify the nature of the balance which must be struck where the relevant rules have not been followed to the letter. Lord Donaldson identified the following principle at pages 178-9: “In all contempt cases, justice requires the court to take account of the interests of at least three categories of person, namely, (a) the contemnor (b) the ‘victim’ of the contempt and (c) other users of the court for whom the maintenance of the authority of the court is of supreme importance. The interests of the alleged contemnor require that he should have the right to be informed of the charges which he has to meet, to be advised and represented if he so wishes (subject to his being eligible for legal aid or otherwise able to finance his defence), to be given a full and fair opportunity of meeting those charges and, if found guilty of contempt of court, to be informed in sufficiently clear terms of what has been found against him. In all these cases the court has been concerned to ensure that these fundamental requirements are met in the way in which, particularly in the case of the county courts, they are intended to be and should be met. However, we have tended to overlook the fact that they may in some circumstance be met in other ways. Whilst this court should always be quick to identify and condemn any departure from the proper procedures, the interests of the victim and of maintaining the authority of the courts require that in deciding what use to make of its powers under section 13(3) of the Act of 1960, this court should ask itself whether, notwithstanding such a departure, the contemnor has suffered any injustice. It does not follow that he has. Nor does it follow that the proper course is to quash the order. If he has not suffered any injustice, the committal order should stand, subject if necessary, to variation of the order to take account of any technical or procedural defects. In other cases it may be possible to do justice between the parties by exercising the court's power under section 13(3) by making ‘such other order may be just.’ If the circumstances are such that justice requires the committal order to be quashed amongst the options available is that of ordering a retrial …” 44. This passage was cited with approval by the Court of Appeal in Nicholls v Nicholls [1997] 1 W.L.R. 314 in which Lord Woolf MR observed at page 327: “The guidance which can be provided for future cases is as follows. (1) As committal orders involve the liberty of the subject it is particularly important that the relevant rules are duly complied with. It remains the responsibility of the judge when signing the committal order to ensure that it is properly drawn and that it adequately particularises the breaches which have been proved and for which the sentence has been imposed. (2) As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except in so far as the interests of justice require this to be done. (3) Interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended. (4) When considering whether to set aside the order, the court should have regard to the interests of any other party and the need to uphold the reputation of the justice system. (5) If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will consider exercising its power to order a new trial unless there are circumstances which indicate that it would not be just to do so.” 45. It is this guidance which has been adopted and applied by the courts consistently over the last twenty years and, most recently, in Fort Locks Self Storage Limited v William Deakin [2017] EWCA Civ 404 . 46. The appellant, however, contends that this is not the correct approach to the application of Part 48 of the Rules, any breach of which, it is argued, is fatal to the subsequent committal. In support of this proposition, he relies on the authority of In re West [2015] 1 WLR 109 , a case in which a barrister was found to have acted in contempt of court in refusing unreasonably to attend a hearing in a criminal case when he had been ordered so to do. His punishment was a fine of £500. 47. The Court of Appeal overturned the finding of contempt because the alleged contemnor had not been served with a notice in advance of the hearing as required by the Rules. Sir Brian Leveson P observed at paragraphs [34] and [35]: “34. While Mr West was thus made aware in advance of the hearing that contempt of court would be considered, the notices provided clearly fell short of the procedural requirements set out in the Crim PR. In the normal course, compliance with the strict provisions of the Crim PR can be waived by the parties or the court; in cases of alleged contempt, however, we have no doubt that strict observance of the provisions is essential. As Mr Cox observed, the contempt jurisdiction is a powerful tool which can directly impact on the liberty of the subject. Compliance with the Crim PR allows the “charge” to be fully formulated and beyond doubt; it provides a structure which forms the four corners of what is in issue and it avoids the very criticism that Mr Cox did advance in this case. 35 In the circumstances, given the significance of the jurisdiction of contempt of court, we have come to the conclusion that this failure of process invalidates the conclusion that the judge reached. We recognise that it is likely to have made little difference but we are not prepared to assert that; it is far more important to underline the vital importance, where issues of contempt arise in circumstances of this nature, of following the approach laid down by the Crim PR.” 48. Notwithstanding this emphatic reminder of the particular importance of following the correct procedure in cases of alleged contempt, we are satisfied that the court in West did not intend to herald a departure from the approach set out in Nicholls . The inadequacy of the notice had not formed any part of the grounds of appeal raised on behalf of the contemnor in West. He sought to challenge the substance of the finding against him and there does not appear to have been any reference to authority on the point. The issue was raised by the court. Nonetheless, the language of the President does not support the proposition that any and every breach of the rules invalidates a finding of contempt; rather that was the position "in the circumstances of that case". 49. There is no justification for adopting a different approach to a failure to comply with the requirements of Part 48 of Criminal Procedure Rules from a failure to comply with parallel rules in the civil and family jurisdictions. They aim to achieve the similar outcome of fairness in the context of a process which can lead to a loss of liberty. Accordingly, we are satisfied that the approach to failures to follow rules of procedure identified in Nicholls should be applied to this and all cases subject to Part 48 of the Rules. Discussion 50. It is now necessary to apply the legal principles set out above to the proceedings in Canterbury and Leeds respectively. Canterbury 51. The appellant contends, accurately, that he was not served with a written statement containing the particulars required by Rule 48.7. We note, however, that he was served with four witness statements, two of which had been made by members of the court security staff and two by members of the police force. Each related to the appellant’s activities on the day of the alleged contempt. 52. No complaint was made at the adjourned hearing by the appellant’s legal team that there was any lack of clarity about the nature of the allegations which he faced. Indeed, from late disclosure made to this Court four days after the hearing of this appeal, it has now come to light that a deliberate tactical decision was made by the appellant’s legal advisers at Canterbury to be complicit in the court’s failure to comply with Rule 48. Privilege has been waived in respect of the advice on appeal provided by junior counsel in the aftermath of the contempt hearing. It reveals the following: “Other criticisms 26. Part 48 of the Criminal Procedure Rules applies to all contempt proceedings in the criminal courts. Rules 48.5 – 48.8 apply. The judge acknowledged in the first hearing that these paragraphs applied, yet they were not properly followed. 27. Rule 48.7 in particular is important: 48.7 The court must arrange for the preparation of a written statement containing such particulars of the conduct in question as to make clear what the respondent appears to have done. 28. This rule clearly intends that a separate written statement akin to a charge sheet be prepared. Statements of witnesses such as were served before the hearing are not sufficient. And even if they are, it is not clear what “the conduct” is. Our approach in the Crown Court 29. Part of the responsibility for the vagueness of the allegations lies with us, and was deliberate. We knew that spelling out the allegations clearly would not be entirely straightforward for the judge, and that she might not have had the opportunity to give sufficient thought to the details of the contempt hearing. 30. By the end of the discussion and argument I suspect the judge still felt a certain unease about nailing her colours to the mast. That unease was maintained by the tactical approach we took. On one view, her passing a suspended sentence reflected that. 31. If we had been more insistent that she properly spell out the specific actions that she proposed to find as contempt, she probably would have done so – and we would have been in a worse position as her sense of unease would have subsided.” 53. In this context, we must emphasise the obligations imposed upon each participant in a case to be found in Rule 1.2(1)(c): “At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.” 54. It lies ill in the mouth of an appellant to complain of the failure of the court below to follow the appropriate procedural steps when that failure was fully appreciated at the time and remained deliberately uncorrected for tactical reasons and collateral advantage. We ought to record that counsel representing the appellant on this appeal were unaware of this advice at the time of making their oral submissions and was disclosed promptly when it came to their attention. 55. Even without taking that advice into account, we are satisfied that there had been no real prejudice to the appellant in the failure to particularise the Canterbury contempt as required by the rules. There was no doubt about the conduct which was said to amount to contempt. The appellant unequivocally accepted the conduct concerned and that it amounted to contempt of court in circumstances where he was advised by leading and junior counsel who had ample time, with the appellant, to consider all the evidence. In the circumstances we are satisfied that, by reference to the Nicholls approach, there is no justification to interfere with the finding of contempt under this ground, even if the challenge had been brought in time. 56. The next criticism is that the judge failed to make plain in her remarks whether she was exercising powers under section 41 of the Criminal Justice Act 1925 or her inherent jurisdiction in respect of criminal contempt. The matter did not (indeed could not) proceed in the Crown Court as a summary prosecution for a breach of section 41, despite the judge's discussion of the provision. The judge was not sitting as a District Judge (Magistrates Court). On the contrary, the judge expressly stated, “I do find clear evidence of contempt of court in this case”. Conduct in breach of section 41 and acts of criminal common law contempt are not mutually exclusive. The fact that the Judge supplemented her finding of criminal contempt with observations to the effect that the appellant would also be guilty of an offence under section 41 does not, therefore, invalidate her conclusions. 57. The appellant takes issue with the judge’s choice of language when passing the suspended committal order. It is pointed out on behalf of the appellant that the judge wrongly purported to pass a “sentence” of three months’ imprisonment suspended for a period of eighteen months. However, it is also conceded, realistically, that a court has power to suspend a committal to prison for contempt under its inherent jurisdiction. We have no doubt that this is what the court was seeking to achieve and was understood to have achieved by those representing the appellant at the time, who raised no issue. A suspended committal order was particularly apt in this case because, by contrast with most people subject to contempt proceedings, this appellant had no interest in a single set of proceedings but rather was pursuing a campaign. Many who commit contempt of court present no future risk of contempt. This appellant did; and the transcript of the video from Leeds shows he was alive to the risks from his point of view of offending again. The suggestion that the appellant had not been adequately informed that if he acted in contempt of court on a future occasion within eighteen months he would risk the implementation of the suspended period of imprisonment is belied by what he said in his broadcast outside Leeds Crown Court: “I have to be super careful you see, because when I was coming to these court cases part of what the police did was they dawn raided me and they put me under a contempt of court charge which could mean that I could face prison or I’m on a suspended sentence because they don’t want people reporting…” And later: “…I’m on a suspended sentence, suspended prison sentence which was supposed to prevent me or deter me from reporting on these sort of cases.” 58. Against this background we are satisfied that the judge’s choice of the terminology of criminal sentencing caused no discernible prejudice to the appellant. Furthermore, the appellant fully appreciated that the suspended committal was liable to be implemented in the event that he committed any further contempt of court. We can see no justification in the complaint that a suspended committal order of three months was too severe. 59. It follows that we are not satisfied that the criticisms of the procedure followed at Canterbury Crown Court or the level of punishment imposed have substance. In the absence of substantive merit, we decline to extend time save only for the purpose of directing that the Certificate of Conviction at Canterbury Crown Court be amended to reflect that on 22 May 2017 the appellant was found to be in contempt of court and that the court ordered his committal to prison for three months but suspended for 18 months. Leeds 60. A central criticism advanced on behalf of the appellant of the proceedings in Leeds is that the judge was wrong to proceed to deal with the contempt as quickly as he did. We consider that there is merit in this point. In contrast to the procedure followed in Canterbury, where the appellant had over a week to secure representation and to prepare his response to the allegations against him, the appellant at Leeds was commencing a term of imprisonment of thirteen months within five hours of the conduct complained of. Such haste gave rise to a real risk that procedural safeguards would be overlooked, the nature of the contempt alleged would remain inadequately scrutinised and that points of significant mitigation would be missed. Those risks materialised. 61. The judge was right to take immediate steps to mitigate the impact of the appellant’s reporting activities by arranging to have him delete his broadcast from Facebook and from the devices of those with whom it had been shared. That done he ought to have taken stock of the procedure to be followed. The transcript shows that no sooner had the judge seen part, but not all, of the footage in the presence of the unrepresented appellant, he decided on his own motion to pursue proceedings for contempt of court and to do so immediately. He appeared to give no consideration to the option of referring the matter to the Attorney General with a view to the instigation of contempt proceedings, nor to an adjournment to enable the matter to proceed at a more measured pace. 62. We recognise that the judge was placed in an invidious position because he was concerned about the integrity of the trial which was almost at its end. The three trials, of which this was the second, were exceptionally difficult and sensitive. Having decided to suspend the deliberations of the jury, it is understandable that he may have felt under some pressure to resolve the issue of the appellant’s contempt expeditiously. However, once it had become apparent that the appellant was co-operating in removing the material from the internet, there was no reason why the jury could not have been permitted to resume their deliberations. If there was any doubt about the intentions of the appellant, the judge could have sought an undertaking from or ordered, the appellant not to comment further on the trial or approach the court until the trial (or trials) had concluded. 63. We have set out the chronology of what occurred in paragraphs 14 et seq above. The judge's explanation of the alleged contempt occupied part of a four-minute hearing. He linked the contempt to his order "prohibiting publication of anything relating to these trials", a description which overstates the breadth of the order made earlier under section 4(2) of the 1981 Act. In that short hearing, general particulars only of the contempt were given. By contrast, were a motion brought by the Attorney General suggesting that a publication breached a section 4(2) order (or indeed was in breach of the strict liability rule) the passages said to amount to contempt would be specifically identified. 64. In this case, no particulars of the scope of the alleged contempt were ever formulated, let alone in writing, or put to the appellant. With respect to all those involved in the hearing, there was some muddle over the nature of the contempt being considered, not only in the short exchanges which represented such formulation as there was, but also in the sentencing remarks. It is tolerably clear from the transcript that the thrust of the complaint against the appellant was that he had acted in breach of the section 4(2) postponement order. During the course of his submissions Mr Dein QC accepted that the transcript of his client’s broadcast suggested that he had indeed acted in breach of this order in several respects. It is entirely unclear what aspects of the video the appellant, through his counsel, was accepting amounted to contempt in that regard. However, in his sentencing remarks the judge made specific reference to the appellant’s generic comments during the course of his broadcast about his perception of the role of religion and ethnicity in offending of the nature alleged in the case in progress. Doubtless, these comments were, at least potentially, capable of amounting to a free-standing contempt of court but they were not in any sense a report on the proceedings themselves. We have observed already the judge's concern that he might face an application to discharge the jury. That cannot have related to the publication of a report of what had occurred before them. 65. Mr Mably QC suggested that the judge may merely have been referring to these general prejudicial comments as an aggravating feature of the more limited section 4(2) contempt. This is a possible, but speculative, inference but would amount to the judge taking into account a finding of contempt of a different sort which had never been canvassed, let alone put, to the appellant. But, in our view, it is clear from the remarks of the judge that he was concerned with, and sentenced for, comments made by the appellant which could not have been covered by the section 4(2) order. 66. In our judgment the failure to follow the requirements of Part 48 of the Rules was much more than a technical failure. In contempt proceedings, touching as they do on the liberty of the subject, there is a need for the contempt in question to be identified with precision and the conduct of the alleged contemnor identified with sufficient particularity to enable him, with the assistance of legal advice, to respond to what is a criminal charge, in all but name. In this case there was no clarity at all about what the appellant was admitting and for what parts of his broadcast he was considered by the judge to be guilty of contempt of court for breach of the section 4(2) order. The confusion was apparent in the mitigation which opened with these words: "Of necessity, the exercise in a civilised society of freedom of speech means that individuals … are allowed to engage in behaviour which the majority may find to be offensive and unpalatable, and there may be many who ... have found that which [the appellant] says and does unpalatable, offensive and unpleasant. But … the issue here is, in some respects, an aspect of a civilised society which is even more important and that is the integrity of the court system. [He] now … feels deep regret for the breach of that integrity that his action this morning caused." 67. The breach of an order under section 4(2) of the 1981 Act is concerned with the reporting of what has occurred in court covered by the order. It had nothing to do with any otherwise offensive remarks made by the appellant. These opening remarks of counsel illustrate what we perceive to have been a common misunderstanding in the very short contempt proceedings of what was in scope, and what was not. 68. A further difficulty arises from the limited opportunity available to the appellant’s counsel to investigate matters relevant to mitigation at Leeds Crown Court. Had this been a criminal case, the Court would have been obliged, unless it thought it unnecessary, to obtain and consider a pre-sentence report pursuant to section 156(3) of the Criminal Justice Act 2003. We have little doubt that if a pre-committal report had been requested by the judge it would have been provided. It would be unusual, to say the least, for a man with three young children to be sent to prison at a first hearing without some independent inquiry into his family's circumstances. 69. It is not surprising that the mitigation put forward by counsel was not particularly detailed. Taking into account the constraints under which he was working, short of asking for a much longer adjournment such as the one which had been granted in Canterbury, he could have done little else. In particular, the level of detail which could be provided to the court concerning the potential impact of a custodial term or its duration upon the appellant’s wife and children was very limited indeed. Furthermore, there was no opportunity to obtain support from third parties in the form of character references or the like. Of course, a sense of proportion must be retained. Sudden outbursts of misconduct in the face of the court leading to a very short period of detention will not normally merit such circumspection. However, the imposition of a custodial term of considerable length should not usually follow so swiftly upon the heels of the conduct complained of. There is much more material before us which might have an impact on the length of sentence; but in view of our intended course of sending this matter back for a rehearing, as we have foreshadowed, it is unnecessary to refer to it. 70. As with Canterbury, the formal record of the contempt proceedings wrongly suggests that the appellant had been convicted of a criminal offence, rather than found to have been in contempt of court. 71. The order drawn by the court says on its face that it is an “Order for Imprisonment - Made under the Criminal Justice Act 2003”. The term of thirteen months is described as a “sentence” and the suspended order of committal made at Canterbury Crown Court is identified as a “suspended sentence”. None of this is correct, for reasons we have already given. 72. Although this is a matter of form capable of correction it does have serious consequences. Such errors should not be allowed to occur again. Judges making findings of contempt and sentencing in consequence should check an order or record going out in the court’s name for accuracy. 73. Rule 7 (3) of the Prison Rules 1999 provides: “Classification of prisoners 7.(3) Prisoners committed or attached for contempt of court, or for failing to do or abstain from doing anything required to be done or left undone: (a) shall be treated as a separate class for the purposes of this rule; (b) notwithstanding anything in this rule, may be permitted to associate with any other class of prisoners if they are willing to do so; and (c) shall have the same privileges as an unconvicted prisoner under rules 20(5), 23(1) and 35(1).” 74. Accordingly, the classification of the appellant as a convicted prisoner has had the effect of depriving him of privileges relating to: visits by his doctor or dentist, the freedom to choose what clothes to wear and the absence of restrictions on prison visits and the sending and receipt of letters. 75. We have noted already that under section 258 Criminal Justice Act 2003 a person committed to prison for contempt is entitled to be released unconditionally after serving one half of the term for which he was committed. A convicted prisoner, in contrast, will be subject to release on licence with the attendant risk of recall. 76. Finally, in this regard, the judge imposed a victim surcharge which, pursuant to The Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2016, is payable only in the event of the passing of a “sentence of imprisonment” and not upon a committal for contempt. 77. In summary, the finding of contempt made in Leeds must be quashed because: (i) It was inappropriate to proceed immediately on the motion of the court to deal with the alleged contempt after immediate steps had been taken to remove the offending video from the internet. An adjournment was necessary to enable the matter to proceed on a fully informed basis; in any event (ii) The failure to comply with Part 48 of the Rules resulted in there being no clear statement, orally or in writing, of the conduct said to comprise a contempt for contravening the section 4(2) order in place; (iii) It was unclear what conduct was said to comprise a breach of that order and the appellant was sentenced on the basis of conduct which fell outside the scope of that order; (iv) The haste with which the contempt proceedings were conducted led to an inability of counsel to mitigate fully on the appellant's behalf. 78. The finding of contempt must be quashed and all the consequential orders will fall away. We canvassed with counsel what should happen were we minded to allow the appeal against the finding of contempt made in Leeds Crown Court. Mr Dein QC submitted that since the appellant has served the equivalent of four months' imprisonment the matter should not be remitted. We are unable to agree. First, the alleged contempt was serious and the sentence might be longer than that already served if a finding is again made against the appellant, particularly having regard to the suspended committal order made at Canterbury. Secondly, and in any event, a determination of the underlying contempt allegations in the circumstances of this case is in the public interest. 79. We leave this part of the appeal with some general observations. The transcript suggests that not only were the relevant parts of the Rules overlooked but that no reference was made to the valuable commentaries in either Blackstone or Archbold on the law relating to contempt of court as it applies in these circumstances, or the relevant procedural aspects. No doubt that was the result of the speed at which matters were taken. It is relatively unusual for those engaged in Crown Court proceedings to have to consider in detail questions of contempt. There is much material readily to hand to enable all concerned to navigate these unfamiliar waters and whenever the circumstances allow the short amount of time needed for review of that material, should be taken. Assessing the appropriate level of punishment 80. The sentence appeal does not arise as a result of our conclusion on the finding of contempt. Nonetheless, we shall say a few words about the approach to sentence in cases of this sort. The maximum sentence available for the breach of a section 4(2) order is two years' imprisonment. In the short time available to counsel in Leeds he located one authority, Attorney General v Harkins [2013] EWHC 1455 (Admin) , but it does not lay down any general principles. Of greater assistance would have been R v Montgomery [1995] 2 Cr. App. R. 23, in which the Court of Appeal at paragraphs 28D to 29A, laid down guidance in respect of the matters likely to influence the level of punishment appropriate in cases of contempt of court. The particular facts of that case concerned the refusal of a witness to give evidence but the factors material to punishment can readily be adapted and applied to cases involving breach of reporting restrictions. They would usually include: (a) the effect or potential consequences of the breach upon the trial or trials and upon those participating in them; (b) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made; (c) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied; (d) the contemnor's level of culpability and his or her reasons for acting in breach of the reporting restrictions; (e) whether or not the contempt was aggravated by subsequent defiance or lack of remorse; (f) the scale of sentences in similar cases, albeit each case must turn on its own facts; (g) the antecedents, personal circumstances and characteristics of the contemnor; (h) whether or not a special deterrent was needed in the particular circumstances of the case. 81. Additionally, cases involving a breach of a section 4(2) postponement order will often give rise the following potential consequences: (a) Trials may have to be abandoned irretrievably; (b) Juries may have to be discharged and retrials ordered with all the consequent delays and expense; (c) Witnesses, some of them perhaps vulnerable, may have to face the ordeal of giving evidence for a second time; (d) The trial judge’s decision upon how to manage the trial in response to the contempt may form the subject matter of an appeal which, whether or not successful, will generate additional anxiety, delay and expense. 82. More generally, although there are no authoritative statutory guidelines relating to punishment for contempt because such punishment does not relate to criminal proceedings, we would, by analogy, draw specific attention to the need to give consideration to the twin elements of culpability and harm as identified in the Sentencing Council Guideline of 2004 relating to “Overarching Principles: Seriousness.” Conclusion 83. For the reasons we have given, we are satisfied that the decision at Leeds Crown Court to proceed to committal to prison so promptly and without due regard for Part 48 of the Rules gave rise to unfairness. There was no clarity about what parts of the video were relied upon as amounting to contempt, what parts the appellant accepted through his counsel amounted to contempt and for what conduct he was sentenced. Indeed, we would emphasise that, save for those cases involving obstructive, disruptive, insulting or intimidating conduct in the courtroom or its vicinity or otherwise immediately affecting the proceedings, the judge, having taken such steps as are necessary to bring the misconduct to an end and mitigate its consequences, should usually resist the temptation to initiate contempt proceedings on his or her own motion. In the circumstances of this case, whilst the judge was entitled to deal with the contempt himself, the urgency went out of the matter when the appellant agreed to take down the video from Facebook. There should have been an adjournment to enable the particulars of contempt to be properly formulated and for a hearing at a more measured pace, as had happened in Canterbury. The judge might have referred the matter to the Attorney General to consider whether to institute proceedings. That course would have avoided the risk of sacrificing fairness on the altar of celerity. 84. Even in those cases in which a summary determination is appropriate, whether immediate or delayed, care must be taken to apply Part 48 of the Rules. 85. We therefore extend time to appeal against the substantive committal order of 25 May 2018. We allow the appeal and remit the matter to be heard before a different judge. There is no requirement that it be heard in Leeds (the Crown Court is a single court sitting in many places). We invite the Attorney General to nominate an advocate to appear at the fresh hearing. It is important that the case is presented by someone other than a judge, having taken proper steps to set out the offending conduct, by reference to the video in question. It is apparent that, outside references to the section 4(2) order, there were aspects of the video which the judge considered amounted to criminal contempt and thus capable of being dealt with by the court of its own motion. Whether those fall within the scope of the alleged contempt will be a matter for the court to determine with the assistance of counsel in the context of a process that follows Part 48 of the Rules. 86. The power to order a re-hearing is found in section 13(3) of the 1960 Act which empowers the court to “make such other order as maybe just” when reversing a finding of committal. Sub section (3) goes on to deal with the question of bail pending appeal. It is silent about bail pending a re-hearing, just as it is silent about a re-hearing itself. It has long been assumed that there is power to grant bail pending a re-hearing: see for example R v Jales [2007] EWCA Crim 393 at paragraph [8]. Whether or not there is an inherent power, in our view the language of section 13(3) is wide enough to enable this court to do what is necessary in support of the re-hearing. It is that power under which we act rather than the bail Act 1976. The appellant will be granted bail pending the rehearing. The bail will be conditional. We order that he is not to approach within 400 metres of Leeds Crown Court. The rehearing will be conducted by the Recorder of London at the Central Criminal Court as soon as reasonably possible. 87. We refuse an extension of time to appeal against both the finding of contempt and the sentence of committal imposed in Canterbury Crown Court; but we direct that the court record is corrected as set out in paragraph [59] above.

2018_08_01-4376.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1856/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1856

ac44800a9c9e9b614d642afc7be5976b20c64bf3517540d17725b2f09bb97406

[2006] EWCA Crim 2945

EWCA_Crim_2945

2006-10-16

crown_court

No: 200601453/C1 Neutral Citation Number: [2006] EWCA Crim 2945 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 16th October 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE LATHAM) MR JUSTICE HENRIQUES MRS JUSTICE GLOSTER DBE - - - - - - - R E G I N A -v- EB - - - - - - - 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 Fa

No: 200601453/C1 Neutral Citation Number: [2006] EWCA Crim 2945 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Monday, 16th October 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE LATHAM) MR JUSTICE HENRIQUES MRS JUSTICE GLOSTER DBE - - - - - - - R E G I N A -v- EB - - - - - - - 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 T MACKINNON appeared on behalf of the APPELLANT MISS G ETHERTON appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 7th February 2006, this appellant was convicted of rape and subsequently sentenced to 11 years' imprisonment and recommended for deportation. He appeals against conviction with leave of the Single Judge. 2. The facts giving rise to the charge of which this appellant was ultimately convicted occurred on the night of 1st April 2005, after the complainant had been to a club with some friends. 3. Some time after 2.00 am she was walking home alone when she saw the appellant and others standing at a bus stop. He was wearing a fluorescent neck band. The complainant collected fluorescent bands of various sorts; so she approached him and asked him if she could have it. He gave it to her and then walked with her to a street nearby. There is no doubt that in that area they subsequently had sexual intercourse. 4. The prosecution case was that that intercourse was entirely without the complainant's consent. She had been subjected to a prolonged assault, which ultimately resulted in her being subjected to vaginal intercourse. At no stage, on her account, did she consent to that sexual activity. It is unnecessary for the purposes of this judgment to go into any further detail about the events of that evening as recounted by the complainant. If she was right, this was a dreadful assault. 5. The appellant's account was that there had been sexual intercourse; and that the complainant had consented. There were witnesses of the event, some who had more to say about it than others; but, in particular, there were two witnesses called by the appellant whose accounts, if they were accurate and represented a true reflection of what had happened, were capable of supporting the appellant's evidence. 6. The jury, having heard all the evidence, by its verdict clearly rejected the appellant's account. 7. The issue before us arises out of the fact that this appellant is HIV positive. That was established in 2001; and he knew about his HIV status. Even on his own account he did not inform the complainant about his HIV status. In those circumstances, prosecuting counsel sought to put in evidence before the jury the appellant's HIV status. The defence objected on the grounds that it was irrelevant and, even if it had any relevance, was so prejudicial that it should have been excluded under section 78 of the Police and Criminal Evidence Act. 8. The judge, ruling that the evidence was admissible, and that he was not prepared to exclude it under section 78, said as follows as to the critical part of the argument: "It seems to me that in due course when this jury has to consider this question of whether or not the complainant consented, or, alternatively whether the defendant had any reasonable belief that she was consenting, the jury are going to have to be told of that statutory definition in section 74 . [That is of the Sexual Offences Act 2003] . It seems to me, furthermore, that that definition involves the person whose consent is being considered being in a position to be able to make a reasoned choice in the matter, and for such a person to be in that position that person has to be put in possession of all relevant facts, and a relevant fact is the prospect that he or she might, by dint of sexual intimacy, become infected with HIV thereafter. The Crown has argued if the defence seek to raise the issue of consent then they must in effect, take on all the consequences of that, including that statutory definition." He held that the fact that the appellant had not informed the complainant of his HIV status was a matter that the jury was entitled to take into account when determining whether or not she had, in truth, consented on the one hand, on that he had a reasonable belief in her consent on the other. 9. It was in those circumstances that the evidence was led before the jury. Ultimately, in directing the jury, the judge had the following to say about the relevance of that evidence, at page 16 of the summing-up: "HIV positive, you know he was thus diagnosed; that diagnosis was made in September 2001, and again I would suggest you must not let that prejudice against the defendant, it certainly does not prove that he is guilty of rape. Its relevance, I would suggest to you, is two-fold. Firstly, when you are considering whether [the complainant] consented to intercourse you will need to consider whether she had the freedom and capacity to make the choice as to whether to have intercourse with this man if she did not know he was HIV positive, and secondly, you may want to consider whether a man who knows he is HIV positive is the more or less likely to ask a woman for consent to intercourse. In considering whether or not this defendant reasonably believed that [the complainant] was consenting to sex you must look at all the circumstances, including what steps the defendant took to ascertain whether she, in fact, consented." 10. On behalf of the appellant, Mr Mackinnon submits, as he submitted to the judge, that the HIV status of the appellant was irrelevant to the issues before the jury; the judge's ruling and his direction to the jury were wrong in law. 11. Dealing, firstly, with the issue as to whether or not the fact of the appellant's HIV status was relevant to the question of whether or not the complainant consented, as the prosecution had to establish she did not, to the intercourse in question, the relevant sections are section 74 , 75 and 76 of the 2003 Act . 12. Section 74 is in the following terms: "For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice." Then, section 75 provides for evidential presumptions about consent. None of the matters set out in section 75 are of direct relevance to the issue in this case. Section 76 , however, deals with conclusive presumptions about consent; and the relevant presumptions are in subsection (2), which provides as follows: "The circumstances are that- (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; (b) the defendant intentionally induced the complainant consent to the relevant act by impersonating a person known personally to the complainant." 13. The appellant's counsel point out that nowhere in those relevant sections is there any reference to implied deceptions, nor to behaviour relating to or in the context of sexually transmissible diseases. He submits that that reflects the state of the law prior to 2003, namely that, when considering the question of whether or not in certain circumstances such as this the complainant has consented or not to the sexual activity, the question of implied deceptions can have little relevance. He submits that the 2003 Act does not purport to change the law in that respect. 14. The position, he submits, is best exemplified by this Court's consideration of the problem presented by the transmission of HIV in sexual intercourse in the case of the R v Dica [2004] 2 Cr App R 28 , 467. In that case the charge against the defendant was a charge under section 20 of the Offences Against the Person Act 1861 . The complainant had had unprotected sexual intercourse, as in the present case, with the defendant, who was to his knowledge HIV positive. Unhappily, the consequence was that was they became infected by HIV. 15. The prosecution case was that whatever might have been the position as far as any sexual offence was concerned, if the complainants were not aware of the defendant's HIV states and therefore had not consented to the risk of being infected, that would amount to an offence under section 20 of the Offences against the Person Act 1861 . 16. In the judgment of the Court in that case, at paragraph 39, agreeing with the prosecution, Judge LJ said as follows: "In our view, on the assumed fact now being considered, the answer is entirely straightforward. These victims consented to sexual intercourse. Accordingly, the appellant was not guilty of rape. Given the long-term nature of the relationships, if the appellant concealed the truth about his condition from them, and therefore kept them in ignorance of it, there was no reason for them to think that they were running any risk of infection, and they were not consenting to it. On this basis, there would be no consent sufficient in law to provide the appellant with a defence to the charge under s 20." It seems to us that Mr Mackinnon's submissions based upon that paragraph in that judgment were correct. That judgment reflects the present legal position and nothing in the 2003 Act has, in our view, changed the position. 17. Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease. 18. This problem is one which has been recognised, not surprisingly, for many years. In its Second Consultation Paper Relating to Sexual Offences, in 1995, the Law Commission acknowledged that there was a case for treating a deception as to a person's HIV status or freedom from other sexually transmissible disease as being of such fundamental importance that it should nullify consent. However, in its ultimate review, in 2000, the Commission felt that the right solution to these issues was a delicate matter requiring expertise in public health and social policy rather than the law. In our judgment, that conclusion, which is reflected in paragraph 1.55 of Rook and Ward On Sexual Offences Law and Practice (3rd edition), in which this Court should support. 19. As has been indicated in an article by Professor Tempkin and Professor Ashworth, in the 2004 Criminal Law Review, page 328, the Sexual Offences Act 2003 does not expressly concern itself with the full range of deceptions other than those identified in section 76 of the Act, let alone implied deceptions. It notes that this leaves, as a matter of some uncertainty, the question of, for example, as it is put: "What if D deceives C into thinking that he is not HIV positive when he is?"There is no suggestion in that article that whatever may be the answer to that question, an implied deception can be spelt out of the mere fact that a person does not disclose his HIV status, or his or her infection by some other sexually transmissible disease, that such a deception should vitiate consent. 20. The consequence seems to us to be matter which requires debate, not in a court of law but as a matter of public and social policy, bearing in mind all the factors that are concerned including the questions of personal autonomy in delicate personal relationships. That does not mean that we in any way dissent from the view of the Law Commission that there would appear to be good reasons for considering the extent to which it would be right to criminalise sexual activity by those with sexually transmissible diseases who do not disclose that to their partners. But the extent to which such activity should result in charges such as rape, as opposed to tailormade charges of deception in relation to the particular sexual activity, seems to us to be a matter which is a matter properly for public debate. 21. All we need to say is that, as a matter of law, the fact that the appellant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under section 74 in relation to the sexual activity in this case. 22. Turning then to the second basis upon which it is submitted that the fact of his HIV status could be properly considered by the jury, namely that it went to the question of whether he could properly be said to have had any reasonable belief in the appellant's consent, it seems to us, that that, firstly, depended upon the question of whether the consent could properly be said to have been vitiated, because if it was not vitiated as a matter of law, that issue does not arise. In any event, in the context of the issue as posed by the prosecution and by the judge to the jury, it seems to us that the status of the appellant as being HIV positive was so prejudicial that it was a matter which should not have gone before the jury and should have been excluded under section 78 in any event. 23. It follows that, as far as this conviction is concerned, it must be quashed. The circumstances of the case would justify us considering any application for a retrial. Miss Etherton? 24. MISS ETHERTON: Yes, there is such an application. 25. THE VICE PRESIDENT: Mr Mackinnon? 26. MR MACKINNON: The only thing I can say is that the appellant has been custody for 18 months. I cannot really say anything in addition to that. 27. THE VICE PRESIDENT: Thank you, Mr Mackinnon. (Pause) 28. Mr Mackinnon, thank you. We think this is a case where there should be a retrial in the circumstances. 29. MR MACKINNON: Yes. I am not absolutely sure whether I should apply to your Lordships and Ladyship for legal aid for the retrial? 30. THE VICE PRESIDENT: You should, but do not worry, we will deal with that as a matter of course any way, Mr Mackinnon. 31. We allow the appeal. We quash the conviction. We direct that the retrial should be on the single count of rape and that a fresh indictment should be preferred so charging this appellant; and that he should be re-arraigned within 2 months. There shall be a representation order for solicitors and counsel for the purposes of the retrial. 32. As far as venue is concerned, that should be as directed by the presiding judge. As far as the question of whether or not the appellant should be in custody or on bail is concerned, Mr Mackinnon have you any submissions as to that? 33. MR MACKINNON: I am afraid I have no submissions at this time, my Lord. 34. THE VICE PRESIDENT: In all the circumstances we consider it would be wholly inappropriate for there to be an order for bail. He must be in custody until the retrial. 35. Finally, should there be any reporting restrictions at the moment? Apart from the name of the complainant which is clearly automatically withheld. 36. MISS ETHERTON: Obviously one would not want it in the public arena that this is an appeal, for obvious reasons. 37. THE VICE PRESIDENT: It seems as far as Mr Mackinnon is concerned, important that nobody should pick up -- whether they would or not, I do not know -- the issue of the appellant's HIV status, which we have said should not have been before the first jury. So I think we will impose reporting restriction. The question is: what restrictions should we impose? Is it something we could deal with by way purely of anonymisation. I say that simply because, it maybe, I know not, that people will want to report the case. 38. MISS ETHERTON: Yes, quite. I think that sounds very sensible. 39. THE VICE PRESIDENT: What we shall do is simply anonymise the case and I shall exclude from the draft, when I correct it, both the name of the court and the place where it all happened. Will that be all right, Mr Mackinnon? 40. MR MACKINNON: My Lord, thank you, yes.

2006_10_16-935.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2945/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2945

8cf98e0ba7be676440be4257d83b2a34f5f2b1651205b5e4a4dde6202a77c658

[2011] EWCA Crim 1044

EWCA_Crim_1044

2011-04-05

crown_court

Case No: 2011/0097/A3 Neutral Citation Number: [2011] EWCA Crim 1044 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 5th April 2011 B e f o r e: PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE TREACY MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - R E G I N A v RAJBINDER RATTU - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4

Case No: 2011/0097/A3 Neutral Citation Number: [2011] EWCA Crim 1044 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 5th April 2011 B e f o r e: PRESIDENT (LORD JUSTICE HUGHES) MR JUSTICE TREACY MR JUSTICE EDWARDS-STUART - - - - - - - - - - - - R E G I N A v RAJBINDER RATTU - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - Mr A Baker appeared on behalf of the Applicant - - - - - - - - - - - - J U D G M E N T MR JUSTICE TREACY : 1. On 8th November 2010, which was the date originally fixed for the trial, this appellant pleaded guilty to a count of being concerned in the production of a class B drug, namely cannabis. This plea was tendered before Her Honour Judge Watson in the Crown Court at Wolverhampton. On 9th December 2010 she sentenced this appellant to 23 months' imprisonment and made directions in relation to time served on remand and under electronically monitored curfew, pursuant to the provisions of section 240 and 240A of the Criminal Justice Act 2003 . The appellant has been granted leave by the single judge. 2. There were two others involved in the matter who also pleaded guilty to the same count which this appellant faced. They had pleaded guilty at a slightly earlier stage of proceedings than this appellant had. What had happened was that all three had originally denied a charge of producing cannabis and shortly before the date fixed for trial, count 2, which was the charge of being concerned in the production of a class B drug, was added to the indictment. That count was added at a hearing about a week prior to the date fixed for trial. The two co-accused pleaded guilty there and then but this appellant did not. However, he notified his intention to plead guilty to the new count some three days later. It meant that the trial date was vacated and that the matter was listed for him to enter his plea. 3. The circumstances of the offence are as follows. On the evening of 15th June 2010 police were contacted about suspicious activity in the vicinity of commercial premises in the centre of Wolverhampton. A number of vans had turned up at the premises and individuals had been seen coming and going from the premises. When police officers arrived they found four vans outside. One of them had reversed up to the doors of the premises. Another had 66 mature cannabis plants wrapped in plastic bin liner bags inside it. Officers found a further 16 bags containing cannabis plants waiting to be loaded into the van. The officers searched the premises and quickly came upon the appellant and one of the other two. They ran away but were arrested after a short chase down a corridor. A third man was found upstairs and was also arrested. 4. A full search of the premises revealed a sophisticated cannabis factory containing about 1100 plants at various stages of maturity. It was estimated that a total yield of about 40 kilograms of cannabis could have been produced, giving a street value of around £200,000. The appellant declined to comment when he was interviewed. 5. When he tendered his plea he put forward a basis of plea which was very similar to that put forward by the two co-accused. His account was as follows. That he had been at the home of one of his co-accused when the co-accused received a call on his mobile phone. The appellant was told that there was a cleaning job available and was also told that the other co-accused was coming to pick the pair up and take them to the job. The appellant went on to say that he and the other man were collected in a red transit van and that when he arrived at the destination he realised that the job was not a cleaning job but was to do with cannabis. Despite that knowledge, he had agreed to move bags from upstairs to downstairs and while he was in the process of doing that the police arrived and arrested the three of them. 6. This appellant is 26 years of age. He had previous convictions. None involved drugs, but he had a conviction for theft as an employee recorded against him in 2007 and a caution for a public order matter in 2008. He had not previously served any custodial sentence. 7. The pre-sentence report showed that the appellant accepted responsibility for what he had done and stated that his actions were financially motivated. There were three favourable character references. 8. The grounds of appeal assert that the sentence was manifestly excessive. The written grounds submit that the judge took too high a starting point and failed to take sufficient account of the guilty plea and the basis of plea. Mr Baker, who has appeared today, has essentially confined himself to two points. First of all submitting that insufficient credit has been given for the guilty plea, and secondly, drawing our attention to the well-known authority of Xu [2008] 2 Cr. App. R (S) 50 and submitting that in the light of that decision the judge should have taken a lower starting point. 9. The sentencing judge said that she was taking account of the basis of plea. That clearly showed that this appellant only became criminally involved at a late stage in events, that is upon arrival at the warehouse. He had originally attended at the premises for an innocent purpose, according to the basis of plea, and it was on that basis that he had to be sentenced. Then, with a view to financial gain, he became involved in the preparations for physical removal of a significant number of cannabis plants. The judge accurately described the appellant as playing a “lowly and menial role”. She described the overall operation as a very sophisticated and professional operation and plainly had in mind the case of Xu . In that case, this court indicated that those at the lowest level in an enterprise of this type of scale should be subject to a starting point of three years, prior to taking account of plea and personal mitigation. It is however right to observe that in giving that guidance this court described those at the lowest level as “workers tending the plants in the particular premises, carrying out the ordinary tasks involved in growing and harvesting the cannabis.” Such people are often referred to as gardeners. This court went on to observe: “They would usually have little or nothing to do with the setting up of the operation but would simply carry out their tasks on the instruction of those running the operation.” 10. In our judgment this appellant was involved at an even lower level than those described in Xu . The judge appears to have recognised that as she took a starting point of 27 months. Although it is correct that this was a large scale operation, this appellant had not previously been involved prior to the night when he went to the premises and therefore would not have been in the same position of appreciating the nature and scale of the operation as someone who, employed as a gardener, had visited the premises on a number of occasions and had tended the plants in the course of doing so. 11. In our judgment, the judge's starting point failed to make sufficient allowance for the limited involvement disclosed by the basis of plea to which the judge had to be loyal. We consider that a starting point of 18 months or a little more discounted to 15 months to reflect guilty plea would have been appropriate in the circumstances of this case. 12. Accordingly, we allow this appeal by substituting a term of 15 months for the 23 months imposed. Time credited for curfew and remand in custody will continue to apply.

2011_04_05-2694.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1044/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1044

45d938a18cf744b64c090d39497e3eab856354e865b97323ced31f55108b57f5

[2015] EWCA Crim 650

EWCA_Crim_650

2015-03-25

crown_court

Neutral Citation Number: [2015] EWCA Crim 650 Case No: 201403320/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 25th March 2015 B e f o r e : LORD JUSTICE JACKSON MRS JUSTICE COX DBE RECORDER OF REDRBRIDGE (HIS HONOUR JUDGE RADFORD) (Sitting as a Judge of he CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JEFFREY DIX - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave I

Neutral Citation Number: [2015] EWCA Crim 650 Case No: 201403320/C1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 25th March 2015 B e f o r e : LORD JUSTICE JACKSON MRS JUSTICE COX DBE RECORDER OF REDRBRIDGE (HIS HONOUR JUDGE RADFORD) (Sitting as a Judge of he CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v JEFFREY DIX - - - - - - - - - - - - - - - - - - - - - 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. RECORDER OF REDBRIDGE: On 30th September 2013 in the Crown Court at Newport in the Isle of Wight, before His Honour Judge Hetherington, the applicant changed his pleas of not guilty to guilty to the offences that day he was due to be tried on. On 23rd October 2013 he was sentenced for those offences by the learned judge. For an offence of putting a person in fear of violence by harassment, he was sentenced to an extended sentence of 8 years, comprising a custodial term of 4 years and an extension period in relation to the licence of 4 years. For a second offence of putting a person in fear of violence by harassment, he was sentenced to 10 months' imprisonment concurrent. For a third offence of the same nature, to a further 10 months' imprisonment to run concurrently. For a fourth offence of the same kind, again 10 months' imprisonment, ordered to run concurrently. Lastly, for an offence of arson, he was sentenced to 21 months' imprisonment, again that sentence ordered to run concurrently. The total sentence passed therefore was an extended sentence of 8 years, comprising a custodial term of 4 years and extension period of 4 years. No victim personal surcharge was imposed. An indefinite restraining order was made to prohibit contact with the victim of the harassment. 2. The applicant now renews his application for leave to appeal his convictions after refusal by the single judge. If that application is refused, it will then be necessary for this court to consider the lawfulness and appropriateness of the sentence passed on count 1 on the indictment, in the context, we add, of all the associated offences for which sentences were passed, as the single judge has referred that sentence for consideration by the Full Court. 3. As we have said, the applicant renews his application for leave to appeal conviction after refusal by the single judge and it is right that we should set out the facts of the case. 4. The applicant and the victim, Kirsty Newnham, had known each other for some years following their previous employment at the same public transport company on the Isle of Wight. That had included a short personal relationship in early 2013. In April and May 2013 the victim and other members of her family received hundreds of text messages and calls from a telephone number which ended 9995. Many of the messages threatened physical and sexual violence and many were of a homophobic and racist nature. 5. On 14th May 2014, shortly after midnight, the stables in which the victim's family housed their horses was destroyed by fire. The total value of the damage caused was in the region of £32,500. Fortunately, the horses were unharmed by the fire. Thereafter, further text messages were received by the victim's family which threatened further arson attacks and telephone calls during which the song "Burn Baby Burn" was heard. 6. The applicant was sought in relation to these matters and on 19th May he was arrested. He was found to be in possession of two mobile phones, one of which contained a SIM card using the very 9995 number from which the threatening calls and messages had been received. 7. The prosecution case was that the applicant was responsible for the telephone calls and text messages received by the victim and her family and that these communications had caused them to fear violence (counts 1 and 4 of the indictment) and that it was the applicant who had started the fire which destroyed the stables owned by the victim's mother (count 10). 8. When he was interviewed on 10th May 2014 the applicant denied any involvement in the telephone communications. In a further interview on 14th May 2014 he denied any involvement with the text messages and the fire. Furthermore, on the 19th May,in the last interview, the applicant said he had found the telephone containing the SIM card using number ending 9995 near to his house a few days earlier and had not known what to do with it. He said he had not used it. 9. The matter was, as we say, listed for trial but in the event the applicant pleaded guilty. After an adjournment for counsel to consult with the applicant the matter came before the learned judge before moving to sentence. An application was made by trial counsel, on behalf of the applicant, that he could, if an adjournment was granted, instruct fresh legal representation in order so that they, on his behalf, could seek to persuade the court to vacate his earlier pleas of guilty. Those acting for him stating that they had become professionally embarrassed by what had taken place and were no longer able properly professionally to represent him. 10. The learned judge considered but rejected the application for an adjournment and released counsel and solicitors who had been acting on the applicant's behalf. 11. The applicant, who then appeared unrepresented, applied to vacate his pleas of guilty to counts 1 to 4 on the indictment. He asserted that he had thought he had entered pleas of guilty to harassment charges which did not include the element of putting a person in fear of violence. 12. However, following investigations, which included listening to the audio recording of the clerk of the court arraigning the applicant on the charges in the indictment, the learned judge rejected the application to vacate the guilty pleas and stated that he was satisfied that at the time that those pleas were entered the applicant had been fully aware of the charges on the indictment. 13. In grounds of appeal against conviction, settled by counsel not previously instructed on the applicant's behalf, it has been contended firstly that the judge erred in not allowing the adjournment of the sentence hearing, following the withdrawal of the applicant's former solicitors and counsel. Secondly, that he erred in not allowing the applicant to withdraw his pleas of guilty and thirdly, that in any event, the applicant had been ineffectively represented at trial. 14. In view of those criticisms made of trial counsel and solicitors the applicant agreed to waive his legal professional privilege to enable responses to his criticisms of trial counsel and solicitors to be obtained. We have read and considered for ourselves those responses contained in letters dated respectively 19th and 28th August 2014 (together with the signed endorsement, confirming the applicant's decision to change his pleas to guilty). We have additionally read the applicant's further response to the correspondence from his former lawyers dated 5th September 2014. 15. We turn first to the merits of the renewed application to appeal against conviction. In refusing leave the single judge observed that the applicant contended that he had been pressurised into pleading guilty at trial by his solicitors and counsel and that when they withdrew the judge should have permitted him to vacate his guilty pleas. He concluded though, that it was clear from the responses of his trial counsel and solicitors that he had been properly and competently advised as to the strength of the overwhelming evidence against him and that the applicant had then decided, of his own free will, to plead guilty to the charges he faced, the terms of which, we would add were read out clearly to him on his re-arraignment as recorded by the court audio equipment. The single judge concluded that there was no basis for revisiting the trial judge's decision in his discretion not to allow the applicant to vacate his guilty pleas. In consequence, the application for leave to appeal conviction, in any event being 8 months out of time and in the single judge's view without merit, the was refused. We have ourselves now, given the renewal of those applications, consideration as to their merits. 16. We wholly agree, for the reasons given by the single judge that they are without merit, there being no properly arguable basis for determining that any of the applicant's convictions are unsafe. We find that the applicant was represented by experienced and able trial counsel and concientous solicitors who advised him entirely properly. We are satisfied that the applicant made his own independent decision to plead guilty to the offences, the terms of which he understood and which were in any event fully supported by the available evidence. We therefore refuse the renewed applications for leave to appeal against conviction. 17. We therefore turn to the application for leave to appeal sentence, referred to the Full Court by the single judge. We note that before passing sentence the trial judge had before him victim personal statements from the victim, Ms Newnham, her sister and parents. We have read those for ourselves. The judge was also made aware that the applicant, who was born on 28th July 1987, had only one previous court appearance, which was on 7th December 2001 but that appearance was for two separate offences of arson, committed on different days in 2001, for which he had in consequence been made the subject of a supervision order for 18 months. 18. In sentencing the applicant in the lower court, the judge observed that the offences committed by him, putting a person in fear of violence by harassment (counts 1 to 4), were in his judgment at the top end of seriousness for that category of offence and for the reasons he set out he determined that, in any event, having regard to the whole of the facts, the applicant was a dangerous offender within the meaning of the Criminal Justice Act 2003 . He commented that in his view the offences required considerable planning, over a substantial period and involved a campaign of harassment, threats and abuse, including threats of rape, murder and in any event homophobic and racist threats made to multiple victims. In assessing the appropriate custodial sentence the judge gave the applicant a 10% reduction on account of his pleas, as we say, entered on the day of trial. 19. However, the single judge has referred the sentence to the Full Court because as we find, with respect to be entirely correct, as indeed has been identified in one of the documents the applicant has put before us today from Robert Banks, the author of Banks on Sentencing,that it was unlawful for the judge to have passed an extended sentence of 8 years on count 1, given that the maximum sentence for that offence is but 5 years. 20. However, the single judge observed that as the sentencing judge indicated that the lead sentence on count 1 was designed to reflect the totality of all the applicant's associated offences, for which sentence had to be passed (and we would add his overall assessment of the applicant's dangerousness) he was referring the sentences to the full court for it to judge whether to substitute for the sentence imposed on count 1 the lesser sentence within the maximum sentence available but in place of the sentence passed of 21 months' imprisonment for the offence of arson, to substitute for that offence the 8 year sentence passed on count 1, given that the offence of arson is not limited to a maximum 5 years but indeed has a maximum of life imprisonment. 21. We should record that since the single judge referred the sentence to this court, for the reasons we have summarised, the applicant wrote by letter dated 7th January 2015 to the court asserting that the judge erred in imposing the extension period. Secondly, that he had not considered dangerousness. Thirdly, that the extension period was excessive and fourthly, the judge had increased sentence and improperly reduced the discount for the guilty pleas. 22. We should observe that this court has power, under section 11(3) of the Criminal Appeal Act 1968 , to quash any sentence which is the subject of an appeal and in its place - we quote from the statute - "pass such sentence, or make such order as it thinks appropriate for the case as the court below had power to pass or make, when dealing with an appellant for the offence." Provided that in exercising its power this court, taking the case as a whole, ensures that the defendant/appellant is "not more severely dealt with on appeal than he was dealt with in the court below". 23. We are satisfied that if we were to substitute for the 21 months' imprisonment sentence for the offence of arson an extended sentence of 8 years, made up, as we have specified, and quash the extended sentence on count 1, replace it with a sentence of 21 months' imprisonment, we would be acting within the powers afforded to us by the appeal statute. 24. We have considered the contents of the applicant's letter to the court, to which we have made reference, and the other documentation which he has helpfully presented to us this afternoon. We find that the judge did indeed consider dangerousness, and that he did not, so far as the overall sentence was concerned, err in taking the course that he did that it was appropriate for there to be an extended sentence, made up as he had directed. The error that he fell in, as we made clear, was in attaching that sentence to count 1 as opposed to count 10, the offence of arson, which also featured on the indictment. 25. We have concluded that the sentencing judge did find, for sound reasons, that in judging the case overall the applicant was a dangerous offender within the meaning of the Criminal Justice Act 2003 and that his finding to that effect and the length of the extended licence period was wholly supported, amongst other things, by the contents of the pre-sentence report and the facts of the case. We note too the previous offending for arson. 26. We therefore have concluded that we should vary the sentence passed on count 1 by substituting for it a sentence of 21 months' imprisonment and vary the sentence on count 10 by quashing the sentence of 21 months' imprisonment and substituting for it an extended sentence of 8 years, comprising a 4 year custodial term and 4 year extended licence. In the light of the progress that the applicant, the references he has supplied to us indicates is making, we feel that that would be of assistance to him in due course when the question of his dangerousness and his proper date of release is further considered. However, we see nothing wrong in the assessment made by the lower court. 27. It has been drawn to our attention, we finally say, that the judge in the court below should have made a victim surcharge order in the sum of £120 but failed to do so. However, given the provisions of section 11(3) of the Criminal Appeal Act to which we have drawn attention and our conclusion that we are not minded to reduce the overall sentence passed in the lower court, we are precluded from rectifying that omission as to do so would be to increase the total penalties that the applicant would face. 28. For those reasons and to that extent the sentences of the lower court are varied.

2015_03_25-3582.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2015/650/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2015/650