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JuDDGES

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3e5353c50761ab092f732d7d3ea045f3e9c21a157a0372158f3e28793183d1a1

[2016] EWCA Crim 569

EWCA_Crim_569

2016-04-13

crown_court

Neutral Citation Number: [2016] EWCA Crim 569 Case No: 2015/4775/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13 April 2016 B e f o r e : THE VICE PRESIDENT OF THE CACD LADY JUSTICE HALLETT DBE MR JUSTICE JEREMY BAKER THE RECORDER OF MIDDLESBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A V ADRIAN PACURAR - - - - - - - - - - - - - - - - - - - - - Computer-

Neutral Citation Number: [2016] EWCA Crim 569 Case No: 2015/4775/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 13 April 2016 B e f o r e : THE VICE PRESIDENT OF THE CACD LADY JUSTICE HALLETT DBE MR JUSTICE JEREMY BAKER THE RECORDER OF MIDDLESBROUGH HIS HONOUR JUDGE BOURNE-ARTON QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A V ADRIAN PACURAR - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr P Rule appeared on behalf of the Appellant Mr T Bradbury appeared on behalf of the Crown J U D G M E N T (As approved by the Court) LADY JUSTICE HALLETT: Background 1. The learned editors of Blackstone's Criminal Practice 2016 Edition at B 3.1 describe the Sexual Offences Act 2003 as: "... the most important overhaul of the law governing sexual offences since at least Victorian times. Some offences have been swept away, others have been redefined and many new ones have been created. Part 1 of the Act created over 50 offences. Some carry different sentences depending upon the precise factual ingredients proved, which in accordance with the decision in Courtie [1984] AC 463 means they actually create even more offences." 2. The offence with which we are concerned is one of three that appear under the heading "Preparatory Offences" in Part 1 of the Act . Section 61 provides for an offence where someone intentionally administers a substance with intent to engage in sexual activity. Section 62 provides for an offence where a person commits an offence with the intention of committing a sexual offence. Section 63 provides: "(1) A person commits an offence if- (a) he is a trespasser on any premises, (b) he intends to commit a relevant sexual offence on the premises, and (c) he knows that, or is reckless as to whether, he is a trespasser. ... (3) A person guilty of an offence under this section is liable- (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine ... (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years." 3. A relevant sexual offence is defined in accordance with section 62(2) to mean any offence under Part 1 (including an offence of aiding, abetting, counselling or procuring). 4. On 18th September 2015 in the Crown Court at Winchester, before Her Honour Judge Miller QC, the appellant was convicted of an offence of trespass with intent, contrary to section 63(1). He was sentenced to three-and-a-half years' imprisonment. He served his sentence and returned to his native Romania. The principal issues for this court are whether the prosecution was obliged to specify the sexual offence intended and whether the judge's directions to the jury were adequate. This appears to be the first time that an appellate court has been invited to consider the degree of particularity required in a count alleging an offence under section 63. Facts 5. At about 7.30 am on 22nd January 2015, Richard and Linda Park were at home in their secluded farmhouse in Hampshire. Mrs Park was in bed feeding their new-born baby. Their other son, aged two-and-a-half, was also upstairs. Mr Park had put the rubbish bins out for collection and had left the back door unlocked on his return allowing the appellant access. He made his way upstairs. To her horror, Mrs Park looked up to see a naked man in her bedroom. She screamed. The appellant gestured at her to calm down and said "Don't make any noise." He touched his penis with one hand. It appeared to Mrs Park that he was trying to draw attention to it. 6. Mr Park heard the scream and rushed to the bedroom. His elder son right behind him. He saw his wife in the far corner of the room with the baby in her arms. The appellant was standing naked in their bedroom, partly facing his wife and partly facing him. When Mr Park arrived the appellant had one or both hands on his penis and was "tugging" on it. The penis was not erect but the appellant appeared to be trying to arouse himself. Mr Park took the appellant downstairs by the arm and threw him onto a sofa in the living room. The appellant continued to touch his own penis and despite Mr Park's obvious anger, asked him: "I suck you off?" The appellant attempted to get up and Mr Park punched him in the face. He then ejected the appellant from the house but, because it was so cold, allowed the appellant back in. Mr Park telephoned the police. During the call Mr Park noticed that the appellant inserted his finger into his anus. Mr Park could smell faeces. He believed the appellant was still trying to arouse himself. Mrs Park brought down some clothes and Mr Park was able to take the appellant back outside. The appellant told him he had had a message from God. 7. Most of the appellant's clothes, car keys, glasses case and mobile telephone were found in a pile not that far from the house, but his coat was in a separate position much closer to it, as if he had undressed and then kept on his coat for warmth. His car was found at a nearby service station on the M3 motorway. 8. In interview the appellant stated that he had left his car at a service station having decided to go for a walk. He had walked through a forest but branches got hooked on his clothes and felt heavy so he removed his clothes. He claimed he was already naked when he saw the Parks' home and that he only went into the garden because he had seen a child's ball caught in a fence and he wanted to put the ball back into a toy car. A man came out of the house and started shouting at him. The man accused him of "doing a hand-job in front of his wife and kids". The man punched him. He denied the accounts given by Richard and Linda Park in their witness statements. He agreed that until recently he had been a regular cannabis user. Medical evidence 9. The psychiatric evidence came from two consultant forensic psychiatrists: Dr Ley called by the defence and Dr Feeney called by the prosecution. They provided a statement of areas of agreement and disagreement. The areas of agreement were that: i. the appellant was fit to plead and stand trial; ii. he was mentally unwell at the time of the alleged offence but not so unwell he was legally insane and not so unwell he could not form a specific intent for a sexual offence; iii. it was likely he was suffering from a psychotic episode and held grandiose delusional beliefs; iv. this episode, as well as reported previous psychotic episodes in Romania, occurred in the context of using cannabis; v. it was likely cannabis contributed to his mental ‘unwellness’; vi. his behaviour was disinhibited probably due to his elevated mood and as part of his disturbed mental state; vii. his ability to form an intent was likely impaired at the time of the alleged offence due to his mental ‘unwellness’; 10. However, they disagreed on whether the appellant did in fact form the specific intent to commit a sexual offence. Dr Ley was of the view that the appellant did not intend to commit a sexual offence. Dr Feeney felt it was a matter for the court and the jury. Despite objections from Mr Rule for the defence, the judge refused to permit him to put before the jury Dr Ley’s opinion on the basis this evidence went to "the ultimate issue" namely the issue the jury had to decide. She concluded the jury did not need expert evidence upon the issue. Issues raised at the close of the Crown case 11. At the close of the Crown's case, and for the first time, Mr Rule complained about the lack of particularity in the indictment. The indictment read: Statement of offence Trespass with intent to commit a sexual offence, contrary to section 63(1) of the Sexual Offences Act 2003 . Particulars of offence Adrian Pacurar on the 22nd day of January 2015 whilst trespassing on premises [address provided] and knowing that, or being reckless as to whether, he was a trespasser therein, intended to commit a relevant sexual offence on those premises. 12. Mr Rule attempted to persuade the judge that because the prosecution had failed to specify the sexual offence alleged, the count must be withdrawn from the jury. If the count remained as it was, it was his contention that the jury could not be sure what, if any sexual offence, the appellant intended and could not safely convict him of the offence charged. Further, he argued that the judge was obliged to direct the jury they would all have to be sure the appellant intended to commit the same offence, in respect of the same person and without their consent. 13. During the course of argument this morning Mr Bradbury explained that he provided the court below with more particulars of the prosecution case than may appear from the indictment. It was his case that the appellant intended to commit a sexual offence, at its most serious an offence of rape, at its least serious an offence of sexual assault, upon one of the occupiers of the Park household, adult or child. On that basis he maintained the defence required no further particulars and they would be well able to present their case. 14. The judge agreed. However, she noted that in the light of the way the Crown put their case, if the appellant was convicted she would be obliged to sentence on the basis most favourable to the appellant, namely that he intended the least serious sexual offence. Mr Bradbury did not demur. 15. Mr Rule raised a further issue with the trial judge, namely automatism. For the first time, he declared that he wished to advance a defence that the appellant was acting as an automaton. The judge ruled that a. there was no evidential basis for doing so (neither psychiatrist had mentioned the possibility) and b. the doctors were both of the opinion there was a causal link between the psychotic episode and the taking of cannabis and self-induced incapacity would not be a defence. Grounds of Appeal 16. In extraordinarily lengthy written grounds of appeal running to 65 pages, Mr Rule advanced every possible argument on behalf of the appellant. At the court's invitation he reduced those submissions to a skeleton argument approximately 15 pages long for the purposes of today's hearing. Ground 1 17. His continues to maintain that the prosecution was obliged to identify a specific intended sexual offence absent which he says the conviction is bad in law. 18. He reminded the court of the large number of offences contained in Part 1 of the Act and argued that the defence faced an impossible task defending them all. More particulars would have ensured a proper focus on what the Crown had to prove and potential defences. 19. Mr Rule suggested the proper course would have been to allege several counts, for example, dividing the allegation into the most serious sexual offence against an adult (rape) and the least serious offence against an adult (sexual assault) and the most serious sexual offence against a child (rape) and the least serious sexual offence against a child (sexual assault). In that way, he would have been better able to present any possible defences to each count and the judge would have had a proper basis for sentence. He complained that the lack of particulars meant the appellant has not had a fair trial and does not know the basis upon which the jury reached their verdicts. He placed considerable emphasis upon the fact that this was an inchoate offence for which the principal ingredient was the issue of intent. He took us to other offences of a similar nature so as to highlight the importance of a focus on the specific intent required. Ground 2 20. Ground 2 was dependent on the success of ground 1. If the prosecution was obliged to provide further particulars, the judge's directions were insufficient. The judge's oral directions were supplemented by a written route to verdict prepared after consultation with both counsel. 21. It reads: "In order to prove the offence of trespass with intent to commit a sexual offence the prosecution must make you sure of the following elements of the offence: (1) That the defendant entered the house known as [address included] on the morning of 22nd January 2015. (2) That the defendant was a trespasser when he entered the house. The defendant would be a trespasser if either (a) he knew he had no permission to be in the premises, or (b) he would be reckless as to whether he was a trespasser if he was aware that there is a risk that he was in a building in possession of another person who did not consent to his entry, and it was unreasonable in all the circumstances known to him to take that risk. (3) That he intended to commit a sexual offence on the premises. • This could be any sexual offence at all on an adult or a child. • In respect of an adult a sexual offence is committed where the other person does not consent and the defendant does not reasonably believe that the person was consenting. • A sexual offence in respect of an adult can be from a non-consensual sexual touching at the lower end of the scale to vaginal and anal rape at the top. • A sexual offence in respect of a child can be from a sexual touching at the lower end of the scale to vaginal or anal rape at the top. A child cannot consent to any sexual offence." 22. Mr Rule accepted that these directions narrowed the prosecution case to an intent to commit an offence contrary to sections 1 to 3, in relation to an adult occupier of the house, and an offence contrary to sections 5 to 7 in relation to a child occupier of the house. Nonetheless he submitted the judge should have provided the jury with far fuller directions on the necessary mens rea . He claimed the effect of the judge's directions was that the jury were directed they could convict on the basis of sexualised behaviour or even a desire to have some form of sexual activity, neither of which would be a sexual offence within Part 1. Ground 3 23. Under ground 3 Mr Rule claimed there was, in any event, insufficient evidence of an intent to commit a sexual offence and of the necessary mens rea for the trespass element of the offence. If, as the experts opined, the appellant was in a state of psychosis at the time he entered as a trespasser and suffered from delusional beliefs, he may not subjectively have appreciated he was entering as a trespasser. On that basis, the judge should have withdrawn the case from the jury. Ground 4 24. Mr Rule insisted the judge was obliged to direct the jury that she could only accept a verdict from them upon which they were all agreed as to the specific offence intended. This would have provided what he described as a minimum safeguard for the appellant's rights to a fair trial. Ground 5 25. The judge was wrong to withdraw the defence of automatism from the jury; Mr Rule maintained there was a sufficient evidential basis for it. The fact there may have been a causal link between the appellant’s drug taking and the psychotic episode should not have deprived him of the defence because his drug taking most probably stemmed from his mental condition over which he had no control. Ground 6 26. Mr Rule criticised the judge for refusing to allow him to elicit Dr Ley’s opinion on the “ultimate issue” of intent. He submitted that this was something upon which the jury would be entitled to receive expert opinion and referred us to the decision in Stockwell (1993) 97 Cr.App.R 260 in which Lord Taylor, CJ, rejected what had been (if not a rule of law) a rule of practice that experts could not be asked "the ultimate issue". Lord Taylor said this at page 266: i. "In our view an expert is called to give his opinion and he should be allowed to do so. It is, however, important that the judge should make clear to the jury that they are not bound by the expert's opinion, and that the issue is for them to decide." Ground 7 27. Ground 7 consisted of an attack upon the judge’s summing up of the defendant's case and of his account to the police to the jury. The judge failed to remind the jury of all the details of the interview and this was said to be significant in the context of this case, particularly in the light of the medical evidence and the fact that the appellant did not give evidence. Ground 8 28. Mr Rule criticised the judge’s directions on character. The appellant had no previous convictions and was therefore a man of good character. He may not have given evidence but he did rely upon some of the contents of his interview. In accordance with the judgment in Hunter and others [2015] 2 Cr.App.R 9 , the appellant was entitled to both limbs of the character direction. The judge in fact only gave the propensity direction. Ground 9 29. Finally, Mr Rule criticised prosecuting counsel Mr Bradbury, for what he called an ‘ambush’ in the way in which he questioned the experts. Conclusions 30. There is very little assistance to be found on the degree of particularity required in a count alleging an offence under section 63 of the Act . The words of the section are clear: the intention to commit any offence within Part 1 will suffice but, as Mr Rule observed, that could be one of any number of offences. The words of the section do not, therefore provide the answer to the question posed for us. The learned editors of the two leading criminal textbooks Archbold and Blackstones Criminal Practice believe the prosecution is not required to specify the sexual offence intended in relation to section 62 (Blackstones 3.271 and Archbold 20-196) and one assumes therefore their opinion is the same for section 63 . But the specimen counts they provide for section 63 differ. The editors of Blackstone, perhaps out of an abundance of caution, suggest the draftsman specify the relevant sexual offence, whereas the editors of Archbold do not. 31. We have therefore focussed upon basic principles of fairness and the Criminal Procedure Rule (2015) that governs the form and content of an Indictment. CPR 10.2 provides that an indictment must contain a statement of the offence that describes the offence in ordinary language and identifies any legislation that creates it and “such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant”. 32. There will be many cases where the evidence points to a specific sexual offence intended and the Crown will be in a position to make clear what is alleged, by identifying the offence alleged in the Particulars of the Offence. However, there will be other cases, and this is one, where the prosecution alleges it is obvious from all the circumstances that the defendant intended to commit a sexual offence but it is impossible to specify precisely which one and upon whom, for example, the appellant intended a sexual assault on an adult occupier of the Park household. We have no doubt Parliament intended section 63 to cover both situations, provided, of course, any prosecution and trial could be fair. 33. In our judgment, this trial was undoubtedly fair. There were ample safeguards for the appellant. First the prosecution had to prove to the criminal standard that the ingredients of the offence were made out including that the appellant had the necessary mens rea for both the trespass and a sexual offence. Second, the judge ensured the appellant was provided with sufficient particulars of the offence alleged in the combination of the Particulars of the Offence and in the way the case was put to the jury. The appellant knew full well the case he had to meet: namely that he trespassed on the day specified, at the address specified intending to commit a sexual assault (at the very least) on one of four members of the Park family. Third, the judge’s directions to the jury ensured the jury understood what the prosecution had to prove and the different considerations that applied if the intended victim was a child. Fourth, the judge sentenced the appellant on the basis most favourable to him. 34. Had the prosecution put their case on the basis the defendant intended to commit any of the very many offences created in Part 1 against any one of a number of people in the area, we could understand Mr Rule’s concern rather more; but it did not. Effectively Mr Bradbury narrowed down the possible offences to sections 1 to 3 and sections 5 to 7 of the Act against specific individuals at an identified time and place. This is a similar approach to that adopted in R v Jones [2008] QB 460 . The Particulars of the Offence were not in issue in Jones, but the offence charged was contrary to the sister offence in section 62 and no objection seems to have been taken by any of the parties or by the court to this wording: "Ian Jones on or before 24th October 2004 criminally damaged property, namely train toilets, belonging to South Central Trains with intent to commit a sexual offence, namely an offence within sections 5 to 8 of the Sexual Offences Act 2003 ." 35. With the benefit of hindsight, Mr Bradbury conceded it might have been better to head off Mr Rule’s argument by putting more details into the body of the Particulars, something he intends to do in the future. Other prosecutors may wish to do the same. 36. Further we reject the associated ground of appeal, that the judge should have directed the jury they had to agree on the sexual offence intended. As the single judge observed, the circumstances in which a Brown direction ( [1984[ 79 Cr App R R 115 ) is required are now very limited and "it is not arguable they should extended to a case such as this". It would not matter that some of the jurors were satisfied the appellant intended to commit an assault on Mr Park and some that he intended to commit a more serious offence, provided they were all agreed that the ingredients of the offence were made out, namely that he trespassed with the intent to commit a relevant sexual offence. 37. The only other ground of appeal in which we saw any possible substance was the ground in relation to the directions on character. Technically, the appellant was entitled to a direction on credibility. However, no harm has been done. The interview at which the direction would have been directed contained proven and somewhat absurd lies. As the single judge observed: "Assuming it is correct, as asserted by the prosecution, that it was not seriously contended on your behalf that the contents of the interview were true, ie that you did go into the house, then the omission of one of the parts of the good character direction can have had no effect on the safety of the verdict where you did not give evidence. In any event, on the facts of this case, it is difficult to see how that omission could have affected the safety of verdict." 38. We agree. Any direction to the jury as to credibility would have been counter-balanced with a strong direction on the many and highly significant lies told in interview. The net result would have been inevitably adverse to the appellant. 39. As for the other complaints, there is nothing in them. Mr Bradbury did not behave improperly. The judge was entitled to reach the view that, on the facts of this case, the jury should form their own conclusions on the “ultimate issue” of intent without the experts’ opinions. The jury had ample material upon which they could form their own views as to the appellant's intent. They had the evidence of the Parks, the photographs, plans, CCTV footage of the appellant making his way to the house, the footage of the appellant on arrest and the appellant's own account. 40. Further, the judge was not obliged to leave the defence of automatism to the jury; there was no evidential basis for it. Finally, the judge fully and fairly directed the jury on the law, the issues and the evidence. It was not necessary for her to rehearse the full contents of the appellant's interview; the jury had a copy of that interview and took it with them into the jury room. 41. For all those reasons, albeit we understand why the single judge granted leave, we are satisfied that there is nothing unsafe in this appellant's conviction and the appeal against conviction is dismissed.

2016_04_13-3745.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/569/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/569

d936374c04345b6c8bf96449edf6b16b8c6249a9be072cd5ed5d22ad2e954ab7

[2023] EWCA Crim 697

EWCA_Crim_697

2023-06-16

crown_court

Neutral Citation Number: [2023] EWCA Crim 697 Case No: 202100625 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER HH Judge Burbidge KC T20207123, T20207111 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/06/2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION, LORD JUSTICE HOLROYDE MRS JUSTICE FARBEY and MR JUSTICE COTTER - - - - - - - - - - - - - - - - - - - - - Between: MOHAMMED SADDAM HUSSAIN FAISAL FIAZ ADAM CARPENTER Ap

Neutral Citation Number: [2023] EWCA Crim 697 Case No: 202100625 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WORCESTER HH Judge Burbidge KC T20207123, T20207111 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/06/2023 Before: THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION, LORD JUSTICE HOLROYDE MRS JUSTICE FARBEY and MR JUSTICE COTTER - - - - - - - - - - - - - - - - - - - - - Between: MOHAMMED SADDAM HUSSAIN FAISAL FIAZ ADAM CARPENTER Applicants - and – THE KING Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Baltaj Bhatia KC for MS Hussain, Felicity Gerry KC for F Fiaz and David Bentley KC for A Carpenter (all counsel assigned by the Registrar of Criminal Appeals) Michael Burrows KC (instructed by CPS Appeals Unit ) for the Respondent Hearing dates: 31 January, 1 February 2023 - - - - - - - - - - - - - - - - - - - - - Approved Judgment WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Lord Justice Holroyde: 1. Colton Bryan, aged 22, was stabbed to death in his home on 15 July 2020. It is common ground between the prosecution and the defence in these proceedings that the fatal injury was inflicted by Mohammed Hammad Hussain (the younger brother of the applicant Mohammed Saddam Hussain), who fled to Pakistan on the following day and has not been arrested. On 15 February 2021, at the conclusion of a trial in the Crown Court at Worcester before HH Judge Burbidge KC and a jury, each of these applicants was convicted of murder and of conspiracy to rob. The first applicant had earlier pleaded guilty to an offence of doing acts tending and intended to pervert the course of justice. They were each sentenced to life imprisonment. Their applications for leave to appeal against conviction and for leave to appeal against sentence have been referred to the full court by the single judge. 2. In summarising the relevant facts, we shall for convenience, and intending no disrespect, refer to persons mainly by their surnames alone. We shall refer to the Hussain brothers as Hammad and Saddam. 3. The indictment contained three counts. On count 1, all three applicants were charged, together with Hammad, with murdering Bryan. On count 2, they were all charged with conspiring together and with Hammad to rob Bryan. On count 3, Saddam alone was charged with doing acts tending and intended to pervert the course of justice by assisting Hammad to avoid arrest. 4. It was the prosecution case that Bryan had been dealing in cannabis and that he was stabbed because his attacker wanted to steal his stock and cash, and/or to put him out of business. It was further the prosecution case that Hammad had been assisted and/or encouraged by the three applicants, who were all parties to a joint plan and who all intended that Bryan would, if necessary, be caused really serious injury. Summary of facts : 5. The prosecution presented a circumstantial case at trial. In particular, the prosecution relied on evidence, summarised in a timeline, of contacts and mobile phone calls between the applicants. We think it sufficient to give the following bare outline of the sequence of events. 6. On 14 July 2020 Saddam was in phone contact with Carpenter. Carpenter and Fiaz were both in phone contact with Hammad, and both travelled from Redditch to Birmingham. 7. On 15 July 2020 Carpenter and Fiaz again drove together from Redditch to Birmingham, and each of them was in phone contact with both Saddam and Hammad. Whilst in Birmingham, and later when back in Redditch, Carpenter made calls to Bryan, which the prosecution alleged were arrangements to go to Bryan’s flat. Carpenter told a friend that he was going to have a smoke at Bryan’s home. Carpenter then drove in his Skoda car, with Fiaz and Hammad as passengers, to the area near Bryan’s flat. At 8.40pm he parked on Highfield Avenue and waited for Bryan, who returned with his girlfriend Chelsea Durber at 9.04pm. At 9.08pm, Fiaz called Carpenter, who then walked to Bryan’s flat. Fiaz remained in the car with Hammad. Carpenter was buzzed into the block of flats by Bryan: as he entered, he propped the outer door open with a stone before going into the flat. At 9.12 pm Daniel Allcott¸ a friend of Bryan, arrived and also went into the flat. 8. At 9.26pm Fiaz’s phone was used to send a message to Carpenter, asking “Drop ready?”. Two minutes later, a further text was sent asking “Shall I send him or wat?”. Two minutes after that, Hammad was captured on CCTV walking towards the flat. Fiaz remained in or near the car in Highfield Avenue. 9. Hammad entered the flat. He was armed with a large hunting knife. Allcott gave evidence that Hammad was holding the knife at his side, with the blade pointing down, which caused Allcott to think that the knife was being carried for the purpose of intimidation rather than use. Allcott said that Hammad went towards Bryan, who was sitting down. Ms Durber gave evidence that Hammad, as he approached Bryan, said “Fuck you”: there was no demand for drugs or money. Bryan reached for a baseball bat and the two men scuffled. Ms Durber went into the kitchen and picked up a frying pan. Allcott left the flat. So too did Carpenter, despite Ms Durber’s pleas to him to help Bryan. Hammad inflicted a total of five stab wounds, three of which were to the chest. One of the chest wounds was the fatal injury. Ms Durber struck Hammad with the frying pan, causing him to drop the knife. Hammad then departed. Ms Durber rang 999. 10. Carpenter returned to his car, where he joined Fiaz. A minute or so later, Hammad joined them. They drove away from Highfield Avenue before the emergency services arrived, and travelled to Birmingham via a route which avoided ANPR cameras. As they travelled, both Hammad and Fiaz called Saddam. 11. In Birmingham, they went to a car park at which other cars were waiting. Fiaz left in one of those cars, and Hammad – who had changed his trousers – left in another. Saddam and Fiaz were in phone contact. Carpenter cleaned the Skoda, changed his clothes and left. About 30 minutes later he returned to the car park, where he was joined shortly afterwards by the car in which Hammad was travelling. Carpenter later returned to Redditch but, instead of going to his own home, booked into a hotel at about 2am. 12. In the early hours of 16 July 2020 Saddam booked flights for his brother to travel that morning from Birmingham to Islamabad via Istanbul. Saddam, Fiaz and Hammad thereafter drove in Saddam’s car to Birmingham Airport, but arrived too late for Hammad to board the flight which had been booked for him. Saddam arranged an alternative flight from Gatwick Airport. At 6.40am all three left Birmingham Airport together. 13. Later that morning, Carpenter returned to his home. He told a friend that Bryan was dead, saying that he had been at Bryan’s flat when a man wearing a balaclava had run in and grabbed Bryan. Carpenter also gave his mother a similar account, and said that he needed to get out of the country. His mother’s partner, Paul Harris, took him to the police station, though Carpenter first gave his phone to his friend, told her it needed fixing and asked her to sort that out for him. 14. Interviewed as a witness, Carpenter told the police that a large man wearing a balaclava had come into the flat holding a big knife. He said he had been scared and had run back to his car. He had dropped his phone and smashed the screen. He said he could not provide any information to help identify Bryan’s killer. After leaving the police station, Carpenter rang Saddam and Fiaz before calling his mother. 15. Hammad, Saddam and Fiaz arrived at Gatwick Airport just before 3pm. By shortly after 5pm, Hammad had left the country. The other two drove away from the airport. Both were in phone contact with Carpenter, who had left Redditch around 5pm to go to stay in a hotel in Weston-super-Mare. 16. On the following day, 17 July 2020, Carpenter was in phone contact with Saddam. That afternoon, Carpenter drove away from his hotel in his Skoda car, but returned on foot. He later claimed that he had been attacked and robbed of the car and a phone; but he did not report that crime to the police at the time and did not mention it when Harris rang him around 7.25pm. 17. There were further phone calls between Carpenter and Saddam. At 10.44pm Carpenter rang Harris and said he had been threatened by men who put a bag over his head and took his car and phone. He told his mother that he had to get out of the country because he had been made to set up a robbery at Bryan’s flat, and the person who killed Bryan had now taken his car. Harris said he would come and collect him. Carpenter’s mother and Harris then contacted the police. 18. There were then two calls by Saddam to Carpenter, after which Saddam travelled south-west, exchanging calls with Carpenter as he went. The prosecution case was that Carpenter was arranging for Saddam to collect the Skoda car and dispose of it. 19. At 3am, the police went to Carpenter’s hotel. He told them he needed to dress before opening the door, but could be heard doing something with his phone: the prosecution case, denied by Carpenter, was that he was trying to delete records. He was arrested. Interviewed under caution, he made no comment. 20. Fiaz was arrested on 21 July 2020. In interviews under caution, he gave differing accounts. In a later interview he said he was now ready to tell the truth about what happened on 15 July 2020. He said he had been in Birmingham with Hamad and Carpenter. Hammad was asking Carpenter to find someone he could rob in Redditch, and Carpenter mentioned Bryan. Fiaz told them it was wrong to rob someone, but they didn’t listen to him. They drove back to Redditch, and Carpenter made calls arranging to visit Bryan. Fiaz said that Hammad told him he would only beat up Bryan and grab the drugs: Fiaz did not know a knife would be involved. Fiaz said that it was Hammad, not he, who used Fiaz’s phone to call Carpenter when Carpenter was in the flat. Hammad had then gone to the flat. 21. Fiaz said that when Carpenter had returned to the car he had told Fiaz that Hammad had pulled out a knife and slashed Bryan’s hand. Hammad then ran back to the car and said “I think I murdered him”. As they drove away, Fiaz had asked Carpenter to drop him home, but Carpenter had refused and driven them all to Birmingham via a country lane. Fiaz stated that he had been told not to say anything about what had happened and was put under a lot of pressure: he had not wanted to go to the airport, but Saddam had insisted. 22. Saddam was arrested on 22 July 2020. In interview, he denied any involvement in either the murder or a planned robbery, but otherwise made no comment. The submissions of no case to answer : 23. At the conclusion of the prosecution evidence, each of the applicants submitted that there was no case for him to answer on the charge of murder. Saddam and Fiaz also made a similar submission in relation to the possible alternative charge of manslaughter, and the count of conspiracy to rob. The judge rejected all those submissions. He gave his reasons in a detailed judgment. 24. In brief summary, the judge said that there was incontrovertible evidence that Hammad stabbed Bryan to death, though the judge acknowledged that issues of accident, intent or self defence might arise if Hammad was on trial. He reminded himself of the familiar principles in R v Galbraith (1981) 73 Cr App R 124 and R v G and F [2012] EWCA Crim 1756. He also considered the decision of this court in R v Bassett [2020] EWCA Crim 1376, on which the applicants relied, but concluded that it established no different principle from R v G and F and merely dealt with the application of the principle in the particular circumstances of that case. He directed himself that, in a circumstantial case, the test he should apply – as stated by this court in R v G and F – was whether, on one possible view of the evidence, a reasonable jury could reject all realistic possibilities consistent with innocence and draw the inference of the guilt of the accused: it was not necessary that all reasonable juries would do so. 25. The judge also reminded himself of the principles stated by the Supreme Court in R v Jogee [2016] UKSC 8, [2017] AC 387 (“ Jogee” ), in particular at paragraphs 92-98. 26. The judge referred in detail to the submissions of counsel, analysed the evidence relating to each applicant, and concluded that each had a case to answer. The defence cases : 27. The case for each of the applicants was that he had not intended to assist or encourage any robbery of Bryan, had not intended any harm to Bryan, and was not in any way responsible for the actions of Hammad or the death of Bryan. 28. Saddam gave evidence to that effect. In summary, he said he was not aware of what his brother or his co-accused were doing on 15 July 2020, and his calls with Fiaz and Carpenter that day were nothing to do with the murder or with any plan to rob Bryan. He admitted he had helped his brother to leave the country after Hammad said he had stabbed someone. 29. Saddam admitted that he used cannabis and sold it on a very small scale in Redditch, including on a few occasions to Carpenter, but denied any knowledge of Bryan and denied knowing he was a rival drug supplier in Redditch. He said that on 15 July 2020 he obtained cannabis from his supplier in Birmingham and gave it to Carpenter, who was with Fiaz and Hammad, but he did not know where they were going after that. He said he had made two phone calls to Hammad between 9 and 10pm to tell him to come home for his dinner, but did not know what Hammad was doing. Hammad had then called him at 10.10pm saying something bad had happened and he needed a flight. Hammad had quickly ended the call, and Saddam said he then rang Carpenter, and later Fiaz, to see if Hammad was still with them. After further phone calls, in which Hammad was repeating his need for a flight to Pakistan, Fiaz and Hammad had arrived at the Hussain family home. Hammad said he had stabbed someone, but neither he nor Fiaz told Saddam who had been stabbed. 30. Saddam accepted that he had taken Hammad to the airports. He also admitted that he had spoken to Carpenter on 16 July about burning his car, because there was blood in it, but said that was in order to protect his brother. He said that he had pleaded guilty to doing acts tending and intended to pervert the course of justice, but that was all he had done. He was not involved in any plan with Hammad and had never seen the knife which his brother had used to stab Bryan. Saddam said he had followed his solicitor’s advice in declining to answer questions in interview. 31. Fiaz did not give evidence. The judge when summing up summarised Fiaz’s case by reference to what had been said in interview, in particular the later interview at which he was represented by a solicitor. 32. Carpenter gave evidence that he had known Bryan for a number of years and knew he sold cannabis. He said he himself sold cannabis, including with Fiaz, and through Fiaz he met Saddam and Hammad. He said that in 2019 he had felt under pressure from Saddam to bag up drugs for him, but denied that he was in fear of the Hussain brothers. He was aware that Hammad was selling class A drugs. 33. Carpenter said that three or four weeks before the killing Hammad had bought a knife in Birmingham and had showed it to him: that was the murder weapon. Carpenter gave an account of that occasion which provided a possible explanation for the later finding of his DNA on part of the knife. 34. Carpenter denied that phone calls on 14 July 2020 were anything to do with a plan to injure Bryan. He said that on 15 July he drove to Birmingham to obtain cannabis from Saddam. Fiaz had travelled with him, and they had met up with Hammad. When Carpenter and Hammad were alone in the car, Hammad had said he wanted to rob Bryan because Bryan had quite a lot of drugs and money. He knew that Carpenter was a friend of Bryan and wanted him to keep the door open so that Hammad could run in, take the items and run straight out. Carpenter said he resisted this idea, but was then threatened by Hammad, who said that he would rob the homes of Carpenter and his mother. Carpenter said he therefore believed he had no choice. He did not know that Hammad would have a weapon or that any force would be used. Carpenter said that he had called Bryan as required and arranged to go to his flat. When buzzed into the block, he had propped the door open. He had not expected to see Allcott also there. He had texted Fiaz to say that the doors were open and that money and drugs were in the flat. When Hammad had entered the flat, he knew that he would be wearing a mask and gloves, but he had not expected him to be carrying a knife. Allcott had run out, and Carpenter had also left after seeing Hammad and Bryan scuffling. 35. Carpenter said that when he joined Fiaz in the car, Fiaz too had been shocked by the information that Hammad was carrying a knife. Hammad then joined them, with blood around his stomach, and told Carpenter to drive back to Birmingham. They had stopped in a field, at Hammad’s direction, and Carpenter had seen a lot of blood on the back seat. He had cleaned the car and given Hammad some shorts which he had in the boot. Hammad then directed Carpenter to drive to a car park in Birmingham: Carpenter said he didn’t want to, but Hammad threatened that he would end up like Bryan if he did not do what he was told. Hammad also told him to burn his car and to burn Hammad’s clothes, and Carpenter said he felt he had no choice. 36. Carpenter admitted that he had told lies to the police when interviewed as a witness, and had tried to mislead them as to the identity of the killer, but said he had done so because he had to comply with Hammad’s directions. He did not say that Fiaz had been with him because he knew Fiaz would not want his name mentioned. He said that whilst in Weston-super-Mare he had been in phone contact with Saddam, who told him to burn his car, and Carpenter had done so. He had also burnt a phone. He said he had followed his solicitor’s advice as to which questions to answer when interviewed under caution. He said he had not told the truth when interviewed under caution because he didn’t want to snitch on anyone, was frightened of Hammad, feared retribution from Bryan’s friends and feared he would be charged with murder. 37. A clinical psychologist, Mr Eric Wright, was called by Carpenter to give expert evidence. Mr Wright’s evidence was that testing showed that Carpenter was abnormally compliant. Mr Wright gave his opinion that Carpenter was therefore significantly more likely than others to do what he was told if he was threatened, and more likely to follow the advice of a solicitor whether or not he agreed with it. The judge’s directions : 38. The judge provided the jury with written directions and routes to their verdicts. His directions included the following: “ Joint responsibility for a crime A crime can obviously be committed by a person acting alone or indeed by two or more people acting together. Indeed a crime may be committed by people who are present but engage very little or not at all in the activity of the crime. However, to be jointly responsible they must assist or encourage and intend to assist or encourage the other participant or participants to commit the crime in question. … So a person can participate in a crime in different ways, provided he intentionally assisted or encouraged the offence to be committed however great or small his participation in that way is. Mere presence at the scene of a crime or association with another who commits crime is not enough to prove guilt and that is something you must bear in mind in this case given the positions of [Carpenter] and [Fiaz], but if an accused was deliberately present at the scene and by his presence either assisted or encouraged or did participate intending to, he would be guilty of the particular crime alleged. … There are two routes to the consideration of murder in this case . First route : The prosecution allege that this was a case where the shared intention by those who were involved was to rob [Bryan]. … It is the prosecution case that if this was a conspiracy to rob, those who were engaged in it would anticipate that [Bryan] would not necessarily allow his property to be taken by the mere threat of force, but the person carrying out the robbery would need to use some actual physical violence. If it was intended that the person carrying out the robbery would if necessary use physical violence with intent to cause serious bodily injury, that would be murder by the person who carried out the physical violence with that intent and an y person who encouraged or assisted him to so with that shared intent. This is sometimes called a “conditional intent”. … Second route: The prosecution say that whether or not what was being carried out by Hammad was a conspiracy to rob with the intention to take his drugs and money, there was what might in the vernacular be called a ‘turf war’. A straightforward attack by a rival supplier of drugs, and Hammad’s intention was, in fact, to kill [Bryan] or cause him really serious injury. This would be another way that murder is committed. If that was his intention and anybody knew of his intention and shared it and encouraged him or assisted him in carrying out that attack with that intention, they too would be guilty of murder … An overwhelming supervening event [going beyond the plan]. Note this is a consideration in relation to both the offence of murder and manslaughter. If you were satisfied that the defendant you are considering encouraged or assisted [Hammad] in an unlawful act or an attack on [Bryan], before you could convict of murder or manslaughter you would have to be sure that the prosecution have proved that [Hammad’s]actual conduct in stabbing was not an overwhelming supervening act which nobody in the defendant’s shoes (who you are considering) could have contemplated might happen, such that it relegated the defendant’s act of assistance or encouragement to history. If [Hammad’s] act may be such an overwhelming supervening act in this way, then the defendant you are considering would be acquitted of murder and manslaughter. An overwhelming supervening event might be the use of a knife by [Hammad] especially if a defendant was not aware such a weapon existed or would be used. However, lack of knowledge of a knife does not necessarily mean the use of it would be an overwhelming supervening event. It is a matter for you in the circumstances of all the facts of the case what would amount to an overwhelming supervening act such that a secondary party/accessory would not be responsible for it because it consigns what he did to history in the course of the events. So if it were the case when considering the individual cases of [Saddam/Carpenter/Fiaz] you were sure that they were involved in a conspiracy to rob [Bryan] with [Hammad] or indeed had planned and intended an attack on [Bryan] by him, but it might be the case that [Hammad] stabbing [Bryan] was an overwhelming supervening act that nobody in the shoes of the defendant you are considering could have contemplated might happen, such as to relegate the encouragement or assistance of the defendant you are considering to history, that defendant would not be guilty of murder or manslaughter.” 39. We would add that the judge directed the jury to treat Saddam as “a man of essentially good character” notwithstanding his previous convictions and his guilty plea to count 3, and Saddam was given the benefit of both limbs of the standard good character direction. The convictions and sentences : 40. As we have said, the jury convicted all three applicants of both count 1 and count 2. 41. At a later sentencing hearing, the judge considered victim personal statements from Ms Durber and members of Bryan’s family, and pre-sentence reports in relation to Fiaz and Carpenter. No report had been obtained in the case of Saddam, and we are satisfied that none is necessary now. 42. At the time of the murder, Saddam was aged 23. He had previous convictions for relatively minor offences. Fiaz, aged 20, had received a youth caution, which the judge ignored, but had no previous conviction. Carpenter, also aged 20, had no previous conviction. 43. The judge found that all three applicants and Hammad had been engaged in selling drugs, though not necessarily in a substantial way; that Bryan also ran a modest operation selling cannabis to friends; and that the applicants and Hammad had decided to rob Bryan of his drugs and cash and to attack him if necessary. He further found that the plan had been agreed before Fiaz, Carpenter and Hammad left Birmingham on 15 July 2020; that Saddam kept a close eye on the operation having sent the other three off; and that all the applicants knew that Hammad had the knife and would use it if necessary. 44. The judge held, in accordance with schedule 21 to the Sentencing Act 2020, that the appropriate starting point in assessing the minimum term in each case was 30 years. He held that it was appropriate to move downwards because of the applicants’ relative youth, and took into account their personal mitigation. He did not distinguish Saddam from the other applicants, either because he was slightly older or because he had previous convictions. He accepted that Carpenter was now remorseful, but found that he was the most culpable. In Saddam’s case, he increased the minimum term by 18 months to reflect the role of Saddam in helping his brother to flee the country. 45. The judge imposed sentences of life imprisonment on count 1, with minimum terms of 24 years 6 months in Saddam’s case; 23 years in Fiaz’s case; and 25 years in Carpenter’s case. Each of those minimum terms was reduced by the days spent on remand in custody. On count 2, there were concurrent determinate sentences of 10 years’ imprisonment for Saddam and Fiaz, and 11 years for Carpenter. On count 3, Saddam received a concurrent sentence of 2 years’ imprisonment. The grounds of appeal - Saddam : 46. In his grounds of appeal against conviction, Saddam challenges the judge’s ruling on the submission of no case to answer; contends that his convictions are unsafe because the judge failed adequately or at all to direct the jury about their approach to Hussain’s guilty plea to count 3; and contends that the jury could only have convicted by misapplying the judge’s directions of law. 47. On Saddam’s behalf, Mr Bhatia KC submits that the evidence of contacts and movements shown in the timeline, as expanded by additional defence entries during the trial, was all consistent with discussions and arrangements relating to the obtaining of cannabis. He relies on an exchange of text messages on 13 July 2020 in which Carpenter and another person referred to cannabis being in short supply. In those circumstances, Mr Bhatia submits, the judge was wrong to rule that it would be open to the jury to find that Saddam’s actions and contacts before the killing related to the attack on Bryan and showed Saddam organising that attack: it was not possible for the jury to exclude the alternative inference that they were all connected with the acquiring of cannabis. Mr Bhatia draws a comparison with the decision in R v Bassett , in which this court allowed an appeal against conviction, saying at paragraph 21: “The question in this case was whether the possibility that he washed his hands, panicked, threatened Wayne Anglin and told him not to call the police, and took the gun and ammunition(thereafter disposing of them) because he had just shot his friend and was frightened of the consequences of the shooting rather than because he had been in possession of the gun before he arrived at the flat. It appears to this court that when the question is postulated in that simple way, the possibility of panic as an explanation for his actions after the shooting cannot be eliminated. His actions were consistent with someone who was unaware of the gun until after he arrived at the flat, but who reacted in shock after it had been accidentally discharged. If that possibility could not properly be excluded on the available evidence, then a jury could not have safely concluded that the only inference to be drawn from that conduct was his guilt of the count of possession of the weapon before arriving at the flat. The submission that the count should not have been left to the jury should have been allowed … .” 48. It is further submitted that the judge wrongly held that Saddam’s actions after the killing could give rise to an inference of his having been a party to a plan or to the attack on Bryan. 49. As to the second ground of appeal, Mr Bhatia submits that a specific direction should have been given that the guilty plea to count 3 (which was the subject of an agreed fact) could not provide any support for the allegation that Saddam was involved in any plan or had the necessary shared intention for either count 1 or count 2. In the absence of such a direction, he submits, there was a real risk of prejudice to the applicant. 50. In relation to his third ground, Mr Bhatia makes a detailed analysis of the evidence against Saddam, and submits that at the conclusion of the evidence there was no basis on which the jury, properly applying the judge’s directions of law, could have been sure that the applicant was guilty of either count 1 or count 2: the reasonable possibility of an alternative explanation for his contacts and associations with his co-accused could not be eliminated. He points, amongst other things, to the absence of any text messages providing direct support for the prosecution case that Saddam was an organiser of a plan to attack Bryan. 51. Those three grounds were contained in the initial grounds of appeal settled by Mr Bhatia. Subsequently, different leading counsel put forward a fourth ground, namely that the judge erred in failing to direct the jury to ignore out of court comments about Saddam made by Carpenter: comments by Carpenter to his parents which it is said could be understood to mean that “Momo” (a nickname for Saddam) and Fiaz had been more involved than he was; and an assertion in Carpenter’s defence statement that he was in fear of the Hussain brothers and was terrified of what they would do to him if he told the police the truth about Bryan’s death. It is submitted that the jury should have been directed that they could not use any of that as evidence against Saddam. The point is made that such a direction was given in relation to answers given by Fiaz in his interviews under caution, in which he blamed the crimes on Hammad and Carpenter. 52. All four of those grounds of appeal against conviction have been referred to the full court by the single judge. Saddam has not applied for leave to appeal against his sentence. Mr Bhatia indicated, however, that if Fiaz and/or Carpenter succeeded in their appeals against sentence, he would wish to apply for an extension of time to apply for leave to appeal against sentence. The grounds of appeal - Fiaz : 53. Fiaz submits that his conviction for murder is unsafe because there was no evidence to take the case beyond an attempted robbery where the conduct of Hammad amounted to an overwhelming supervening act; the judge wrongly left the jury with an alternative route to verdict based on conditional intention, which was not the prosecution case; the prosecution were wrongly permitted to put their case on the basis that applicants “must have known”; and the prosecution wrongly characterised the background circumstances as showing that the applicants “would have contemplated” an attack on Bryan because he was a drug dealer. 54. Dr Gerry KC argues that there was no evidence on which the jury could be sure of Fiaz’s guilt of murder. In particular, there was no evidence that Fiaz knew of any plan to cause really serious harm to Bryan or knew that Hammad had a knife. She challenges the judge’s decision to reject the submission of no case to answer, which she suggests was “surprising” because there was no evidence capable of excluding the realistic possibility that Fiaz was neither a conspirator nor complicit, and no evidence that Hammad’s stabbing of Bryan was not an overwhelming supervening act. She submits that the judge wrongly failed to explain what was meant by a defendant being “more than merely present”. 55. Dr Gerry relies on R v G and F and R v Bassett , pointing to paragraph 36 of the former case in which Aikens LJ said: “… (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from the combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not, it must be withdrawn from the jury.” 56. Developing at some length her submissions about the law relating to joint enterprise, and relying on Jogee , Dr Gerry urges this court to confine, and not to expand, liability so as not to over criminalise secondary parties. She submits that proof of shared intention to commit a crime requires proof of knowledge of the essential facts of the crime, as well as actual and intentional assistance or encouragement. Subjective knowledge must be shown, and it is therefore not sufficient to say that a defendant “must have known” of an essential fact. She also submits that it is necessary for the prosecution to prove that an accessory made at least a measurable contribution to the commission of the crime by a principal. 57. Dr Gerry relies on the preservation by the Supreme Court in Jogee, at paragraphs 97- 98, of the principle that a defendant will not be criminally responsible for a death if it is caused by some overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history. She also relies on the decision of this court in R v Grant and others [2021] EWCA Crim 1243. Dr Gerry argues that the prosecution in this case could not prove that Fiaz – who remained in the car when Carpenter and Hammad were in Bryan’s flat – conspired to rob, or that the events were intended to involve an unlawful act causing harm, still less serious harm or death. The evidence did not show that Fiaz was more than merely present in the car and did not show that Hammad’s actions were within the scope of what Fiaz knew, intended or participated in. The judge, she submits, should therefore have allowed the submission of no case to answer. 58. Dr Gerry said she was not seeking to go behind Jogee , or R v Rowe and others [2022] EWCA Crim 27, and accepted that it is not necessary for the prosecution to prove that the conduct of a defendant in encouraging the commission of a crime by another did in fact cause that other to commit the crime. But, she argued, it was nonetheless necessary to prove that the conduct of the accessory made a measurable contribution to the crime. In support of that argument she relied on a paper by Professor Matthew Dyson, “The Contribution of Complicity” (The Journal of Criminal Law 2022, vol 86(6) 389-419). Professor Dyson’s thesis is that Jogee passed over the important issue of what contribution an accomplice needs to make to a principal’s crime. He argues that English law is too willing to assume that such a contribution has occurred and has little detailed law to test for it, and that a more rigorous approach is needed. He suggests that there should be a two-part approach: to be liable for assisting or encouraging a crime, the accomplice must make a substantial contribution to the principal’s commission of it; to be liable for procuring the principal’s crime, the accomplice must bring the crime about. Whether the accomplice’s assistance or encouragement had made the necessary substantial contribution would be a jury question. Such an approach, Professor Dyson argues, would be consistent with what was said in Jogee about overwhelming supervening acts: where such an issue arose, a jury would first have to decide what level of contribution the assistance or encouragement of the accomplice had made, and would then have to decide whether that had persisted to the point when the principal committed the offence. 59. The present case is concerned with assistance and encouragement rather than procuring. Adopting Professor Dyson’s approach, Dr Gerry submits that the judge had to decide whether there was sufficient evidence to go to the jury that a defendant’s assistance or encouragement had made a substantial contribution to Hammad’s killing of Bryan. She submits that there was insufficient evidence in the case of Fiaz, who remained in the car (parked, she suggests, in a location where he could not effectively act as look-out) and may not have been using his own phone when the important messages were sent to Carpenter in the flat. She questions the meaning of the familiar phrase “more than merely present”, and submits that the evidence could not prove that Fiaz actually assisted or encouraged Hammad to kill Bryan. 60. Dr Gerry also seeks to leave to argue a further ground, put forward after the single judge had referred the initial grounds to the full court, to the effect that the conviction for murder is unsafe because fresh evidence supported a conclusion by the jury that Fiaz could not have known or contemplated what Hammad would do. She seeks to adduce as fresh evidence a draft schedule of loss in a pending personal injuries claim by Hammad in relation to injuries he sustained in a road traffic accident many years ago, when he was aged 6. It is pleaded in this draft that following the accident Hammad suffered personality change as a result of traumatic brain injury: he was irritable, got into fights, was easily provoked, was hyperactive and impulsive, had an oppositional defiant disorder which includes temper and defiance and was touchy and easily annoyed. Dr Gerry argues that this evidence would have been admissible at trial through cross-examination of Saddam. Dr Gerry submits that if this evidence had been before the jury they would have concluded that Fiaz could not have known or contemplated how Hammad would act. 61. Fiaz’s ground of appeal against sentence is that the minimum term imposed on count 1 is manifestly excessive, in particular because the starting point should have been 15 years, not 30 years; the minimum term of 23 years was disproportionate for a 20-year old Asian male who was not present at the scene and who was sentenced on the basis of a conditional intention for really serious harm; and if the starting point of 30 years was correct, a greater reduction from it should have been made. She goes so far as to submit that the minimum term imposed was cruel and unusual punishment prohibited by the Bill of Rights 1689 and by articles 3 and 5 of the European Convention on Human Rights. She argues that the judge was not entitled to be sure of some of the facts which he found when deciding the basis for sentence. The grounds of appeal - Carpenter : 62. Carpenter’s application for leave to appeal against his conviction of murder similarly challenges the judge’s ruling on the submission of no case to answer. Mr Bentley KC submits on his behalf that the conviction is unsafe because a jury properly directed could have convicted of conspiracy to rob and manslaughter, but could not convict of murder because on the evidence they could not reject the realistic alternative possibilities of a conditional shared intention of harm in the course of robbery falling short of death or really serious harm, or of an overwhelming supervening act by Hammad in stabbing Bryan after the applicant had “fled the scene having withdrawn from any agreement when [Hammad] entered carrying a Rambo knife”. The judge, he submits, should have allowed the submission because there was insufficient evidence to prove that Carpenter shared in an intention to cause death or really serious injury. 63. Mr Bentley further submits that the conviction is unsafe because at the conclusion of all the evidence a jury properly applying the judge’s directions could not have convicted of murder. 64. Mr Bentley also seeks to leave to argue a further ground, put forward after the single judge’s decision, to the effect that fresh evidence is available which shows that Carpenter may be autistic. Dr Irani, a consultant child and adolescent forensic psychiatrist, has tested Carpenter and expresses the opinion that he is “on the range of having autistic spectrum traits” but does not meet the criteria for a diagnosis of autism. She further indicates that the applicant has some specific difficulties in his communication and social interaction. Mr Bentley submits that, if this evidence had been available at trial, it would have been relevant to the jury’s assessment of the evidence as to what the applicant was told and believed and how he was able to cope with pressure and threats. It would also have assisted the applicant in relation to the challenge to his credibility, and would have prompted consideration of whether he needed the assistance of an intermediary during his trial. 65. Mr Bentley acknowledges that an expert witness, Mr Wright, was called in Carpenter’s defence at trial. He submits, however, that Mr Wright only addressed the issue of an abnormal degree of compliance: there had been nothing to alert Carpenter’s legal representatives to possible autism and Mr Wright was not asked to consider that possibility. It is further submitted that Mr Wright was working within Covid-related limitations, and only saw the applicant face to face during the trial. Mr Bentley relies on R v Sossongo [2021] EWCA Crim 1777 as an example of a post-trial diagnosis of autistic spectrum disorder leading to the quashing of a murder conviction. 66. Carpenter’s grounds of appeal against sentence are that the judge was wrong to impose a longer sentence on him than on his co-accused, and that the minimum term was manifestly excessive for an offender aged only 20 at the time of the offence. Mr Bentley acknowledges that the judge found this applicant to be more culpable because of his betrayal of his friend Bryan. He submits however that there was no justification for the marked disparity between this applicant’s minimum term and those imposed on Saddam (who had encouraged this applicant to destroy his car and phone, and whose case had the significant aggravating feature of his attempt to pervert the course of justice) and Fiaz (whom the judge found to have been involved from the outset and who went to Birmingham Airport with the Hussain brothers). 67. Further and in the alternative, Mr Bentley submits that the judge failed to make a sufficient reduction from the starting point of 30 years to reflect the applicant’s age, immaturity, abnormally compliant personality, remorse, previous good character and progress in prison. The submissions of the respondent : 68. All of the grounds of appeal against conviction are opposed by Mr Burrows KC on behalf of the respondent. He submits, first, that the jury could properly conclude that each applicant was knowingly involved in more than a theft or robbery and intended that Bryan should be confronted, attacked and caused at least really serious injury. He submits that the jury were entitled, having regard to the sequence of events shown in the timeline for the evening of 15 July 2020, to infer that all the applicants, and Hammad, were engaged in the same activity. He points out that about 20 minutes before the killing, when the Skoda car was parked near Bryan’s flat, Saddam called Hammad and, unlike on other occasions, Hammad chose to answer and they spoke for 15 seconds. He submits that the jury would be entitled to infer that it was not a conversation about a mundane matter unrelated to what was about to happen in the flat. 69. In relation to Saddam, Mr Burrows further submits that the directions as to the guilty plea to count 3 were proper and sufficient, and that the judge made it clear that the applicant’s conduct in helping his brother to leave the country could not show that he had known his brother was going to Bryan’s flat or what he was going to do there. There was no reason to suppose the jury misapplied the judge’s directions. As to the additional ground, he submits that the absence of a direction to ignore comments made by Carpenter does not render the conviction unsafe, because nothing Carpenter said implicated Saddam in the murder of Bryan. Mr Burrows points out that at trial, no one had seen any need for the direction which is now suggested. 70. In relation to Fiaz, Mr Burrows submits that the evidence showed that Fiaz had waited for Bryan to return to his flat; had sent messages to Carpenter when he was in the flat, including asking “shall I send him?”; had stayed with his co-accused after the attack, when he could have walked away at any time during the period when he remained in or near the car; and had told numerous lies in interview. He submits that the jury were properly directed and must have been sure that Fiaz shared an intention sufficient for murder, whether it was primarily an intention to attack Bryan and cause him really serious injury, or an intention to rob Bryan with a conditional intent to cause him at least really serious injury. As to the additional ground, Mr Burrows submits that the proposed fresh evidence is irrelevant to the issues in the case. 71. In relation to Carpenter, Mr Burrows submits that the evidence showed that Carpenter arranged to meet Bryan in his flat, waited for him to return, and helped Hammad, knowing that Hammad was armed with a Rambo knife. There was no reason to suppose the jury misapplied the judge’s directions. As to the additional ground, he submits that Dr Irani’s report contains no new information, but merely covers topics about which Mr Wright gave evidence. The suggested autistic difficulties do not provide Carpenter with any defence and cannot explain his lies to the police and others, including his mother. Analysis : 72. We are grateful to all counsel. Having reflected on their submissions we have reached the following conclusions. The applications for leave to appeal against conviction: grounds relating to the submissions of no case to answer and possible alternative inferences : 73. In considering the submissions of no case to answer, the judge directed himself correctly in accordance with the test stated in R v G and F . Indeed, it is not suggested that the judge was in error as to his approach: the real complaint is that he should have accepted the submission that the jury could not exclude alternative explanations (namely, a joint plan limited to theft or robbery with only limited violence, with no intent to cause serious injury; or an overwhelming supervening act by Hammad) and therefore could not draw the inferences necessary to convict of murder. 74. As his later directions to the jury show, the judge also had well in mind the principles applicable to joint responsibility for a crime. Dr Gerry conceded that there was no criticism of the judge’s directions, given the law as it stands. 75. The evidence adduced by the prosecution was in our view unarguably sufficient to enable a reasonable jury to conclude that each of the applicants was party to a plan to attack and/or to rob Bryan, if necessary causing him really serious injury. The applicants all accepted that there was a plan at least to steal, if not to rob; and the jury were entitled to reject as unrealistic any suggestion that drugs and money would be taken from Bryan without any intention to use violence and to cause serious injury if required. We accept Mr Burrows’ submission that the jury were entitled, having regard to the sequence of events shown in the timeline for the evening of 15 July 2020, to infer that all the applicants, and Hammad, were engaged in the same activity. We also accept Mr Burrows’ submission that the timing and sequence of events and contacts after the killing could properly be regarded by the jury as giving rise to an inference that Saddam was involved before the killing and not merely helping his brother after the event. 76. Dr Gerry in making her submission of no case to answer accepted that the jury could infer that it was Fiaz who sent the text message asking Carpenter whether to send Hammad in, and made a phone call. Although she now says that concession should not have been made, it was in our view a fair and realistic one; and in any event, it was the basis on which the judge was invited to consider the submission. In addition, whilst we agree with Dr Gerry that it is important not to treat an omission to act as necessarily being evidence of complicity, the jury were entitled to view Fiaz’s action in remaining in or near the car as evidence of his intentional assistance or encouragement. 77. We have seen photographs of the knife with which Hammad killed Bryan. It has a wide blade some 9 inches long, sharply pointed and with two cutting edges, one of which has deep serrations. The name “Rambo” is engraved upon it. We note that there is no suggestion that Hammad could have any legitimate use for such a knife. Anyone stabbed with such a knife would be very likely to suffer death or really serious injury. Carpenter had seen the knife when Hammad had purchased it some weeks before the killing; Hammad had the knife with him when travelling to the scene with Fiaz and Carpenter, and whilst they were all waiting in the car; and the jury would be entitled to think that Hamad would have had no reason to conceal the knife from his accomplices. In those circumstances, the jury were plainly entitled to infer that each of applicants, including Saddam, knew that Hammad was armed when he went to the flat. As Mr Burrows submitted, a plan to steal could have been accomplished by burgling the flat in Bryan’s absence, but those in the Skoda car waited for Bryan and Ms Durber to return before Carpenter entered the flat and left the door ajar for Hammad to follow. 78. We note also the evidence that the applicants were not deflected from their plan by the unexpected presence of Allcott as well as Ms Durber; that when Hammad approached Bryan he did not demand money or drugs, but instead made an aggressive remark; and that Carpenter ran from the flat even though Ms Durber asked him to help his friend Bryan. Allcott’s assessment of the situation was part of the evidence for the jury to consider, but was not determinative of the inferences they could properly draw. 79. There were of course jury points to be made about the inferences to be drawn form the evidence. Many of them were repeated in the submissions to this court. Some, with respect, required what would in our view be an unrealistic view of the inferences which the jury could properly draw. All were, in any event, arguments for the jury to consider, not reasons for withdrawing an issue from the jury. 80. Like the judge, this court is bound by the clear principles as to joint responsibility for a crime which were laid down by the Supreme Court in Jogee . The following extracts from the judgment in Jogee are in our view particularly relevant to the issues raised by this appeal: “12. Once encouragement or assistance is proved to have been given, the prosecution does not have to go so far as to prove that it had a positive effect on D1’s conduct or on the outcome: R v Calhaem [1985] QB 808. In many cases that would be impossible to prove. There might, for example, have been many supporters encouraging D1 so that the encouragement of a single one of them could not be shown to have made a difference. The encouragement might have been given but ignored, yet the counselled offence committed. Conversely, there may be cases where anything said or done by D2 has faded to the point of mere background, or has been spent of all possible force by some overwhelming intervening occurrence by the time the offence was committed. Ultimately it is a question of fact and degree whether D2’s conduct was so distanced in time, place or circumstances from the conduct of D1 that it would not be realistic to regard D1’s offence as encouraged or assisted by it. … 88. … in some cases the prosecution may not be able to prove whether a defendant was principal or accessory, but it is sufficient to be able to prove that he participated in the crime in one way or another. 89. In cases of alleged secondary participation there are likely to be two issues. The first is whether the defendant was in fact a participant, that is, whether he assisted or encouraged the commission of the crime. Such participation may take many forms. It may include providing support by contributing the force of numbers in a hostile confrontation. 90. The second issue is likely to be whether the accessory intended to encourage or assist D1 to commit the crime, acting with whatever mental element the offence requires of D1 (as stated in para 10 above). If the crime requires a particular intent, D2 must intend (it may be conditionally) to assist D1 to act with such intent. … 92. In cases of secondary liability arising out of a prior joint criminal venture, it will also often be necessary to draw the jury’s attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional. The bank robbers who attack the bank when one or more of them is armed no doubt hope that it will not be necessary to use the guns, but it may be a perfectly proper inference that all were intending that if they met resistance the weapons should be used with intent to do grievous bodily harm at least. … 93. Juries frequently have to decide questions of intent (including conditional intent) by a process of inference from the facts and circumstances proved. The same applies when the question is whether D2, who joined with others in a venture to commit crime A, shared a common purpose or common intent (the two are the same) which included, if things came to it, the commission of crime B, the offence or type of offence with which he is charged, and which was physically committed by D1. A time honoured way of inviting a jury to consider such a question is to ask the jury whether they are sure that D1’s act was within the scope of the joint venture, that is, whether D2 expressly or tacitly agreed to a plan which included D1 going as far as he did, and committing crime B, if the occasion arose. 94. If the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D2 must have foreseen that, in the course of committing crime A, D might well commit crime B, it may in appropriate cases be justified in drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose; or in other words that it was within the scope of the plan to which D2 gave his assent and intentional support. But that will be a question of fact for the jury in all the circumstances. … 96. If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious injury, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter. So also if he participates by encouragement or assistance in any other violent act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death in fact results. … 97. The qualification to this … is that it is possible for death to be caused by some overwhelming supervening act by the perpetrator which nobody in the defendant’s shoes could have contemplated might happen and is of such a character as to relegate his acts to history; in that case the defendant will bear no criminal responsibility for the death. 98. This type of case apart, there will normally be no occasion to consider the concept of ‘fundamental departure’ as derived from R v English . What matters is whether D2 encouraged or assisted the crime, whether it be murder or some other offence. He need not encourage or assist a particular way of committing it, although he may sometimes do so. In particular, his intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in possession. Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, and may be irresistible evidence one way or the other, but it is evidence and no more.” 81. Paragraph 12 of that judgment was described in R v Grant & others, at paragraph 32, as “an insuperable obstacle” to a suggestion that the concept of overwhelming supervening act should be viewed through the lens of causation: it is encouragement and assistance that count. This court went on to say, at paragraph 34, that the Supreme Court in paragraphs 12, 97 and 98 of Jogee significantly limited the circumstances in which a jury will need to consider the possibility that there had been a departure from the agreed plan. 82. In the light of Jogee and R v Grant & others , this court in R v Rowe & others rejected as unarguable a submission that although the accessory’s encouragement of the principal need not have caused the offence, the accessory must nonetheless have had some effect on the events. The court did not accept the suggestion that there was a tension within paragraph 12 of Jogee , the first part of which dealt with the conduct element of an accessory’s liability for assistance or encouragement, and the last part of which dealt with an exclusion from that aspect of liability, namely an overwhelming supervening act. Referring to R v Calhaem and to R v Stringer [2012] QB 160, the court said: “132. … [In Calhaem ] the Court of Appeal held at p813 E-G that the word ‘counselling’ does not imply any causal connection between the counselling and the offence. True enough, the actual offence must have been committed by the person counselled. To that extent there must be contact between the parties and, in that sense, a connection between the counselling and the offence. 133. Likewise, in [ Stringer ], Toulson LJ (as he then was) … explained that the accessory’s conduct must be ‘relevant’ to the offence of the principal and, in that sense, there must be a ‘connecting link’. So encouragement should have the capacity to act on the principal’s mind ([49]). Then at [50] he stated: ‘If D provides assistance or encouragement to P, and P does that which he has been encouraged or assisted to do, there is good policy reason for treating D’s conduct as materially contributing to the commission of the offence, and therefore justifying D’s punishment as a person responsible for the commission of the offence, whether or not P would have acted in the same way without such encouragement or assistance.’ 134. There is no additional requirement for the prosecution to prove that the encouragement or assistance did contribute to the commission of the offence. ” 83. Applying those principles to the facts and circumstances of the present case, we see no basis on which it can be argued that the judge erred in his ruling on the submissions of no case to answer. For the reasons which he gave, the judge was unquestionably entitled to conclude that, on one view of the evidence in relation to each applicant, a reasonable jury could properly convict. 84. Dr Gerry submitted that there is a need for this court to lay down detailed rules including at least a measurable contribution by an accessory to the commission of the crime by a principal. We cannot accept that submission. We had some difficulty understanding what exactly was meant by “a measurable contribution”. Jogee clearly confirms that there is no need to prove a causal link between the secondary party’s assistance or encouragement, and the principal’s commission of the crime, but the secondary party must be proved to have assisted or encouraged the principal to commit the crime, or the type of crime, which the principal in fact committed. It seems to us that the suggested need for a “measurable contribution” is no more than a restatement of that requirement. We are therefore unable to accept the submission that a more detailed direction was needed in order to assist the jury to distinguish between mere presence and intentional assistance or encouragement. 85. Nor do we accept the submission that the judge wrongly left the case to the jury on the basis that a defendant “must have known” of a particular fact. In context, that phrase plainly means “must have known, and did know”. 86. The submission that nobody in the shoes of the applicants could have contemplated that violence would be used at all is in our view unrealistic in the circumstances of a plan to steal the drugs and/or cash of a young man who, notwithstanding his good qualities, was in fact engaged in supplying drugs, and who was in his flat with his girlfriend and another young man. The judge in his summing up left the issue of overwhelming supervening act to the jury, and no criticism can be made of his direction in that regard. 87. In those circumstances, we see no arguable basis for the challenges to the judge’s ruling that each applicant had a case to answer, or for the grounds of appeal based on a submission that the jury could not exclude alternative inferences consistent with innocence. The applications for leave to appeal against conviction: other grounds : 88. We see no merit in the grounds of appeal by which Saddam criticises aspects of the summing up. First, on what we have read and been told, it seems that there was no request at trial for the judge to give any direction about count 3. Even before this court, no specific suggestion was made as to what the judge should have said. In any event, we are not persuaded that any direction was, even arguably, necessary. Secondly, Saddam’s actions after the killing were largely admitted by him and formed an important part of the evidence on which both the prosecution and Saddam himself relied. His actions were relevant to the jury’s consideration of what inferences they could properly draw as to whether Saddam was involved in a conspiracy to rob and/or in the murder. The judge reminded the jury of the defence submission that Saddam’s conduct after the killing “cannot show that he knew that his brother was going to Colton Bryan’s flat or what he was going to do at Colton Bryan’s flat”. We are not persuaded that the judge could or should have said anything more. 89. As to Saddam’s fourth ground, we accept Mr Burrows’ submission that none of the relevant comments by Carpenter – which the prosecution alleged were completely untrue – could be regarded as implicating Saddam in the murder; and Carpenter himself gave evidence that his comments did not refer to Saddam. The fact that Mr Bhatia did not ask the judge to give any particular direction about those comments is in our view an indication that no importance was attached to them at trial. It is impossible now to argue that the absence of a direction renders Saddam’s convictions unsafe. The applications for leave to appeal against conviction: grounds relying on fresh evidence : 90. In relation to the additional grounds which Fiaz and Carpenter seek to put forward, we remind ourselves of the principles stated by this court in R v James [2018] 1 WLR 2749, in particular at paragraph 38. These include that as a general rule, all grounds of appeal which an applicant wishes to advance should be lodged with the notice of appeal; the requirement of leave from the single judge is an important filter; and any applicant who applies for leave to vary the notice of appeal so as to add a new ground faces a high hurdle. 91. As to Fiaz’s proposed additional ground, we are unable to accept that the draft schedule of loss (see paragraph 60 above) provides any basis for an arguable ground of appeal. Setting aside the difficult question of how exactly the contents of that document could have been adduced as evidence that after his accident in 2006 Hammad was in fact irritable, easily provoked, inclined to fight, etc, it seems to us impossible to argue that any such personal characteristics could have passed unnoticed by Fiaz, who was Hammad’s friend, or by Hammad’s own brother or by other mutual friends. It follows that, far from supporting a conclusion by the jury that Hammad’s actions could not have been foreseen by Fiaz, this proposed evidence if anything supports the opposite conclusion. In any event, the inescapable fact is that Hammad went into Bryan’s flat, having waited for a significant period of time with Fiaz and Carpenter, using a means of access arranged with them in advance, and armed with a large and vicious knife which had been in his possession all the time they were in the car together. That, as it seems to us, is the opposite of impulsive behaviour. 92. We are therefore satisfied that the proposed fresh evidence cannot satisfy the criteria in section 23 of the Criminal Appeal Act 1968. We accordingly decline to receive it as fresh evidence, with the result that the proposed additional ground of appeal falls away. 93. As to Carpenter’s proposed additional ground, we heard Dr Irani’s evidence de bene esse . She stated her opinion that Carpenter showed some deficits in his ability to communicate and in social interaction, affecting his conversation and his ability to show emotions. She said he had difficulty in maintaining eye contact and in exhibiting facial expressions, which could have been clarified to the jury if her assessment had been made before the trial. In cross-examination, Dr Irani accepted that these deficits did not prevent Carpenter from choosing to commit offences or from identifying a rival drug dealer and choosing to attack him. Nor did they explain his decisions to tell lies about what had happened, including to his mother. 94. Mr Bentley submitted that this evidence would have prevented the jury from mistaking Carpenter’s flat affect when giving evidence for callousness, would have enabled the jury properly to assess Carpenter’s evidence that he was under pressure to act as he did, and would have provided the necessary context for the jury to assess his intention at the material times. He relied on R v Sossongo as having “echoes of this case”, though he accepted that cases are fact-dependent. 95. The facts and circumstances in R v Sossongo were indeed very different, and in our view the decision in that case cannot assist Carpenter. Dr Irani’s evidence cannot in our view meet the criteria in section 23 of the Criminal Appel Act 1968 for the admission of fresh evidence. Implicit in the application is the submission that evidence to the effect of Dr Irani’s report was not available at trial. Although Mr Wright was working within Covid restrictions, he spent some time assessing Carpenter. He is a very experienced expert witness, whose specialist areas of work include autistic spectrum disorder, and who was instructed to establish whether Carpenter “displays any psychological vulnerabilities, such as suggestibility or compliance, which might be relevant to his defence”. If Carpenter was then exhibiting the deficits to which Dr Irani refers, it could be expected that Mr Wright would have observed them and commented upon them. We therefore do not accept that Dr Irani provides fresh evidence which was not available at trial. In any event, her evidence could not in our view provide any ground for allowing an appeal. We therefore decline to receive it. There is accordingly no basis for giving leave to appeal on the proposed additional ground. The applications for leave to appeal against sentence : 96. We turn to the applications for leave to appeal against sentence. We can deal with them briefly. 97. The judge, having presided over the trial and heard all the evidence, was entitled to make the findings which he did for sentencing purposes. In particular, in the light of the jury’s verdicts, he was entitled to sentence on the basis that all the applicants and Hammad had a shared intention to rob, a shared intention to take a knife to the scene and a shared intention that the knife would be used if necessary. By section 8 of the Accessories and Abettors Act 1861, an accessory shall be liable to be punished as a principal offender. The judge was entitled to sentence on the basis that each of the applicants was as culpable as Hammad, even though it was Hammad who took the knife into Bryan’s flat and who inflicted the fatal wound. 98. The life sentences for murder were required by law. By section 322(3) of the Sentencing Code the judge when deciding what minimum term each offender should serve was required, amongst other things, to have regard to the general principles set out in schedule 21 to the Act. By paragraph 3(2)(c) of that schedule, a murder done for gain, such as a murder in the course or furtherance of robbery, will normally be a case of particularly high seriousness, and the appropriate starting point in determining the minimum term will be 30 years. By paragraph 8, detailed consideration of aggravating or mitigating factors may result in a minimum term of any length, whatever the starting point. 99. In the light of those statutory provisions, and the judge’s findings, it is not arguable that he should not have taken a starting point of 30 years. He expressly treated the aggravating factors as confirming that starting point rather than requiring him to move upwards from it. He made a significant downwards movement to 23 years to reflect the comparative youth of the applicants and the other, limited, mitigating factors. In the cases of Saddam and Carpenter he then made a further upwards adjustment to reflect particular aggravating features of their cases. 100. We see no basis on which Fiaz could argue that the minimum term of 23 years in his case was wrong in principle or manifestly excessive. So far as Carpenter is concerned, whose role in the offence included the calculated betrayal of his friend Bryan, the judge was entitled to treat him as the most culpable of the three applicants and accordingly to make an upwards adjustment. The minimum term in his case of 25 years involved no error of principle and was not, even arguably, manifestly excessive. 101. Saddam has not applied for leave to appeal against his sentence. In our view, that was a realistic course to take. Saddam’s actions after the murder successfully enabled his brother to escape justice – potentially for all time, unless Hammad returns to this country, as the judge rightly observed. The additional and discrete criminality of those actions significantly increased his overall culpability, which the judge necessarily reflected in an increased minimum term. Conclusion : 102. For those reasons, each of the applications for leave to appeal against conviction or sentence, and each of the applications to adduce fresh evidence, fails and is refused.

2023_06_16-5714.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/697/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/697

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[2014] EWCA Crim 382

EWCA_Crim_382

2014-02-19

crown_court

Neutral Citation Number: [2014] EWCA Crim 382 Case No: 201303878 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 19 February 2014 B e f o r e : LORD JUSTICE TREACY MR JUSTICE KING HIS HONOUR JUDGE KRAMER QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ROBERT WRIGHT - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordW

Neutral Citation Number: [2014] EWCA Crim 382 Case No: 201303878 C3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 19 February 2014 B e f o r e : LORD JUSTICE TREACY MR JUSTICE KING HIS HONOUR JUDGE KRAMER QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v ROBERT WRIGHT - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr N Rasiah appeared on behalf of the Appellant Mr J Adkin appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE TREACY: 1. This is an appeal against a confiscation order made on 26 June 2013 in the Newcastle upon Tyne Crown Court. In confiscation proceedings under the Proceeds of Crime Act 2002 the appellant was found to have benefited in the sum of £4,915.99. His available amount was deemed to be in the same sum and so a confiscation order was made in that sum. Previously the appellant had been convicted of making false representations, contrary to section 2 of the Fraud Act 2006 . He had been sentenced to 9 months' imprisonment. 2. The offence, under section 2 of the Fraud Act, was what is known as a 'crash for cash' type of insurance fraud. The appellant had been involved in a road traffic collision. He had exaggerated the damage to his car and made a fraudulent insurance claim relating to the damage to his vehicle, personal injury, hire costs for replacement vehicles and storage and recovery of the damaged vehicle. The insurers had paid out £2,006.67 for repairs and the personal injury claim. They contested the car hire and the storage claims as suspicious and never paid them out. The offence under section 2 of the Fraud Act was complete once the false claim was made to the insurance company. It did not require any monies or property to have been obtained as a result of the false representations made. 3. In the confiscation proceedings the appellant conceded that the cost of car repairs and the personal injury claim, totalling £2,006.67, would constitute benefit from criminal conduct for the purposes of the confiscation order. However, the prosecution also sought a further £2,258, which was paid to solicitors acting for the appellant as their costs for processing the insurance claim on behalf of the appellant. The appellant disputed that this was part of his benefit and argued that the solicitors had provided services that did not constitute a pecuniary advantage within the meaning of the Proceeds of Crime Act 2002 . Reliance was placed on R v James and Blackburn [2011] EWCA (Crim) 2291. 4. In a short judgment the judge below rejected the appellant's argument. He distinguished the decision in James and Blackburn and stated that it was beyond argument that once the fraudulent claims had been submitted, then the solicitors, acting as agents of the appellant, gave him a pecuniary advantage by acting for him and extracting their legal costs from the insurers. Such costs were clearly benefits from the appellant's conduct, which he obtained as a result of, or in connection with, his criminal conduct in submitting the bogus claim. Accordingly the solicitors' costs represented a pecuniary advantage gained in the circumstances of criminal conduct and were to be included as part of the total benefit figure. 5. We do not consider that James and Blackburn is of material assistance to us. 6. The relevant section of the Proceeds of Crime Act provides as follows in section 76: "(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. (5)If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage." 7. Still within the interpretation sections of the Act , section 84(2) provides that the following rules apply in relation to property: "(a)property is held by a person if he holds an interest in it; (b)property is obtained by a person if he obtains an interest in it;" 8. We have been referred to the well-known decision of the House of Lords in R v May [2009] 1 Cr App R (S) 31 . Lord Bingham expressed some broad principles at paragraph 48. 9. They include: "(1) The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. ... (3) ... the court must first establish the facts as best it can on the material available... In very many cases the factual findings made will be decisive. ... (4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition... ... (6) [The defendant] ordinarily obtains... a pecuniary advantage if (among other things) he evades a liability to which he is personally subject." 10. There have been attempts, on behalf of the appellant, to persuade us to approach the matter by reference to the definition of pecuniary advantage in the now repealed section 16 of the Theft Act 1968 . That section defines pecuniary advantage in terms of evasion or deferment of a debt, borrowing by way of overdraft or taking out an insurance policy, or by obtaining the opportunity to obtain remuneration or greater remuneration in employment. The term "pecuniary advantage" is not defined in the Proceeds of Crime Act. 11. We do not think that we should import those definitions from the Theft Act into the 2002 Act . Firstly, Lord Bingham in May speaks of the need to scrutinise the terms of the 2002 Act . Secondly, section 16(2) refers to "pecuniary advantage within the meaning of this section". 12. We bear in mind that the purpose of the statutory scheme is to strip an offender of benefit derived from an offence, not to compensate loss. We think it right to return to section 76(4) and (5) where the language of the Act is clearly focused on the obtaining of property, or a pecuniary advantage as a result of, or in connection with, conduct. 13. The Crown's case is that since the appellant completed a questionnaire for his solicitors in order to give them instructions, this led to their handling his false claim, incurring fees and negotiating a settlement of his case with the insurers. We have been told that the form did not indicate that this appellant had legal expenses insurance. Those fees were incurred on the appellant's behalf as the solicitors secured for him a cash payout based on his false claim. 14. The Crown, therefore, argues that the appellant obtained the services of the solicitors in connection with the fraud. Although no money ever went through the appellant's hands, he nevertheless benefited from the services provided and the cost of those services should be included within the confiscation claim. 15. The appellant argued that whilst there is a connection between the false claim advanced by the appellant and the payouts to his solicitors, the appellant himself has not obtained any property, nor has he obtained a pecuniary advantage. His conduct may have enabled the solicitors to obtain their fees for services rendered, but what they obtained cannot be treated as the appellant's obtaining. In the submission of Mr Rasiah, all that was acquired here by the fraudulent conduct of the appellant was the services of his solicitors. 16. Mr Rasiah made some submissions based on the assertion that the judge had made insufficient factual findings in his ruling upon which a confiscation order could properly be based. We have read the transcript of what transpired below. It is clear that there was a certain degree of informality in the proceedings which took place, but in the course of these there appears to have been an acceptance of a commonly understood background to the facts underlying the claim made. 17. One of the submissions being made was that the solicitors were not acting as agents for this appellant in relation to the fees which they were incurring. That was a matter which the judge clearly indicated to counsel in the course of the discussion preceding the final ruling, that the judge strongly disagreed with. He said in terms: "...I simply have to disagree with the submission that the Solicitors were not acting as the agents in relation to fees, consequent upon which I think this submission must fail." 18. It is clear to us from the transcript that the judge was indicating a clear view to counsel, then appearing below, that there was an ordinary client/solicitor relationship between this appellant and his solicitor, and that ultimately Mr Del Fabbro, counsel acting below, acknowledged as much. 19. When the judge gave his final brief ruling he said that it was beyond argument that the solicitors in, as he put it, extracting the costs from the insurers had, by that means, resulted in this appellant acquiring a pecuniary advantage. The judge's analysis might have gone further and considered the position, which might have arisen if the solicitors had not succeeded in obtaining their costs from the insurers, but did not do so. We will return to that point in considering whether it vitiates the ruling which was made. 20. We accept that this appellant did not obtain any property. The fees paid had been incurred by the solicitors for work which they had done. There was never any question that they were receiving those fees for onward transmission to the appellant, or that he held or obtained any interest in them. "Obtaining" in this context means obtaining by the defendant (see CPS v Jennings [2008] UKHL 29 at paragraph 14). The position might have been different had the solicitors been a knowing party to the appellant's criminal conduct (see paragraphs 16 and 28 of May ), but there was no suggestion in this case that they were. 21. It is established that within the phrase "as a result of or in connection with the conduct", which appears in both section 76(4) and section 76(5) of POCA, the words "in connection with" have a wider connotation than the words "as a result of". There is probably no meaningful distinction between the two phrases in this case, since what occurred arose both as a result of, and in connection with, the false claim. In consequence of that claim, a chain of events was created leading to the payment to the solicitors. The solicitors were paid their fees because the insurers believed that the bogus claim was a genuine one. In ordinary litigation the appellant as client would have been liable for the solicitor's fees had the insurers not paid them. Thus it seems to us that by being relieved of that liability in consequence of his fraudulent conduct, the appellant has, subject to one further point, obtained a pecuniary advantage within the meaning of the Act . He has avoided what would otherwise have been his liability to pay the solicitors' fees himself. The outstanding point relates to the terms upon which the appellant instructed his solicitor. 22. It is clear that the judge in the course of his ruling accepted that there was, contrary to the submissions made below, a solicitor/client relationship between this appellant and the solicitors. We have considered, in the event that there had been some arrangement between the solicitor and the appellants involving a 'no win, no fee' arrangement, or some other arrangement between them, which did not expose the appellant to liability to pay the solicitors' costs in the event of non-recovery from the insurers, whether that makes any difference to the situation. 23. The reality is that the solicitors would never have entered into any arrangement of the sort we have mentioned had they known that the claim was fraudulent from the outset. The fact is that they were used by this appellant as part of the fraud which he was perpetuating on the insurers. In those circumstances, having performed work, they would have been entitled to seek their costs for work done, on behalf of the appellant, from him. The appellant, as a direct result of this fraud, avoided what would otherwise have been his liability to the solicitors for their costs in relation to the work done and expenses which they incurred, in connection with innocently advancing his false claim. Accordingly, we are satisfied that the order made below was correct in that the appellant did benefit, to the extent found by the judge, from his criminal conduct pursuant to section 76(5) of the Act . 24. The point which has been made to us by Mr Rasiah as to the judge's failure to enunciate in detail an analysis of the situation in which liability of the costs fell upon the appellant, is, in our judgment, not something which can avail him. Underlying this claim was fraud on the part of this appellant, which embroiled these solicitors as much as the insurers. In those circumstances, considerations of whether there was some particular arrangement as to fees, which might have subsisted in a case of genuine instruction of solicitors, simply becomes irrelevant and the matter can be analysed by reference to the underlying fraud. For those reasons, the appeal is dismissed. LORD JUSTICE TREACY: 25. Mr Rasiah, thank you very much for your assistance to the court. There is one further matter I need to raise. It is the question of recovery of defence costs order. Your client had the benefit of legal aid. MR RASIAH: 26. Yes. LORD JUSTICE TREACY: 27. He has submitted a document to the court, which shows that he has available savings totalling £6,000. The first £3,000 is exempt under the regulations. I am going to ask you two things: first, for an estimate of what the costs incurred will be, which is likely simply to be your fee, is it not, that you would be anticipating receiving for the work you have done on this appeal? MR RASIAH: 28. Yes. LORD JUSTICE TREACY: 29. We would want to know that. Secondly, we would want to know if there is anything you have to say against the principle of making an order for recovery of defence costs order. MR RASIAH: 30. Is that something that I could address your Lordships on in writing? LORD JUSTICE TREACY: 31. No. I am afraid that is not going to be practical. You are expected to come to court ready to deal with this. It is set out, if you need to look at it, in Archbold 6-152. The default position is that the court must make an order, but have a discretion not to do so if the circumstances either show, exceptionally, undue financial hardship, which I do not think can apply because your client does have savings, or alternatively that it would not be reasonable to make an order on the basis of the information and evidence available. MR RASIAH: 32. I am grateful, my Lords. LORD JUSTICE TREACY: 33. It looks as though the order will ordinarily follow the event of the dismissal of the application for the appeal, unless there are exceptional circumstances, undue financial hardship or something which makes it unreasonable for us to make an order. I paraphrase. I do not know if there is anything you can submit as to that? MR RASIAH: 34. The court has the appellant's financial circumstances. I do not think there is anything further that I can address the court on. LORD JUSTICE TREACY: 35. The other thing is the estimate of costs. What do you anticipate you would receive by way of remuneration for conducting this appeal? MR RASIAH: 36. For costs taxed it would be approximately between 6 and 8 hours preparation at a rate, I think, of between £60 and £75 an hour. LORD JUSTICE TREACY: 37. We are talking about around £400 maybe. We will consider. Thank you. Adjourned Ruling on costs LORD JUSTICE TREACY: 38. The unsuccessful appellant's statement of means indicates that he does have savings available to him in excess of the minimum indicated in the relevant Statutory Instrument. We have taken account of counsel's estimate of the likely expenses in terms of costs incurred in the representation of Mr Wright, and we think it fair, proper and reasonable to adopt the lower end of the range. In those circumstances we make a recovery of defence costs order against the appellant in the sum of £300. 39. That, we should say, in fairness to Mr Rasiah to whom we are indebted, is not our estimate of the fee that will be due to him on taxation, it is a sum designed for a different purpose. I hope that is of assistance to you. Thank you very much both of you for your help.

2014_02_19-3352.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2014/382/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2014/382

cde2c85df6b4ecbcd0b998a29a6df5c0a5c53467429f8f780adec22ef5d47e54

[2023] EWCA Crim 212

EWCA_Crim_212

2023-02-07

crown_court

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION [2023] EWCA Crim 212 No. 202201413 A4 Royal Courts of Justice Tuesday, 7 February 2023 Before: LORD JUSTICE POPPLEWELL MR JUSTICE FRASER HIS HONOUR JUDGE ALTHAM REX V JOSHUA KERR ANONYMISATION AND REPORTING RESTRICTIONS APPLY: s.45 Youth Justice and Criminal

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 212 No. 202201413 A4 Royal Courts of Justice Tuesday, 7 February 2023 Before: LORD JUSTICE POPPLEWELL MR JUSTICE FRASER HIS HONOUR JUDGE ALTHAM REX V JOSHUA KERR ANONYMISATION AND REPORTING RESTRICTIONS APPLY: s.45 Youth Justice and Criminal Justice Act 1999 __________ 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 _________ MISS J DEMPSTER KC appeared on behalf of the Applicant. THE CROWN were not represented. _________ JUDGMENT The provisions of s.45 Youth Justice and Criminal Evidence Act 1999 are engaged in this case because one of the co-defendants was below the age of 18 [See para.3.2 of the Practical Guide to Reporting Restrictions in CACD]. MR JUSTICE FRASER: 1 This is a renewed application for leave to appeal against sentence following the refusal by the single judge. The applicant has been represented before us today by Miss Dempster KC, who is appearing pro bono on his behalf. We are very grateful to her for her sensible and helpful submissions which have been of great assistance. 2 One of the co-defendants was below the age of 18, and so we confirm that reporting restrictions are in place in this case under Section 45 of the Youth Justice and Criminal Evidence Act 1999 which prohibits reporting of any matter that may identify that co-defendant until he reaches the age of 18. For that reason, we refer to that defendant using an initial to preserve anonymity but no disrespect is intended by doing so. 3 On 1 April 2022, at the end of a trial which had started on 9 March 2022, the applicant was convicted at the Central Criminal Court of a single count of murder, the victim being a 16-year old boy called Daniel Laskos. On 7 April 2022 the trial judge, Her Honour Judge Munro KC, sentenced the applicant to custody for life with a minimum term of 24 years, less time on remand. It is in respect of that minimum term that he seeks leave to appeal his sentence. 4 The murder took place on 7 May 2021 when the applicant was 18 years and three months of age. He was 19 years of age when he was both convicted and sentenced. The sentence was ordered to run consecutively to another sentence which the applicant was already, at the time of conviction, serving for another offence. That other offence was a conviction for causing grievous bodily harm with intent, contrary to Section 18 of the Offences against the Person Act 1861 , an offence for which the applicant was already on bail at the time of the murder. 5 The applicant was convicted alongside three other co-defendants, all of whom were convicted of murder. Two of those other co-defendants, Callum Hands and Rakeem Green-Matthews, were also sentenced to custody for life. One of them, the fourth defendant (to whom we will refer as "B"), was sentenced, as it was expressed at the time, to detention at Her Majesty's pleasure as that co-defendant was under the age of 18. Both of those sentences, namely custody for life and detention at His Majesty's pleasure (as it is now called following the accession of King Charles III), are the equivalent sentences of life imprisonment for offenders between the ages of 18 and 21, and below the age of 18, respectively. Two others had also stood trial with these four but were acquitted of murder. 6 The facts of the murder are as follows. On the day in question, Friday 7 May 2021, Daniel Laskos, who was only 16, was stabbed in the neck by the applicant with a large "Rambo-style" knife. This happened in Romford. The victim suffered catastrophic blood loss and died very soon after. The applicant was then aged 18, Callum Hands was then aged 19, Rakeem Green-Matthews was aged 18 and the fourth defendant was then aged only 15. (For brevity we shall refer to each of the defendants other than the fourth defendant by their surnames only; again no disrespect is intended). 7 On 7 May the four defendants met in a park close to the scene of the attack that led to Daniel's murder. They were all armed. Green-Matthews and Hands had identical lock knives. The fourth defendant had an extendable ASP baton. The applicant had the murder weapon, what is called a "Rambo-style" knife with a 30-centimetre blade. Such knives are, in addition to their size (which, as here, is usually considerable) also will often have a saw tooth blade on one edge, and are also renowned for being very sharp. They take their name from a fictional character with a special forces background. 8 Before the offence occurred there had been a confrontation between Laskos and his friend and one or more of the defendants. During the conflict someone was said to "take a swing" at Laskos, the victim. He and his friend had left the park and headed towards a convenience store located nearby on a street in Romford called Church Road. En route, the two of them collected two knives that had already been concealed in some bushes. The evidence at the trial was that inside the shop Laskos and his friend were very concerned that they might be sought out by the group. All four of the defendants left the park and headed towards Church Road, three with their hoods up and all four having covered their faces. As the two emerged from the shop the group of four defendants saw them and one of them shouted, "That's them." The group then each produced their weapons and ran towards the two, the other young men, at speed. In response, the victim handed his friend one of the two knives that he had retrieved from the bush, and kept the other. The two of them momentarily stood their ground, then started to run once it became apparent they were outnumbered. 9 As these two tried to escape, the applicant caught the victim up and, as he did so, stabbed him in the neck with the "Rambo" knife, penetrating his jugular vein and his carotid artery. Defending himself, the victim cut the applicant in the arm with his knife. The fourth defendant went towards the other young man (the friend of the victim) with the baton but was fended off, and the fourth defendant sustained stab wounds to his chest. The defendants then ran away through the park. 10 The victim was given first-aid by a nurse who was inside the shop and other members of the public also went to his immediate aid. Paramedics arrived approximately 10 minutes later. Attempts to resuscitate him were unsuccessful and he was pronounced dead at the scene at a few minutes past 7 pm. As the judge expressed it in the sentencing remarks, he had suffered what she called “inevitable and almost immediate death” such was the catastrophic nature of the injury inflicted upon him by the applicant. 11 The fourth defendant threw his weapon away before himself collapsing in the park. He was taken to hospital and underwent surgery for his chest wound. Green-Matthews stayed with the fourth defendant briefly before heading home, also discarding his knife in the park. Hands also left his knife in the park. The applicant ran to Hands' mother's address where he changed his clothes and discarded his knife. Hands' mother took the applicant to hospital for treatment to his arm. The applicant gave a false account of how he had been injured. Hands went back to his mother's house and set fire to clothing belonging to himself and the applicant. The remainder of these clothes were later found in a bin by the police. All of the weapons left in the park were recovered. The "Rambo" knife, which was the murder weapon, was found in a bedroom at Hands' mother's house. All four defendants were arrested, and none gave any comment in their police interviews. 12 When sentencing, and in fixing the minimum term, the judge expressed regard to the provisions of Schedule 21 of the Sentencing Act to the Sentencing Code which fixes the starting point for the minimum term in cases where an offender has brought a knife to the scene as one of 25 years. Given that the applicant was 18 years old at the time of the murder, that starting point specifically applied to him. The fourth and youngest defendant had, by dint of his age at the time, a different and lower starting point for his minimum term. We refer to that matter only for completeness and it plays no part in this judgment on the application. 13 The judge had a victim personal statement from the victim's mother which she described as moving. We have also read this. In it, the impact of his murder was powerfully explained, including the family leaving their home because they could not bear to be there any more without him. His mother explained that when she had been told that evening what had happened to her son, there was no way that she could believe it. His absence from their lives is sorely missed. 14 The judge referred to the aggravating factors that applied to all of the defendants, namely that this was a murder committed by a group of four offenders, that there was some, albeit short, premeditation, including that there were members of the public in the vicinity who were clearly shocked at what occurred. 15 Regarding aggravating factors that applied only to the applicant, she identified, firstly, that he had intended to kill the victim. We observe that as the trial judge she was ideally placed to come to that conclusion, having conducted the trial and seen all of the evidence. She also identified as relevant and significant his previous convictions for various offences, including violence such as holding a Stanley knife to someone's cheek when the applicant was only 12 years old, and threatening to cut that person's throat when he was assaulting him. Other assaults had also occurred in that same year, including possession of an imitation firearm, and an assault in 2016 when he kicked and punched someone whilst they were on the ground. In 2018, he was twice found in possession of a knife, and in 2019 again found in possession of a knife when in a group. On this occasion he threatened to kill two victims before assaulting them. Whilst in custody, on 14 March 2019, he caused grievous bodily harm with intent to another inmate by punching him to the floor and, with others, stamping on his head and body. That was the Section 18 offence for which he was on bail at the time of the murder. That is a highly significant aggravating factor in our judgment. 16 These features led to her concluding that in his case, an increase in the starting point was justified and required, and she said that this would increase the minimum term, as she put it, to at least 27 years. 17 The judge then turned to the mitigation available. She had identified both youth and lack of maturity as mitigation for all the defendants. Her sentencing remarks show that she correctly approached the matter individually and by reference to the relevant authorities, including R v Peters [2005] EWCA Crim 606 and R v M and R v Clarke [2018] 185. We quote from this part of her remarks verbatim: "Firstly, where there is a disparity of ages resulting in different starting points, any disparity of sentence should reflect the different ages and the different maturity of the offenders. Second, the use of a knife and other weapon to kill should result in condign punishment. Third, the fact of taking a weapon to the scene which increases the starting point for 15 years to 25 years for an adult is highly relevant as an aggravating factor when considering those under 18. Fourth, the absence of an intent to kill does not automatically provide any or very much mitigation where a weapon is used. Fifth, an offender’s chronological age may not represent their true level of maturity and I have been assisted by reports in the case of each of you in that regard. Sixth, the attainment of 18 does not represent a cliff edge resulting in automatic adult maturity." 18 Dealing with mitigation, the sentencing judge stated that the applicant's age, significant psychological issues which include both ADHD and ODD (Oppositional Defiant Disorder) and his personal background (he had been in care from the age of 12 onwards, and had had long periods in custody already), with the potential for an emerging adult personality disorder too, were available to him in mitigation. His potential for making a worthwhile contribution to society at some stage in the future was noted, as were his personal references. He had also recently become a father. Taking those matters into account, she arrived at a figure for the minimum term of 25 years and then reduced it yet further by one year, because she was ordering it to run consecutively to the sentence which he was at that time serving for the Section 18 offence. That gave a period of a minimum term of 24 years, thereafter adjusted to take account of his time spent on remand. 19 The grounds of appeal are four in number and are as follows: (1) insufficient weight was given to the applicant's age and maturity in personal mitigation; (2) the learned judge erred in finding that only the applicant of the four defendants had an intention to kill and that she had found that the other three did not; (3) the learned judge erred in ordering his life sentence to run consecutively to the existing sentence that he had had imposed on him in September 2021; and (4) in all the circumstances the minimum term of 24 years was manifestly excessive. 20 The fourth ground is, in reality, the conclusion to the other three grounds and is the test that must be applied by this Court on any appeal against sentence, together with consideration of whether there has been any error of principle. At this stage, where leave is sought to appeal, the test for this court is whether any of these grounds are reasonably arguable. 21 Ground 2 can be disposed of readily. Having conducted a trial of four weeks' duration, the trial judge was ideally placed to make the finding that the applicant intended to kill. Further, we observe that the finding was entirely sensible and understandable given the behaviour and conduct of the applicant and of the other three co-defendants. It is difficult to see how it can be sensibly maintained that there was no intention to kill on the part of the applicant, given that the victim was running away and the applicant stabbed him with force in the side of his neck with a "Rambo" knife that had a 30-centimetre blade. These are fearsome weapons. 22 Miss Dempster KC during the hearing this morning has shown us the photograph of the injury site and the fact that it is in a place slightly on the jaw line of the victim, rather than directly on the side of his neck, but given the fact that the victim was attempting to escape and was stabbed as he was running away, those submissions take the applicant’s case nowhere. We are of the view that the trial judge was ideally placed to make the finding on this point and there is no basis for this court disturbing it. 23 Ground 3, which relates to the sentence being ordered to run consecutively rather than being imposed immediately, is again not a point which is a sound one, and this was effectively accepted by Miss Dempster this morning. When one analyses the dates and the durations, the reduction of one year that the trial judge took into account when reducing the minimum sentence to 24 years is sufficient to take account of the fact that the amount of time that remained to be served in custody by the application for the Section 18 offence was about one year. In our judgment it is entirely sensible for the life sentence to be imposed to run on the expiry of the custodial term for the Section 18 offence and there is no error in principle by ordering the sentence to run as it did. Indeed, the reduction applied in effect was the same as though the minimum term had not been reduced at all, but ordered to run immediately. There is no difference in outcome at all, regardless of which approach is adopted. 24 We turn, therefore, to ground 1. This is the ground upon which Miss Dempster assisted us greatly with her oral submissions this morning. By her sentencing remarks, it is clear that the sentencing judge reduced the minimum term by two years to take account of the age of the applicant and the personal mitigation available to him. Miss Dempster has sought to persuade us that that reduction was insufficient and that in the event this had led to a manifestly excessive minimum term. However, that reduction of two years cannot be seen in isolation from what could be suggested to have been only a modest uplift above the starting point of 25 years, to take account of the aggravating factors present in the offence itself. The judge expressed herself, when moving to the figure above the starting point, by saying that the aggravating factors led to "at least 27 years" for all of these aggravating factors, which we will now list. These are his considerable antecedents, the pattern of violent behaviour (including his numerous convictions relating to knives), the fact it was a group pursuit and that the attack took place in public with members of the public present. Further, the applicant was on bail at the time for another violent offence, namely the Section 18 to which we have referred. 25 Regardless of whether the uplift was sufficient to match with the discount in the same amount to return to the same starting point of 25 years, or whether in other sentencing exercises by other judges on the same facts, the uplift could have been greater and the discount would have been greater, the test for this court is whether the resulting sentence is manifestly excessive or wrong in principle. In our judgment, the resulting sentence with the minimum term of 25 years reduced to 24 years for the reasons we have explained cannot be said to be reasonably arguable or manifestly excessive. 26 We would finally add just this. We are aware that nothing this court says, and no sentence imposed can, in any event, bring this victim back or help to ease the impact of his loss. His life was brutally ended, and the lives of those who murdered him were also significantly changed, almost in an instant. We echo and fully endorse the views of the trial judge who said the following: "The facts of this case are all too familiar to those of us who work at this court. Yet again, the life of a young teenager has been snuffed out by the needless actions of young men who think it’s okay to carry and use weapons to inflict fatal harm on others, for some trivial reason which it is impossible for mature adults to fathom." 27 We are unpersuaded that it is reasonably arguable that the resulting sentence with the minimum term as identified and imposed by the trial judge in her careful sentencing remarks is either manifestly excessive or wrong in principle even on an arguable basis. 28 It follows, therefore, that we refuse the renewed application which fails. __________

2023_02_07-5571.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/212/data.xml

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ff92f6c458a6c2b65c1cf62369c61d0db2fbdadd98d934ea98e2c6e713696034

[2004] EWCA Crim 2724

EWCA_Crim_2724

2004-10-18

crown_court

No: 200402821/D2 Neutral Citation Number: [2004] EWCA Crim 2724 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 18th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE RICHARDS MR JUSTICE BEAN - - - - - - - R E G I N A -v- SOLOMON IGBEBION - - - - - - - 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 Shorth

No: 200402821/D2 Neutral Citation Number: [2004] EWCA Crim 2724 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Monday, 18th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE RICHARDS MR JUSTICE BEAN - - - - - - - R E G I N A -v- SOLOMON IGBEBION - - - - - - - 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 FIDLER appeared on behalf of the APPLICANT - - - - - - - J U D G M E N T 1. MR JUSTICE RICHARDS: The Court has before it an appeal and applications by Solomon Igbebion relating to sentences imposed on him on 5th April 2004 by His Honour Judge Walker, at Blackfriars Crown Court. On that occasion he was sentenced, first, to 9 months' imprisonment for an offence of attempting to obtain services by deception, following a conviction for that offence before the same judge and a jury on 24th September 1999. A consecutive sentence of 9 months' imprisonment was imposed for breach of bail, the circumstances of which we will describe in a moment. A further consecutive sentence of 18 months' imprisonment was imposed for an offence of having a false instrument, a matter committed to the Crown Court for sentence, following a plea of guilty in the Magistrates' Court. Finally, there was a concurrent sentence of 7 days' imprisonment for a driving offence, a matter also committed to the Crown Court following a plea in the Magistrates' Court. Thus the total sentence was one of 3 years' imprisonment. 2. The appellant appeals, as of right, under section 13 of the Administration of Justice Act 1960 against the conviction and sentence for the Bail Act offence. He applies for an extension of time in which to seek leave to appeal against sentence for the offences of attempting to obtain services by deception and having a false instrument. We grant the necessary short extension of time and leave to appeal against sentence in respect of those other matters and with the consent of Mr Fidler, who appears on the appellant's behalf, we treat this hearing as the hearing of the substantive appeal. 3. The history of the various matters is as follows. On 6th May 1999 the appellant went to the Halifax Bank in Edgware Road, London. He stated that his name was Jason Richards and that he wished to apply for a personal loan in the sum of £7,000. He produced an acknowledgment slip from another Halifax account and a driving licence by way of identification. A different address appeared on the driving licence. When asked for additional identification he produced a gas bill. The suspicions of the bank supervisor were raised by the appellant's nervous disposition and by the fact that the documents appeared to be fake. The police were called. 4. When questioned, the appellant claimed that he was applying for the loan for a friend. He was charged with attempting to obtain services by deception. The matter went to trial, which resulted in his conviction on 24th September 1999. Sentence was adjourned to 14th October 1999, for the preparation of reports. The appellant was granted bail with a condition of residence. In the event, he failed to surrender to bail and remained at large until 7th February 2003. 5. In fact, on 14th October 1999 - the date of the adjourned sentencing hearing - a medical report was produced by the defence which resulted in the judge adjourning further to 12th November 1999 and ordering the production of a full medical report in order to determine whether the appellant was in breach. However, on 12th November the appellant failed to attend yet again and a warrant, not backed for bail, was issued. There the matter rested until 7th February 2003, when the appellant was stopped by police when driving a motorcar. The police officers conducted a search as the appellant was acting suspiciously. During the process he tried to run away. As he was apprehended a passport fell from his pocket. A search of the vehicle revealed a further two passports. All three documents appeared to have been altered by substitution of photographs. The offence of having a false instrument related to his possession of those passports. 6. He was taken to the police station where a check revealed the outstanding warrant. He was granted police bail on the passport matters but, in relation to the warrant, he appeared in custody at Camberwell Magistrates' Court on 8th February 2003. Somewhat generously the magistrates granted him unconditional bail. He then failed to surrender to his police bail on 25th March 2003 and remained at large, yet again, until finally arrested for driving with excess alcohol on 21st January 2004. He then appeared at Tower Bridge Magistrates' Court on 30th January 2004, when he entered his pleas to the later offences and was committed to the Crown Court for sentence. In that way all outstanding matters came before the Crown Court on 5th April 2004. 7. At the Crown Court, on 5th April, prior to mitigation, the judge heard defence submissions about the breach of bail issue and then gave a ruling in which he said that on the face of it there had been a clear breach of bail by the appellant, in absenting himself from the court in the latter part of 1999 and remaining at large until finally apprehended in 2003. He said in his ruling that the appellant's advocate had sought to raise what the judge regarded as no more than a 'shadowy possibility' that in February 2003 at the Magistrates' Court the appellant may have been told something which may have led him to believe that his breach of bail in 1999 to 2003 was not going to be pursued. But there had been no evidence from the appellant on the subject. Regrettably, the Magistrates' Court had not answered questions or notes in relation to events in February 2003 before that court, but given that there was nothing at all to support the proposition that the appellant's advocate was seeking to put forward in relation to those events, the fact that the Magistrates' Court had been unable to produce missing papers did not seem to the judge to avail the appellant at all. He went on to say that things might have been different if the appellant had advanced the relevant proposition on oath, but the appellant had not sought to do that and it seemed to the judge that there was nothing that should lead him to conclude otherwise than that the normal course of events should follow, namely that the appellant would have to be sentenced for a breach of bail. The judge did, however, make clear that he was not going to take into account the extra year of absence following the Magistrates' Court hearing in February 2003. The judge then invited the appellant's advocate to mitigate, which he did, following which the judge passed the sentences to which we have referred. 8. Before we consider the grounds now advanced, we should say a little more about the appellant himself. He was born in December 1967 and is therefore 36 years of age. He had one previous conviction, in 1995, for using a document under the Road Traffic Act with intent to deceive, for which he received a community service order. On the occasion of sentencing for the present offences the court did not have the benefit of a substantive pre-sentence report concerning the appellant because of the appellant's failure to attend appointments. 9. Mr Fidler, who appears before us as he did in the court below on behalf of the appellant, advances as his first ground the contention that the conviction for breach of bail was unlawful. The basis of that contention is that it is said that the appellant was not formally asked while at the Crown Court on 5th April 2004 whether he admitted the breach of bail. It is pointed out that the relevant offence under section 6(1) of The Bail Act 1976 involves a failure to surrender to custody without reasonable cause and therefore it is necessary, where somebody has failed to attend at court in accordance with the requirements of bail, to determine whether that failure was or was not without reasonable cause. It is therefore necessary that the question whether the breach is admitted be put to the person concerned. 10. It is submitted by Mr Fidler that the failure to put that matter to the appellant in this case was an irregularity that rendered what followed invalid. He invites the Court to issue a writ of venire de novo in order that the matter should go back to the Crown Court, so that the relevant question in relation to breach of bail can be put to the appellant. 11. We have not received a transcript of what occurred at the Crown Court prior to the judge's ruling on the breach of bail issue, or in relation to what happened immediately after that ruling, but we proceed on the assumption that the question was not formally put to the appellant himself whether he admitted the breach of bail. It seems to us that, in the particular circumstances of this case, nothing turns on that omission. In R v Hourigan [2003] EWCA Crim 2306 , the Court pointed out that section 6(1) of the Bail Act envisages matters being dealt with by a relatively informal procedure. The Court said in paragraph 8: "What, in our judgment, the judge should have done is put to the appellant, either directly or through his counsel, whether or not he admitted that he was in breach of section 6(1) and then there would have been absolutely no doubt about it." In the present case, it is quite clear from the transcript of the judge's ruling on the breach of bail issue that the defence was given a full opportunity to indicate whether and to what extent issue was taken with the alleged breach of bail, and indeed to call evidence if it wished to do so. The submissions advanced by Mr Fidler on the appellant's behalf were advanced on the basis that a breach was admitted but that what had been said at the Magistrates' Court at the February 2003 hearing made it unfair for the appellant now to be punished for that breach. Those submissions were rejected, as we have already indicated. Inherent in them, however, was a plain admission of guilt of the Bail Act offence and, if the matter had been formally put to the appellant, as we accept it should properly have been put, there could only have been one answer. There was, in truth, no dispute over the appellant's guilt of the Bail Act offence. Mr Fidler proceeded to mitigate on his behalf on the basis that the offence was admitted. 12. It seems to us that the way in which matters were dealt with, albeit less than perfect, was fully consistent with the principles set out in the judgment in Hourigan and that there is no basis for interfering with the conviction in respect of the Bail Act offence. 13. The other aspect of the Bail Act offence is that of sentence. Mr Fidler submits that a sentence of 9 months' imprisonment consecutive for that offence is manifestly excessive. In his written submissions he referred to a number of cases which are in truth no more than examples of sentences passed in relation to particular facts. It is well established that in principle a sentence for failing to surrender to bail should be ordered to be served consecutively to any other sentence imposed at the same time for any other offence. The maximum sentence is 12 months. Even if one accepts that some modest allowance should be made for an admission of guilt, the fact is that, in the circumstances of this case, there was manifestly no defence to the charge and such allowance as might be made for a plea of guilty is very modest indeed. Having regard to those considerations, and the wider circumstances of the case, including, in particular, the length of time for which the appellant was at large, we are satisfied that the sentence imposed was neither wrong in principle nor manifestly excessive. 14. We turn to consider the appeal against sentence in respect of the substantive offences. First, as regards the attempt to obtain services by deception, Mr Fidler emphasises the fact that although the attempt was to obtain £7,000, no loss was in fact suffered by the bank; it was only an unsuccessful attempt. He submits that, whilst the judge may not have been wrong to pass a custodial sentence in circumstances as they stood in 2004, he did indicate that he might have been persuaded to pass a non-custodial sentence, had the matter been dealt with in 1999 and had the appellant not absconded. Mr Fidler suggests that that tells in favour of only a short custodial sentence, and that the sentence of 9 months was manifestly excessive. 15. In relation to the passport offence (the offence of having a false instrument) Mr Fidler emphasises that there was here no suggestion of actual use of the false passports. He refers to various cases including R v Kefford [2002] 2 Cr App R(S) 106 and R v Silaiavski [2000] 1 Cr App R(S) 23 and submits that an 18 month consecutive sentence for this offence was in itself manifestly excessive and leads to an excessive overall total. 16. Whatever the position might have been, had the judge been considering the one offence by itself in October 1999, it is plain in our judgment that the combination of offences with which he was dealing in April 2004 make custody inevitable. 17. As to the length of sentence, dealing first with the offence of obtaining services by deception, we accept that for an attempt of this kind, where the appellant was detected at a very early stage and no loss was suffered, it is generally appropriate to impose a lower sentence than for the full offence. On the other hand, the appellant did not have the mitigation of a plea, nor of previous good character. It seems to us that there is nothing wrong with the sentence of 9 months. 18. As to the passport offence, a consecutive sentence was plainly right, given that this further offence was committed, not just while the appellant was on bail but while he was absconding in breach of bail. It is however relevant that this was simply a case of possession, not of use. Although there was more than one false passport in his possession, it is not possible, on the facts as known, to draw any inferences as to involvement in any wider criminal enterprise. In those circumstances, it seems to this Court that a sentence of 18 months consecutive, on a plea of guilty, was excessive and did produce an excessive total. What we propose to do is to reduce that sentence to one of 9 months' imprisonment still consecutive, which will meet the argument in relation to totality as well as in relation to the individual offence. 19. For those reasons, we will allow this appeal to the extent of quashing the sentence of 18 months consecutive for the offence of having a false instrument and substituting a sentence of 9 months' imprisonment consecutive for that offence. As we have indicated, the rest of the matters stand. 20. THE VICE PRESIDENT: Yes Mr Fidler? 21. MR FIDLER: There is one matter, and that is on the basis that leave was granted on sentence, I ask for a representation order to be extended to allow- 22. THE VICE PRESIDENT: We shall extend the representation order which relates to the bail matter to the sentence in relation to the passport offence. 23. MR FIDLER: I am grateful, thank you very much, my Lord.

2004_10_18-339.xml

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fa34e3e2f4c1dad9f3f9d68217e12e3537f23f2ccc11c4ff61f70571c15f5b1d

[2006] EWCA Crim 1306

EWCA_Crim_1306

2006-05-09

crown_court

No. 2005/00088/B2 Neutral Citation Number: [2006] EWCA Crim 1306 IN THE COURT OF APPEAL CRIMINAL DIVISION Oxford Crown Court St Alldates Oxford OX1 1TL Date: Tuesday 9 May 2006 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE HENRIQUES and MR JUSTICE GROSS __________________ R E G I N A - v - JAMES REDMOND CARRAGHER __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 404

No. 2005/00088/B2 Neutral Citation Number: [2006] EWCA Crim 1306 IN THE COURT OF APPEAL CRIMINAL DIVISION Oxford Crown Court St Alldates Oxford OX1 1TL Date: Tuesday 9 May 2006 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE HENRIQUES and MR JUSTICE GROSS __________________ R E G I N A - v - JAMES REDMOND CARRAGHER __________________ Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) __________________ MR M M GEORGE appeared on behalf of THE APPLICANT MR S ASH appeared on behalf of THE CROWN ____________________ J U D G M E N T Tuesday 9 May 2006 THE LORD CHIEF JUSTICE: 1. On 1 and 2 December 2004, in the Crown Court at Sheffield, before His Honour Judge Lawler QC, the applicant was convicted of seven counts of buggery and thirteen counts of indecent assault. So far as the counts of buggery were concerned, the verdicts on three counts (which included counts 1 and 2) were by a majority of 11:1; and the verdicts on four counts (which included count 60) were unanimous. The applicant had pleaded guilty at the commencement of the trial to one count of indecent assault and asked for three further such offences to be taken into consideration. At the end of the trial the jury acquitted the applicant of twelve counts of indecent assault and three counts of buggery. At the direction of the judge, they had earlier acquitted him of a further five counts of indecent assault and six counts of buggery. On 3 December 2004, he was sentenced on each count of buggery to fourteen years' imprisonment, and on each count of indecent assault to two years' imprisonment. Applications for leave to appeal against both conviction and sentence were refused by the single judge. They are renewed today with the benefit of an extension of time of seven days granted by this court. The Facts 2. The facts are unpalatable, but they can be shortly stated. The applicant was born in August 1940 and was thus aged 64 at the date of sentence. At the material times the applicant was a teacher at St William's Community Home, which was run by the Brothers of the Christian Schools on behalf of the Middlesborough Diocese Catholic Child Welfare Society and was intended to provide accommodation and education for vulnerable boys. From 1975 the applicant was the deputy head teacher, and from 1976 until his retirement in 1990 he was the headmaster. The applicant was not an ordained priest, but had taken solemn vows and was known as "Brother James". 3. The offences of which he was convicted spanned the period between 1969 and 1989 and involved thirteen boys, each of whom was under the age of 16. The counts reflected a continuous course of conduct whereby the applicant took advantage of very vulnerable children by buggering them or indecently assaulting them. 4. In 1993, in the Crown Court at Hull, the applicant had pleaded guilty to one count of buggery, one count of attempted buggery and twelve counts of indecent assault involving nine boys at St William's. These offences took place within the same period as those with which this court is concerned. For those offences he was sentenced to seven years' imprisonment, from which he was released in 1997. Grounds for appeal against conviction 5. The grounds for appeal against conviction fall into a very narrow compass. They relate to directions given to the jury in respect of evidence given by two complainants. One, S, was the complainant in respect of counts 1 and 2. The other, D, was the complainant in respect of count 60. It is necessary to summarise the evidence which each gave. 6. The complainant S said that he was sent to St William's in 1969 when he was 14. He stated it was the custom of the applicant to take boys for a swim during the early evening in the pool, which was in a separate building from the main complex. About six weeks after he arrived at St William's, the applicant took the complainant alone for a late night swim. Afterwards, the applicant said that he wanted to talk to him, so he sat on a towel on the floor. The applicant was naked and laid on top of him. He began to simulate sex whist pushing the complainant's shoulders down. He ejaculated over his stomach and put some of the semen into the complainant's mouth. Thereafter, he turned the complainant over and forcibly penetrated his anus with his penis. The complainant was terrified and too fearful to mention the incident to anyone else. 7. The complainant D said that he went to St William's in June 1987 when he was 14. He stated that after he had been there a few months, the applicant took him swimming alone late at night. Afterwards, when he went to get changed, his head was forcibly pushed down towards the bench and he felt a sharp pain in his bottom. During the assault the applicant held him by the waist and although he tried to resist he was unable to prevent the act of buggery occurring. 8. Before the judge's summing-up there was much discussion between counsel and the judge as to the extent to which the judge could properly direct that evidence given by one complainant was capable of supporting evidence given by another. This appears to have been treated as a matter of law, applying the "similar fact" principles to be found in DPP v Boardman [1975] AC 421 and DPP v P [1991] 2 AC 447 . Mr George for the applicant argued that there was insufficient similarity between the facts spoken to by S and the facts spoken to by D to enable the evidence of each to constitute support for the other. The judge ruled against this submission. 9. That part of the judge's summing-up which summarised the evidence of S covers eight pages of the transcript. At the end of this summary he said: "His evidence of the attack in the changing area of the pool where he was held down and forcibly buggered is capable of supporting the evidence of D." 10. That part of the judge's summing-up which related to the evidence of D covers five pages of the transcript. In the course of this the judge said: "His evidence in relation to this act of buggery, members of the jury, is capable of supporting S when he speaks of similar conduct, S of course being at the other end of the indictment." 11. Mr George has submitted to us that the judge was wrong to give these directions and that, applying the similar facts test, there was not sufficient similarity between the evidence of the two witnesses for one to be treated as supporting the other. 12. We have some doubts about the validity of applying the old law in relation to similar facts in the manner in which Mr George has sought to do. That law related essentially to the admissibility of evidence which was prejudicial because it showed that the applicant had misconducted himself on another occasion. That law has now been replaced by sections 101 to 106 of the Criminal Justice Act 2003 . 13. No question of admissibility arose in relation to the evidence of S and D. Furthermore, the evidence of each was relevant in relation to the allegations in respect of the other insofar as each was part of a large body of evidence which demonstrated that the applicant had a propensity to bugger or otherwise sexually abuse boys in his care. Thus the statement that the evidence of S was capable of supporting the evidence of D was strictly correct. So far as the judge's direction in relation to D was concerned, however, he expressly emphasised the relevance of the similarity between the evidence of the two witnesses. Plainly when summing up a judge must be careful not to direct a jury that the evidence of one witness supports the evidence of another because of similarity, unless the facts in question justify such a direction. 14. The defence raised in relation to the evidence of S and of D was that the evidence of each was untruthful, although no allegation was made that the two witnesses had colluded. Whether the details of the offence described by S had similarities to the details of the offence described by D sufficient to reinforce the apparent veracity of each was essentially a matter for the jury. We think it inconceivable that the short direction by the judge that the evidence of each was capable of supporting the evidence of the other can have had any effect on the appraisal by the jury of the veracity of two witnesses that they had heard examined and cross-examined. For what it is worth, we consider that the description given by S of being forcibly buggered in the changing area, after being taken by the applicant for a night swim, bore sufficient similarities to the description given by D of suffering the same fate, to satisfy the test in DPP v P , albeit that the details in relation to what took place before the act of buggery differed. In this case something like twenty years separated the two incidents described, a fact to which the judge drew the jury's attention and which would have reduced any relevance of the similarity between the two incidents. 15. For the reasons we have given, we do not consider that the directions given by the judge in relation to the evidence of S and D were objectionable in law, nor that the direction in question can have made any difference to the verdicts reached by the jury. The renewed application for leave to appeal against convictions in relation to counts 1, 2 and 60 on the ground of misdirection is refused. Grounds for appeal against the sentence 16. The approach of the judge to sentencing was to consider the appropriate total sentence for all the conduct covered by the offences for which the applicant was sentenced in 1993 and those to which he had pleaded guilty, or of which he had been found guilty before the judge, and then to deduct the seven year sentence imposed in 1993. No complaint is make of that approach. In adopting that approach, the judge had regard to the fact that the applicant had pleaded guilty to the offences for which he was arrested in 1993. He concluded that the appropriate total sentence was 21 years. 17. The comments made by the judge, in explaining the reasons for this sentence, included the following: "In general terms, these complainants in one way or another were very vulnerable boys from difficult and disturbed backgrounds and additionally sometimes with criminal histories, even at their young age. Each was sent to St William's where, I am satisfied on the evidence that I have heard, they were subjected to a strict and authoritarian regime. That included physical and sexual abuse at your hands. You preyed upon their vulnerability and relied upon you position of power and threats to ensure that they complied and did not complain. It is difficult to imagine the fear they must have suffered as well as confusion and turmoil in their young adolescent minds at what was happening to them. In some cases there was systematic grooming; in others you seized the opportunity to abuse. You had taken solemn vows and, although you were not ordained as a priest, you breached those vows persistently over that long period. For a substantial part of the time, you were the Principal of the school. It about as bad a case of gross breach of trust as one can imagine." We would endorse those comments. 18. Mr George has submitted that, adopting the approach of the judge, a sentence of 21 years' imprisonment was too long. He has referred us to two authorities. The first is R v Alden and Wright [2001] 2 Cr App R(S) 401, where a sentence of fifteen years was upheld in the case of a man who was at first a housemaster at a former approved school and who later became the Deputy Headmaster. He was convicted of four counts of buggery, five of indecent assault and one of gross indecency. There were six complainants who were aged 13 to 16 at the time of the offences, which were committed over a 17 year period between 1967 and 1984. The sentencing judge referred to that case and remarked that the overall number of complainants in the present case was much greater, as was the conduct and the number of offences. So far as that decision is concerned, Mr George has the further difficulty that it was an appeal by the defendant against the sentence. The court gave no indication that suggested that a higher sentence would not necessarily have been appropriate. 19. That is not so in the case of the other authority relied upon by Mr George, R v Brizzalari [2004] EWCA Crim 310 . There the court upheld the sentence of a total of fifteen years in the case of a residential social worker at an assessment centre who was convicted of 17 counts of indecent assault, three counts of rape and one count of buggery, involving eleven complainants. In upholding the sentence, the court nevertheless observed: "It may will represent the heaviest sentence that could properly have been passed but in our judgment it does not go beyond that." Mr George realistically conceded that the facts of this case are more serious than those of Brizzalari and that a sentence of more than fifteen years was accordingly appropriate, but he suggested that it should not have been a sentence as high as 21 years. He also submitted that, when sentencing, some latitude must be left to cater for the possibility of offences even more serious. We do not accept that proposition as being one of inevitable application. A level may be reached where there is no further scope for increasing the sentence, notwithstanding that there may be circumstances in which even more heinous offending could be imagined. 20. In this case it is relevant to consider the recent guidance given by this court in R v Millberry [2003] 1 Cr App R 25 in relation to rape. The court said that 15 years and upwards should be the starting point for a campaign of rape, including repeated rape of the same victim over a course of time. This case involved forcible buggery and indecent assault of a multiplicity of young boys over a very lengthy period in gross breach of trust. We consider that there is nothing wrong with the sentence of 21 years' imprisonment imposed by the judge for that offending. Accordingly, this renewed application for leave to appeal against sentence is refused. _________________________________

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78bce8ff4e5f76dfba6c473177be8ea23ce9649c2dc51aee6586038f63116f4e

[2015] EWCA Crim 474

EWCA_Crim_474

2015-02-27

crown_court

Neutral Citation Number: [2015] EWCA Crim 474 Case No. 2014/04270/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 27 th February 2015 B e f o r e: LORD JUSTICE PITCHFORD MR JUSTICE COOKE and MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - R E G I N A - v - DARREN MARSHALL - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4

Neutral Citation Number: [2015] EWCA Crim 474 Case No. 2014/04270/A4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Friday 27 th February 2015 B e f o r e: LORD JUSTICE PITCHFORD MR JUSTICE COOKE and MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - R E G I N A - v - DARREN MARSHALL - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr A Walker appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T LORD JUSTICE PITCHFORD: I will ask Mrs Justice Lang to give the judgment of the court. MRS JUSTICE LANG: 1. On 12 th March 2014 in the Crown Court at Newcastle upon Tyne the appellant pleaded guilty to an offence of violent disorder, contrary to section 2(1) of the Public Order Act 1986. On 12 th August 2014 he was made subject to a hospital order, pursuant to section 37 of the Mental Health Act 1983, and a Football Banning Order for six years. 2. With the leave of the single judge he appeals against sentence on the ground that a suspended sentence of imprisonment should have been imposed, not a hospital order. 3. In April 2013 a violent disorder occurred in Newcastle City Centre on the occasion of a football match between Newcastle United and Sunderland. Despite heavy police presence, the Newcastle supporters ran amok, broke through the police cordons and attacked police officers, police horses and vehicles with bottles, rocks and anything they could find on the street – from bins to bicycle parts. Sunderland fans were also attacked. Ordinary members of the public were intimidated and put at risk. 4. The judge had regard to the duration of the disorder and its effect. Although it was not pre-planned, it involved persistent and sequential intimidation and violence in four different locations under the umbrella of constant threats, chanting, gesturing and the throwing of missiles. It was a serious and notorious incident, fuelled by excessive drinking. 5. The judge found that, although he had not attended the game, the appellant had joined the crowd voluntarily and was well aware that some were throwing bottles at the police and at Sunderland fans. He was seen on CCTV by an upturned rubbish bin with other fans, taking out bottles. He was seen holding a bottle in each hand. There was no evidence that he threw the bottles, but he was clearly a party to the activity which was going on at that location. He went with the crowd through the unauthorised entrance to the railway station where police were trying to provide a safe passage for the Sunderland supporters to travel home. He was captured on camera running away from the police on the platform, and then going back inside the station once he had managed to evade police attention. He was identified from CCTV and arrested. 6. When he was interviewed he declined to comment. He later pleaded guilty at the first reasonable opportunity. 7. The judge rightly said that when dealing with cases of this kind it was the collective effect of the offending as a whole, not just the individual conduct of the offender, which must be considered when sentencing. Moreover, when offences of this kind are committed by large groups, the sentences passed must include an element of deterrence. 8. The appellant, who was aged 30 at the date of sentence, has eight previous convictions for ten offences, including a sexual assault; four public disorder offences; an offence of battery, for which he was given a community order with unpaid work; and an offence of causing grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861, for which he was given a suspended sentence of imprisonment of 51 weeks and an unpaid work requirement. He completed his unpaid work requirements and had no convictions after 2009 until the index offence. 9. We agree with the judge that this offence was so serious that only an immediate custodial sentence was justified, and that a suspended sentence or a community order would not meet the seriousness of the offence. We note the others who were involved in this violent disorder were given immediate custodial sentences. Those named on the same indictment as the appellant received sentences ranging from nine to eighteen months. 10. However, the judge made an exception in the appellant's case because he was persuaded by the psychiatric evidence that the appellant was too vulnerable to cope with a sentence of imprisonment by reason of his learning disabilities. The expert evidence was that his mental state would rapidly deteriorate in prison, and he would most likely be transferred to a psychiatric hospital. 11. Full assessments were undertaken to explore the options of either treatment in the community or a hospital order. Under section 37 of the Mental Health Act 1983 the judge had to be satisfied that two conditions were met. First, on the evidence of two registered medical practitioners, that the appellant was suffering from a mental disorder which was of a nature or degree which made it appropriate for him to be detained in hospital and that appropriate treatment was available for him. Second, having regard to all the circumstances, including the nature of the offence, the character and antecedents of the appellant, and to the other available methods of dealing with him, that the most suitable method of disposing of the case was an order under section 37. 12. The pre-sentence report assessed the appellant as posing a medium risk of causing serious harm to the public. This was the third specified offence he had committed. His offending behaviour was linked to alcohol abuse, his inability to assess risks and manage anger, and a tendency to be easily influenced by others. 13. There was a consensus of opinion among the medical experts, Dr Hughes (a Clinical Psychologist), Dr Thorp (a Consultant Forensic Psychiatrist), and Dr Ince (a Consultant in Forensic Learning Disability Psychiatry). In summary, the consensus was that that the appellant had a mental disorder, namely, a mild learning disability associated with abnormally aggressive and irresponsible conduct, and that he required intensive therapeutic treatment. His mental state was of a nature and degree which warranted attention in hospital. He represented a risk to others, as demonstrated by his previous convictions, and also other patterns of behaviour which had not resulted in criminal convictions but were cause for concern. He was also at risk because of his history of self-harming and his vulnerability to exploitation. 14. The medical experts concluded that the appellant needed a structured specialist programme of treatment for emotional regulation and anger management, sex offending and alcohol misuse. 15. The Community Learning Disability Team (which included the Clinical Psychologist Dr Hughes), had had experience of seeking to support and assist the appellant since 1995. There was a history of the appellant failing to attend appointments, not taking medication, and refusing to engage in any meaningful therapeutic work. In the light of the difficulties which had been experienced with treating him, the medical experts were unanimous in their view that the appellant would be non-compliant with treatment in the community, and if he did attend appointments, he would do so only to fulfil the terms of the order. He would refuse to engage in a meaningful way with any treatment offered. 16. The probation officer also agreed with the recommendation of a hospital order. She advised that the appellant had been assessed as unsuitable for unpaid work, programmes or a curfew, because of his mental health. 17. The judge gave careful consideration to all the relevant material and concluded that the section 37 conditions were met, and that a hospital order was the most suitable method to deal with him. 18. Following the grant of leave to appeal, a further psychiatric report was obtained from Dr Thorp, who is the responsible clinician since the appellant was admitted to hospital on 12 th August 2014. The report is dated 9 th December 2014. In summary, the appellant has self-harmed and been verbally and physically aggressive to staff and fellow patients. The report concludes that he is most appropriately placed in hospital in order to undergo therapeutic work which will ameliorate his risks in the community. 19. The appellant, through his counsel, conceded that the section 37 conditions were met, but submitted that a hospital order was not the most suitable disposal for him, either at the time of sentencing or now. His offending behaviour and his mental state merited a suspended sentence with supervision, unpaid work and a curfew. Counsel submitted that a hospital order was draconian, because it was likely to continue much longer than the prison sentence he would otherwise have received. 20. In our judgment the sentencing judge was entitled to reach the conclusion that a hospital order was the most suitable disposal for the appellant in the light of his history, his mental state, and the unanimous opinion of three medical experts, supported by the probation officer. The suspended sentence proposed by the appellant was not realistic in the light of his non-compliance with treatment and the risk which he represented to the public and to himself. 21. It is important to note that the appellant's discharge from hospital has not been restricted by an order under section 41 of the 1983 Act. As the Court of Appeal said in R v Birch (1990) 90 Cr App R 78, per Mustill LJ at 84: "Once the offender is admitted to hospital pursuant to a hospital order … without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal. Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled. If the authority expires without being renewed, the patient may leave. Furthermore, he may be discharged at any time by the hospital managers or the 'responsible medical officer'. … … … A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court ... The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts." 22. These passages were approved by the House of Lords in R v Drew [2004] 1 Cr App R(S) 8 , per Lord Bingham, at paragraphs 9 to 10. 23. In this case, although the medical experts thought that the likely period of treatment could be four to five years, the appellant has the right to apply to the independent tribunal for discharge after six months, and thereafter on an annual basis. 24. Having reviewed the updated psychiatric report, we are satisfied that the conditions for a hospital order under section 37 continue to be met, and it remains the most suitable disposal. 25. Despite Mr Walker's impressive submissions, we have concluded that for these reasons the appeal must be dismissed. ____________________________

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fc650a92543a509a926b510dfdb801f3b3f7bd10e7f76daf18a571d964649fb2

[2006] EWCA Crim 1969

EWCA_Crim_1969

2006-07-18

crown_court

No: 200505978/D3 Neutral Citation Number: [2006] EWCA Crim 1969 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 18th July 2006 B E F O R E: LORD JUSTICE LATHAM (Vice President of the Court of Appeal Criminal Division) MR JUSTICE SIMON HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v - STEPHEN GEORGE TOPASNA - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bern

No: 200505978/D3 Neutral Citation Number: [2006] EWCA Crim 1969 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Tuesday, 18th July 2006 B E F O R E: LORD JUSTICE LATHAM (Vice President of the Court of Appeal Criminal Division) MR JUSTICE SIMON HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v - STEPHEN GEORGE TOPASNA - - - - - - - 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 HOWAT appeared on behalf of the APPELLANT MR M FOWLER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: In this case the appellant pleaded guilty to five counts of causing death by dangerous driving on 18th October 2005. On 9th November 2005 he was sentenced to five years' imprisonment concurrent on each count and was disqualified from driving for seven years. 2. He appeals to this court against the sentence of imprisonment with leave of the single judge. 3. As is so often the case in offences of causing death by dangerous driving the court was faced with an extremely difficult sentencing exercise. In this case, on the one hand, there was, as can be appreciated by the number of counts, tragedy of significant proportions in that five people died. On the other hand, the appellant who was the driver of the bus which caused the tragedy is a 51 year old man with no previous convictions and in respect of whom no question of irresponsible driving has arisen either in the past, or, as we shall see, to a significant extent, in relation to the driving itself in this case. 4. The facts were that just after 5.00 p.m. on Easter Sunday 11th April 2004, the appellant had driven his Volvo double decker bus to a bus stop outside a Funfair known as Fantasy Island, Sea Lane, Ingoldmells. He let off passengers and then took on board other passengers. At the time as is apparent from video camera recordings, which we have seen, the area was extremely busy as one might imagine from the nature of the day in question. Families were walking to and fro, crossing the road, and in fact going in front of the bus within the lay -by itself. 5. As he came to close the doors the appellant moved off and almost immediately struck a Simon Keyworth, who was indeed in the bus lay -by area, with significant force. He did not stop. The evidence was clear that he accelerated. He went through traffic lights controlling a pedestrian crossing whilst people were in the process of crossing. He collided with a BMW motor car that was stationary in the road and passing on its nearside, mounted the crowded pavement, before regaining the carriageway and eventually only coming to a halt some 22 seconds after leaving the bus stop having travelled some 170 metres. 6. The consequence of that driving over that period was that a husband and wife were killed (they were in their early 30s), and a mother and two of her children were killed. The children were at the time aged five and just a few months, the latter being in a pushchair. The father of those children received serious injuries. One of his kidneys and his spleen had to be removed. He now suffers from severe depression and has had repeated flashbacks to the incident. Many others were injured. 7. How did that terrible accident happen? It is now accepted, and indeed was for the purposes of the trial, that the reason that this occurred was that the appellant, when he stopped the bus, applied the handbrake. It was an automatic bus with, therefore, two pedals, an accelerator and a brake. Whilst it was stationary he left the gearbox in drive. That meant that the bus was held only by the handbrake. The moment that the handbrake was released the bus was bound to move forward. His practice - - and it is apparently a practice adopted by many drivers - - was to place his foot on the footbrake as he released the handbrake in order to restrain the bus before allowing it to move off. On this occasion he made the tragic error of putting his foot on the accelerator as he released the handbrake. As a result, the bus moved forward, unsurprisingly. It was in those circumstances that he first hit the victim Simon Keyworth. 8. At that point passengers in the bus shouted at the driver to stop, but it is apparent that he did not stop, the reason being that he believed that he had in fact got his foot on the brake, instead of, as was the case, the accelerator. He continued to believe that he had his foot on the brake as is clear from the fact that the passengers in the bus heard him say "the brake has failed". He continued to be of that view until after it would appear he had mounted the pavement and mowed down the victims who were killed. At that point, or thereabouts, he realised that his foot was not on the brake, applied the brake and brought the bus to a halt. By then, of course, the damage had been done. It would appear that the period over which he operated the bus under the misapprehension that he had his foot on the accelerator was some 16 seconds or thereabouts. 9. In order to assist the court in determining how best to view the driving in those circumstances the trial judge was provided with expert reports, in particular, on behalf of the appellant, from a Mr Dean Southall, who described what had happened after the bus moved off as classically exemplifying a panic state in the driver, so that he behaved in a way which was predictable in the sense that he remained under the delusion about the fact that his foot was on the brake and not the accelerator for a period of time which was not unexpected. 10. The judge, when considering that aspect of the case, said this at page 12C ff of the sentencing remarks: "In relation to the issue of pedal confusion I have read the reports of Dean Southall and of Dr Koch. It's perhaps an issue more apparent than real because there is no question here that what occurred was that you failed correctly to identify the pedals and that you pressed the accelerator from the time of the bus stop when you should have pressed the brake. What happened thereafter was panic and the effect of panic and the two experts consider the effect of hyper -vigilance and how that can affect people. According to Dr Koch - - and this to me makes sense - - hyper -vigilance affects many people in many different ways. It has been said this morning that the response to hyper -vigilance can be as many as there are drivers. Mr Southall concludes that there was nothing any driver could do other than to take the course which you did under the state of hyper -vigilance and panic in which you then were. The prosecution do not accept that all drivers would have reacted in the same way in response to your pedal error. Dr Koch concluded, having considered responses of approximately 10,000 people in relation to this part of the case, that your error persisted for 16 seconds and was an extreme consequence of pedal confusion." 11. This court, differently constituted, considered this appeal last week and asked for further assistance from counsel as to what the situation was as between the appellant and the respondent in relation to this and related aspects of the case. An agreed note has been provided for the court in the following terms: "A. At the sentencing hearing before Dame Heather Steel, and prior to the facts being opened by the prosecution, two issues, as identified by the basis of plea, were raised by the prosecution. 1. The issue was raised as to whether the unintended acceleration occurred at the time that the bus first pulled away from the kerb or at or after the collision with Simon Keyworth. The appellant's counsel indicated that he was content that the appellant should be sentenced on the basis that the pedal error occurred at the outset, as the bus initially pulled off. 2. The prosecution indicated that they did not accept the contention of Mr Dean Southall that, from the time that he was in a 'panic state' until he brought it [the bus] to a halt some 160 metres further down Sea Lane, Mr Topasna did all that he, or any driver in the hyper -vigilant state engendered by panic, could be expected to do to control the vehicle. In an exchange with defence counsel, Her Ladyship clarified the way in which she proposed to deal with the issue, as now reflected in paragraph 12C to 13B of the transcript of the sentencing remarks, and defence counsel indicated that he did not seek an issue trial on that point." 12. It follows that the sentencing judge, it is accepted, was entitled to approach this matter on the basis that the period over which this appellant persisted in his belief as to the fact that the brakes had failed was at or beyond the limits of what would be expected of a careful driver. 13. The facts that we have related make it plain why this was a particularly difficult sentencing exercise. This does not fall into the category of cases where there has been any significant period of bad or irresponsible driving. It does not have any of the usual aggravating features, such as drink, or, in itself, excessive speed. This is a case where the cause of the incident was an error made by the appellant in identifying the difference between his brake pedal and his accelerator. That, in the circumstances, amounted to dangerous driving in itself. This has to be put in the context of a driver controlling a very large vehicle in an area which was clearly extremely busy with pedestrian traffic. It was a situation, accordingly, which required the greatest vigilance. The way in which the appellant dealt with the crisis with which he was confronted was in itself, as described by the judge, an extreme consequence of pedal confusion. And last, but not least, the consequences have been devastating. This is a case where the court was bound to take into account the substantial loss of life which was occasioned by this tragic error. 14. The sentencing judge, as one would expect, confronted with the difficulties of the sentencing exercise in this case, expressed her reasons for passing the sentence that she did in extremely careful terms. The sentencing remarks go for approximately 25 pages. She described the background, and clearly and accurately described it. She indicated that she was proposing to give to the appellant full credit for the plea of guilty that he entered, even though, in fact, it was a plea entered after the failure of legal submissions. 15. Having related the facts of the accident and indicated the credit that she was prepared to given, she then turned to the authorities. Not surprisingly the first authority that she referred to was the case of Cooksley [2003] EWCA Crim 996 , [2004] 1 Cr App R(S) 1 . That was a case in which this court, presided over by the then Lord Chief Justice, considered the proposals made by the Sentencing Advisory Panel as to sentencing in cases of dangerous driving. 16. She records that at paragraph 13 of that judgment the Lord Chief Justice stated: "The key problem for a sentencer dealing with this offence is the tension between the outcome of the offence, which is inevitably the death of at least one victim, and the degree of the offender's culpability. Culpability must be the dominant factor when the offence involves no intention to kill or injure." 17. She then identified the four categories into which the Sentencing Advisory Panel had divided the offences of dangerous driving: that is those where there are no aggravating circumstances; secondly, those where there is intermediate culpability; thirdly, where there is higher culpability; and, fourthly, where there is the most serious culpability. 18. So far as the factors to be considered when determining the level into which to place the particular offence, or offences, the court set out in paragraph 15 of the judgment the aggravating and mitigating factors. It is clear that in the present case in relation to aggravating factors the only ones of significant relevance are (l) and (m), which relate to the consequences of the driving in relation to the numbers killed or injured. 19. The sentencing judge having then reflected on the fact that since the case of Cooksley the law had changed and the maximum sentence had been increased to 14 years, concluded that these particular offences fell into what she described as the most serious category of offence, which was in Cooksley recommended to have as a starting point a sentence of six years' imprisonment. She then went on in relation to the quality of driving itself: "... your driving on that day demonstrates that you were not without a substantial degree of blame. I accept totally that you suffered from panic which was brought about by the pedal confusion. Mr Howat tells me - - and I accept - - that you have always accepted that you were morally responsible for what took place and it is important here to recognise that there was no outside factor which caused you to drive as you did. You were on that day totally the author of your own misfortune. Ensuing panic resulted totally from your own action in pressing the wrong pedal and also from the initial collision. I accept that the initial error of judgment was no more than that - - to press the wrong pedal - - but here I have to take into account that that error was persisted in and the fault lies particularly in your case in that you continued to accelerate throughout the journey of 146 metres over a time period of 16 seconds until you finally braked. It may very well be - - and I accept that it was - - that you believed that your brakes had gone, but it is clear that you were sufficiently in control of the bus to be able to steer the bus to avoid, or try to avoid, the BMW. There was here, it is quite clear, no use of the handbrake, the footbrake or any attempt to put the vehicle into neutral. The only time the brake was applied, as is quite clear, was as the bus finally came to a standstill. Otherwise you did nothing. That panic had persisted for an extraordinarily long time. On any view, the initial collision with Mr Keyworth was dangerous. He was very close to the bus, in the lay -by at but bus stop and clearly visible as the bus set off. It cannot be gainsaid that you could and should have seen him and avoided him. Having struck him and knocked him down, you failed to respond to the shouts of the passengers. It is impossible to accept that you were not aware of that collision with Mr Keyworth. You continued to press the wrong pedal, the bus continued to accelerate and your course of driving became increasingly dangerous. You failed totally to consider the safety of your passengers who were in your care or your responsibility to other road users and pedestrians. The prosecution accept that your failure to act may have been due to panic but the prosecution case is that 16 seconds, during which the bus was accelerating, was unusually long. 22 second for the whole journey is a long time. 176 metres, in the circumstances of this case, is a long journey. For 146 metres of that journey the bus was under acceleration. The culpability here, even with all the available mitigation and the inevitable sympathy that anyone hearing this case must feel for you as well as for the families of the victims and all those who have been affected, is substantial. The principal determining factor in sentencing is your culpability. I'm satisfied that this also brings the case into the most serious category. You are an experienced bus driver and, even taking panic into account, it is astonishing that you did not react more quickly to avoid the devastation that you caused." 20. She then went on to repeat that the starting point was therefore six years, but, bearing in mind the other matters to which she had referred, the appropriate sentence would have been some seven and a half years' concurrent for each of the five offences and because of the plea of guilty she accordingly reduced it to a sentence of five years' imprisonment. 21. On behalf of the appellant the main point made is that the judge was wrong to place this case in the category of highest culpability. It is submitted that, in truth, this was a case of intermediate culpability as to which the Panel stated, as recorded in paragraph 23 of Cooksley by the Lord Chief Justice: "An offence involving a momentary dangerous error of judgment or a short period of bad driving may be aggravated by a habitually unacceptable standard of driving on the part of the offender (factors (j) or (k)) by the death of more than one victim or serious injury to the others victims (factors (l) and (m)) or by the offender's irresponsible behaviour at the time of the offence (factors (m) to (p)). The presence of one or more of these features could indicate a sentence within the higher range, up to three years." 22. The Lord Chief Justice in the same paragraph then went on: "Accordingly, our starting point is two to three years. We do, however, qualify the Panel's advice to this extent that we foresee circumstances, particularly where there is more than one of the factors present referred to above where five years could be appropriate if, for example, there is more than one victim. Unfortunately, because of the range of the variety of facts it is not possible to provide more precise guidelines." 23. It is important to remember that Cooksley , whilst providing valuable assistance to sentencers in determining where in the spectrum of sentencing a particular case falls, was, and remains, a guideline case. It is therefore of assistance to a sentencer but it is not prescriptive. 24. It may be that in one sense there is justification in the submission that this case could be looked at as a case of intermediate culpability with aggravating features, the aggravating features being, it seems to us, the matters identified by the sentencing judge in relation to the period over which the appellant remained of the view that he was applying the brake without appreciating that it was, in truth, the accelerator, but, perhaps most important, the multiple deaths and injuries which ensued. 25. As can be seen from the way in which the Lord Chief Justice approached the way in which one should look at cases in such circumstances, it seems to us that, even if this is to be placed in the intermediate category, bearing in mind the increase in sentences since the case of Cooksley , the judge's conclusion that seven and a half years was the appropriate figure to apply after trial cannot, in itself, be considered manifestly excessive. But it seems to us that, equally, the sentencing judge was entitled to decide that the case should more appropriately be placed, because of the factors to which we have referred, in the most serious category. It matters not. Once again, clearly if that is the right categorisation, seven and a half years cannot, in all the circumstances and for the reasons we have given, be considered a manifestly excessive sentence after trial. In those circumstances, whichever way one approaches the sentence which was imposed so carefully in this case by Dame Heather Steel, we cannot say that there is any justification for the conclusion that the sentence was manifestly excessive. Accordingly, we dismiss this appeal.

2006_07_18-880.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/1969/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/1969

46a2730566bc997f993276e04a874cc2e11490bbfdbb233099114e3aa475c683

[2016] EWCA Crim 454

EWCA_Crim_454

2016-04-29

crown_court

Neutral Citation Number: [2016] EWCA Crim 454 Case No: 201500783 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT CARDIFF His Honour Judge Hughes T20117951 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/04/2016 Before : LORD JUSTICE DAVIS MR JUSTICE TURNER and MRS JUSTICE ELISABETH LAING - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - AD Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2016] EWCA Crim 454 Case No: 201500783 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM CROWN COURT AT CARDIFF His Honour Judge Hughes T20117951 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/04/2016 Before : LORD JUSTICE DAVIS MR JUSTICE TURNER and MRS JUSTICE ELISABETH LAING - - - - - - - - - - - - - - - - - - - - - Between : REGINA Appellant - and - AD Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Michael Jones (instructed by Crown Prosecution Service ) for the Appellant Mr Mark Barlow for the Respondent Hearing dates : 18 th March 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Turner: INTRODUCTION 1. On 28 June 2012 in the Crown Court at Cardiff the appellant was convicted by the jury on all 11 counts of the indictment laid against him. He appeals, out of time, against conviction and sentence with the leave of this Court. 2. The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to the complainants in this case shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as the victim of these offences. THE OFFENCES 3. There were two alleged victims of the appellant’s offending. They were his son and daughter to whom we shall refer as LF and TD respectively. The appellant’s former wife was the mother of the complainants. We refer to her as AH. They all lived together as a family until 1994 when the appellant and his wife separated and, subsequently, divorced. 4. On 9 July 2011, the appellant was arrested in relation to sexual offences which he was alleged to have committed against both LF and TD when they were young children between 1990 and 1994. In interview he denied all of these allegations and the matter duly proceeded to trial. THE COUNTS ON THE INDICTMENT 5. Counts 1 and 2 alleged gross indecency with a child relating to repeated occasions when the appellant had allowed his daughter to masturbate him. Counts 3 and 4 alleged attempted buggery relating to repeated occasions upon which the appellant had attempted to penetrate his daughter’s anus with his penis. Counts 5 and 6 alleged indecent assault on a female relating to repeated occasions upon which the appellant had touched his daughter’s vagina. Count 7 alleged gross indecency with a child relating to an occasion when the appellant allowed his daughter to kiss his penis. In respect of the first seven counts on the indictment the Court passed concurrent sentences in the total of 5 years imprisonment. The remaining counts related to offences alleged to have been perpetrated by the appellant against his son. Counts 8 and 9 alleged indecent assault relating to repeated occasions when the appellant had touched his son’s penis. Counts 10 and 11 alleged gross indecency with a child relating to repeated occasions when the appellant had allowed his son to touch his penis. In respect of counts 8 to 11 inclusive the Court passed sentences concurrent to each other in the total of three years imprisonment but to run consecutively to the sentences imposed in respect of the offences which he had committed against his daughter, thereby giving a total of eight years imprisonment. THE FIRST GROUND OF APPEAL 6. Under the first ground of appeal, the appellant asserts that two of the counts on the indictment suffered from such fatal drafting flaws that the convictions thereunder are unsafe and must be quashed. The relevant counts are 8 and 9 and relate to the allegations that between 1990 and 1994 the appellant had indecently assaulted his son on at least two occasions: “ Count 8 STATEMENT OF OFFENCE INDECENT ASSAULT, contrary to section 14(1) of the Sexual Offences Act 1956. PARTICULARS OF OFFENCE [D], between 13 th May 1993 and the 1 st August 1994, indecently assaulted [TD], a boy under the age of 14 years. Count 9 STATEMENT OF OFFENCE INDECENT ASSAULT, contrary to section 14(1) of the Sexual Offences Act 1956. PARTICULARS OF OFFENCE [D], between 13 th May 1993 and the 1 st August 1994, other than in Count 8, indecently assaulted [TD], a boy under the age of 14 years.” Such conduct as particularised amounted to indecent assault on a boy contrary to section 15 of the Sexual Offences Act 1956. Regrettably, the Statement of Offence in relation to each of these counts referred not to section 15 but to section 14 of the 1956 Act as the relevant section. 7. Section 14 provides: “14 Indecent assault on a woman. It is an offence…for a person to make an indecent assault on a woman.” Self-evidently, the appellant could not have perpetrated an offence under section 14 against his son. 8. Unhappily, this drafting error was not spotted by either of the parties or by the Court at any stage before, during or after the trial. Indeed, it came to light only when the papers were reviewed by the Registrar when the appellant was seeking leave to appeal on other grounds. Thus, the question now arises as to whether this mistake is fatal to the safety of the convictions under these two counts. 9. At the relevant time, the procedural position was governed by the Criminal Procedure Rules 2011: “14.2 . —(1) An indictment must be in one of the forms set out in the Practice Direction and must contain, in a paragraph called a ‘count’— (a) a statement of the offence charged that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and (b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.” 10. It is to be noted that the Indictment Rules 1971, which were repealed on 2 April 2007 by rule 3 of the Criminal Procedure (Amendment) Rules 2007/699, had been, in some respects at least, more prescriptive as to the required form and contents of the indictment than the new rules which replaced them: “5.-(1) Subject only to the provisions of rule 6 of these Rules, every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused person is charged describing the offence shortly, together which such particulars as may be necessary for giving reasonable information as to the nature of the charge… 6. Where the specific offence with which an accused person is charged in an indictment is one created by or under an enactment, then (without prejudice to the generality of rule 5 of these Rules)- (a) the statement of the offence shall contain a reference to- (i) the section of, or the paragraph of the Schedule to, the Act creating the offence in the case of an offence created by a provision of an Act; (ii) the provision creating the offence in the case of an offence created by a provision of a subordinate instrument; (b) the particulars shall disclose the essential elements of the offence: Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it; (c) it shall not be necessary to specify or negative an exception, proviso, excuse or qualification.” 11. In R v Clarke [2015] 2 Cr. App. R. 6 this Court was considering an appeal in respect of the adequacy of the relevant Particulars of Offence and concluded at paragraph 18: “As is pointed out at para.D11.23 of Blackstone, the Crim PR now require less than was required under r.6(b) of the Indictment Rules 1971. The sole question is whether the particulars make clear what the prosecutor alleges against the defendant. In the present case there can be no doubt that it was clear what was alleged. The indictment was not therefore insufficient, though it was very, very poorly drafted and ought to have been amended.” 12. In Clarke , however, there was and could have been no criticism of the Statement of Offence which had correctly identified the relevant legislation under which it was alleged the appellant had offended. 13. The question arises as to whether the change in the wording of the rules relating to the contents of the Statement of Offence also calls for a similar broadening of the test of sufficiency as was found in Clarke to apply to the Particulars of Offence. In our view, it does not. The identification of “any legislation that creates” the offence charged (under the new Rules) is no more than a shorthand way of referring to the relevant section of the statute or provision of the subordinate instrument referred to under the 1971 Rules. Any other interpretation would lead to the absurd conclusion that so long as the right statute or subordinate instrument is identified in the Statement of Offence then the indictment is compliant with the rules however inapposite the specific section or provision relied upon. 14. This conclusion is not, however, determinative of the issue. In R v Nelson (1977) 65 Cr. App. R. 119, this Court held that the terms of the 1971 rules should be interpreted as being directory rather than mandatory. There could be no suggestion that the Criminal Procedures Rules, in so far as they relate to the form and content of indictments, should be approached in any more inflexible way. Accordingly, the question arises as to the circumstances in which a breach of the terms of CPR 14.2 can properly be regarded as being inconsistent with the safety of a conviction which has been secured upon a defective indictment. 15. In R v Graham [1997] 1 Cr App R 302 at p 309 the Court observed: “Our sole obligation is to consider whether a conviction is unsafe. We would deprecate resort to undue technicality. A conviction will not be regarded as unsafe because it is possible to point to some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice…But if it is clear as a matter of law that the particulars of offence specified in the indictment cannot, even if established, support a conviction of the offence of which the defendant is accused, a conviction of such an offence must in our opinion be considered unsafe. If a defendant could not in law be guilty of the offence charged on the facts relied on no conviction of that offence could be other than unsafe.” 16. R v McKenzie [2011] 1 W.L.R. 2807 was decided on facts not dissimilar to the circumstances of the instant appeal. The defendant in that case had been committed for trial on an indictment which included seven counts of indecent assault. By the time the matter was listed to be heard, however, his mental health had deteriorated to the extent that he was not fit to be tried. Accordingly, pursuant to section 4A of the Criminal Procedure (Insanity) Act 1964 (as amended), a jury was empanelled to determine whether the defendant had done the acts charged. All seven counts were defective. The allegations related to sexual assaults on a male but, as in the instant case, the Statements of Offence each referred to section 14 rather than section 15 of the 1956 Act. The jury found that the defendant had done the acts charged. The jury’s findings were challenged on appeal on the basis that the indictment was irremediably flawed as a result of these errors. 17. In allowing the appeal, the Court held at paragraph 34: “It seemed to us that the wording of section 4A is clear. To return a finding the jury must be satisfied that the accused did the act (or made the omission) charged against him as the offence. In this case the act charged against the defendant as the offence was indecent assault contrary to section 14(1) of the 1956 Act—ie indecent assault on a woman. The actus reus of that offence could not possibly be proved by evidence that the defendant had indecently assaulted S, who was a young man, even though the particulars asserted that that was what he had done.” The Court, having referred to Graham went on to observe at paragraph 41: “In this case neither the particulars pleaded in those counts, nor the evidence of S, could possibly establish that the defendant had done the act charged in each case of indecent assault contrary to section 14(1) of the 1956 Act. Thus we concluded that it was beyond argument that the findings of the jury in relation to the seven counts of indecent assault were unsafe.” The appellant relies on this case to support his contention that his conviction under the two relevant counts was unsafe. 18. The respondent counters this approach with reference to the more recent authority of R. v Stocker [2014] 1 Cr. App. R. 18. In that case, the defendant was correctly charged with a number of offences of indecent assault, contrary to s.15(1) of the Sexual Offences Act 1956, after four young men alleged that he had indecently assaulted them between 1985 and 1997. At trial, another young man made an allegation of anal rape which he claimed had occurred on New Year’s Day 2008. The jury was discharged, an investigation ensued and, as a result, the defendant was also charged with rape, contrary to s.1(1) of the Sexual Offences Act 2003. The Crown Prosecution Service drafted the indictment, which was produced electronically and the prosecutor clicked, in error, on the statement of offence relevant to an offence of rape under s.1(1) of the 1956 Act, rather than under the 2003 Act. The defendant was tried on five counts of indecent assault contrary to s.15(1) of the 1956 Act and one count of rape, with the statement of offence still showing the wrong statute. The evidence served in advance of trial, the particulars of the offence which were read to the defendant upon arraignment, the prosecution opening of the case and the evidence called by the prosecution all made it plain that the allegation related to a rape committed on a day at the end of 2007 or beginning of 2008 and the trial proceeded as if the rape charge had been properly brought under the 2003 Act. The judge directed the jury in appropriate terms for the indecent assault offences charged under the 1956 Act and for a rape offence charged under the 2003 Act. The defendant was convicted of all six counts. After the defendant was granted leave to appeal against sentence, the error in the indictment was noticed and the defendant applied for leave to appeal against the rape conviction out of time. 19. Granting the application for leave but dismissing the appeal, the Court held: “42 In our judgment, there is a clear judicial and legislative steer away from quashing an indictment and allowing appeals on the basis of a purely technical defect. The overriding objective of the criminal justice system is to do justice—to ensure the acquittal of the innocent and the conviction of the guilty. To that end, procedural and technical points should be taken at the time of the trial when they can be properly and fairly addressed. 43 However, the question for us is whether this is a purely technical defect or whether the count itself was fundamentally flawed because it breached r.14(2) by failing to identify accurately the legislation allegedly contravened. The clear purpose of r.14(2) is to ensure that an accused has sufficient information to know the case he has to meet and for all parties to know which statutory provisions apply. Here, the position could not have been clearer. Everyone understood and proceeded upon the basis that the appellant was charged with an offence under the 2003 Act committed in 2007 or 2008. The particulars of the offence, which were read to the appellant upon arraignment, the evidence served in advance of trial, the prosecution opening of the case, and the evidence called by the Crown all made it plain that the Crown’s allegation related to a rape committed on a day at the end of 2007 or beginning of 2008. (The date was in fact altered from 2007 to 2008 as a result of the complainant’s evidence). The appellant and his legal representatives knew all they needed to know about the case he had to meet and any relevant statutory provisions which applied. 44 The judge summed up to the jury as if the offence alleged in the statement of offence was one of rape contrary to the 2003 Act (as opposed to the other counts alleging indecent assault contrary to the 1956 Act). He directed the jury on the law and factual issues relevant to an offence of rape contrary to the 2003 Act. The jury, in effect, convicted him of an offence of rape contrary to s.1(1) of the Sexual Offences Act 2003. Rape had remained an offence in law throughout the period with which we are concerned. Thus, from beginning to end of the process, the charge here was, in substance, one of rape under the 2003 Act. As far as the judge, jury, prosecution and defence were concerned, the appellant was tried on and convicted of the right offence (rape) under the right Act. The appellant was properly before the Crown Court, the indictment was in every other respect in proper form and, therefore, valid, and the particulars of offence could, and did, support a conviction of rape contrary to the 2003 Act. This was not a “bad indictment” or a “bad count” and the offence of which he was convicted was and is known to law. 45 The only error here was to click the 1956 box rather than the 2003 box. It could have been cured easily by an amendment at any time. That seems to us to be something of a pure technicality. It has caused no prejudice whatsoever. We have borne very much in mind Lord Bingham’s observations in Clarke and McDaid about not resorting to “wholesale jettisoning of all the rules affecting procedure” and we have focused on the legal effect of the breach of the rules. Having done so, we cannot accept that an error in the date of the statute on these facts is so fundamental as to render the proceedings a nullity or that the draftsman of r.14(2) (also the draftsman of the overriding objective) would have intended such an outcome for a breach of this kind. 46 The facts of this case are clearly distinguishable from the facts in Shields , MC and Abdul in which the appellants were, in every respect, convicted of the wrong offence charged under the wrong statute. 47 In our judgment, nothing has occurred during this trial to render the indictment a nullity and the conviction unsafe. In the circumstances, we do not need to consider our powers under and the application of s.3 of the CAA .” 20. There is undeniably a tension between the cases of McKenzie and Stocker with the latter case pointing in the direction of a growing prioritisation of substance over form. More recent cases have continued this trend. 21. In R v White [2014] 2 Cr. App. R. 14 this Court observed at paragraph 20: “Furthermore, the recent trend has been to look at indictments purposively, that is to say, as safeguards against unfairness. Where no material unfairness whatsoever is caused to the defendant, the courts are increasingly reluctant to take too technical or formalistic an approach. Thus, in R v Stocker [2013] EWCA Crim 1993 ; [2014] 1 Cr. App. R. 18 (p.247) , this court surveyed the authorities on nullity, and noted (per Hallett LJ at [42]) “a clear judicial and legislative steer away from quashing an indictment and allowing appeals on a purely technical defect”. We reject the argument that the indictment was a nullity.” 22. The determination of which any defects in any given indictment are properly to be categorised as “fundamentally flawed” rather than amounting to “a mere drafting or clerical error” is bound to be a particularly fact sensitive issue. A useful illustration of this is provided by the case of R v Boateng [2016] EWCA Crim 57 . The indictment in that case was riddled with errors some of which were held on appeal to be fatal and others to be merely technical. 23. In respect of two of the counts on the indictment, the Statement of Offence and Particulars of Offence were both drafted so as to refer to an offence of which, on the evidence, the appellant could not have been guilty. The Court observed at paragraph 15: “We do not find it necessary to resolve either the evidential issue or the interpretation issue in relation to s.10 because, in our judgment, the pleading issue cannot possibly be regarded as “a mere drafting or clerical error” or “a purely technical defect”. The counts were “fundamentally flawed” ( Stocker at [43]). They breached what was then Rule 14.2 of the Criminal Procedure Rules in that they did not identify the correct legislation and did not contain such particulars of the conduct constituting the commission of the offence as to make it clear what the prosecutor was alleging against the defendant. Each count alleged the wrong subsection in the statement of offence and the wrong details in the particulars of offence. The jury could not have been given any legal directions in relation to the counts as pleaded. The judge would have had to direct the jury to ignore everything that appeared on the face of the indictment in relation to these counts. No direction could have been given that the appellant could be convicted of an offence under s.24A(1)(b) by way of alternative to an offence under s.24A(1)(a). It is not an alternative offence. Further, it was never suggested by the prosecution in the lower court that s.24A(1)(b) was the offence it intended to pursue. The possibility was not raised until after the appeal had been instituted. Ground 1 in relation to counts 2 and 12 succeeds.” 24. The feature of central importance on this analysis is that it was not a matter of inadvertence that the relevant counts referred to the wrong section. The prosecution intended to allege a breach of s.24A(1)(b) and the drafting of the indictment perfectly reflected that intention. The form was flawless. It was the substance which was misconceived. 25. This key distinction is well illustrated by the approach of the Court in Boateng to a third count in the indictment which, although defective, was found not to have led to an unsafe conviction. The Statement of Offence correctly referred to the offence of facilitating the breach of UK immigration law by a non-EU citizen. In the Particulars of Offence, the law which the prosecution alleged had been broken was section 10(1)(c) of the Immigration Act 1999. 26. There were two errors here. The first was that the Act was wrongly named. It should have been identified as the Immigration and Asylum Act 1999 and not the Immigration Act 1999. The appellant, however, realistically conceded that this was a mere technical error. The second error was more serious. The Particulars of Offence referred to the wrong section of the Act. It ought to have alluded to section 3(1)(b) but instead rested upon section 10(1)(c). The section actually referred to was purely procedural in content and could never have constituted a provision breach of which could have fallen within the parameters of the offence referred to in the Statement of Offence. Nevertheless, the Court found that this error did not vitiate the safety of the conviction and observed: “Mr Douglas-Jones concedes that the particularised breach of immigration law alleged in count 3, namely s.10(1)(c), was wrongly identified. The breach of immigration law of facilitating AKB remaining in the UK without leave to remain stemmed from s.3(1)(b) of the 1999 Act and not s.10(1)(c). Strictly, therefore, it was that section that should have been referred to in the particulars of offence. Nonetheless, the statement of offence was correct and S.10(1)(c) provided the mechanism of removal under s.3(1)(b) and was therefore not irrelevant. Furthermore, although the reference to s.10(1)(c) was in error, the particulars of offence were otherwise accurate and, if the appellant was not sure which Act was alleged to have facilitated the commission of an immigration law, he could have sought further particulars and would then have been referred to s.3. 19. In our judgment, the errors in the drafting of count 3 are less significant than those already referred to in counts 2 and 12. In the context of Rule 14.2, the statement of offence identified the correct legislation and the particulars of offence contained particulars of the conduct constituting the commission of the offence so as to make it clear what was being alleged against the appellant. In the context of Graham and Stocker , the error in relation to s.10(1)(c) was akin to a “mere drafting or clerical error” and did not invalidate the count. Ground 2 in relation to count 3 fails.” 27. Taking a similar approach to that adopted in Boateng , we would identify the following particularly salient features of the instant appeal: i) The mistake was undoubtedly no more than a simple drafting or clerical error. It is to be noted in this specific regard that the mistake in the present case had not been made in the original summons which had correctly identified the relevant section. There had evidently been a mere clerical slip at the stage of drafting the indictment. Such a slip falls comfortably within the same category of error as the inadvertent clicking of the wrong box in Stocker and indeed of a kind as alluded to in Graham itself. ii) By analogy with Stocker , from the beginning to end of the process the charge here was, in substance, one of indecent assault under section 15 of the 1956 Act. As far as the judge, jury, prosecution and defence were concerned, the appellant was tried on and convicted of the right offence (indecent assault) under the right Act. The appellant was properly before the Crown Court, the indictment was in every other respect in proper form and, therefore, valid and the particulars of offence could, and did, support a conviction of indecent assault contrary to section 15 of the 1956 Act. The trial, and defence case, would have been conducted in precisely the same way, irrespective of the errors in the Statements of Case. Indeed, it may plausibly be suggested that the defect in Stocker was more serious than in the instant case. At least the offence under section 14 was known to law at the time of this appellant’s offending, whereas the offence of rape (in its significantly different pre 2003 form) had been removed from the statute book some three years and nine months before the date of Mr Stocker’s offending. iii) McKenzie , has to be read in the light of the subsequent decision in Stocker and in any event was a case which involved a determination under s. 4A of the Criminal Procedure (Insanity) Act 1964. iv) The appellant was undoubtedly guilty on the verdict of the jury of committing an offence of indecent assault. This is not a case in which the offence identified in the Statement of Offence differs so significantly in substance from the actual nature of the offending proved that it would be objectionable for the matter safely to remain on the appellant’s record in its present form. The gender of the victim was, in the circumstances of this case, the only material difference between the scope of operation of the offences under sections 14 and 15 respectively. Further, under paragraphs 17 and 18 respectively of the second schedule to the 1956 Act the statutory maximum sentences in respect of each section were identical at the level of ten years imprisonment. v) There was, and could have been, no suggestion that the slip in the drafting of the Statement of Offence (i) has caused any prejudice whatsoever to the appellant, (ii) has caused a breach of his Convention rights or (iii) has otherwise rendered the trial process unfair. In this context, the Court must have at the forefront of its mind Rule 1.1 of the Criminal Procedure Rules which post-dates Graham and provides: “(1) The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes— (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights.” Against this background, a finding that the wholly technical flaws in the drafting of the two counts under consideration on this appeal should mandate the quashing of the convictions thereunder would be starkly inconsistent with the overriding objective which now directly governs the proper interpretation of the rules relating to the forms and contents of indictments. 28. We are therefore satisfied on the facts of the present appeal that the defects in the indictment, while reflecting a degree of culpable oversight on the part of those whose responsibility it was to get it right, did not render the convictions thereunder unsafe. 29. This finding renders it strictly unnecessary for us to go on to consider a further issue relating to the now hypothetical scope of the application of section 3 of the Criminal Appeal Act 1968 to the circumstances of this appeal. However, since the matter was argued before us and the Court in Stocker gave no guidance on the matter we can see some merit in expressing our views. 30. Section 3 provides: “ Power to substitute conviction of alternative offence . (1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence [to which he did not plead guilty] and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence. (2) The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.” 31. In Graham the Court identified the scope of this provision thus: “Before this Court could substitute a conviction of an alternative offence the prosecution would have to establish two requirements: (1) that the jury could on the indictment have found the appellant guilty of some other offence (offence B) and (2) that the jury must have been satisfied of facts which proved the appellant guilty of offence B. As to (1) it would be sufficient if looking at the indictment (not the evidence) the allegation in the particular count in the indictment expressly or impliedly included an allegation of offence B. A count charging offence A impliedly contains an allegation of offence B if the allegation in the particular count would ordinarily involve an allegation of offence B and on the facts of the particular case did so. As to (2) this Court has only the verdict of the jury to go on. The fact that the jury did not have a proper direction as to offence B is a highly relevant consideration, as is the question whether there are reasonable grounds for concluding that the conduct of the defence would have been materially affected if the appellant had been charged with offence B. Examination of previous practice indicates that the power in section 3 of the 1968 Act has usually been exercised in relation to offence of violence or public order offences by substituting a lesser offence for the offence charged, there being in such instances a clear hierarchy of offences at common law or by statute.” 32. In R v Shields [2012] 1 Cr App 9, the defendant had by a slip been charged with an offence of being in breach of a Sexual Offences Order under the Crime and Disorder Act 1998, rather than, as he should have been, breach of a Sexual Offences Prevention Order under the Sexual Offences Act 2003 . He was convicted but the conviction was quashed on appeal. The Court of Appeal held that such an error could not be cured by resort to section 3 of the Criminal Appeal Act 1968. The jury could not, on the indictment , have found the defendant guilty of some other offence. The indictment could not be taken to include, by implication, an allegation of breach of a Sexual Offences Prevention Order under the 2003 Act. 33. In the light of the wording of the section and the authorities to which we have referred, we consider that it cannot be argued that the offence of indecent assault on a man could “ordinarily involve an allegation of” an indecent assault on a woman. On the contrary, the two offences are mutually exclusive. It is obvious that the jury must have been satisfied of facts which proved the appellant guilty of indecently assaulting his male victim, for the purposes of section 3 but this conclusion satisfies only the second limb of the test propounded by the Court in Graham and not the first. 34. Accordingly, we would have concluded that if (contrary to our actual findings on this appeal) the defects in the relevant counts on the indictment had rendered the convictions thereunder unsafe, section 3 would not have enabled the Court to substitute convictions under section 15 of the 1956 Act. THE EVIDENCE AT TRIAL 35. The remaining grounds of appeal relate to the admissibility of certain evidence and the directions which the trial judge gave to the jury in respect thereof during the course of his summing up. The examination of these grounds, therefore, now calls for a somewhat more detailed description of the evidence relied upon by the prosecution and defence at trial. 36. The appellant’s daughter gave an achieving best evidence (“ABE”) interview on 20 May 2011. A DVD recording of the interview was played as her evidence in chief at trial. During that interview, she said that her father was a heavy drinker, and from around the time she was 7 years old, it was her job to tuck her father into bed when he came home from the pub. She would get into bed with him and he would make up a bedtime story for her. She would touch his penis and her father would ask her to keep on doing it. These allegations related to counts 1 and 2 on the indictment. 37. She went on to say that he would on occasion pull her pyjamas down and try to “poke” her anus with his penis trying, albeit unsuccessfully, to penetrate her. The applicant never actually penetrated her because she kept her legs as tight as possible, and clenched her buttocks. These allegations related to counts 3 and 4 on the indictment. 38. She also said that he would pull her pyjamas down and run his hands between her legs and over her vagina . These allegations related to counts 5 and 6 on the indictment. 39. On one occasion, when she was about 9 years old, he pulled her head down onto his penis and she had to kiss the top of it. This allegation related to count 7 on the indictment. 40. LF said that the incidents of sexual abuse took place around two or three times a week and that each episode lasted for around an hour. She thought that this had taken place when she was between the ages of 7 and 10. 41. She said that when she was 10 years old she told her mother that her private parts were sore although she did not tell her what her father had been doing. She recalled that she was taken to see a female doctor and had been prescribed some cream. Under cross-examination, her mother confirmed that she remembered a time when LF came to her because she was sore and so she took her to the doctor. The diagnosis was of thrush. 42. The abuse stopped abruptly when LF’s parents separated and divorced. Thereafter, when she was about years old 12, LF told a school friend that she had been sleeping with her father but that they had not had sex. At that time she had asked her mother whether she was a virgin “because of dad” and her mother had cried in response. Her mother’s evidence was to the effect that LF came home from school one day and said her friend had told her that because she had slept with her father she was no longer a virgin. She said she told her not to be silly and at that stage honestly did not think that anything untoward had happened. 43. In 2007, LF told the whole family what had happened including her brother, TD. TD confirmed in evidence that this conversation had indeed taken place. In her evidence, LH’s mother said that when her daughter was at university her boyfriend told her that LF had told him that she had been sexually abused by her father. She then arranged for LF to see a counsellor, Pauline Craig. Ms Craig gave evidence to the effect that she saw LF between August and November 2007 on a weekly basis. Although AH would bring her to the sessions, she always saw LF on her own. She did, however, see AH separately on two occasions. She said her recollection was that LF said her father drank a lot, came home drunk, went to bed and her mother would send her up to say goodnight. Then the abuse would occur. He would ask her to play with him and he would touch her as well. She told her it happened frequently. 44. After she had undergone counselling, LF wrote a letter to her father referring to his abuse which she and her brother delivered to his address. She had written the letter because she could not cope anymore. She told her brother that she had been abused but did not go into detail. He did not mention to her at that time that he had also been abused. Her brother gave evidence to the effect that he had never talked to his sister about the detail of the letter. After they had delivered the letter, TD said that his father’s new wife had telephoned and wanted to talk to him and LF about it but he could hear his father in the background so he told her that there was nothing to talk about. 45. Shortly afterwards the appellant sent his daughter a text message in which he said that he could not remember that far back because he had been drunk but that he was sorry if he had hurt her. She kept the message for a while but she subsequently lost her phone and, with it, the message. 46. TD gave evidence to the effect that once or twice a week his father would put him to bed. When he was in bed, the applicant would touch his penis and try to masturbate him. This allegation related to counts 8 and 9 on the indictment. 47. He said his father would also take hold of his hand and place it on his (the appellant’s) penis and tell him to move it up and down. This allegation related to counts 10 and 11 on the indictment. 48. TD said that, at the time, he did not realise that anything was wrong with what had happened. However, when he was about 13 years old he began to realise that it was not normal. He did not speak to his father about what had happened at that stage because, despite everything, he continued to look up to him . 49. Between 2007 and 2010 however, TD was drinking too much and taking drugs. He contemplated suicide. In October 2010 he wrote a letter to his mother in which he had told her that LF was not the only child the applicant had abused. His mother confirmed that she had received this letter. 50. The appellant denied all of the allegations made against him and said that his son and daughter had fabricated them. He speculated that his son was taking revenge because he had refused to give him money with which to buy a car and that his daughter was punishing him for neglecting her after he had separated from her mother. The defence called the appellant’s second wife, his step daughter and his son by his second marriage in support of some aspects of his case. GROUND TWO 51. This ground is concerned with the admissibility of the evidence as we have outlined it relating to the communications made by the victims to the various third parties concerning what had happened to them in the context of the applicant’s alleged offending. 52. The appellant complains that the judge ought to have analysed each of these communications to determine whether or not section 120 of the Criminal Justice Act 2003 applied. Thereafter, he should have given the jury bespoke directions as to the way in which to approach each communication depending upon whether or not it fell within the parameters of section 120. 53. The rationale behind this complaint is that before section 120 came into force evidence of complaints could only be relied upon by the prosecution as evidence of consistency going to the credibility of the complainant. They could not be relied upon as evidence of the truth of the contents of the complaint. 54. Section 120 changed all that. It provides, in so far as is material: “ Other previous statements of witnesses (1) This section applies where a person (the witness) is called to give evidence in criminal proceedings. (2) If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible… (4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. (5) The first condition is that the statement identifies or describes a person, object or place. (6) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings. (7) The third condition is that— (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence… (e) the complaint was not made as a result of a threat or a promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter…” 55. The appellant contends that not all of the communications admitted into evidence fell within the scope of section 120 and that therefore there was a danger that the jury might impermissibly have treated the contents of those not covered by the section as evidence of their truth and not merely as evidence of consistency going to credibility. 56. A closer look at the summing up, however, reveals these concerns to be unfounded. In fact, the judge did not invite the jury to approach the communications on the basis that any of them were evidence of the truth of their contents. On the contrary, he specifically directed them only on the basis that they were relevant to consistency. Thus, in this regard his summing up was in effect more favourable to the defence than it would have been had the judge identified some of the communications as capable of being taken into account on the issue of the truth of what was said. 57. In any event, we are entirely satisfied that these communications would have been admissible as evidence of any matter stated on the basis that they all fell within section 114 (d) of the Criminal Justice Act 2003 Act as hearsay evidence that was admissible in the interests of justice. This factor alone would have been a sufficient basis upon which to conclude that the matters complained of did not render the convictions unsafe. 58. It was further argued under this ground that the judge ought to have directed the jury that evidence of the complaints made by LF and TD could not provide independent support to their respective allegations because the source in each case remained the witness. However, the learned judge said this: “During the case you have heard evidence, not only from [LF] and [TD] about what they say happened to them, but also from other witnesses, for example , their mother and [LF’s school friend] of what they were told by [LF] and [TD] had happened to them, and I will remind you of that evidence shortly. When a person gives evidence of what they were told by a complainant, that person does not become a witness as to what actually happened because obviously they were not present themselves to witness the events. They simply reporting what a complainant told them about them.” [Emphasis added]. This passage, in our view, provides a complete answer to the appellant’s contentions on this point. The judge was plainly not limiting his observations to the two witnesses he had expressly identified. He was referring to them specifically as examples of those witnesses to whom his general direction applied. It cannot realistically be argued that the jury could reasonably have concluded that the other witnesses to whom complaints were made could, in contrast to those which the judge took as his examples, be treated as if they were witnesses to what had actually happened. 59. Indeed, we would go so far as to say that even if the judge had not given a warning in the terms which he did then, although by no means ideal, it would not, in the particular circumstances of this appeal, have rendered the convictions unsafe. After all, as we have already observed, the judge did not even direct the jury, as he could have done, that the evidence of any of the complaints could support the truth of what the victims were saying. He limited his directions in this regard to the issues of consistency and credibility. There was, therefore, no danger that the jury would venture into the obviously irrational speculation that the persons to whom the complaints were made could be treated as if they were actually independent witnesses of the abuse. GROUND 3 60. Under this ground, complaint is made that the trial judge ought not to have allowed evidence of repeated complaints to be adduced before the jury. For example, it is contended that the evidence of what LF told Ms Craig should not have been admitted because it amounted to no more than a repetition of complaints which she had made earlier. 61. It is to be noted, however, that there is no rule of evidence precluding the admission of repeated complaints. By way of example, in R v MH [2012] EWCA Crim 2725 this Court made no criticism of the admission into evidence of repeated complaints by a child victim of sex offences. 62. Each case must, of course, be decided on his own facts but it is to be noted that it was left open to the jury in the instant case to treat the repeated complaints as not being supportive of the credibility of the complainants but, alternatively, as undermining it. As the trial judge said in his summing up: “If what they reported to others previously is consistent with what they say in court, you may think that supports their credibility as a witness. On the other hand, if it were the case that the complaints to others made by the two of them were different from what they said in court, then you might think that that would, in some way, undermine their credibility as witnesses…” 63. For example, it would have been open to the jury to have concluded, had they thought it right so to do, that LF’s failure in her first complaints to tell her mother that she had been sexually assaulted by her father undermined the credibility of her later accusations. This was not, therefore, a case in which the admission of the repeated complaints necessarily redounded to the disadvantage of the appellant. As a matter of fairness, it was entirely right to leave it to the jury to determine what weight should be given to them and whether such weight should tell in the balance for or against the appellant. 64. In addition, many years had elapsed in this case between the time when the offences were alleged to have been committed and the date when the appellant was arrested. If the jury had been precluded from hearing how the allegations had gradually come to light and what complaints had been made over this period and with what persistence, then they would have been left with a potentially misleading vacuum of information. There would arise a real risk, however carefully they might have been directed not to speculate, that the passage of time otherwise wholly unaccounted for in the years leading to trial would serve to hinder rather than help them reach fair and just conclusions on the evidence. GROUND 4 65. Finally, the appellant criticised the judge for omitting to tell the jury that the diagnosis of thrush was not, in itself, evidence that LF had been sexually abused. 66. This argument is devoid of merit. There had been no suggestion whatsoever from the prosecution or any other source during the course of the trial that the diagnosis of thrush could support the allegation of abuse. In his summing up, the judge gave not the slightest hint or indication that this could have been the case. There can, therefore, in the circumstances of this case be no basis upon which to suggest that any reasonable jury could have misled themselves so badly as to reach a baseless conclusion advocated by no one and wholly unsupported by any evidence. CONCLUSION 67. We are, therefore, satisfied that none of the grounds relied upon in this appeal reveal these convictions to have been unsafe and this appeal is dismissed. 68. For the sake of completeness, we note that the appellant would have contended that if his first ground of appeal relating to the defects in the indictment had succeeded and the other grounds had not then this should have resulted in an overall reduction to his sentence of one year. The first ground of appeal having failed, however, it cannot be argued that the sentence could otherwise be said to have been manifestly excessive. Indeed, even if it had been successful we would not have interfered with the total sentence of eight years imprisonment which was fully merited by the gravity of the offences committed under the remaining nine counts. Accordingly, we also dismiss the appeal against sentence

2016_04_29-3762.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/454/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/454

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[2012] EWCA Crim 1113

EWCA_Crim_1113

2012-05-02

crown_court

Neutral Citation Number: [2012] EWCA Crim 1113 Case No: 201200756/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 2nd May 2012 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR JOHN THOMAS) MR JUSTICE WALKER MR JUSTICE OPENSHAW - - -- - - - -- - - - - - - - - - - - R E G I N A v H - - -- - - - -- - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications C

Neutral Citation Number: [2012] EWCA Crim 1113 Case No: 201200756/B5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 2nd May 2012 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR JOHN THOMAS) MR JUSTICE WALKER MR JUSTICE OPENSHAW - - -- - - - -- - - - - - - - - - - - R E G I N A v H - - -- - - - -- - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - -- - - - -- - - - - - - - - - - - Mr M Chawla QC & Mr S Biggs appeared on behalf of the Applicant Mr S Solley QC & Mr D Wood appeared on behalf of the Respondent - - -- - - - -- - - - - - - - - - - - J U D G M E N T 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: As we made clear at the outset of this hearing, in the light of the conclusion which we have come, this judgment cannot be reported until after the conclusion of any further proceedings. 2. Introduction 3. The Crown appeals against a terminating ruling made by His Honour Judge Loraine-Smith in the Crown Court at Southwark on 19th January 2012, to the effect there is no case for the respondent, H, to answer, on charges relating to alleged breaches of regulations made under the Export Control Act 2003. 4. In very brief outline, and we shall have to go into the matter in more detail, H is an arms dealer. He is based in York and operates through varies corporate entities. It is said, and so it appears from the documents, that he is a well-known arms dealer of a reputation and respectability and called by bodies such as the United Nations to explain how arms dealing operates. 5. He has a partner in Germany, Kleber, and with that partner he entered into negotiations for the sale of arms by a Chinese company called Jing An Import and Export to representatives of Nigerian purchasers. He and his partner represented Jing An, the Nigerians were represented by two individuals, again through corporate entities, Neil Murray and Brendan Cahill. 6. Under the Export Control Act 2003, legislation enacted as a result of the inquiry conducted by Lord Scott, various orders were made regulating trading activities in arms and other goods. One of these was the The Trade in Goods (Control) Order 2003, often known as "The TIG Order". Article 4 of the The TIG Order prohibited trading activities in the UK related to controlled goods which included arms that were the subject of the arrangements between the Chinese sellers and the Nigerians. It will be necessary to refer to Article 4 in some detail, but before doing so, we should make clear, first of all, that Article 9(2) of The TIG Order makes it an offence for a person to be knowingly concerned in the supply, delivery, transfer or acquisition of any controlled good, with intent to invade any of the prohibitions in Article 4. Secondly, H was charged with two offences under Article 9(2) in relation to his knowing involvement in the movement of arms with intention to evade the prohibition in Article 4. 7. Two issues arose on the submission of no case to answer. The first was: what was the scope of the prohibition in Article 4? Secondly, on the facts: was there a case to answer on intention to evade the prohibition in Article 4? The scope of Article 4 8. Before turning to the evidence it is necessary to consider the scope of Article 4. Article 4 provides as follows: "4.—(1) Subject to the provisions of this Order, no person shall— (a)arrange the transfer of controlled goods from one third country to another third country; or (b)acquire or dispose, or agree to acquire or dispose, of any controlled goods, where that person knows or has reason to believe that such an acquisition or disposal will or may result in the removal of those goods from one third country to another third country. (2) Subject to the provisions of this Order, no person shall— (a)arrange or negotiate; or (b)agree to arrange or negotiate a contract for the acquisition or disposal of any controlled goods, where that person knows or has reason to believe that such a contract will or may result in the removal of those goods from one third country to another third country. (3) Subject to the provisions of this Order, no person shall in return for a fee, commission or other consideration— (a)do any act; or (b)agree to do any act calculated to promote the arrangement or negotiation of a contract for the acquisition or disposal of controlled goods, where that person knows or has reason to believe that such a contract will or may result in the removal of those goods from one third country to another third country. (4) Paragraphs (1), (2) and (3) apply to any act, or any part of any act, done in the United Kingdom." 9. As the judge pointed out the activities which we have outlined very broadly obviously fell within the scope of Article 4(1)(a) because the involvement of H as an agent would have been the arrangement of the transfer of controlled goods from one Third country, namely China, to another Third country, namely Nigeria. If performed in the United Kingdom there would have been a breach. However, it was made clear at some stage during the proceedings in the Crown Court that the Crown had concluded he could not be charged with an intent to evade that prohibition. That was because the then Department of Trade and Industry (now known as BIS) had provided guidance on the Act which was regrettably wrong. 10. They had stated that in respect of Article 4(1) as follows: "Where a company or person acting within the UK trades (or agrees to trade) between overseas countries on his or her own behalf principally buying, selling or arranging the transfer across borders of 'Controlled Goods' this is commonly known as trafficking." It is obvious from the reading of the Article in question that it was not merely concerned with persons who are acting on their own behalf but also with persons who were acting as agents. None of the difficulties that confronted the judge and have confronted us would have arisen had not the Department of Trade and Industry made such an elementary error in their own guidance. 11. We can only say that counsel for the Crown was entirely correct therefore in saying that it was quite impossible to charge him with an intention to evade that prohibition under Article 4(1). Counsel had therefore to consider whether the intention to evade fell within the provisions of paragraphs 2 and 3. They alighted eventually, and we were told this was made clear in the course of the opening, that it was the intention of under Article 4(3) that was relied upon. 12. We would observe at this stage that the indictment itself is not clear that it relates to Article 4(3) and on any further proceedings the indictment would plainly need to be made much clearer. But we do not think that anything turns on this point, because it became clear during the course of the opening and certainly clear to Mr Solley QC who appeared for H that a point that might greatly assist H arose because of the reliance on that paragraph. The point taken was this. Article 4(3) referred only to the arrangement or negotiation of a contract; that meant, it was submitted, that it did not cover anything after the initial negotiation of the contract. It did not cover any assignment; it did not cover any variation or any other consensual act following the initial agreement of that contract. 13. The judge in his ruling accepted that argument. Its significance will become apparent when we turn to the facts. The judge reached that decision by a consideration of the structure of the Article. He attributed to the draftsman of The TIG Order a logical construction of Articles 4(1), 4(2) and 4(3), stating that they covered in reverse order steps preparatory to the negotiation of a contract, the negotiation of the contract and the actual delivery and performance of the contract. He also concluded that the words "arrangement" and "negotiation" had to be read together; they plainly referred to what happened at the outset and to nothing further. 14. We regret that we cannot agree with the construction placed upon this Article by the judge. We conclude that he erred in law. First of all, we cannot attribute any logic to the divisions between 4(1), 4(2) and 4(3). 4(2) and 4(3) overlap to a very considerable extent. It seems to us that what no doubt happened is that these words were taken from various random pieces of legislation and put in without the mind of the draftsman having engaged with what he was trying to do. May be that is unkind, but we do not think that is an unreasonable conclusion, bearing in mind the infelicitous drafting of this particular Order. It is of no particular consequence for the future, save to those who traded in the export of controlled goods during this period because happily the TIG Order has been revoked and replaced by another Order. We are therefore dealing with a matter of historic interest though one of great importance to this defendant and possibly others. We therefore cannot accept that opening premise of the judge. 15. Nor in the second place can we accept the restriction that the judge placed on Article 4(3) to the agreement of the contract at its initial agreement. It is plain that when a contract is varied there is another agreement. It is also plain that when a contract is assigned there is another agreement. It seems to us therefore that the ordinary and plain meaning of Article 4(3) is that it covers not only the first or initial agreement but any subsequent variation or assignment. Plainly, it would cover any new agreement beyond those that happened to be made. We therefore conclude on the point of construction that the judge was in error. The evidence 16. We therefore turn to consider the evidence in this case. If Article 4(3) had only covered acts up to the conclusion of the contract and not any subsequent variation or assignment, then the question arose as to when the contracts were concluded. The judge found that the contracts were, as best as he could divine from the documents, concluded on 1st April 2006. At that stage in time the Crown could not point to any activity or action taken by H in the United Kingdom. It therefore followed, on the judge's construction of the Article and his finding that the only contract he could discern was one entered into on 1st April 2006, that on the evidence there was no case to answer, because there had been no intention to evade the prohibition in the Article by any act done within the United Kingdom in that period. 17. It is necessary for us to consider the judge's findings on the construction we have put on the Article. But before doing so we wish to make it very clear as to the basis upon which we are proceeding. 18. The evidence before the jury was very limited. The Crown did its utmost to recover documents from H's computer, from overseas countries including China and Germany but they only had had a very small number of documents. The case was therefore opened before the jury by counsel for the Crown on the basis of a very few documents and an events schedule. In opening the case we are entirely satisfied that the way in which the Crown put the case, at that stage not knowing the point Mr Solley QC was going to advance, did not highlight any of the issues which have concerned us; it did not highlight the questions of variation and it did not highlight the question of new contracts. Furthermore, we are constrained to take the view, on what we have been told, that the way in which the case was conducted when the judge came to make his ruling was conducted upon the basis that the judge was asked to look and see whether they were variations of the contracts after the initial date of 1st April 2006, but he was not asked to consider whether there were new contracts. 19. It would seem to us therefore entirely unfair, in this court on an appeal, for the Crown to be able to run a case that there were new contracts made in January 2007 and a new contract by way of assignment in May 2007. The only way in which the Crown can succeed on the appeal is if it satisfies us that the judge was wrong in the view he took. Firstly, as we have said, in relation to the construction of the regulation and secondly, as to the findings that he made in relation to variations. We would not be prepared in this court, at this stage, to allow a case to be run differently; it would not be fair to H. We therefore in reviewing the evidence in this case, although we shall refer to our own views and to what transpired and what appears, we will not decide the case and cannot decide the case on the basis there were new contracts; we can only decide the issue on the appeal in favour of the Crown if there were subsequent variations. 20. We do not underestimate the formidable difficulties that the judge and a jury faced in this case. They were asked to look at a minute fraction of documents that must, without any conceivable doubt whatever, have existed. There would have been detailed contracts, there would have been shipping documents, there would have been letters of credit, there may have been a performance fund - there would be many, many thousands of important documents which would incontrovertibly show the role that H played when contracts were made and when contracts were varied. But the court only has before it limited evidence. 21. The question therefore is: what inferences can be drawn from those documents? We will consider the issue simply on the basis of inferences to be drawn from the documents, without making any inference from the silence of H on this subject. We do so because we do not think it necessary for us to consider that point on this appeal. But there is no doubt, in our experience, that a broker of his undoubted reputation and abilities knows precisely now what happened, knows precisely when these contracts were made and knows exactly where the documents are to be found. Or, if they have been destroyed, why they have been destroyed. This is an ordinary commercial arrangement by a broker. The sums by way of commission are very substantial. The contract values are very substantial. It is inconceivable that there is not a massive array of documentation that would explain, without doubt, what happened and where it happened. We say that for guidance and the future of this case. But we make it clear that what we seek to do is to draw inferences from the documents that are before us, to see whether it can be inferred that there were variations that would fall within Article 4(3) on the construction we have given it. 22. It is common ground that negotiations began in late 2005. It is common ground that there were visits to China in April 2006 and there was an examination of the production facilities for AK47s, massive quantities of ammunition and other small arms. It is clear that Jing An agreed, in respect of the Nigerian purchases, to do all their business through H and his partner, Mr Kleber. It appears from the documents and is a proper inference to be drawn that a number of contracts were entered into on 1st April 2006. Certainly contract 032CD and contract 030CD, the first covering ammunition and ball ammunition and the other covering a different kind of ammunition. 23. It is then not at all clear what happened between then and December 2006. 24. The letter of 7th December 2006 points, in our view, to a number of inferences. First, that H was well aware of the detailed terms of the contracts. It would be inconceivable in any event that he would not be unaware of them because of the role he played in the negotiations. Secondly, that the activity referred to in the letter of 7th December 2006 (because it was found in his computer) plainly occurred in the United Kingdom. Thirdly, the letter refers to initial payments. Because it speaks with the future tense, we can infer that the initial payments had not been made at that stage. It also refers to the provision of the performance bond, for what is referred to as the "Pinimi contract" and refers to an alteration to a contract or an understanding being made. 25. We then turn to what happened in January 2007. It is, in our view, clear from the documents (particularly those at the bundle at page 106 and 107) that agreements were entered into on 29th January 2007. We have considered Mr Solley QC's suggestion that the date referred to on page 106 refers to the date of delivery, but the plain reading of the letter and the letter at page 107, both of which were found on the computer of H, show that they plainly refer to the agreements of 29th January 2007. It would have been open to us to infer plainly that these were new agreements but, as we have said, we would not proceed on that basis but consider whether there were variations. They must at least be variations of the earlier contracts. It appears from looking at the documentation at page 55 and 56, which refer to down payments for the AK47s, the Markov pistols and the ammunition, that it is inconceivable commercially that a down payment stated to be due on 26th January 2007 could relate to a contract that had been entered into in April 2006 unless this amounted at least to a variation, if not to new contract. Furthermore, it is important to bear in mind the commission agreement entered into Beijing by H on 20th January 2007 where the commissions are set out and some of them of very, very substantial amounts (one in excess of $1.3 million) that at least one of those contracts is described as "pending" and another is referred to, for the fifth contract "the terms are to be agreed". That may point strongly, in our view, to a new contract but it at least points to a variation. Again, that is supported by the delivery schedule at page 53, setting out the delivery dates. 26. There then seems to us another very significant point. That is the assignment. It seems to us that the assignment must be characterised as at least a variation. In our judgment, it is more rightly characterised as a new contract. That is supported by a number of documents, some of which were found on H's computer and it is also supported by the new commission agreements. 27. We are therefore quite satisfied, on the facts before us, that it is possible to infer from the documents that there were variations to contracts that were made in April 2006, that there is evidence fit to go before the jury to infer that activities in relation to those occurred in the United Kingdom and that those variations are plainly within the scope of Article 4(3). 28. We therefore conclude that not only was the judge in error on construction, but, if he had considered the point at the basis of the true construction of Article 4(3), he would inevitably have come to the view that there would have been variations. It seems to us that he has erred in law and had he applied the correct test, he could not possibly have come to the conclusion he had come to. The ruling was also a ruling that it was not reasonable for the judge to have made if he had applied the law correctly. We therefore grant leave to appeal against the terminating ruling and allow that appeal. 29. We have also considered the question as to whether it would be fair to order a fresh trial. In considering this matter, we take into account the gravity and seriousness of the alleged conduct. It is a very serious case as it involves the import of massive quantities of arms to Nigeria where there is significant civil unrest. It cannot be in anything but the highest public interest that this case is tried as soon as possible. The crime alleged is grave and serious. It will no doubt carry a heavy penalty on the evidence that is before us. 30. But we have to consider the fairness of allowing the Crown to run a case not merely on the basis of what we have restricted the argument to before us, but whether they can run a case in a fresh trial in which they can assert that there are new contracts made in January 2007 and a new contract by way of assignment in May 2007. In our judgment, there will be nothing unfair in that. First of all, we are going to require the Crown to amend the indictment to make it crystal clear what they are saying; secondly, we are going to require the Crown to provide detailed particulars of its case. Thirdly, we are going to direct that there be a case management hearing. Fourthly, we think it also fair that in the way in which the case is now put, H should have the benefit of being able to put in a new defence statement setting out what his case is once it is made clear what the Crown's case is. His existing defence statement should not be held against him. We think that will ensure the fairness of any subsequent trial. 31. PRESIDENT OF THE QUEEN'S BENCH DIVISION: You must draft the indictment so it follows precisely the wording of Article 4(3). You have nailed your colours to that mast, that mast you must stick to. 32. MR CHAWLA: That can be done without -- 33. PRESIDENT OF THE QUEEN'S BENCH DIVISION: The current indictment does not follow that and that is why Mr Solley QC did not see point until you opened it I suspect. 34. MR CHAWLA: My Lord, the case should obviously go back to the Crown Court at Southwark. 35. PRESIDENT OF THE QUEEN'S BENCH DIVISION: There is no objection to Judge Loraine-Smith hearing this I would have thought, if he wants to. 36. MR CHAWLA: I suspect in the first place it ought to go back to the resident judge.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/1113/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/1113

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[2013] EWCA Crim 1051

EWCA_Crim_1051

2013-06-27

crown_court

Neutral Citation Number: [2013] EWCA Crim 1051 Case No: 201302101C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN His Honour Judge Patrick T20127553 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/06/2013 Before : LORD JUSTICE LEVESON MR JUSTICE KENNETH PARKER and MR JUSTICE STEWART - - - - - - - - - - - - - - - - - - - - - Between : JUSTINE McNALLY Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2013] EWCA Crim 1051 Case No: 201302101C2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT WOOD GREEN His Honour Judge Patrick T20127553 Royal Courts of Justice Strand, London, WC2A 2LL Date: 27/06/2013 Before : LORD JUSTICE LEVESON MR JUSTICE KENNETH PARKER and MR JUSTICE STEWART - - - - - - - - - - - - - - - - - - - - - Between : JUSTINE McNALLY Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Tom Wainwright and Shahida Begum (instructed by Levenes, London ) for the Appellant John McGuinness Q.C. (instructed by CPS ) for the Respondent Hearing date : 11 June 2013 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Leveson : 1. On 4 December 2012, in the Crown Court at Wood Green before His Honour Judge Patrick, this appellant (then 19 years of age) pleaded guilty to six counts of assault by penetration contrary to s. 2 of the Sexual Offences Act 2003; a further allegation was ordered to remain on the file. On 21 March, with the benefit of detailed reports, she was sentenced on each count to 3 years detention in a young offender institution; a restraining order was made for three years which operated for the benefit of the complainant and her mother. 2. With the leave of the single judge, the appellant appeals against both conviction and sentence. On 11 June 2013, at the conclusion of the hearing, we dismissed the appeal against conviction and allowed the appeal against sentence, substituting for the term of 3 years detention, a term of 9 months detention in a young offender institution suspended for two years, together with a suspended sentence supervision order. In the light of the issues raised in the case, we decided to put our reasons into writing: these we now provide. 3. The facts are undeniably unusual. The appellant (who was born on 19 April 2004) lives in Scotland. She met M on the internet through the social networking game “Habbo”; she used a male avatar “Scott”. At the time they first made contact, she was aged 13 years. M (who lives in London) was a year younger (aged 12-13); she believed that she was communicating with a boy called “Scott Hill” from Glasgow. 4. Over the following 3½ years, the internet relationship developed and M began to refer to the appellant as her boyfriend. They talked (mainly by the online messenger service, MSN) about getting married and having children. The relationship extended into mobile phone conversations and M also saw “Scott” on a web cam. 5. As the couple began to get older they became interested in each other sexually and were very interested, to the point of exhibiting jealousy, in the other’s relationships with other people. This culminated in each ending their relationships with others and agreeing to have an exclusive romantic relationship. The couple would have phone sex and speak about what they wanted to do to each other sexually. “Scott” would talk about what he wanted to do to her with “it” and “putting it in” which the complainant took to mean “his” penis. 6. Arrangements were made for “Scott” to come down to London to see M just after her 16 th birthday in March 2011: it is unlikely that the passage of this birthday was a coincidence. M’s mother did not want ‘him’ to stay at their house and so they arranged for the appellant to stay at the home of a family friend. 7. “Scott” was collected from Euston Station by M and her mother. At the time the appellant was aged 17 years and she presented as a boy wearing what the complainant thought was gothic clothing (although the appellant denies wearing such clothing). Under her trousers, she was also wearing a strap-on dildo which resembled a penis. 8. Over the following months, the appellant visited the complainant on four occasions in total. On the first occasion, they watched a film together and kissed. They went to a bedroom where it was dark and the appellant began to rub M’s vagina with her fingers and gave her oral sex. The complainant then went to get condoms which she had purchased intending that they have intercourse. She was nearly naked but the appellant kept clothing on: it was difficult to see because it was so dark. M offered to give the appellant oral sex but the appellant declined. It was alleged (this being the count that was denied and not pursued) that M was penetrated with the dildo. 9. On the second visit, there were lots of occasions of oral penetration and occasions of digital penetration, always of M. They were apart so much that when they were together they wanted to engage in sexual activity all the time. On the third visit, although there were difficulties in the relationship, they had a party. They still talked about having sex but the appellant was not interested in trying again. 10. However on the fourth and final visit in November 2011, the appellant was confronted by M’s mother about really being a girl. When M was told by her mother, she was devastated. The appellant then came clean and also showed her a Facebook profile in her true name. M felt physically sick. She told the appellant if she had told her from the start she wouldn’t have judged her and things might have been different, but she was mainly in shock and asked lots of questions. The appellant kept talking about wanting a sex change and M said the appellant had lied to her for four years and all that time she had been calling her Scott. 11. The relationship ended but there was still some limited communication between the appellant and M. On 7 November 2011, the complainant’s mother made a complaint to the appellant’s school (which was also attended by a real boy called Scott Hill) and the police became involved when the appellant admitted to her head teacher that sexual acts had taken place. On 30 November 2011, M gave a full account to police of these offences. Although one or two answers might be said to be equivocal, she said that she did not know that “Scott” was a girl. She considered herself heterosexual and had consented to the sexual acts because she believed she was engaging in them with a boy called Scott. 12. The account which the appellant provided to the police in a prepared statement was to the effect that she met M through the internet, pretending to be “Scott” because it made her more comfortable. She suggested that M found out about her real identity as early as December 2009 and they had a big argument. They eventually started speaking again and then met up. She expressed the view that she thought that the complainant knew or suspected that the appellant was a girl. That suspicion would be inconsistent with the suggestion of an argument when M found out; neither would it be consistent with M’s purchase of condoms before the first visit and preparation for it in 2011. 13. In this court, Mr Tom Wainwright and Ms Shahida Begum, for the appellant, advance three grounds of appeal against conviction that flow into each other. They are (1) that the appellant’s legal advisors failed to advise her correctly on matters that went to the heart of her plea because (2) the elements of the offence were not made out and the appellant could not have been convicted with the result that (3) the appellant’s plea was equivocal. 14. It is appropriate to deal with these grounds in a slightly different order. If, on any version of the facts, the elements of the offence were not made out, this conviction would undeniably be unsafe and would fall to be quashed even though the appellant had pleaded guilty: see R v McReady and Hurd [1978] 1 WLR 1376. In those circumstances, the legal advice would also be undermined. An answer adverse to the appellant is not conclusive in relation to the remaining grounds because even if the offence can be made out, that does not necessarily mean that the appellant was correctly advised. The first and third issues, however, do go together. It is not suggested that the plea entered in court was equivocal and if the appellant was correctly advised and had determined to plead guilty, the basis for setting it aside would not be made out. 15. Against that background we first consider the offence. Section 2 of the Sexual Offences Act 2003 (“the Act”) provides: “(1) A person (A) commits an offence if – (a) he intentionally penetrates the vagina … of another person (B) with a part of his body or anything else, (b) the penetration is sexual, (c) (B) does not consent to the penetration, and (d) (A) does not reasonably believe that (B) consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.” 16. Of particular significance in this appeal, s. 74 of the Act provides that: “For the purposes of this Part, a person consents if he agrees by choice and has the freedom and capacity to make that choice.” 17. A number of evidential presumptions are contained in s. 75 of the Act: none are relevant to the circumstances that here arise. Conclusive presumptions rebutting consent and belief in consent, however, are contained in s. 76 of the Act. The circumstances in which these presumptions operate are (a) intentional deceit of the complainant as to the nature or purpose of the relevant act; and (b) intentionally inducing the complainant to consent by impersonating a person known personally to the complainant. 18. This last provision has been considered in a number of decisions (in particular, R v Jheeta [2007] 2 Cr App R 34 , R v Devonald [2008] EWCA Crim 527 and R v B [2013] EWCA Crim 823 ). Whether and if so how these cases fit together is irrelevant for the purposes of this appeal: it was never suggested that the conclusive presumptions applied and the relevance of the provision is restricted to the impact on the construction of s. 74. As Hallett LJ said in respect of the facts in B (at para. 24) the court “need look no further than the provisions of s. 74”. 19. The interpretation of s. 74 has been considered in a number of cases. In R v EB [2006] EWCA Crim 2945 , [2007] 1 WLR 1567 , this court had to consider whether failure to disclose HIV status could vitiate consent (and, equally, belief in consent) to sexual intercourse. The proposition was rejected, Latham LJ observing (at para. 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.” 20. In that case, there was no question of any deception. The appellant had not misled the complainant (whose complaint of rape did not, in any event, turn on the appellant’s HIV status although the judge had ruled that fact admissible). He went on, however, to deal with express deception: “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. 21. Active deception has been considered in connection with the issue of extradition in the specific context of dual criminality. In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) , the Divisional Court was concerned with the potential criminality in this country of having sexual intercourse without a condom when it had been made clear that consent was only forthcoming if a condom was used. Having rejected reliance on s. 76 of the Act, the court observed (at para. 87) that the materiality of the use of a condom could be determined under s. 74. Sir John Thomas PQBD went on: “88. It appears to have been contended by Mr Assange, that if, in accordance with the conclusion we have reached, the deception was not a deception within s.76 (a deception as to the nature or quality of the act or a case of impersonation), then the deception could not be taken into account for the purposes of s.74. It would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s.74, conduct that was deceptive could not be. There is nothing in R v B that suggests that. ... 89. The editors of Smith & Hogan ... regard it as self evident that deception in relation to the use of a condom would "be likely to be held to remove any purported free agreement by the complainant under s.74". A very similar view is expressed in Rook and Ward on Sexual Offences; (4th edition) at paragraph 1.216. ... 90. In our view s.76 deals simply with a conclusive presumption in the very limited circumstances to which it applies. If the conduct of the defendant is not within s.76, that does not preclude reliance on s.74. R v B goes no further than deciding that failure to disclose HIV infection is not of itself relevant to consent under s.74. R v B does not permit Mr Assange to contend that, if he deceived AA as to whether he was using a condom or one that he had not damaged, that was irrelevant to the issue of AA's consent to sexual intercourse as a matter of the law of England and Wales or his belief in her consent. On each of those issues, it is clear that it is the prosecution case she did not consent and he had no or no reasonable belief in that consent. Those are issues to which s.74 and not s.76 is relevant; there is nothing in R v B which compels any other conclusion. Furthermore it does not matter whether the sexual contact is described as molestation, assault or, since it involved penile penetration, rape. The dual criminality issue is the absence of consent and the absence of a reasonable belief in consent. Those issues are the same regardless of the description of the conduct.” 22. More recently, R(F) v DPP [2013] EWHC 945 (Admin) was concerned with a decision not to prosecute where the allegation was that consent was forthcoming on the basis that ejaculation would only take place outside the body. Lord Judge CJ, in a court also comprising of Fulford and Sweeney JJ observed (at para 25): “ ... Given that essential background, the evidence about the incident in February 2010 is reasonably open to this analysis. Consensual penetration occurred. The claimant consented on the clear understanding that the intervener would not ejaculate within her vagina. She believed that he intended and agreed to withdraw before ejaculation. The intervener knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him. There is evidence from the history of the relationship, as well as what he said when sexual intercourse was taking place, and his observations to the claimant afterwards, that although he never disclosed his intention to her (because if she had known he knew that she would have never have consented), either from the outset of penetration, or after penetration had begun, he intended that this occasion of sexual intercourse would culminate in ejaculation within her vagina, whatever her wishes and their understanding. In short, there is evidence that he deliberately ignored the basis of her consent to penetration as a manifestation of his control over her. 26. In law, the question which arises is whether this factual structure can give rise to a conviction for rape. Did the claimant consent to this penetration? She did so, provided, in the language of s.74 of the 2003 Act, she agreed by choice, when she had the freedom and capacity to make the choice. What Assange underlines is that "choice" is crucial to the issue of "consent", and indeed we underline that the statutory definition of consent provided in s.74 applies equally to s.1(1)(c) as it does to s.1(1)(b). The evidence relating to "choice" and the "freedom" to make any particular choice must be approached in a broad commonsense way. If before penetration began the intervener had made up his mind that he would penetrate and ejaculate within the claimant's vagina, or even, because "penetration is a continuing act from entry to withdrawal" (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the claimant subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.” 23. The case for the Crown was that M’s consent was obtained by fraudulent deception that the appellant was a male and that had she known the truth, she would not have consented to acts of vaginal penetration. Mr Wainwright argues that deception as to gender cannot vitiate consent; in the same way deception as to age, marital status, wealth or, following EB , HIV status being deceptions as to qualities or attributes cannot vitiate consent. Thus, he submits that Assange and R(F) can be distinguished as the deceptions in those cases were not deceptions as to qualities or attributes but as to the features of the act itself. 24. We reject this analysis. First and foremost, EB was not saying that HIV status could not vitiate consent if, for example, the complainant had been positively assured that the defendant was not HIV positive: it left the issue open. As Mr McGuinness for the Crown contends, the argument that in Assange and R(F) the deceptions were as to the features of the act is not sustainable: the wearing of a condom and ejaculation are irrelevant to the definition of rape and are not ‘features’ of the offence and no such rationale is suggested. In the last two cases, it was alleged that the victim had consented on the basis of a premise that, at the time of the consent, was false (namely, in one case, that her partner would wear a condom and, in the second, that he would ejaculate outside her body). 25. In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge’s observation that “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way” identifies the route through the dilemma. 26. Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception. 27. It follows from the foregoing analysis that we conclude that, depending on the circumstances, deception as to gender can vitiate consent and we reject the proposition that these pleas of guilty come within the principle set out in R. v Emmett [1988] AC 773 at 782 or that they were vitiated having been induced by a fundamental mistake as to law or fact. There is no suggestion that the pleas were equivocal in the face of the court. The only basis on which Mr Wainwright can argue that this court should now intervene is that the appellant was wrongly advised and did not appreciate the elements of the offence to which she was pleading guilty (see Revitt, Borg and Barnes v DPP [2006] EWHC 2266 Admin) . Privilege having been waived, this is a combination of the remaining arguments to which we now turn. 28. We start with the nature and extent of the advice that the appellant was offered, noting that on each occasion that she was seen by her lawyers, she was accompanied by her parents. At the preliminary hearing, on 14 March 2012, there was a substantial delay before the case could be heard and counsel, Mr Keith Thomas, along with her solicitor, took preliminary instructions (prior to service of the papers) in order to start drafting a witness statement and a defence statement. At that stage (reflected in the defence statement), the appellant was saying, in terms, that M and two of her friends had challenged her about her gender and that she had admitted that she was female. 29. This statement is consistent with the written statement she provided to the police to the effect that M had found a Facebook page with the appellant’s real name and photograph which, at Christmas 2009, had caused them to fall out. The draft defence statement goes on: “7. If, which is denied, [M] did not consent to the acts complained of, the [appellant] will contend that she reasonably believed [M] consented to all such acts as took place and in the knowledge that the [appellant] was a female. ” 30. The draft witness statement re-iterated that the appellant had lost contact with M around Christmas 2009, noting that it was resumed when M requested pictures via a webcam for which purpose the appellant made herself look like a boy. The statement goes on to say that when the appellant travelled to London, she did not try to disguise herself as a boy and continued with these words: “12. I presumed M knew that I was a girl and consented to sexual activity which took place although I specifically deny I ever used a dildo on her. I admit I had a dildo which she saw but I did not use it on her.” 31. After the preliminary hearing, there was discussion on 2 October 2012 and a further lengthy conference in London on 21 October 2012. In the car, on the way down from Scotland, the appellant and her parents talked about the case. In her evidence to this court, the appellant said that she told them that she wanted to plead guilty or was thinking about pleading guilty; her father recalled that she said she may as well plead guilty. Both her parents spoke of telling her that if she had grounds for believing that M knew she was a girl, she should fight the case. As a statement of the law, that proposition was entirely accurate although Mr McNally was emphatic that he did not derive this knowledge from anything that his daughter’s lawyers had ever said about the ingredients of the offence. 32. At the conference (which took place over 1½ hours), Mr Thomas went through the proposed defence statement whereupon the appellant said that it was not right to say that she had told M she was a girl: the sentence was crossed out of the draft. According to the appellant, Mr Thomas said that this retraction “changes everything” and that he then said she should plead guilty because she didn’t have any proof or evidence that M knew she was a girl; she therefore had no defence. She said that she did not know that a belief that M knew that she was a girl constituted a defence, let alone that the burden of disproving that allegation fell on the Crown. When cross examined before us, she agreed that she did not want to tell M the truth. She said that in a way, if she told M the truth, she might have ended the relationship and the appellant did not want it to end; therefore she did not tell her. 33. In his evidence, Mr McNally recollected that his daughter said that she might as well plead guilty and that this surprised him. He said that he could not remember if his daughter was asked that she had told M she was a girl; the appellant had said that she presumed M knew and she was not asked why she made that assumption. Mrs McNally could not remember the words used but did recollect that it was a case of the appellant having to prove her defence. 34. We also heard from Mr Thomas, a barrister who had practised criminal law for in excess of 40 years. He was clear that he had explained the burden and standard of proof and had gone through each of the elements of the offence not only prior to the preliminary hearing but also in the later conference. He denied that he ever told the appellant that she had no proof that M did not know she was a girl; on the contrary, he said that just because she had not told M she was a girl did not deprive her of a defence. The way in which he put it in his statement was: “In view of her replies I was satisfied in my own mind she (and her parents) knew what all the constituent elements of the offence were and that these were made out. I did not say what is set out in para. 14 of the recent advice [‘because she did not tell the complainant she was a girl ... she had no defence and should plead guilty’] – that is not my understanding of the law. Indeed, I had specifically referred to the issue of Miss McNally’s ‘reasonable belief’ in paragraph 7 of the draft defence statement.” 35. Mr Thomas accepted that he pointed out the difficulties that the appellant faced (not least concerning the evidence that M had bought condoms prior to her arrival and the nature of her admissions to her headmaster in relation to the dildo). He also observed that the versions of events provided by M and by her could not live in the same world but that it would be clear to the jury who was telling the truth. 36. Mr Thomas said that until the end of the conference on 21 October, he believed that the appellant intended to plead not guilty. It was only then that her father said that Justine wanted to tell him something whereupon the appellant indicated that she wished to plead guilty to all but the allegation concerning the dildo. He said that he was taken aback given her previous instructions and the discussion that afternoon: the result was that he went through the elements of the offence again. 37. The upshot was that five paragraphs were added to the witness statement (without any other amendment being made to the earlier parts so that, on the face of it, the document appears inconsistent). These additional paragraphs were as follows: “17. At that conference, attended also by both my parents, I stated that I wished to plead guilty to all matters save and except the offence involving the use of the dildo (count 1). 18. I accept that [M] did not consent to the sexual activity between us because she did not realise I was a girl and not a boy. I accept that she only consented because she thought she was having a relationship with Scott Hill, a boy. She would only agree to sexual activities with a boy. 19. I admit I went to London on 4 occasions as a boy as I told the headmaster... . I stayed with [M] or her family and admit the sexual activities complained of took place with the specific exception of the use of the dildo. 20. I intend to plead guilty to counts 2, 3, 4, 5, 6 and 7 but not guilty to count 1. 21. If the CPS will not accept my not guilty plea on count 1, I will discuss the overall position with [Mr Thomas].” 38. Given the expressed view of her parents during the trip down to London, it is perhaps surprising that neither sought to intervene in the conference but, in any event, this was not the last opportunity for the appellant to consider the matter. The case was listed some six weeks later, on 4 December, and it was only on that occasion that the appellant both signed the witness statement which contained the five paragraphs which we have just set out and tendered the pleas in court (which the Crown accepted). 39. Mr Wainwright cross examined Mr Thomas about a note that was prepared in which it was recorded that counsel had “reiterated that no offence was committed IF consensual and with the complainant’s full knowledge client was female” and that client “confirmed she had done/said nothing to inform the complainant she was actually female. She relied on presumption.” It is said that this note contains no reference to the requirement that she had no reasonable belief in consent although that was the point on which her parents had dwelt. Mr Thomas repeated the advice that he had given; he had not been responsible for the preparation of the note. 40. As to Mr Thomas’ account, the appellant accepts that she signed the statement and thereby accepted the contents as true but says that, by that time, she “just wanted it to be over”. Otherwise, she denies understanding the ingredients of the offence as Mr Thomas explained them: essentially, her account and that of her parents is inconsistent not only with the witness statement that she signed and the draft defence statement but also Mr Thomas’ account. 41. When seeking to resolve this conflict, it is important further to consider the chronology of events. Not only did Mr and Mrs McNally have the period between the conference and the further appearance in court (not least to discuss the view expressed by Mr McNally that she should not admit any offence if she believed that M knew she was a girl) but, after the plea was entered, a further 3½ months elapsed before the case returned for sentence. There is no suggestion that the appellant or her parents challenged Mr Thomas or the solicitors either then or subsequently. 42. What did happen in the period between the plea and the sentence was that the appellant saw a number of professionals in order to provide information to the court. In that regard, Mr Wainwright relies on a number of the observations included in the report of the psychologist (prepared for the purposes of sentence) to the effect that the appellant “assumed that [M] actually knew her gender but chose not to mention it” and “said that she believed that [M] knew her true gender and claimed that she commented on her breasts and her high pitched voice”. He claims that these statements demonstrate that there truly was an issue that should have been ventilated and demonstrates the accuracy of the appellant’s account of her conference with counsel. 43. On the other hand, Mr McGuinness for the Crown points to other parts of the report where the author notes inconsistencies in the appellant’s account and her failure to disclose relevant information; the psychologist said that there was evidence of rationalisation, distorted thinking processes and victim-blaming. She also notes that when planning the visit to M, the appellant was “worried and scared her gender would be apparent to [M]”. The psychologist also observed that the appellant had insisted that only M take off her clothes while she changed into jogging bottoms and “hid herself by sitting on the edge of the bed”; there was similar behaviour on each occasion. 44. Mr McGuinness also points to the Criminal Justice Social Work Report (being the equivalent of the Pre-Sentence Report in Scotland) which, on the issue of seriousness, records that the appellant was aware that the contact with the victim was based on deceit and secrecy and breach of trust while emphasising that she did not intend to cause her harm. Earlier parts of the report not only provide the context of the offence that the victim remained unaware of the appellant’s gender but go on to observe in relation to the level of responsibility for the offence: “Miss McNally accepts that she has committed an offence and in order to do so maintained a cycle of deception, secrecy and breach of trust.” 45. It is clear that, for whatever reason, the appellant has said different things at different times: Mr Thomas said that he often found that defendants did not tell experts what they had told their lawyers. On any showing, we recognise that the conferences with counsel would have been a fraught and anxious occasion both for the appellant and her parents. It would not, however, have been an emotional occasion for Mr Thomas and we accept his account that he properly advised the appellant and her parents as to the law: it was clear from the defence statement that he had understood all the ingredients of the offence and there is no reason for him not to have made them clear. Further, given the formality of the preparation of the defence statement which was then signed by the appellant, doubtless in the presence of her parents, it is difficult to see how they would have allowed the issue of knowledge to pass without comment, not only because of the conversation in the car but also because of their wish to protect their daughter. 46. In his written submission, Mr Wainwright also argues that the equivocations in M’s ABE statement, with two passages from which knowledge might have been inferred, were such that it would not have been open to the jury to convict. Mr McGuinness rightly accepts that this material would have been available for cross examination but submits that, read as a whole, M believed the appellant to be a boy called Scott with references to “he” and “him” throughout; to that must be added her reaction when being informed by her mother. None of this demonstrates that the case would have failed on evidential grounds and neither it, nor the dispute between the appellant, her parents and Mr Thomas start to justify the conclusion that “the defence would quite probably have succeeded” so that “a clear injustice has been done”: see R v Boal [1992] QB 591 at 599H-600A. The criticism of the appellant’s legal advisors is not made out: these grounds of appeal also fail. In these circumstances, the appeal against conviction was dismissed. 47. Turning to sentence, the appellant was aged 18 when sentenced and was of previous good character. The pre-sentence report spoke of a history of self harm and confusion surrounding her gender identity and sexuality, which were resolving. The author believed that she was suitable for a community sentence and that custody would not be suitable or address the appellant’s needs and risks which could be addressed properly by the probation service. We repeat that the appellant had accepted that she had deceived not only others but also herself in committing these offences. An exceptionally detailed report from a Consultant Clinical and Forensic Psychologist concluded that she required a “robust and intensive programme of risk management” which, if not available, could lead to repetition or what the psychologist called “a twist and escalation scenario”. 48. When passing sentence, the Judge concluded that the appellant’s deception represented an abuse of trust and referred to the impact on M as identified in her victim impact statement. He did not consider to be remarkable either her troubled history or her confusion with her own sexuality. He recognised that the appellant was 17 years old at the date of the offending, that she had pleaded guilty and that she did not appreciate the seriousness of what she was doing. In following the guidelines, the Judge took a starting point of 9 years and then reduced it by a third for the plea (to 6 years) and then by half to reach a custodial sentence of three years detention. 49. Mr Wainwright accepts that if the judge was correct to identify this offending as being in breach of trust, the guidelines issued by the Sentencing Guidelines Council identify a starting point in relation to a victim over the age of 16 years as 8 years imprisonment. He contends, however, that there was no breach of trust in this case not least because, although not directly applicable, s. 21 of the Sexual Offences Act 2003 defines ‘positions of trust’ for the purposes of ss. 16-19 of the Act as covering relationships such as teacher and pupil or doctor and patient. 50. In R v ZBT [2012] EWCA Crim 1727 , this court rejected the proposition that step-siblings in a familial context were in a relationship which gave rise to trust and postulated, by way of example, that there was no duty of care owed by the appellant to his step sister. Mr McGuinness acknowledged that the circumstances of two teenagers of similar age did not fall within that definition: we agree. 51. In the absence of an abuse of trust, the starting point set out in the guideline for an offence involving penetration with a body part, committed when a victim is 16 years old or over is 2 years imprisonment with a range of 1-4 years. Furthermore, the context and the personal circumstances demonstrate features of mitigation to which the court is bound to have regard. 52. The appellant has now served just under 3 months of the custodial sentence imposed by the judge and although the length of the deception practiced upon M (relevant to culpability) and the degree of harm caused to M fully justifies the conclusion that the custody threshold has been exceeded, in the circumstances now obtaining, we concluded that justice could be served by imposing a sentence of 9 months in a young offender institution, suspended for a period of 2 years, together with a suspended sentence supervision order also extending for 2 years. In that way the appellant will receive the help that she so clearly needs. The restraining order will remain in place and the notification requirements modified to reflect the reduced sentence. To that extent, the appeal against sentence was allowed.

2013_06_27-3206.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/1051/data.xml

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b128b8ae8085e35fda25819b87ee3c2a73562fec259449cd93105101790b3a08

[2023] EWCA Crim 541

EWCA_Crim_541

2023-05-03

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. [2023] EWCA Crim 541 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202202152/A3 Royal Courts of Justice Strand London WC2A 2LL Wednesday 3 May 2023 Before: LADY JUSTICE CARR DBE MRS JUSTICE McGOWAN DBE THE RECORDER OF SOUTHWARK HER HONOUR JUDGE KARU (Sitting as a Judge of the CACD) REX V SYD GOSS __________ 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 M TURNER KC appeared on behalf of the Applicant _________ J U D G M E N T LADY JUSTICE CARR: Introduction 1. On 18 May 2022 the applicant, then 22 years old, was convicted following trial before His Honour Judge Leonard KC and a jury of the murder of Lee Baxter ("Mr Baxter"). He was sentenced on 10 June 2022 to imprisonment for life with a minimum term under section 322 of the Sentencing Act 2020 of 29 years less 595 days spent on remand. 2. Two of his co-accused were also convicted of the murder. Jermaine Forrester, then 25 years old, was sentenced to imprisonment for life with a minimum term of 29 years, less time spent on remand. Ryan Graham, then 27 years old, was sentenced to imprisonment for life with a minimum term of 27 years, less time spent on remand. 3. This is his renewed application for leave to appeal sentence, for which purpose he has had the benefit of pro bono representation by Mr Turner KC. The central basis of challenge is disparity. It is said that the judge erred in assessing the culpability of the applicant as equivalent to that of Forrester and greater than that of Graham, reaching a sentence that was manifestly excessive as a result. The facts 4. In summary, the facts are as follows. On the evening of 9 October 2020, Mr Baxter, then 34 years old, and his brother drove to Pavilion Terrace in Ilford with the intention of purchasing a large quantity of cannabis. He had £5,000 in cash with him. The applicant, together with Forrester and Graham, were already at the scene, having been driven there by a woman named Demi Anderson. She stayed in her vehicle. 5. There was discussion amongst the group. Mr Baxter showed the men the cash. The cannabis, however, did not materialise. Mr Baxter and his brother began to leave, making their way down an alleyway, but followed by the applicant, Forrester and Graham. 6. Very quickly upon entering the alleyway, Forrester attacked Mr Baxter, placing him in a headlock. Graham joined in, helping to force Mr Baxter to the ground where Mr Baxter was then stabbed. The applicant produced a knife and chased Mr Baxter's brother, swinging the knife and only narrowly missing him. Mr Baxter's brother ran back to his car from where he witnessed the continuing attack on Mr Baxter. The applicant then joined in that attack which only stopped when Mr Baxter's brother returned towards them. The applicant, Forrester and Graham then fled. 7. Mr Baxter had been stabbed multiple times. There were 11 distinct incised wounds, two considered to be defensive, and nine stab wounds. The fatal wound passed through Mr Baxter's thigh through muscle causing damage to the femoral artery and vein. The total depth of this injury was 10 centimetres. It caused massive blood loss and, despite medical assistance, Mr Baxter tragically died at the scene. 8. Following the attack, Anderson drove the applicant, Forrester and Graham back to their respective addresses. The men then made efforts to cover up their involvement. One of the knives used was cleaned with bleach, communications on mobile telephones were deleted, and bloodstained clothes were disposed of or washed. The sentence 9. The judge concluded on the facts, amongst other things: (1) that all three went out ready to use knives against Baxter; (2) that the applicant used his knife to chase Mr Baxter's brother away, leaving Mr Baxter defenceless; (3) that Forrester was the first to stab Mr Baxter and was the principal stabber; (4) that the applicant had a knife with him but it could not be said with surety that he had stabbed Mr Baxter; (5) that it could not be said with surety that Graham was armed with a knife; (6) that the applicant was in general terms the ringleader due to his intelligence; (7) if the events had begun as a genuine agreement to sell cannabis, there came a time on the scene when the plan changed to one of robbery. The timing however made very little difference to the sentence; (8) that really serious harm, not death, was intended. Grounds of appeal 10. At the outset Mr Turner submits that the judge gave insufficient weight to two specific factors: first, the applicant's youth - he was only 22 at the time; and secondly, that the applicant did not stab Mr Baxter. 11. Separately and in any event, it is suggested that the minimum term of 29 years for the applicant was manifestly excessive when compared to the sentences on Forrester and Graham. In particular, Forrester was the principal and potentially only stabber who initiated the attack, and the applicant was to be treated as not having stabbed Mr Baxter at all. Secondly, the applicant was the youngest of the three men and not heavily convicted, especially when compared with Forrester who had previous convictions including for robbery and possession of a bladed article. Thirdly, if a common plan to rob Mr Baxter did arise, it did so on the spur of the moment. Fourthly, there was no safe basis on which to conclude that the applicant was aware in advance that Forrester would stab Mr Baxter. 12. Thus, it is suggested that the roles and culpability of the applicant and Forrester were not equivalent, and that Graham's culpability was no less than that of the applicant. Discussion 13. The judge sentenced the applicant without a pre-sentence report. We agree that one was not necessary and there has been no suggestion to the contrary. 14. It is usually difficult to establish that a sentence is manifestly excessive by reference to disparity alone. Disparity is rarely a successful ground of appeal: see R v Wilson [2017] EWCA Crim 1860, [2018] 1 Cr.App.R (S) 25 and R v Anderson and Black [2018] EWCA Crim 482. One sentencing error is not cured by making another. The sole statutory test on appeal is whether a sentence was wrong in principle or manifestly excessive. 15. It is rightly accepted that the judge correctly identified a minimum term of 30 years as the relevant starting point on the basis that this was a murder done for gain for the purpose of paragraph 3(2) of schedule 21 of the Sentencing Act 2020. He elevated it to take account of relevant aggravating factors, including the fact that this was a group attack, the background of drug dealing, and the efforts to dispose of clothing and knives. He then reduced it to accommodate the relevant mitigation, including the fact that the applicant had a young child and had ADHD. 16. He considered the applicant's age, in our judgment, with conspicuous care. He correctly focused on maturity and not age itself. Having heard the applicant give evidence and taking into account the applicant's background, he was entitled to conclude as he did, namely that the applicant was not "immature in any respect". The applicant was running a substantial drugs business and clearly capable of influencing what Forrester and Graham did. 17. There is in our judgment no arguable basis on which to impugn the resulting minimum term of 29 years as such. 18. Arguments by reference to disparity in such circumstances would not assist, for the reasons that we have already identified. In any event, the judge was well-placed after trial to assess the respective roles and culpability of those involved. This assessment was something to which he gave careful thought, as is clear from the face of his sentencing remarks. An exercise of detailed comparison between the various roles and circumstances of the three men proves unrewarding. 19. There were many matters of commonality. This was a joint enterprise, all three were ready to use knives against Mr Baxter from the moment they set out that evening. There was at some stage before going to the alleyway a joint decision to rob Mr Baxter of £5,000. Each offender had a young child. There were also differences, sometimes nuanced, between the respective positions of the applicant and his co-defendants. By way of example only, although the applicant was the youngest of the three men, the judge found that he was the ringleader within the group, an intelligent and high-functioning individual. This was a central and primary consideration in sentencing terms for the applicant. Graham, who had many positive good character references, was assessed as having special educational needs at school and had no previous convictions. He was also a follower and not a leader. Forrester had dyslexia which had held him back educationally and had a troubled family background. 20. In short, there is no real prospect of appellate interference with the judge's overall evaluative assessments of the individual roles and culpability of those involved, or the resulting sentence on the applicant that he imposed. Conclusion 21. For these reasons, we refuse this renewed application. We conclude, nevertheless, by repeating our thanks to Mr Turner for his assistance. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_05_03-5654.xml

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8c39402d32b1264b6bc31d891a4919dd7e80b93a71d5226dc78f982b090a685d

[2008] EWCA Crim 975

EWCA_Crim_975

2008-05-07

supreme_court

Neutral Citation Number: [2008] EWCA Crim 975 Case No: 2007 02896 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/05/2008 Before : LORD JUSTICE LATHAM MRS JUSTICE SWIFT and MR JUSTICE FOSKETT - - - - - - - - - - - - - - - - - - - - - Between: R v Kempster - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet S

Neutral Citation Number: [2008] EWCA Crim 975 Case No: 2007 02896 D4 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 07/05/2008 Before : LORD JUSTICE LATHAM MRS JUSTICE SWIFT and MR JUSTICE FOSKETT - - - - - - - - - - - - - - - - - - - - - Between: R v Kempster - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Michael Mansfield QC and Alan Masters on behalf of Mark Kempster Paul Garlick QC on behalf of the Crown Hearing date: 16 April 2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham : 1. On the 30 March 2001, the appellant was convicted of three counts of burglary and one count of attempted burglary. On the 20 th April 2001 he was sentenced to 10 years imprisonment for each of the burglary offences and 5 years imprisonment for the attempted burglary, all sentences to run concurrently. He applied for leave to appeal against both convictions and sentence. The single judge refused leave to appeal against conviction and granted leave to appeal against sentence. The conviction application was renewed, and the full court granted leave. The appeals were heard on the 11 th December 2003 when this court dismissed both appeals. 2. The present appeal against conviction has been brought on the basis of a reference by the Criminal Cases Review Commission dated the 23 rd May 2007 on three grounds: i) Fresh evidence relevant to count 1 on the indictment which might have undermined the expert prosecution evidence that the recovered ear mark from the scene matched the ear-print provided by Mr Kempster. ii) New legal argument based on the decision of the House of Lords in Coutts which indicates that the Recorder should have left an alternative count of either theft or handling stolen goods for the jury’s consideration on count 4 of the indictment. iii) Counts 2 and 3 are referred by virtue of their connection to count 4. 3. On the 30 th November 2007, this court rejected the argument in ground (ii) based upon Coutts , and ordered that the issue arising out of the fresh evidence be adjourned. That is the issue with which we are now concerned. However, Mr Mansfield QC on behalf of the appellant has applied for leave to argue a further ground, namely that if the appeal against the conviction on count 1 succeeds, that casts doubt upon the safety of the appellant’s convictions on counts 2, 3 and 4. 4. Count 1 related to a burglary which took place in the night of the 3 to 4 June 2000 at the home of an 89 year old lady, Mrs Hooker, who was asleep at the time. She was awoken by the presence of a man in her room and pressed her lifeline alarm. The man’s head was covered by a hood. He told her that if she told him where the money was, he would not hurt her. He took £45 from her handbag. The alarm resulted in the police being alerted at 12.16am. Mrs Hooker attended a video identification parade but was unable to select anyone from it. 5. The rear kitchen window to the premises had been forced. The police recovered an ear-print from the fixed window pane to the side of the window that had been forced. Expert evidence was heard at the trial from Miss McGowan, a fingerprint expert of 15 years standing, who had been involved in the analysis of ear-prints since 1996, to the effect that no two ears left the same mark and that in her view the ear-print found on the window pane matched ear-prints subsequently taken from Mr Kempster. 6. Mr Kempster was interviewed about this burglary on the 19 th June 2000, after his arrest in relation to the offences which formed the subject matter of counts 2, 3 and 4 of the indictment. He did not deny knowing Mrs Hooker’s address, but he denied going to the rear of the property. He was re-interviewed on the 5 th July 2000 after the police had received Miss McGowan’s report. He did not accept that the ear-print was his, but he admitted that he had done some work at Mrs Hooker’s address, namely pointing, tiling and putting up a new facia board, some four or five weeks previously. He said that he had provided the owner with a receipt. He could have leaned against the window at some stage of doing that work. He had carried out the work with Robert Smith, who lived in a caravan next to his mobile home. 7. At the trial, the prosecution contended that Mr Kempster had lied during these interviews. Mrs Hooker had a receipt from the appellant showing that he had been paid £45 for carrying out precisely the same work, but dated the 12 th February 2000. A neighbour had heard an argument between Mrs Hooker and the appellant as to the price that she had to pay. Further, evidence was called from window cleaners who said that they cleaned Mrs Hooker’s windows regularly, once a month. The prosecution, accordingly, submitted that because of the row, it was highly unlikely that Mrs Hooker would have let the appellant back to do any further work, so that the only work that was done was done in February. Even if he had placed his ear against a window on that visit, it would have been removed by window cleaners long before June 2000. 8. As far as counts 2, 3 and 4 are concerned, they related to the offences in the early hours of the 17 th June 2000. About 1.45am, Mr and Mrs Hayward were awoken by a noise. Mr Hayward went to investigate and disturbed an intruder as he was climbing through the kitchen window which had been forced. The intruder fled. About one hour later, Mrs Douglas, like Mrs Hooker an 89 year old lady, in failing health, awoke to find a man in her bedroom with his back to her. He left the room, she discovered that her bungalow had been searched and that £850 worth of jewellery was missing. She was unable to select anyone from an identification parade. Perhaps most significant, in the following hour, a third house was entered without waking the occupiers, Mr and Mrs Martin. Bank cards and cash were stolen. At about 4am Mr and Mrs Martin were awakened by the telephone. The caller claimed to be a police officer and said that they had been burgled and the bank cards that had been stolen had ended up in the hands of the police. The caller asked them to disclose to him the pin numbers of their cards so that he could put a stop on them from the police station. The caller sounded confident and educated and was polite. He gave the names of two police officers who would call at the premises. 9. Mr and Mrs Martin were however suspicious, and while Mrs Martin continued to speak to the caller, Mr Martin called the police on their second phone line. The call purportedly from the police was traced to a telephone box close to where Mr Kempster lived. A police sniffer dog followed a track from a telephone box to Bay Farm where Mr Kempster lived in a mobile home. A palm print from Mr Kempster was found on the hand-set of the phone. Immediately prior to the call made to Mr and Mrs Martin, a call had been made from the same phone box to a taxi company booking a taxi for a Mr Stevens to Albion Towers in Southampton. A return journey was then made between Bay Farm and Albion Towers and back to Bay Farm at about 4.40am. Although he was not identified by that taxi driver, a different taxi driver from the same firm identified Mr Kempster as being a regular customer who used the name “Stevens”. 10. After his arrest, Mr Kempster stated that he had been at home looking after the children that night. He denied committing any burglaries and denied making the phone call. He said that his neighbour, Robert Smith, had been around that night. Robert Smith was himself called to give evidence. He was in prison for burglary at the time of the trial. He was called by the Crown at the request of the defence. He said that he had committed all four burglaries, but when cross-examined by the Crown after being treated as a hostile witness, he was unable to state the type of houses that had been burgled, what he had taken, how he had entered the premises, or whether any of them had been occupied. 11. A submission of no case to answer was rejected by the Recorder, whereupon Mr Kempster dispensed with the service of his instructing solicitors. There was a short adjournment while Mr Kempster then considered his position. At the end of the adjournment, both the solicitors and counsel considered themselves to be professionally embarrassed and withdrew. The Recorder declined to adjourn or discharge the jury; thereafter Mr Kempster defended himself. He gave evidence, in which he denied committing any of the burglaries. As to count 1, if the ear-print was his, it must have been left on the window while he was working at the house perfectly legitimately. He thought that he had made it clear to the police that he had in fact gone to Mrs Hooker’s twice. He made the point that it was hardly likely that he would have burgled the house where the occupant could identify him. He said that on the night in question he had been at a family night out and had returned home at about midnight when he discovered that his horse had given birth to a foal. His wife, mother and brother-in-law gave evidence in support of the alibi. His sister’s statement was read. 12. In relation to counts 2, 3 and 4, Mr Kempster accepted, contrary to his previous accounts, that he had received a credit card relating to count 4 that night and had made the telephone call to Mr and Mrs Martin. He had been given the card by Robert Smith who had arrived at his trailer just before 4am on the 17 th June 2000. Up until then he had indeed been looking after the children while his wife was with her sick mother. He had not told the police the truth about his movements after the phone call, as he did not want his wife to know about an affair he was having with a woman who lived at Albion Towers. He was not aware that Robert Smith was a burglar or that the credit card was the fruits of a burglary. In cross-examination he accepted that the ear-print was his. He said that it could have got there by listening at the window to see if Mrs Hooker was in or by leaning against it with a ladder. He said that he had not mentioned doing work at Mrs Hooker’s house in his first police interview because he had forgotten about it. 13. The appellant was convicted unanimously on count 1 and by a majority of ten to two on counts 2, 3 and 4. In sentencing the appellant, the Recorder noted that the offences were all against vulnerable and elderly victims, and that his record included a sentence of 7 years imprisonment in 1994 for numerous thefts and for obtaining by deception offences relating to the provision of sub-standard building and tarmac work at exorbitant prices at the homes of elderly and vulnerable victims. In the pre-sentence report, it was said that the appellant’s offending was motivated by the need to fund a serious drug habit. 14. As we have said, the appellant applied for leave to appeal against conviction and sentence, leave to appeal against sentence was granted, but leave to appeal was refused by the single judge. He renewed his application in relation to conviction after the Court of Appeal’s judgment in R v Dallagher [2002] EWCA Crim 1903 . The appellant’s then representatives obtained an expert report from Professor Champod and as a result sought to argue that the ear-print evidence was inadmissible, or of no probative value, and in particular, that it was impossible to make a positive finding as to the identity of the maker of an ear-print. The appellant was granted leave by the full court to appeal against conviction on this and other grounds. At the hearing of the appeal, Professor Champod gave evidence. He had not himself compared the original ear-print found at the scene with the ear impressions provided by the appellant, but had worked on the basis that certain features of the print and impression did indeed correspond. His conclusion was that in the light of the fact that this area of science was in its infancy, and developing, ear-print comparison was a valuable investigative tool and could properly be used to exclude a person as a suspect, but that it could not provide a positive identification of a suspect. All that could be said was that it was consistent. 15. Having heard his evidence, and that of Miss McGowan, and having considered the judgment in Dallagher, the court rejected that opinion. It concluded, as had the court in Dallagher, that the evidence was admissible, and could be used by the jury to conclude that it was indeed the appellant who was the maker of the mark. In addition to Miss McGowan’s evidence, there was the admission by the appellant himself that it was his ear-print; and in any event Professor Champod had not examined the ear-print or made any comparison with ear-prints taken from the appellant. As far as sentence was concerned, the court concluded that it was severe but justifiably so bearing in mind the identity of the victims. 16. On the 16 th December 2003 the Court of Appeal certified a point of law of general public importance under s.1 (2) of the Administration of Justice Act 1960 but refused leave to the House of Lords. The question was as follows: “Whether an expert witness giving “ear-print” comparison evidence can admissibly give evidence at a criminal trial beyond a finding that the defendant’s print and the scene lift, are consistent with each other: and in particular expressing an opinion at the scene print left by the defendant.” 17. On the 1 st April 2003 the House of Lords refused to grant leave to appeal on the certified question. 18. The appellant then applied to the Criminal Cases Review Commission. The application was based essentially on an expert report produced by Dr Ingleby of the 20 June 2006. He is a mathematician who had been closely involved in a European research project known as FearID. This had been set up in order to evaluate the use of ear-print evidence which was in widespread use, particularly in Holland, and to attempt to produce a protocol or protocols in order to standardise procedures and reports. Dr Ingleby’s conclusion was that the prints used in the appellant’s case were not of sufficient quality to conclude safely that there was a match; on the contrary, the gross anatomical features of the ear, visible in the crime scene mark did not accord with the reference prints provided by the appellant. It was submitted on the appellant’s behalf that if this was correct, so that the conviction on count 1 was unsafe, that would have a knock on effect in relation to counts 2, 3 and 4 so as to undermine the safety of those convictions. Further, even if the convictions on counts 2, 3 and 4 were upheld, the sentence of 10 years imprisonment for those three counts only would be manifestly excessive. 19. The CCRC, having examined the report of Dr Ingleby and his conclusions, and the evidence of Miss McGowan, concluded that there was a real possibility that the conviction on count 1 might be overturned. However, it came to the provisional view that there was no real possibility that the convictions on counts 2, 3 and 4 would be overturned or that the Court of Appeal would reduce its overall sentence. The appellant was invited to make further submissions, which he did. 20. The further submissions were based on the one hand on extensive further argument on the linkage between count 1 and counts 2, 3 and 4 but also and most significantly on the perceived effect of the decision of the House of Lords in R v Coutts . As to the former, the Commission did not come to any concluded view but indicated that the appellant’s legal representatives could seek leave of the court to argue this ground. However, it concluded that the Coutts argument was one which was available to the appellant in relation to count four. As a result, because of the inextricable link between count 4 and counts two and three, so that there was a real prospect of the convictions on those counts being quashed, there was no reason for not referring count 1. Accordingly, the conviction was referred on the three grounds we have set out in paragraph two of this judgment. 21. As we have already indicated, this court has dismissed the appeal based on Coutts . We are accordingly concerned with the appeal in so far as it relates to count 1, and, as anticipated by the Commission, an application for leave to appeal in relation to counts 2, 3 and 4 on the grounds that, if the appellant is successful in relation to count 1, the convictions on counts 2, 3 and 4 are unsafe as they must, to some extent at least, have been affected by the jury’s verdict on count 1. 22. In support of the appellant’s appeal and application, we heard the evidence of Dr Ingleby and Miss McGowan. It is right to say that their expertise is very different. As we have indicated, Dr Ingleby is a mathematician and a Reader in Applied Mathematics at the University of Huddersfield. His work in relation to the comparison of ear-prints had essentially been concerned with statistical analysis. But he has had the opportunity, as a result of his extensive work with FearID, both to understand the physiology and technology involved in ear-print comparisons and to consider the level of probability of a match from any given comparisons. Miss McGowan is a fingerprint officer of great experience with the Lancashire Constabulary, who has been trained in ear-print comparison techniques at the recognised course under the direction of the Association of European Police Colleges in Zutphen, Holland. She has had eleven years experience of comparing ear-prints. She accepted at the trial that the use of ear-prints was still in its infancy. She accepts that the work with which Dr Ingleby has been connected for FearID is the most detailed examination there has been of the use of ear-prints in forensic science. It should be said that both Dr Ingleby and Miss McGowan agree that FearID has not yet produced any definitive conclusions, but a number of papers have been published arising out of its work. 23. It should be stated, at the outset, that Dr Ingleby accepts that there may be circumstances in which a comparison of ear-prints will permit a positive identification to be made of the person who left the print in question. Indeed the purpose of the work that he has carried out is to make comparisons more reliable. Both he and Miss McGowan are also agreed that ear-prints present a different and more difficult problem than fingerprints. Ears are cartilaginous structures which are flexible and deform when subjected to pressure. Further, ear-prints are usually left by those who are listening for something or someone by pressing their ear against a surface, and will not necessarily remain motionless but may adjust their position thereby further distorting the shape of the ear and the mark that it leaves. 24. Before turning to the areas of disagreement between Dr Ingleby and Miss McGowan, we should describe the way in which ear-print comparison is made. The suspect mark will usually be dusted, in the same way as a fingerprint, and the residue lifted from the surface on clear tape. The suspect will have prints taken of his relevant ear by pressing the ear against a surface at three nominal pressures, low, medium and high. This was done in the present case in two ways. Firstly, the ear was pressed against a surface which was then dusted in the same way as the ear-print from the scene. The second was to use a marking liquid on the ear which was then pressed against a surface in the same way, that is at three nominal pressures. The word nominal refers to the fact that these pressures were not calibrated or calculated pressures, but just descriptive. For illustrative purposes, Miss McGowan at the trial superimposed two transparencies, one being the transparency of the print at the scene, and the other being the dusted print at heavy pressure taken from the appellant. It should be said that she herself did not take the sample prints, this was done by others. She used that superimposition to illustrate her conclusion that there was a proper match between the two, supporting her conclusion that the ear-print left on the window was produced by the appellant’s ear. 25. Dr Ingleby’s criticisms fell essentially into three parts. First, he sought to demonstrate to us that even a comparison of the prints as overlaid by Miss McGowan showed a mismatch which in his view was significant, in other words was not one which was explained by difference of pressure, or movement. Second, he produced his own transparencies in which the impressions left by the ear were differently coloured on each transparency, so as to accentuate, as he submitted, the discrepancies between the two prints. Thirdly, he said that in any event the prints were of such quality that only what he described as the gross detail was visible and could be compared, that is the main cartilaginous folds, whereas the work with which he had been connected established in his view that the only reliable indicators for a match were what he described as the minutiae. These are the small anatomical features such as notches, nodules or creases in the ear structure. There were, in his view, only two such minutiae apparent from the prints in question, namely a nodule and a notch on the upper rim of the helix, which is the outside rim of the ear. Careful measurement, he submitted, showed that the distance between the two was different on the print from the scene and the print from the appellant. 26. Miss McGowan adhered to her view that the two prints showed a match which justified her conclusion that the print at the scene had been made by the appellant. She pointed out that the shape and size of the ears that made the prints were so closely matched that any small difference could be explained by a variation in pressure. The apparent mismatches pointed out by Dr Ingleby were, she said, again entirely explicable by differences in pressure, and differences in the way in which the two transparencies were overlaid. As far as minutiae were concerned, she pointed out that the notch and the nodule were in themselves unusual features and were identically placed on the helix, the difference in measurement being one which depended upon precisely where on the notch and the nodule the measuring point was placed. Even if there was, as Dr Ingleby had concluded, a difference in the distance between the two, that difference was only between 2.2 millimetres and 2.5 millimetres, in other words again entirely explicable by a variation, for example in pressure. 27. It is clear, particularly from the evidence of Dr Ingleby, that ear-print comparison is capable of providing information which could identify the person who has left an ear-print on a surface. That is certainly the case where minutiae can be identified and matched. Where the only information comes from the gross features, we do not understand him to say that no match can ever be made, but there is likely to be less confidence in such a match because of the flexibility of the ear and the uncertainty of the pressure which will have been applied at the relevant time. Miss McGowan still remains of the view that gross features are capable of providing a reliable match. 28. On the basis of the evidence that we have heard, we are of the view that the latter can only be the case where the gross features truly provide a precise match. We have no doubt that evidence of those experienced in comparing ear-prints is capable of being relevant and admissible. The question in each case will be whether it is probative. In the present case, having heard both Dr Ingleby and Miss McGowan, and in particular having seen the various prints from which comparisons have been made, we are struck by the gross similarity of the shape and size of the ear-prints used for the comparison, and by the close similarity of the notch and the nodule on each. This, in our view, establishes that the ear-print at the scene is consistent with having been left by the appellant. But having examined the comparisons of the gross features, it is also apparent to us that they do not provide a precise match. The differences may well be explicable by differences in pressure, or movement, but the extent of the mismatch is such as to lead us to the conclusion that it could not be relied on by itself as justifying a verdict of guilty. The judge directed the jury in relation to count 1 in the following terms: “Now, members of the jury, although it is a matter for you, I suggest that you approach Count 1 in this way. First of all consider the evidence of the ear-print. Are you sure that the ear-print was Mr Kempsters? If you are not sure then you must acquit Mr Kempster on Count 1” 29. In those circumstances, the jury’s verdict in relation to count 1 cannot be considered safe and the appeal must be allowed to the extent of quashing his conviction in respect of that count. 30. We then turn to the application for leave to appeal in relation to counts 2, 3 and 4. It will be remembered that the Commission would not have referred the matter to this court if it had not been for the effect, as the Commission saw it, of the decision of the House of Lords in Coutts . The basis upon which the appellant puts his case in respect of these counts is that having been certain in relation to count 1, that must have affected the jury’s verdicts in relation to counts 2, 3 and 4. Attractively presented though the appellant’s case was, we are quite satisfied that the Commission came to the right conclusion. Essentially the basis upon which they did so was that the judge, in his summing-up, not only gave to the jury the standard warnings in relation to separate considerations of the four counts in the indictment, but having given the direction which we have already quoted in relation to count 1, he went on to deal with count 2, 3 and 4 in a way which in our judgment clearly separated the jury’s consideration of that count from their consideration of counts 2, 3 and 4. As to these, he said this: “We are going to turn now to deal with counts 2, 3 and 4. The prosecution invite you to work backwards here dealing with count 4 first. For reasons that I will explain, that is the course that I invite you to adopt. To what extent are you entitled to rely on evidence that relates to count 4 of the indictment when considering the defendant’s alleged involvement in the other incidents represented by count 2 and 3. Members of the jury, you may do so if and only if you are sure that the same burglar was involved in each of these three incidents. If you are not sure, then as I have already directed you, you must consider the evidence strictly on a count by count basis. You must consider the evidence on each count quite separately. Now, members of the jury this is very important because counts 2 and 3 will depend on the view you take of count four. If the prosecution have satisfied you so that you are sure of Mr Kempster’s guilt on count 4, then you should go on to consider counts 2 and 3. But if the prosecution have failed to satisfy you of Mr Kempster’s guilt on count 4, then not only would you return a verdict of not guilty on count 4 but you would also have to acquit Mr Kempster on counts 2 and 3 as well.” 31. It seems to us that in this passage, the judge made it abundantly clear that the verdict on count 1 was not a matter which could be used by the jury as material upon which they could reach a verdict of guilty in respect of counts 2, 3 and 4. The explanation that the appellant gave in relation to his behaviour with the credit card was, in any event, far-fetched. And his case cannot have been helped by the evidence of Robert Smith, whose inability to remember anything of any significance in relation to the burglaries which he purported to have carried out was damning. For these reasons, we refuse leave to appeal on this ground. 32. Having quashed the conviction in respect of count 1, we have considered the extent to which that requires us to review the sentence of 10 years imprisonment that was imposed by the judge. We acknowledge, as did the Commission, the fact that the sentence was a severe one. But against the background of the appellant’s previous convictions for preying on old people, the three offences reflected in counts 2, 3 and 4 were offences which required a severe sentence. They justify, in themselves, the sentence that the judge imposed. 33. Accordingly, as we indicated at the hearing, we quash the conviction on count 1, but do not interfere either with the convictions on counts 2, 3 or 4, or the sentence.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/975/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2008/975

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[2019] EWCA Crim 2018

EWCA_Crim_2018

2019-11-05

crown_court

NCN: [2019] EWCA (Crim) 2018 No: 201900153 C5, 201900233 C5 & 201900852 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 5 November 2019 B e f o r e : LORD JUSTICE SIMON MR JUSTICE WARBY HIS HONOUR JUDGE THOMAS QC (Sitting as a Judge of the CACD) R E G I N A v HAFEDH RASHID KS KEVIN TSHOMA 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@e

NCN: [2019] EWCA (Crim) 2018 No: 201900153 C5, 201900233 C5 & 201900852 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 5 November 2019 B e f o r e : LORD JUSTICE SIMON MR JUSTICE WARBY HIS HONOUR JUDGE THOMAS QC (Sitting as a Judge of the CACD) R E G I N A v HAFEDH RASHID KS KEVIN TSHOMA 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. Ms K Walton appeared on behalf of Rashid Mr M Pardoe appeared on behalf of KS Mr S Smith appeared on behalf of Tshoma Mr R Kent appeared on behalf of the Crown J U D G M E N T LORD JUSTICE SIMON: 1. On 11 and 13 December 2018, following a trial in the Crown Court at Snaresbrook before Her Honour Judge Hughes QC and a jury, the appellants were convicted on a number of counts on an indictment: counts 1 and 2, conspiracy to possess a firearm with intent to endanger life, contrary to section 1(1) of the Criminal Law Act 1977 ; count 5, possession of ammunition without a certificate, contrary to section 1(1)(b) of the Firearms Act 1968 ; count 6, possession of an offensive weapon in a public place, contrary to section 1(1) of the Prevention of Crime Act 1968 and count 7, a second charge of possession of an offensive weapon in a public place. 2. On 14 June 2009, Hafedh Rashid, aged 23, and Kevin Tshoma, aged 28, were sentenced to an overall term of 13 years' imprisonment. KS, now aged 17, has not yet been sentenced. They appeal against conviction with the leave of the single judge, in the case of Rashid limited to a single ground. Ms Karen Walton appears for Rashid, Mr Simon Smith appears for Tshoma, Mr Matthew Pardoe appears for KS and Mr Rupert Kent appears for the prosecution. The prosecution case 3. During the afternoon of Monday 21 May 2018, police officers were observing a secure underground car park attached to Britannia Court flats in East London near the home address of Tshoma and KS. Officers saw an Audi arriving, driven by Tshoma with Rashid as a passenger. They subsequently observed their movements, particularly in relation to a VW Golf which was in the secure car park and which was registered to Tshoma. 4. Tshoma and Rashid were both separately seen opening the Golf and leaning into it. Tshoma then went to his family home address before returning to the car park a short time later. KS was standing nearby and, on the prosecution case, was acting as a look out. After about an hour-and-a-quarter the three of them went off in the Audi with a fourth man and officers gained entry to the Golf in the secure car park. It was clear that it had not been moved for some time. Inside they found a loaded double-barrelled sawn-off shotgun, a loaded revolver and further ammunition for these firearms. A fired bullet case was in the revolver. These discoveries gave rise to counts 1, 2 and 5. It was the prosecution case that the appellants were members of a gang and were using the vehicle as a safe place for their weapons in order to use them as and when they needed them for gang-related activities. Although the shotgun was later found not to be workable in its current state, the handgun was in full working order. 5. The Golf was taken away for further examination which resulted in the discovery of a box containing a machete, count 6. KS's fingerprints were on the box. Tshoma's DNA was found on the mouth of a drinks bottle which was inside the car. 6. Later that day the Audi was stopped by officers and the appellants were arrested on suspicion of involvement in firearms offences. The fourth man was not charged. Among items seized from the Audi was a baseball bat (count 7) and gloves in the foot well of the passenger seat where Rashid had been sitting tested, which tested positive for gunshot residue. 7. The prosecution case was that Rashid and Tshoma were senior members of an East London gang called The Beckton Boys or ACG (‘Anyone Can Go’), and that KS was a junior member. The prosecution argued that there could be no reason for them to possess firearms and ammunition other than with the intention of endangering life. 8. The defence case on behalf of all appellants was to deny being members of this or any gang and having any knowledge or possession of the firearms and the machete found in the Golf. In respect of the baseball bat, Tshoma accepted possession of it, but maintained that he had it for a legitimate reason and not for use as an offensive weapon. The judge's ruling on gang-related evidence on 15 November 2018 9. Before opening the case, the prosecution applied for leave to adduce evidence in relation to gang membership: specifically that the appellants were members of the Beckton Boys or ACG gang which was involved in acts of tit-for-tat violence with other gangs. On 15 November the judge gave her ruling. She noted that Rashid and KS had served a defence statement in which each denied being a member of the Beckton Boys, the ACG gang or a gang associated with the number 6, (the Beckton area having the postcode E6), or with any other gang. The judge noted that the application was made under section 98 and section 101(1)(d) and (3) of the Criminal Justice Act 2003 . She also noted a number of authorities to which she had been referred: Nathan Elliott [2010], Stewart [2016], Sahid Sule [2012], Lewis and others [2014] and Iarani and others [2016] - see further below. In Lewis and others , she noted that evidence of gang affiliation was held to be admissible under section 98 and section 101(1)(d) of the 2003 Act . 10. She identified five categories of evidence on which she had been asked to rule. First, the evidence of PC Saban, an experienced officer who had dealt exclusively with Newham gangs for the previous three-and-a-half years. Second, the admissibility of video evidence and PC Saban's ability to interpret the lyrics of the music in the videos. Third, the admissibility of evidence found on KS's mobile phone. Fourth, probe evidence. Fifth, evidence obtained by the police when Tshoma and Rashid had been arrested, interviewed and charged, and were being held in cells in a police station. 11. The judge, who heard PC Saban give evidence on a voir dire , concluded that "he has all the qualifications of an expert in the field of gangs. He studied the language used, offered interpretations; and it was open to counsel to challenge his conclusions." In the judge's view there was no doubt that the evidence of alleged gang membership fell within section 98 and section 101(1)(d) being relevant to an important issue between the defence and prosecution. PC Saban's evidence on the voir dire was clear and his statement of 23 October 2018 dealt succinctly with what he knew about gangs and what video material he relied on in support of his evidence that the defendants were members of the Beckton Boys gang. The judge referred to a further statement of 7 November and the officers' acknowledgement that, although he knew Rashid and KS, he had never met Tshoma, but that he was readily identifiable in two videos, numbered 5 and 6. 12. The judge noted that no counsel had cross-examined the police officer on the voir dire , but that Mr Smith on behalf of Tshoma had objected in the course of legal argument to his interpretation of lyrics. The judge ruled that such points could be dealt with in cross-examination in the trial. She also noted the objection from Ms Walton on behalf of Rashid that it was sufficient for the jury to know how a gang performed in a criminal context and that the videos added nothing, particularly because there was a risk of Rashid being confused with his twin brother. The judge concluded: I have no hesitation in ruling that PC Saban's evidence is admissible, and he may comment on the lyrics, as he has already done. He can be cross-examined by all defence counsel if it is alleged he has not correctly interpreted something. It will be a matter for the jury to make what they will of the evidence, but in my judgment it is capable of going to show, if accepted, that the defendants are members of or associated with gangs which exhibited violence or hostility and links with firearms... Clearly, if accepted, the evidence will be adverse to the defendants, but the jury can and must be properly directed with regard to its nature and the weight they place on it, and in my judgment it is not so prejudicial that it must be excluded. 13. She made a separate ruling admitting a video which was said to include KS holding a gun. The judge rejected the defence submission that the evidence ought to be excluded under section 78 of the Police and Criminal Evidence Act 1984 . The prosecution case 14. The prosecution relied on a number of strands of evidence. Evidence that the appellants were affiliated to or members of the Beckton Boys or the ACG Gang which had been in dispute with other gangs in the East London area; and of numerous incidents of tit-for-tat violence. Their gang membership was relevant to the issue of intention. Background evidence relating to the nature of this gang and its violent dispute with other gangs which was relevant to the motive or intention in relation to the possession of arms. Evidence concerning gang affiliation from police officers with expertise in this area, including PC Saban. These officers had analysed videos on the internet, and videos and stills found on the mobile phone of KS, as well as covertly recorded conversation involving KS and Rashid through a probe placed on a vehicle said to belong to a senior ACG member, Isaac Donkah, who was an elder in the gang. Rashid was also said to be an elder and KS was known as a 'younger', someone sponsored by Donkah. The probe evidence showed that KS would willingly carry out violent tasks on behalf of others. The prosecution relied on PC Saban's evidence as to gangs in general and the ACG gang in particular and his knowledge of and dealing with the appellants to the extent that he had. 15. DC Harrison was part of the Gang Unit in Newham and had met KS several times. He identified him in a video in which he was said to be holding a firearm. DC Moody gave evidence about local gang culture and the ACG gang in particular, and offered his interpretation of the videos as well as conversations captured by the probe in the car. 16. Whilst Rashid and Tshoma were in custody there were recordings taken of discussions including between themselves from their respective cells. Rashid was heard saying that one of those arrested would have to take the blame for the firearms and mentioned certain details about the shotgun ("the dotty") that would only by known by someone who had knowledge of the weapon. The prosecution relied on evidence that Tshoma had been stopped driving the Golf on previous occasions and that Rashid and KS had been seen with Donkah on 4 April 2018 and again in May. 17. The prosecution also relied on material found on KS's phone in which KS described himself as "running Newham". He was seen in three music videos. In one image he was holding a firearm and in others he was holding other weapons. He was making references associated with gang affiliation and violence, and he could be seen making the Beckton Boys ACG sign, number 6. The defence case 18. All appellants gave no comment interviews to the police. KS handed in a prepared statement. The jury were directed that they were entitled to draw an adverse inference from the failure of Rashid and Tshoma to mention facts in interview which they relied on in their evidence under section 34 of the Criminal Justice and Public Order Act 1984; and in relation to KS the jury were directed that they were entitled to draw an inference from his decision not to give evidence, section 35. 19. Rashid and Tshoma gave evidence in their own defence. Tshoma gave evidence that he was not a gang member and had no fixed address. He knew Rashid as his brother's friend. He knew KS because he lived in Britannia Court. He knew Isaac Donkah through the music business. He had an innocent explanation for his movements on 21 May 2018. He went to Britannia Court to visit his aunt and cousins. He drove there in his Audi, which was a present from his cousin who was a footballer. He was with Rashid and another friend. KS let them into the underground car park. The VW Golf was his dead brother's car and was no longer in working order. It was due to be scrapped. He was seen going over to it because he noticed that the door was open and so he looked inside. The tow truck was due to come later that day to take it away. He denied knowing anything about guns or weapons in the car. He had then talked with some friends. He was seen leaving with a baseball bat because he needed it for a music video. He was not intending to use it in violence. He enjoyed making music and videos, but denied that this material was gang related. It was just a performance. 20. Rashid gave evidence that he was not a gang member. He lived with his mother and brothers, one of whom was his identical twin. He was studying for a university degree. He also worked in music and video production, together Donkah. As to the probe recording with Donkah, he did not recall the specific conversations but Donkah liked to talk about guns and such, and he would just “go with the flow”. It did not mean that he was involved with guns, gangs or violence. He had known Tshoma for a couple of years and had met KS through Donkah. 21. On 21 May he had accompanied Tshoma to Britannia Court so that Tshoma could change his clothes. They were then going to get something to eat. He denied knowing anything about guns in the Golf. KS had given them entry to the secure car park. Tshoma had asked him to get a bag out of the Golf, which he did. The car door was not locked. He thought the bag contained spanners. He put it in the Audi. He was on the phone and they waited for the tow truck while Tshoma went inside to get changed. He did not know about any guns or ammunition or weapons, and there was no discussion about them. They then got in the Audi and drove to a restaurant in Edmonton. 22. So far as the cell conversation was concerned, he was simply in shock at the allegation that he was in possession of guns. It was put to him that the probe caught him talking about going on a "ride out", meaning going into another gang's territory for violence. He denied having been on any 'ride out', being involved in gang-related violence, having any role in an ACG or talking on the probe about new members joining the gang. It was just a matter of appeasing Donkah. Rashid himself was nothing more than a music manager and had appeared in some of the videos. It was put to him and denied that the cell conversation showed that he had a close knowledge of the firearms in the case. 23. As noted, KS did not give evidence and relied upon the contents of his prepared statement. He said he had no knowledge of the firearms. Issue for the jury in respect of the appellant they were considering 24. On counts 1 and 2, was the defendant party to an agreement to possess the firearm? Did he have the requisite intent? So far as intent was concerned the jury was directed to look at all the circumstances to decide the issue. On count 5, did the appellant know that the ammunition, four cartridges from the revolver, found in the door of the Golf was there and was it in his possession or control, in other words readily available for him to use? On count 6, did he know that the machete found in the Golf was there and was it readily available for him to use in violence? Was it an offensive weapon? Count 7, did he know that the baseball bat found in the Audi was there? Was it readily available for him to use in violence? Was it an offensive weapon? The summing-up 25. The judge began her summing-up on 6 December. It appears she declined an invitation to give a split summing-up, that is to say summing-up the law before closing speeches. She also declined to give written directions on the law; and a route to verdict was not provided until the conclusion of the summing-up, in circumstances to which we will come. 26. At page 7H she gave this direction in relation to the initial counts: Did at least two people, including one or more of the defendants, agree to possess a firearm? If you cannot find any agreement, they are not guilty of conspiracy. But if they did, you have to go on to consider why were they doing it, what was the intention? Did they intend to endanger life or enable another, so that is somebody else has access to this, to also cause harm to someone, endanger life. With regard to intention, you must be sure in the case of the defendant whose case you are considering, that when the defendant possessed the gun, he intended to endanger life. You decide intent by considering in the case of each defendant, the evidence of what he did or did not do and by what he said or did not say. You should look at his actions throughout the period covered by the evidence, including the observation period until arrest and you may take into account all the evidence about each defendant in turn. His role, if you find he had one, may shed light on his intentions. 27. She directed the jury about how they should approach the expert evidence, including police officers, giving evidence about gangs. She told the jury that the evidence of experts was not unusual and was called to assist them in relation to matters that might be outside their own expertise, (gangs and identification), that it should be seen as part of the evidence and they should have regard to the totality of the evidence. The further direction on expert evidence at page 26B to G was in conventional terms. 28. The judge reminded the jury that the prosecution alleged that the three defendants were members of a gang. She continued: P.C. Saban gave evidence about the Beckton Boys in E6 or ACG, and his knowledge of their activities. He believed all three defendants were, in his opinion, a member of the gang. He spoke of the clothing worn by gang members, how they dressed and act. He accepted that they were involved in making music videos but said in his view these were not simply made for music lovers to enjoy, but because of the nature of the lyrics and the gestures used, in his view they were made to incite violence. All three defendants deny being members of Beckton Boys ACG or Young ACG. You must consider the evidence and be sure they are gang members before you rely on that evidence. If you are not sure they are gang members you must disregard the evidence. However, the fact they may be gang members does not necessarily mean they are violent, or they have committed the offences with which they are charged. If you conclude they are gang members you can use this to assist you with the question of their intent. You should not be prejudiced against the defendant if you conclude he is a member of the gang and it is a matter for you to decide what weight you give the evidence and how it assists you in the case of each defendant. 29. The judge then summarised the evidence of PC Saban at pages 31C to 43E of the summing-up. 30. So far as material to this appeal, two aspects of this evidence give rise to challenge. First, reliance on one of four videos with the title "Only time will tell". The lyrics refer to the killing of a 14-year-old boy, Corey Davis Junior, in terms that would leave little doubt that the participants in the video, which included Rashid, Donkah and KS celebrated his shooting. Second, the prosecution relied on a video clip I/1462 taken from KS's phone. PC Saban identified the person holding a gun as KS. This evidence was also supplemented by other police officers, as we have indicated. 31. The judge gave this direction about identification at 43E: Now members of the jury, I need to warn you, at this stage, because I am about to come to other evidence also about identification. But you have to be very careful when you consider identification evidence. People can say they are certain it is somebody, but there have been misidentifications in the past in cases and you must be very careful when you are considering identification and coming to a conclusion about that evidence. 32. She went on to summarise the evidence of the other police officers who had identified KS as the person in the video clip and whose evidence was challenged by Mr Pardoe on behalf of KS. Towards the end of the summing-up (at page 102E of the transcript), Mr Pardoe invited the judge to direct the jury more fully on the identification of his client by reference to the guidance on identification evidence in the Crown Court Compendium published by the Judicial College. The judge considered that the point had been sufficiently covered in the light of the nature of the evidence. Grounds of appeal 33. Each of the appellants challenges the safety of the conviction on the basis of the judge's ruling and summing-up. The first ground of appeal is that having admitted the evidence of PC Saban and reminded the jury of his evidence, the judge failed properly to direct them as to the uses to which it could be put. This is advanced by Mr Smith on behalf of Tshoma, Ms Walton on behalf of Rashid and is supported to some extent by Mr Pardoe. Mr Smith challenges the initial ruling on the basis that PC Saban's evidence was based "only on an interpretation of music videos, knowledge gained from social media and discussions with people who were not identified." In her perfected grounds, Ms Walton drew attention to the failure of the judge to engage in any discussion about the direction she was going to give on this or any other legal direction, and did not provide any written directions to the jury. 34. It was crucial that if PC Saban's evidence about gangs and associations were to go before the jury, that they should be directed as to the use to which it could be put. The judge herself had recognised the importance of properly directing the jury on this issue, yet when it came to the summing-up she did no more than give a direction that they had to be sure that they were gang members. If they were sure of this, they could use it to assist them on the question of intent and they should not be prejudiced against the defendant if they concluded that he was a member of a gang but they could decide what weight to give it. Our conclusion on gang-related evidence 35. This court has, on a number of occasions, addressed the issue of the admissibility of "gang evidence" under section 98 and section 101(1)(d) and (3) of the Criminal Justice Act 2003 . 36. First, in our view there can be no legitimate complaint about the judge's ruling admitting the evidence of gang association through the means of PC Saban. No point was taken that he was not qualified to give opinion evidence on the matters about which he gave evidence. The evidence came within the same ambit of evidence considered in Smith [2009] 1 Cr.App.R 36 , Elliott [2010] EWCA Crim. 2378 and Lewis [2014] EWCA Crim 48 at paragraph 89. If there was an issue as to the admissibility of the officer's evidence, on the basis that he did not have the requisite knowledge or experience, that was a matter that could be raised on the voir dire . It is clear from the ruling that no such point was taken and we can understand why. 37. Second, in her ruling the judge identified the potential relevance of the bad character evidence. It was capable of showing that the defendants were "members or associated with gangs which exhibited violence or hostility and links with firearms". It is clear from Lewis (paragraph 76 to 102) that bad character evidence is admissibility to prove association between defendants and association with a gang, as well as what is sometimes described as "pro-firearm" and "anti-police" tendencies. Such evidence is admissible under section 101(1)(d) as being "relevant to an important issue between the defendant and the prosecution". 38. Third, the judge rightly accepted that the admission of the evidence was adverse to the defendants, and recognised that the jury needed to be properly directed on this issue. 39. Fourth, on counts 1 and 2 the central issue for the jury was whether they were sure that each defendant was party to a conspiracy to possess firearms or whether their presence in the vicinity of the car in which the weapons were found was or might be coincidental. In the present case if the jury were sure that the defendants were gang members the evidence was relevant in two ways that run together. First, it rebutted innocent presence and association with the Golf vehicle in which the weapons were found. Second, it went to the question of whether the appellants, either personally or jointly, were people who had an interest in, links to or access to firearms with the requisite intent. 40. Fifth, the direction, although it covered most of the material points, did not focus on the relevance of the gang evidence and should have directed the jury that they should not convict on this evidence alone. 41. Sixth, we are clear that this was a case where the judge should have taken time to discuss draft jury directions in advance of the summing-up, not least because she had recognised the need for a direction. If a judge declines to follow this course, he or she is rejecting potential assistance from an obvious source, trial counsel. We note that the evidence had concluded on 28 November and the judge did not begin her summing-up until 6 December. 42. Seventh, we are also clear that in this case it would have been sensible for the directions of law to have been given in advance of final speeches, so that the prosecution and defence could address the jury in the light of those directions. 43. Eighth, it was also a case that required written directions on the law. These should have been agreed if possible. There should also have been a route to verdict for the jury's assistance at the start of the summing-up, see Crim PD 26K.8 to 12. These matters are helpfully covered in the relevant part of the Crown Court Compendium at paragraph 1 to 9. 44. Ninth, in the present case the judge failed to produce any written directions. Such an omission will always bring with it the risk, at the very least, that errors may have to be corrected and a revised direction given at an inconvenient stage of the summing-up, as occurred here. It may also lead to an over defensive response to a submission that a direction should have been fuller or different. 45. Tenth, there will be some cases where a judge is satisfied that a direction is sound and sufficient, notwithstanding a point taken by the defence. However if a prosecutor thinks that a particular direction should be given he should say so rather than simply leaving it to the judge. 46. Eleventh, although a route to verdict was eventually provided, it was at the last stage of the summing-up, and was generated and drafted by counsel. This was, in our view, an unsatisfactory state of affairs. 47. Before coming to our conclusion on the safety of the convictions, we must deal with various other matters of complaint raised by Tshoma and KS. Tshoma 48. First there is a complaint about the insubstantial nature of the evidence (participation in music videos and knowledge gleaned from social media as well as from unrevealed sources). In relation to evidence of this sort, the authorities are clear that a police officer may present expert evidence "of the practices, mores and association of gangs" see the Privy Council decision in Myers v Queen [2015] UKSC 40 , [2016] AC 314 at paragraphs 57-61. Police officers are entitled to draw upon the body of expertise in this field, including the use of unidentified sources (see also Lewis at paragraphs 94 to 95). 49. In any event, PC Saban's opinion evidence that Tshoma was a gang member was to a large extent based on Tshoma's participation on two music videos, in one of which he could be seen with Issac Donkah and Rashid, and in one of which he could be seen brandishing a firearm, identifiable notwithstanding pixilation. As stated in Elliott [2010] EWCA Crim 2378 at paragraph 31: Violent gangs, which provide no social amenity and exist for criminal purposes, are unlikely to issue membership cards, and so proof of membership will almost inevitably involve the prosecution putting forward evidence of a number of circumstances from which gang membership could be inferred. 50. Proof of gang membership could be inferred from the particular videos in which he appeared and gang membership was celebrated. The prosecution made it clear that Tshoma was not seen or referenced in other gang videos featuring the other appellants and so there was no need for a specific direction to that effect. 51. Second, there is a complaint by Tshoma that the judge failed to give adequate directions as to how the evidence of covertly recorded cell conversations could be used. These related to the conversations conducted between suspects in the cells at Fresh Wharf Custody Centre after the appellants' arrest. There were recordings involving conversations between Tshoma, Rashid and the fourth man in the Audi. The judge ruled that this evidence be admitted in her bad character ruling, largely with the agreement of the parties, subject to the removal of references to drugs and a direction that it was not evidence against those not present at the time. The objectionable references were removed and the judge gave a direction that evidence given by one defendant was not evidence against another who was not present at the time. The judge gave an example as follows: Now, there is one matter that I want to deal with at some point and I think now is the easiest time to deal with it. You must bear in mind that evidence by one defendant whose case you are considering ... So, giving you an example of this, when Mr Rashid was talking to the [other man in the Audi] in the cells, and he said 'Mr S is clumsy' that is not evidence against Mr S and you must not consider it because Mr S was not present, he had no opportunity to deal with it and therefore you must disregard it. So, if a defendant is talking about another defendant in that way and the other defendant is not present, it is not evidence against the other defendant. Please keep that in mind at all times. 52. Although she did not specifically refer to Tshoma, it would have been apparent to the jury that this applied to him as well, not least because the prosecution had not relied on this evidence against Tshoma. We note that this point was not taken on his behalf in the course of the summing-up during which his counsel was not diffident about raising points that concerned him. 53. Third, it is said on behalf of Tshoma that the directions as to the elements of the offence on counts 1 and 2, and the importance of the specific intent required at the time of possession of firearms, were inadequate. In our view the summing-up in relation to this point at page 8B to C was entirely sufficient. 54. Finally, a matter that was not pursued before us orally but a matter that we should deal with: complaint was made that the direction about offensive weapons was unsatisfactory since the items, a machete (count 6) and a baseball bat (count 7) were not of themselves offensive and required the prosecution to prove an intent. The term "offensive weapon" is defined in the statute as "any article made or adapted for use to cause injury to the person or intended by the person having it with him for such use". We do not regard this as a point of substance. It is difficult to imagine what possession of a machete and a baseball bat in the borough of Barking and Dagenham could have been intended for, other than violence. But in any event the judge did give an appropriate direction in relation to intent in the summing-up at page 136E. 55. We turn then to the points taken on behalf of KS. Mr Pardoe accepts that the prosecution evidence plainly showed that he was a gang member and was associated with violence by his willingness to use a blade in the context of gang violence. However, he submits that the connection between KS and the use and connection with firearms was limited to two items. First, the evidence of PC Saban that KS was the person in the video clip IMG1641 sitting disguised in the rear of the car and holding a shotgun. That evidence was, as we have noted, supported by two other officers. Mr Pardoe submits that the jury was not properly directed about the deficiencies in the identification. In particular, that it was possible for seemingly credible witnesses to be wrong in recognising a particular person as someone they knew. The judge failed to direct the jury in the terms indicated in Turnbull [1977] QB 224 . 56. This was a point taken at the time and was not opposed by the prosecution. However, the judge concluded that the direction was sufficient in drawing attention to the dangers of recognition evidence. She recorded Mr Pardoe's challenge to the correctness of the identification of KS in the video clip and at page 43E said this: Now members of the jury, I need to warn you, at this stage, because I am about to come to other evidence also about identification. But you have to be very careful when you consider identification evidence. People can say they are certain it is somebody, but there have been misidentifications in the past in cases and you must be very careful when you are considering identification and coming to a conclusion about that evidence. 57. A Turnbull direction tailored to the facts of the case should always be considered when dealing with disputed identification or recognition evidence. However, we are satisfied that the nature of the judge's direction, albeit omitting a warning that confident recognitions from PC Saban and others could still be mistaken, does not throw doubt on the safety of the conviction. Three police officers had given evidence that they recognised KS from the clip. The jury had the clip before them and they could see KS in the dock. 58. The second item of evidence to which objection is taken is the admission of the video "Time Will Tell" which was said to link directly to the murder of the 14-year-old Corey Davis Junior. Mr Pardoe submitted that it was highly prejudicial and such prejudice could not be cured by any direction. The judge had ruled that the video was admissible and although the parties agreed to the removal of certain aspects of the gang evidence, this did not include reference to Corey Davis Junior's shooting in the drill video. We accept that it would not have been admissible but for the fact that the conspiracy related to guns. However, it was. As such, it was material because it showed KS, not involved in the shooting of Corey Davis Junior, but in a video exhorting that shooting. In our view there was no objection to the admission of this evidence. Conclusion 59. We have concluded that the only complaint of substance was the direction as to the use to which the gang evidence could be used. Although the direction did not focus on the correct way in which the evidence could be used, it did make three crucial points. First, the jury had to be sure that the defendant they were considering was a gang member. This was a point specifically raised by Tshoma who said he was not. Secondly, even if they were gang members that did not mean they were violent or that they committed the offences with which they were charged. Thirdly, and linked to the second point, the jury should not in any event be prejudiced against the defendants because they were gang members, but they might give it weight. 60. We have considered whether, despite the judge's approach to the summing-up and the error which we have identified, the convictions were unsafe. We have concluded that they are not. There was evidence that on 1 May 2018 Tshoma and Rashid were acting in a way that was consistent with the handling of one or more firearms stored in the VW Golf; KS (whose fingerprint was found on the box containing the machete in the vehicle) was acting as facilitator and look out; Rashid had covered his head with clothing before approaching the vehicle consistent with an attempt to avoid being identified; Rashid and Tshoma wore gloves consistent with an attempt to avoid leaving fingerprints on the car or its contents; the car had been insured and driven by Tshoma whose DNA was found in a bottle in the boot; there was evidence that all three appellants were members of the ACG gang, this was established by the evidence of PC Saban, the YouTube Drill videos, videos and photographs on KS's phone and the probe evidence in relation to Rashid and KS. In addition, there was evidence of tit-for-tat feuds with other gangs. Such feuds typically involved the commission of potentially lethal violence with weapons such as were found in the VW Golf. On 21 May, having checked the loaded firearms, the appellants with the other man in the Audi, went on a scoping expedition armed with a baseball bat, Balaclava, stick on number plates, walkie-talkie and gloves. The gloves found in the foot well in the place where Rashid had been sitting in the Audi had traces of gunshot residue. In evidence Rashid amended his account from that given in his defence statement in an effort to tie-in his evidence with Tshoma. This was in the context of no comment interviews from both men and a defence statement only served by Tshoma mid-trial. KS, who had given a limited prepared statement in interview denying knowledge of the firearm, did not give evidence in his own defence to refute the very strong prosecution case. 61. For these reasons and in these circumstances the appeals against conviction are dismissed.

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crown_court

No: 200702819/C1 Neutral Citation Number: [2007] EWCA Crim 1914 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London WC2 Date: Wednesday, 18th July 2007 B E F O R E: LORD JUSTICE LATHAM (VICE PRESIDENT OF THE CACD) MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE KING - - - - - - - R E G I N A -v- STEPHEN EDWARD BIRCH - - - - - - - Computer Aided Transcript of the Stenograph Notes of A Merrill Communications Company Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG

No: 200702819/C1 Neutral Citation Number: [2007] EWCA Crim 1914 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London WC2 Date: Wednesday, 18th July 2007 B E F O R E: LORD JUSTICE LATHAM (VICE PRESIDENT OF THE CACD) MR JUSTICE GRIFFITH WILLIAMS MR JUSTICE KING - - - - - - - R E G I N A -v- STEPHEN EDWARD BIRCH - - - - - - - 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 P ANDREWS appeared on behalf of the APPLICANT MR N WILLIAMS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 9th October 2006 in the Crown Court at Chester, the applicant pleaded guilty to committing an act of outraging public decency. On 30th October 2006 he was sentenced to 3 years' imprisonment. He makes application in effect to vacate his plea and for leave to appeal against the conviction which has been referred to the Court by the Registrar. 2. The circumstances which gave rise to the charge were that in the early hours of the morning of 24th July 2006, the applicant was captured on closed circuit television with his penis exposed, masturbating at a bus stop in Chester. As he was doing so a woman walked past. The applicant was thereafter tracked on closed circuit as he followed the woman through the city centre. It was clear that he was attempting to ensure that the woman did not notice that she was being followed. At one point he took out his penis from his trousers as he was following her. He was seen to hide in shop doorways. 3. The person who was viewing the CCTV was clearly concerned that this might have been the precursor to an attack. Fortunately a police vehicle came into view at one point and eventually the police arrested the applicant. The woman herself was never traced and we hope was unaware of the pursuit. 4. The application before us today is based simply and solely on the proposition that the only person who saw the acts which are said to have been acts outraging public decency was the person who was viewing the matter on the CCTV and that it is settled law, as recognised by this Court in Rose v Director and Public Prosecution [2006] EWHC 852, that an essential element of the offence is that the public should have been outraged, not simply one individual. 5. The courts have consistently applied the rule to that effect by stating that what must be proved is that more than one person could have seen the act which is said to have outraged public decency. 6. The evidence on the CCTV camera footage, it is said, does not support the proposition that anybody other than the viewer of the CCTV pictures could have seen what this applicant did. That submission is wholly unrealistic. This was the middle of Chester, at a time when undoubtedly people were passing. Whether they in fact saw this appellant masturbating, or when he exposed his penis at the later stage is not a matter which has to be established in order for the prosecution to succeed. He was masturbating in a situation where, although the bus stop is one where one side of it obscured, was otherwise open to public view and we know people were in fact in the vicinity. Quite apart from that, it seems to us to be unrealistic to say that the woman herself was not somebody who was capable of having seen what he did at either of the points about which complaint is made. We do not consider that the material before this Court could in any way justify the conclusion that the plea was one which should be vacated. In those circumstances the application is refused.

2007_07_18-1182.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/1914/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/1914

ea1a964ccc7c4445f58f5cc1266f1f85544313f2ae91d69e7c64d6eee0cb3baf

[2009] EWCA Crim 13

EWCA_Crim_13

2009-01-15

crown_court

No: 2008/1033/D2 Neutral Citation Number: [2009] EWCA Crim 13 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 15 January 2009 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE WILKIE THE RECORDER OF CROYDON (HIS HONOUR JUDGE WARWICK MCKINNON) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v VINCENT HAMBLETON - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Wor

No: 2008/1033/D2 Neutral Citation Number: [2009] EWCA Crim 13 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 15 January 2009 B e f o r e : LORD JUSTICE HUGHES MR JUSTICE WILKIE THE RECORDER OF CROYDON (HIS HONOUR JUDGE WARWICK MCKINNON) (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - - - - - - - R E G I N A v VINCENT HAMBLETON - - - - - - - - - - - - - - - - - - - - - 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 H Gow appeared on behalf of the Appellant Mr D Travers appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: This is an appeal against conviction for burglary. The question is whether there is reason to fear that the jury was infected by information damaging to the defendant which was not part of the evidence. The possibility that that was what had happened arose after conviction as a result of a report by one of the jurors to the jury officer. The trial judge properly ruled that at that stage it was too late for him to do anything about the matter other than to ensure that the juror's concern was properly recorded and to certify the point for appeal so that it got to this court promptly. We are grateful to the trial judge for taking those evidently correct steps. 2. It is not necessary to say very much about the evidence in the case. The defendant was being tried for burglary with another man called Shannon. The Crown case was that a house had been burgled in the middle evening by three men who had been seen by a neighbour. One of them got away in a car, leaving the other two to make off on foot. The defendant and Shannon were arrested following the intervention of an off duty police officer who had been passing the burgled house at about the time the alarm was activated. The Crown's case was that those were the two of the three burglars who had left the scene on foot. 3. The evidence against the two defendants was not however identical. If the off duty police officer was right he had had Hambleton in sight for virtually the whole period of pursuit, except for a moment when he was obscured by a parked car. That was not true of Shannon. The evidence against Shannon was that the officer said that he was able, after arrest, to recognise Shannon as one of the people he had seen leaving the house. So there was a significant difference in the evidence. Moreover, there was evidence that Hambleton had been noisily advising Shannon after arrest what to say, so again that made a difference in the evidence. 4. The eventual result of the trial was that Hambleton was convicted by a majority of 10 to 2 and Shannon was acquitted. What the breakdown of the jurors' various views about him was, of course cannot be known. 5. After the trial the report made by one juror was to the effect that one of the jurors had been overheard telling another something to the effect that "He's been like that since he was 11 years old". It transpired that the reporting juror, who is referred to in the report before us as MH, was doing no more than reporting what had been said to her after the trial by another juror, Z. We are able to say that because in this case, as in others like it, the court has been enormously assisted by a thorough enquiry into what happened made by the Criminal Cases Review Commission. These enquiries are very difficult to make. It is vital that they are never undertaken by the parties or the parties' representatives and that mistake has not been made in this case. The commission is particularly skilled in tailoring the enquiries to compliance with section 8 of the Juries Act. 6. The result of the enquiry can be summarised in this way. First, many of this jury had served together previously on a different trial. Second, in that previous trial there had also served somebody to whom it is convenient to refer as juror X. Third, at the outset of the present trial, X was one of those initially balloted to form the present jury, but she indicated that she knew one of the defendants and was accordingly, with complete propriety, stood down. There seems to us to be no reason to doubt that the person that X knew or knew of was not Hambleton but Shannon. It seems that Shannon had been at the same school as X's daughter. Fourth, X accordingly left the court of this trial but she was returned to the pool of jurors and found herself on another jury in the same large building and thus was in and about the jurors' assembly area at the various non sitting times during the present trial. She already knew several of the jurors in the present trial because they had served together in the earlier trial. She particularly knew the juror who is referred to as Y. She knew Y from the previous trial (first) but also because they had in the course of that trial discovered some common link via employment. Fifth, there is no doubt that X and Y spoke together from time to time during the current trial. Thus far no problem. Sixth, however, it is also clear that X and Y spoke, among no doubt other unconnected matters, about the reason why X had (completely correctly) indicated that she could not sit on the present trial and it is clear that X told Y that she knew one of the defendants and that there was conversation about that. Those facts are clear. 7. The Commission discovered from MH (the original reporting juror) that her concern arose from something which she had been told not by X, not by Y, but by a third juror Z, not during the trial but after it. MH says that after the trial Z told MH that Y had told Z that Y's friend X knew "him" and knew that was a bad lot, apparently because a friend of X's daughter had at some stage gone out with him. It is apparent that Z believed that the defendant about whom she was being told something was Hambleton rather than Shannon. There is every reason to think that that is probably a misunderstanding. It was Shannon that X had known rather than Hambleton. The scope for misunderstanding in a four stage hearsay transmission from X to Y to Z to MH is obvious. Indeed the reported suggestion that "my friend's daughter went out with him" seems to figure nowhere in the original knowledge that X had and may well be an illustration of the way that the message can become corrupted in even a two stage reporting, let alone a four stage. However, what matters in the case and what has emerged as a result of the original report, whatever its basis may have been, is what Z says occurred. 8. Z says that some time during the course of this relatively short trial, before the evidence was completed and when the jury was in its retiring room for some reason, another juror announced:"He's guilty, my friend knows him, he's a bad 'un." Z formed the belief that the defendant being spoken of was Hambleton. It can reasonably be inferred that the remark was made by Y. Z's belief that it was a reference to Hambleton may well be wrong. There are a number of possibilities. Y might have misunderstood X and thought that the person X knew was Shannon, although that is not what Y now says. More likely, since as reported the remark did not identify which defendant it was, it may simply be Z's misunderstanding that the reference was to Hambleton rather than to Shannon. Moreover, says Z, after the conviction of Hambleton and acquittal of Shannon this same juror remarked to Z:"He was guilty". Once again it is impossible to know to which defendant that was a reference. The point is that, whichever it was a reference to, it is consistent at least with the speaking juror, apparently Y, having formed a clear view not only on the basis of the evidence but on the basis of something else. 9. We have given anxious consideration to the question whether if this remark made in the jury room some time during the evidence was in fact a report of a reference to Shannon rather than Hambleton, that can have any effect upon the safety of Hambleton's conviction given that Shannon was acquitted. The test is not in dispute and is well-known. Would a fair-minded and well-informed observer conclude, knowing what we now know, that there was a real possibility of bias in the sense that the jury or any member of it may have been infected by information which was not part of the evidence, which was damaging to the defendant and which ought not to have been taken into consideration? It is common ground that if this was a reference to Hambleton there can be no doubt the conviction is unsafe. If it was in fact in Y's mind a reference to Shannon and was misunderstood by Z as a reference to Hambleton then the question is much more finely balanced. However, we have come to the clear conclusion that even if Y was speaking of Shannon and Z misunderstood her and thought that she was referring to Hambleton, this is nevertheless a situation in which a fair-minded and well-informed observer would conclude that something had gone seriously wrong with the administration of justice. 10. There are at least three reasons why that is so. The first is that Shannon gave evidence (so for that matter did Hambleton, but the important matter is that Shannon did) exculpating Hambleton. Anything by way of material which should not have been before the jury which affected Shannon's credibility might well rebound on Hambleton and the fact that Shannon was acquitted and Hambleton was not does not prevent that from being so. Secondly, if Y believed that one of these defendants was a "bad lot" and had been since youth, it is quite impossible to know what influence that may have had upon any contribution she made to the deliberations generally about both defendants. It is true that Shannon had put his character in issue in any event and it is true that Shannon had a previous conviction for wounding with intent, but his case had been that despite that single error he was a decent man and he had asserted, in support of that contention, that he wanted to join the navy. Accordingly, it is simply impossible to be confident that any conviction on the part of Y that Shannon, contrary to his case, not only had a single previous conviction but had always been a bad lot had no impact on the trial of Hambleton. It may well have done. Thirdly, Z understood this remark to be about Hambleton. No one can know what impact Z's understanding of that had upon the trial. We are invited to the tempting assumption that Z must have been one of two dissenting jurors who would have acquitted Hambleton, but that is simply an unsafe assumption to make. 11. In all those circumstances we are persuaded that in the present case it is impossible not to fear that the jury has been infected by material which it ought not to have had. On any view X and Y ought not to have been speaking to one another about anything connected with the present case, including the reasons why X could not sit, and certainly not about any antecedents of either of the defendants. In a very large court one can normally rely on jurors if released from one court to continue to sit in another court without this kind of problem arising, but it did arise in this case. For the reasons which we have indicated it is impossible to be confident that the effect on the trial of Hambleton was not an unfair one. 12. In those circumstances the appeal against conviction must succeed and the conviction must be quashed. Mr Travers? 13. MR TRAVERS: My Lord, the evidence of P.C. Bridger is still on the face of it clear and albeit I will further consider the evidence no doubt that the defence would seek to adduce at a retrial, I think the matter should be listed and - I have no prior experience - be listed for mention, is it, in Liverpool Crown Court as soon as possible? 14. LORD JUSTICE HUGHES: Well there is one preliminary stage. Do I understand you are applying for a retrial? 15. MR TRAVERS: I do apologise. I meant no discourtesy. I do seek a retrial. 16. LORD JUSTICE HUGHES: Mr Gow? 17. MR GOW: It is irresistible, your Lordship. 18. LORD JUSTICE HUGHES: Absolutely irresistible. Of course he must be retried. We are satisfied that the interests of justice call for a retrial. He is to be retried on the same charge as he was tried in the court below. He must be arraigned on a fresh indictment within two months of today, unless this court directs otherwise. He was tried at Liverpool. Is there any reason why the retrial should not be at Liverpool? 19. MR GOW: My Lord, no. 20. LORD JUSTICE HUGHES: The trial will be at Liverpool Crown Court unless either this court or a presiding judge of the Northern Circuit directs otherwise. There is no reason to imagine that arises. He is not in custody, so he should remain on bail in the mean time, should he not? 21. MR GOW: Technically he is not on bail. He has completed his sentence. 22. LORD JUSTICE HUGHES: I know he has, but he is now awaiting trial in the court below. Unconditional bail. You will need a representation order, Mr Gow, for solicitor and junior counsel for the retrial. 23. MR GOW: Thank you very much. 24. LORD JUSTICE HUGHES: Is there anything else that we need to direct? 25. MR GOW: Just for my information, your Lordship has granted a representation order for junior counsel at the trial. Those instructing me have reminded me that they have had the expense of bringing all these witnesses down today, out of their own pockets. The witnesses were ordered to attend by the court in Leeds when this court sat in Leeds. So I ask for some kind of representation order to allow those instructing me to recover the witnesses' expenses. 26. LORD JUSTICE HUGHES: Tell us what kind of order you want, Mr Gow? It is not a representation order, is it? It is a matter of witnesses' expenses. 27. MR GOW: I think a costs order. 28. (The judge conferred with the Registrar) 29. LORD JUSTICE HUGHES: You probably heard that. I am advised that if your solicitors tender their bill, including the reasonable expenses of the witnesses, to the Court of Appeal costs office, it should be covered by the representation order. I will endorse your recollection that you were required to bring them here. That is on the record. 30. MR GOW: Apart from that your Lordship it has been a pleasure. 31. LORD JUSTICE HUGHES: Should there be any restriction on reporting pending the retrial, or not? There is no reason why there should be is there. Nothing that arises in this appeal could affect any jury who hears the retrial, could it? 32. MR GOW: I agree and have no comments on that. 33. LORD JUSTICE HUGHES: There is no need for that.

2009_01_15-1772.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2009/13/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2009/13

9410e6480e95b85ff7d54bc4ae54dd3be5216d0c7c9a16e2a4fcbf668c5d14da

[2013] EWCA Crim 2114

EWCA_Crim_2114

2013-11-05

crown_court

Neutral Citation Number: [2013] EWCA Crim 2114 Case No: 201205513/A6-201205814/A6-201205791/A6-201205724/A6-201205723/A6-201205685/A6-201205648/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 5th November 2013 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE ROYCE SIR DAVID MADDISON R E G I N A v RICHARD DYER REGINALD DAVIS MARK REID TANYA FRANCENE EDWARDS RICHARD MCKRIETH GEORGE WESTON THOMPSON NADIA

Neutral Citation Number: [2013] EWCA Crim 2114 Case No: 201205513/A6-201205814/A6-201205791/A6-201205724/A6-201205723/A6-201205685/A6-201205648/A6 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 5th November 2013 B e f o r e : PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE ROYCE SIR DAVID MADDISON R E G I N A v RICHARD DYER REGINALD DAVIS MARK REID TANYA FRANCENE EDWARDS RICHARD MCKRIETH GEORGE WESTON THOMPSON NADIA PECCO PAMELA MARIA BAILEY 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 C Weston appeared on behalf of the Appellant Dyer Mr R Thomas appeared on behalf of the Appellant Davis Mr R Headlam appeared on behalf of the Appellant Reid Mr E Amoah-Nyamekye appeared on behalf of the Appellant Edwards Miss S Paul appeared on behalf of the Appellants McKrieth & Thompson Mr P Marquis appeared on behalf of the Appellant Pecco Miss L Plant appeared on behalf of the Appellant Bailey Mr M Whitehouse appeared on behalf of the Crown J U D G M E N T 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: In early 2012, both as a result of complaints and otherwise, the Metropolitan Police were concerned about the extent of what appeared to be wholesale drug dealing in an area around Wardour Street in Soho: this activity had become a significant public nuisance. As a result, a substantial exercise (known as Operation Jolt) was commenced with test purchase officers acquiring crack cocaine and heroin from a large number of suppliers, some 32 of whom who were ultimately arrested and prosecuted. Twenty-eight have now been sentenced in the Crown Court at Southwark on different occasions by a number of different judges with at least two receiving community-based penalties (involving requirements for drug treatment); 25 received custodial sentences from between 16 months and 8 years. These appeals are brought by eight offenders (it being said that seven others had been sentenced by that stage) all of whom were sentenced by His Honour Judge Robbins on 14 September 2012. Their offending consisted of street dealing in Class A drugs albeit to different extents and with different background circumstances. 2. The principal arguments advanced on this appeal concern the way in which the judge applied the Definitive Guideline issued by the Sentencing Council in relation to drugs offences, the applicability of the decision of this court in R v Afonso [2005] 1 Cr App R (S) 99 , page 560, [2004] EWCA Crim 2342 and arguments regarding disparity with sentences imposed in the large number of other prosecutions that have emanated from this police operation such that "right-thinking members of the public, with full knowledge of the relevant facts and circumstances [would] consider that something had gone wrong with the administration of justice" (see per Lawton LJ in R v Fawcett 5 Cr App R(S) 158). Before dealing with the individual cases, it is worth enunciating the principles. The Guideline 3. The Definitive Guideline in respect of drug offences was issued in accordance with section 120 of the Coroners and Justice Act 2009 and applies to all offenders aged 18 and over who are sentenced on or after 27 February 2012 regardless of the date of the offence. Subject to complying with provisions such as impose minimum sentences and when dealing with mentally disordered offenders, section 125(1) of the Act mandates (using the word 'must') every court, in sentencing an offender, to follow any relevant guideline unless satisfied that it would be contrary to the interests of justice to do so. 4. In relation to selling directly to users ('street dealing'), harm is not categorised by quantity: the fact of street dealing is sufficient to put the offending into category 3 irrespective of the quantity of the drugs involved. It will inevitably be the case that street dealing will be in quantities far smaller than those listed in the guideline. Furthermore, the fact that supply is to a test purchase or undercover police officer is equally not a reason to reduce the category: the position is put beyond doubt in the lowest category (category 4) which identifies indicative quantities of drugs of different class and goes on to provide an alternative in identical language: "where the offence is selling directly to users* ('street dealing') the starting point is not based on quantity - go to category 3." The footnote to which the asterisk refers includes within the guideline selling to test purchase officers. 5. It is appropriate to say a few words about the asterisk and the explanation. The Council consulted widely on the issue of supply to undercover (or test purchase) officers: in reality, there is no question of a street dealer deliberately approaching an undercover officer (intending less harm) and the identity of the person with whom the defendant engages when supplying or offering to supply drugs is entirely a matter of chance. The respondents to the consultation agreed and in the Council's published response, the conclusion was reached: "The Council agrees that 'supply to an undercover officer' should not be a factor for consideration at either step 1 or step 2 and it will not be included in the definitive guideline." 6. As to the culpability of the offender as demonstrated by his or her role, it is important to emphasise that the descriptions cover a wide range of activities and circumstances in which the offence of supplying a controlled drug might be committed. For that reason one or more of the characteristics may demonstrate the role and the lists are not exhaustive. Among the descriptors for a significant role is included "motivated by financial or other advantage, whether or not operating alone". Lesser role, on the other hand, includes "involvement through naivety/exploitation", "if own operation, absence of any financial gain, for example joint purchase for no profit, or sharing minimal quantities between peers on non-commercial basis." Street dealers funding their own habit, or, perhaps, an extremely meagre living for food and the like are motivated by financial or other advantage and are not the same as those who, for example, are funded by friends to purchase for the group without any question of financial or other reward. 7. We ought to say something about the descriptions "some awareness and understanding of the scale of the operation" in relation to significant role and "very little, if any, awareness or understanding of the scale of the operation" in the lesser role. This is intended to encompass not only street dealers but also those who are being sentenced based on the quantity of drug concerned: it is not difficult to visualise a courier or low-level participant in a very substantial drug dealing operation who had no idea of the scale of that operation but who, unless these descriptors were provided, could find the starting point for the sentence at a level far in excess of that which would be justified for the criminality of which the offender was aware. Given that street dealing is always likely to be at low level and the category is fixed, this descriptor has far less relevance. 8. Against the background of this guideline, the earlier authorities have only very limited (if any) relevance; there is no point in referring (as a number of skeleton arguments do in this case) to cases such as R v Djahit [1999] 2 Cr App R(S) 142: the pre-guideline authorities have been overtaken by the guideline itself. To suggest (as is also asserted) that Afonso can be applied directly to the facts of the present cases is to fail to appreciate the effect of the guideline (although it is appropriate to add that the facts giving rise to the approach adopted in Afonso were very specific and, in submissions to this court over the years, have often been misunderstood). In the light of the guideline, further reliance on Afonso is no longer appropriate. 9. That does not mean that potentially mitigating circumstances are not important. Thus, by way of example, the scope for a less severe approach to lack of previous convictions and demonstration of steps taken to address addiction is contained within the guideline as reducing seriousness. Again, there is a further recognition of the importance of tailoring the case to meet the needs of an offender in the rubric to Step 2 which makes it clear: "Where the defendant is dependent on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under s. 209 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence." Disparity 10. Most of the arguments advanced in the appeals before us alleged disparity of sentences with those passed on different offenders, by different judges, at different times (many of which were subsequent to these sentences): the common link is only that the offenders were arrested as part of Operation Jolt. None of these offenders were involved in a joint enterprise and any disparity in sentence (to such extent as it exists or cannot be explained by reference to the specific facts of the case, including those individual to the offender) cannot be a grounds for appeal any more than if attempts were made to argue disparity based on similar street dealing sentences from different parts of the country at different times. The purpose of the guideline has been to introduce what is hoped to be an increasingly consistent approach to sentence: that is not the same as saying that the outcome in each case must be the same. 11. R v Broadbridge [1983] 5 Cr App R(S) 269 is authority for the proposition that an offender cannot justifiably be aggrieved if he or she receives an appropriate sentence simply because a co-offender (even more so, we add, someone who is not a co-offender) has fortuitously received an unduly lenient sentence. As was made clear in R v Parveez Saddieq [2011] EWCA Crim 1052 , that principle is not inconsistent with the observation in Fawcett set out in paragraph 2 of this judgment on the basis that Broadbridge identifies the correct principle save only where to pass such a sentence would cause right thinking and properly informed members of the public to consider that its imposition would give the offender a justified sense of grievance. Right thinking and properly informed members of the public would not expect different judges sentencing different offenders for different offences at different times (even if the location of the offending was similar) to be bound by sentences out of line with authority or guidelines, the purpose of which is specifically to encourage consistency of approach to sentencing generally. Thus, following the guideline approach in each case effectively removes arguments surrounding disparity flowing from different outcomes. It is highly relevant that in Parveez Saddieq itself, the court was concerned with disparate sentences for two men involved in the same joint enterprise. 12. The existence of the guideline is not to underplay the influence of this court in the way in which those convicted of crime are sentenced. In R v Thornley [2011] EWCA Crim 153 , [2011] 2 Cr App R(S) 62, page 361, Lord Judge CJ said (at paragraph 13): "The 'interests of justice' consideration which now, and we assume always has and always will underpin the work of the Sentencing Guidelines Council (now the Sentencing Council) undoubtedly involves consideration of the subsequent thinking of this court and of the legislature on sentencing issues which may impact on every original definitive guidance. Just as the guidelines are not tramlines - an observation made time and time again - nor are they ring-fenced." 13. Thus, a Definitive Guideline sets out the approach which the court must follow; subsequent decisions of this court may help to interpret the guidance contained within the guideline and provide illustrations of the circumstances in which it operates and, of equal importance, when the interests of justice might justify departure from it. The guideline is intended to encapsulate the approach to the vast majority - but necessarily all - the cases that come before the court: the interests of justice permit departure from the guidelines in appropriate cases. 14. That is precisely the point being made in Attorney General's References (No 73, 75 of 2010 and 03 of 2011) [2011] EWCA Crim 633 , [2011] 2 Cr App R (S) 100 page 555 in which Lord Judge CJ said (at para 5): "[T]he jurisdiction of the Court of Appeal Criminal Division to amplify, to explain or to offer a definitive sentencing guideline of its own, to issue guidelines if it thinks fit, is undiminished. The relevant statutory provisions emphasise the obvious truth that no sentence should be an unjust sentence and that no guideline can require that an unjust sentence should be imposed." 15. What Lord Judge was not saying was that this court could issue its own guideline in conflict with a Definitive Guideline issued by the Council; neither was he suggesting that it is appropriate to go back to the pre-guideline authorities and seek to argue that they, rather than the guideline, provide the approach that the court should follow. Amplification and explanation is precisely the function of this court as is issuing guidelines in areas or circumstances not covered by a Definitive Guideline. If the interests of justice demonstrate that a guideline requires revision, the court will undoubtedly identify that fact: it will then be for the Council, pursuing its statutory remit, to revisit the guideline and undertake the necessary consultation which precedes the issue of all guidelines. Given the composition of the Council, we doubt that substantial differences of approach are likely ever to emerge. These Appeals 16. In each case the judge made it clear that he had borne in mind what had been said in a pre-sentence report about the gravity of dealing in drugs which observed: "Drugs destroy lives and have a negative impact on society. The supply of drugs is an evil occupation that profits out of the despair of others who are vulnerable and those who engage in such activities should expect to be severely punished by the courts." 17. The judge concluded that in each case, only immediate custodial sentences were appropriate sending out a message that those involved in drug trafficking could only expect to receive substantial custodial sentences. All had provided essential links in the chain of drugs supply: the roles of each were "somewhat different but certainly quite significant". Undercover police officers had frequently put themselves in danger in these necessary operations. These observations were fully justified. 18. The judge further said that he was conscious of sentences passed on others arrested in Operation Jolt but did not know their antecedents. He said that he had had regard to the guidelines and also to the case of Afonso (which, in any event, has been overtaken by the guideline). He also took account of the fact that guilty pleas that had been tendered at the first available opportunity. 19. Before turning to the facts of the individual cases, it is worth identifying the guideline starting point and range for each offence of supplying a controlled drug of Class A, offering to supply such a drug or being in possession with intent to supply. Category 3 (street dealing) with a significant role (motivated by financial or other advantage whether or not operating alone) justifies for each offence a starting point of 4½ years' imprisonment and a range of 3½ to 7 years. A lesser role in relation to street dealing which does not relate to quantity (limited function under direction, engaged by pressure, coercion, intimidation, involvement through naivety/exploitation) for each offence justifies a starting point of 3½ years and a range of 2-5 years. Without seeking to be exhaustive, factors increasing seriousness (thereby affecting movement in the range) include previous convictions and failure to comply with current orders. Demonstration of steps to address addiction and primary caring for dependent relatives are among the factors that reduce seriousness and a guilty plea justifies a discount the size of which is dependent on its timing. 20. Having regard to that background, the circumstances of the offending and the appeals of these individual appellants can be summarised quite shortly. 21. Richard Dyer (now aged 44) pleaded guilty to seven offences of supplying a controlled drug of Class A (four involving crack cocaine and three of heroin) and one offence of offering to supply such a drug, in each case to an undercover test purchase officer. The offences were committed over five days and the eight offences referred to 5 individual deals; he provided officers with two different mobile numbers. On one occasion, after a request for two deals, the appellant said that he had just sold £100 of heroin and would have to 're-load'. Dyer had 21 previous convictions for 59 offences including robbery, burglary, aggravated burglary and a variety of drugs offences, his last drugs offence being in 2011 for possession of drugs of class A. 22. Dyer accepted his involvement and said that he had been brought in at the last minute and paid £300 to act as a lookout, then becoming involved to service rent arrears and drug debts; drug use, peer pressure, lack of employment and finances all contributed to his offending. He was assessed as posing a low risk of harm to the public and a medium risk of re-offending. He was sentenced to a term of 5 years imprisonment. 23. Although it is contended that the role of this appellant fell into the lesser category, we have no doubt that the judge was entitled, if not inevitably bound, to conclude that he was motivated by financial or other advantage (in his case access to drugs for his own use). The extent of the offending required a higher starting point than 4½ although, in our judgment, given the period involved, it should not have exceeded 6 years. Giving credit for his guilty pleas, the appropriate sentence should have been 4 years' imprisonment on each count concurrent. To that extent this appeal is allowed. 24. Nadia Pecco is now 35 years of age. She pleaded guilty to no fewer than 15 offences of supplying a controlled drug of Class A, ten of which concerned crack cocaine and five heroin. The basis of her plea was that she was placed under pressure (not amounting to duress) by threats to her family; she had been taking crack cocaine for a year and was paid in the form of 5 rocks of crack cocaine a day. She had appeared before the courts on nine previous occasions for 14 offences although the judge incorrectly referred to a further conviction for robbery which had been quashed by this court although she had then served a substantial part of the sentence imposed: none involved drugs and she had once served a sentence of 4 months' imprisonment for theft. 25. The pre-sentence report identifies a truly chaotic lifestyle with volatile, violent and pro-criminal relationships and responsibility for three children with two partners (these children were then being looked after by a friend). While in custody, she has been engaging with drug treatment programmes. Given the scale of her offending, she was sentenced to 5 years' imprisonment on each count concurrent; destruction of the I-phone and BlackBerry found in her possession were ordered. 26. The Crown contended and maintain that this appellant, as with all the others, had a significant role (and her possession of two phones is clearly indicative); equally, however, the basis of plea (referring to pressure and intimidation) which was not challenged and is evidenced by the pre-sentence report is significant. Mr Marquis argued in the circumstances, she should have been identified as fulfilling a lesser role. We do not agree. But we do believe appropriate to take a starting point between 'significant' and 'lesser' roles which must be increased to reflect the number of days upon which she was offering drugs for sale. Reflecting these offences, her caring responsibilities and all the circumstances outlined in the pre-sentence report, the sentence after a trial should have been 4½ years; discounting that sentence for her guilty plea, we believe that the appropriate sentence is 3 years' imprisonment on each count concurrent. 27. Pamela Bailey (who is now 50 years of age) pleaded guilty to one offence of supplying a controlled drug of Class A (heroin). She was involved with Nadia Pecco and handed 0.114 grams of heroin to a test purchase officer after he had paid Pecco for the drug and claimed to have been concerned in this supply in order to obtain drugs for her own consumption. She clearly played a limited role in this transaction (working to the most prolific offender involved in this operation) but she was motivated by advantage to herself; the very seriously aggravating feature of her offending is that she has twice previously been convicted of supplying Class A drugs. On 8 January 1996, she was sentenced to 4 years' imprisonment for four such offences and on 3 May 2005 she received a similar sentence for conspiracy to supply Class A drugs. It is of note that had the first of those offences occurred after 30 September 1997, she would have been liable to a mandatory minimum term of 7 years: see section 110 Powers of Criminal Courts (Sentencing) Act 2000: in the event, of course, she was not. 28. The pre-sentence report tells an extremely depressing story of coercion, peer pressure, financial gain and sustained drug use; her oldest son was murdered some ten years ago and another has been stabbed; her two younger children reside with their father; she had previously refused all types of rehabilitative and mental health support. Her letter to the judge (and that of her daughter) only underline the nature and extent of the problems that she faces. 29. It is not entirely easy to categorise this case - which itself may demonstrate the importance of flexibility in applying the guidelines. There are features which justify putting Ms Bailey in either significant or lesser roles; if the former, not least reflecting the money found on her and her possession of two phones, the involvement under the direction of another can reduce the starting point whereas in the latter, it is already taken into account. In either case, her previous convictions, being a statutory aggravating factor, must be adequately reflected alongside any other factors reducing seriousness. Although the judge passed a sentence of 5 years' imprisonment (after allowing for the guilty plea), in our judgment, that was the correct sentence before allowing for the plea of guilty. Giving full credit for the guilty plea, that sentence is reduced to 40 months' imprisonment. Orders for forfeiture of the £985.90, the Nokia mobile phone and an Apple iPhone must remain. 30. Reginald Davis (who is now 59 years of age) pleaded guilty to two counts of conspiracy to supply drugs of Class A (that is to say, heroin and crack cocaine). By his basis of plea, he admitted effectively introducing two test purchase officers to drug dealers (on a total of three occasions). In mitigation, it was put that he hoped to curry favour with one or other of the dealers and obtain drugs to feed his own addiction: the conspiracies were, it was said, opportunistic, informal and unsophisticated. 31. The record of this appellant is nothing short of shocking. He has appeared before the courts on 32 occasions for a wide variety of some 57 offences, no fewer than 7 being for drugs offending. He undeniably qualified for a minimum 7 year term having previously been convicted of drug trafficking offences on three occasions since 1997, receiving sentences of 3 years, 30 months and 5 years' imprisonment respectively for five, one and 10 offences involving supply. A report spoke of his present commitment to address substance misuse (which had extended over 30 years) and it was argued that he should be the subject of a drug rehabilitation programme. In the event, the judge concluded that this appellant had played a 'very significant role' and should be subject to the mandatory provisions and sentenced him to 8 years' imprisonment on each count concurrent; his Nokia mobile phone was ordered to be destroyed. 32. Mr Richard Thomas argues that the basis of plea (accepted by the Crown and the judge) does not justify the conclusion that he played a 'very significant role'; he talked to the officers and took them to dealers. In the circumstances, the judge should have accepted that this very low level of offending (which was similar to that which had led to the earlier convictions) could and should have led to a finding that it would be unjust to impose the minimum term. Alternatively, the term should not have been more than 5½years (being 7 years less approximately 20% discount for the guilty plea: see section 144 Criminal Justice Act 2003). 33. 34. This being the fourth occasion on which this appellant had been convicted of trafficking offences, we reject the submission that the judge should have exercised his discretion on the basis that it was unjust to impose the minimum term. Nevertheless, we see force in the remaining arguments advanced by Mr Thomas and, in the circumstances, reduce the sentence imposed concurrently on each count to five-and-a-half years' imprisonment. 35. We can deal with George Thompson (who is 24 years of age) and Richard McKrieth (who is 49 years old) together, having been jointly represented both in the Crown Court and before us. Thompson pleaded guilty to five counts of supplying a drug of Class A (between 21 March 2012 and 13 April 2012): he had personally dealt drugs to test purchase officers dir ectly, the total of the five deals amounting to 1.105 grams. McKrieth pleaded guilty to eight counts of supplying a drug of Class A (between 30 March 2012 and 3 May 2012). On two occasions, he supplied the drugs directly; on the other six, he worked with Nadia Pecco who negotiated the sale. In his case, the quality of drugs involved was 1.11 grams. Both were sentenced to 5 years' imprisonment on each count, the sentences to run concurrently; the BlackBerry found on Thompson and two Nokia mobile telephones found on McKreith were ordered destroyed. 36. Thompson had four previous convictions, two of which were for possession of cannabis; none involved drugs supply and he had never previously lost his liberty. He had difficulty supporting his family because of scarcity of work in the construction industry and had been presented with the opportunity to earn extra money by selling drugs and keeping a proportion of the price. 37. McKreith had eight previous convictions for 11 offences, three being for drug possession offences. In the pre-sentence report, he described himself as a 'scammer', targeting tourists, selling crushed paracetamol as drugs and making sufficient to purchase drugs for his own use. He did, however, accept that he often got customers for known drugs dealers and, at times, would complete the transaction. The writer of the report spoke of him attempting to minimise his behaviour, using drug use to excuse that behaviour and draw attention away from his offending. 38. Before the judge it was submitted that even if it was correct to categorise both of these men as falling within the significant role at Category 3, their cases should be viewed at the lowest end of the category given that it includes weights up to 150 grams. That submission was not advanced to this court. For reasons explained above, it misunderstands the guideline: the quantity is intended to deal with offences involving bulk deliveries, usually by or involving a team; street dealing falls within this category irrespective of the quantity involved. 39. We recognise however that once a street dealer is identified the precise number of purchases on a particular occasion may not affect the sentence very substantially. Given the discount available for the plea of guilty at the first reasonable opportunity, we agree with the submission that a starting point of 7½ years in each case was too high. In the light of the background and circumstances of each, the appropriate starting point, albeit for slightly different reasons, was 4½ years; in those circumstances, the proper sentence after allowing for the guilty plea was one of 3 years' imprisonment on each count concurrent. 40. Mark Reid is now 50 years of age. He pleaded guilty to six offences of supplying a drug of Class A, five involving crack cocaine and one of heroin. He was sentenced to six years' imprisonment on each count concurrent; his BlackBerry was ordered to be destroyed. According to the pre-sentence report, while he maintained that he was not a drug dealer, he acknowledged that he bought drugs in bulk for £100, used quantity for himself and sold the remainder for £100, thus financing his own long standing drug addiction. In relation to crack cocaine and heroin, this addiction had lasted 8 years, smoking around £100 worth of crack cocaine every day, while spending £20 a day on cannabis. 41. Reid had five convictions on five previous occasions, one of which (in 2003) involved possession of crack cocaine with intent to supply for which, after a plea of guilty, he was sentenced to 2 years' imprisonment. He also had a conviction for possession of heroin and an earlier caution in relation to possession of cocaine. Married with four children, although he had not previously considered his substance misuse to be a problem (notwithstanding the 2 year sentence) he had now engaged with a drug treatment programme while in custody. 42. Mr Headlam has argued that the categorisation of 'significant role' was not appropriate or consistent with the basis of plea. Mr Whitehouse for the Crown, in writing, did not accept that any concession of lesser role was made and, in any event, it was plainly wrong. The offending was clearly motivated by financial gain or other advantage and, in his case, was entrenched: this does not, of itself, increase the sentence but it does not permit of the mitigation that this was one off, that the operation in which he was involved was not his or that it was a consequence of pressure or naivety. His role was clearly significant and aggravated by his previous conviction, the only factor reducing seriousness being that he supplied only drugs to which he was addicted. 43. It is argued that a starting point, prior to the discount for guilty plea, was too high. We agree. In our judgment, bearing in mind the circumstances of this case, the appropriate starting point was 6 years' imprisonment. Making proper allowance for the guilty plea at the earliest opportunity, the sentence is 4 years' imprisonment on each count concurrent. 44. Tanya Francene Edwards (now 37 years of age) pleaded guilty to a single offence of supplying a drug of Class A (heroin); she produced a small wrap from her mouth for a test purchase officer. Of real importance in her case, however, was a previous conviction for two offences of possession of drugs of Class a (cocaine and heroin) with intent to supply, for which, in November 2008, she was sentenced to 3 years' imprisonment; she had eight other appearances before the courts and, as recently as April 2010, had been sentenced to 15 months' imprisonment for an identity document offence. In the event, for this offence of supply, she was sentenced to 5 years' imprisonment. She had no fewer than three mobile telephones and £259 in cash, all of which were ordered to be forfeited or destroy. 45. The personal circumstances of this appellant are particularly difficult. In the pre-sentence report, it is said that she minimised her involvement, (saying that she was holding an 'item' for a friend and was unaware that it was a class A drug). We were told this report followed a misunderstanding and did not represent the extent of her admissions. She certainly told the probation officer that she committed the offence because she had accommodation issues and required money for rent while, at the same time, saying that she had no financial concerns. She said that she had no current issues with drugs misuse or alcohol. 46. Two of her four children live with her ex-partner; the other two (15 and 8) reside with her aunt. Of real significance, however, is that she was pregnant when remanded into custody and gave birth at the beginning of 2013. Her son has remained in the mother and baby unit at Holloway, but at some stage will have to leave: the appellant has become increasingly concerned and anxious at that prospect. She has the support of the Hibiscus group. 47. Although it is argued that this appellant had only a lesser, rather than a significant, role, that ignores that her offending was clearly for financial gain and it is difficult to see how she was unaware of the operation, given the assistance that she was providing, the number of her telephones and the money in her possession. Further, her prior identical conviction is important. On the other hand, her actual participation is among the least of these offenders. Sad though it is that a mother should be separated from her baby, or give birth to a baby while in custody while in custody, a substantial custodial sentence was inevitable. 48. We accept that a starting point of 7½ years, reduced for her early plea of guilty, was too long. Balancing all the circumstances, the lowest sentence reached by balancing the reduced participation (albeit in a significant role) and the personal circumstances against the aggravating feature of her record, leads back to a starting point of 4½ years. Giving credit for the plea of guilty, the proper sentence therefore is one of 3 years' imprisonment. 49. In the event, each of these appeals is allowed to the extent to which we have identified.

2013_11_05-3272.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2013/2114/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2013/2114

6858f5f5bfc22665ec79e5e49bdb1fa79591d4660483de7b3ad26bc599d9a31c

[2005] EWCA Crim 3483

EWCA_Crim_3483

2005-12-13

crown_court

No: 2005/05669/A1 Neutral Citation Number: [2005] EWCA Crim 3483 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday, 13 December 2005 B e f o r e: MR JUSTICE LANGSTAFF SIR PAUL KENNEDY - - - - - - - R E G I N A - v - MICHAEL ANTHONY CULLY - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR J MITCHELL appeared on behalf of T

No: 2005/05669/A1 Neutral Citation Number: [2005] EWCA Crim 3483 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Tuesday, 13 December 2005 B e f o r e: MR JUSTICE LANGSTAFF SIR PAUL KENNEDY - - - - - - - R E G I N A - v - MICHAEL ANTHONY CULLY - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR J MITCHELL appeared on behalf of THE APPELLANT - - - - - - - J U D G M E N T Tuesday, 13 December 2005 MR JUSTICE LANGSTAFF: 1. On 25 May 2005, at the Crown Court at Kingston upon Thames, the appellant pleaded guilty and on 17 August was sentenced by His Honour Judge Matthews QC for an offence of dangerous driving to twelve months' imprisonment and for driving a motor vehicle whilst unfit through drink to four months' imprisonment concurrent, the latter offence having been committed to the Crown Court for sentence pursuant to section 51 of the Crime and Disorder Act 1998 . The total sentence was one of twelve months' imprisonment. As to that no issue arises on this appeal. In addition, the appellant was disqualified from driving for a period of five years and was thereafter ordered to take an extended retest and to pay £600 towards the prosecution costs. The issue in this appeal relates to the length of the disqualification and the requirement for a retest. He appeals against disqualification of that length by leave of the single judge. 2. The facts were these. In the early hours of the morning of 9 November 2004 police officers on patrol discovered that an articulated lorry and trailer, which was being driven by the appellant, had damaged a set of traffic lights and was driving off. An officer shouted at the appellant to get out of his lorry, but he did not respond. When the officer climbed onto the ledge of the cab and tried to open the door, he found it to be locked. The window was open, but the police officer was unable to reach the keys. At this point the appellant revved the engine and moved off, forcing the officer to jump clear. The appellant, who had two-and-a-half times the legal limit of alcohol in his bloodstream, then made three attempts to complete a U-turn. He collided with a parking meter as he did so. Having finally performed the U-turn, he drove around a number of streets in an aimless manner for twenty minutes. He ignored all the police vehicles which indicated that he should stop. In that period he drove on the wrong side of the road, he struck two lamp posts, and he ignored traffic signals. He then performed another U-turn before driving the wrong way down a one-way street which led to a dead end. Shortly afterwards the lorry came to a halt and the appellant was detained. 3. When interviewed he said that he had a head cold. He had been drinking with two other drivers, one of whom had given him an alcoholic concoction to help him. He had taken three Night Nurse capsules at about midday, and a further three at about 3pm. He had no recollection at all of driving the lorry and no idea of how he had got from Barking to where he had been driving and where he had eventually stopped. 4. It was plain that this was a case of very bad driving. The danger was clear. Damage was caused. It was associated with driving well in excess of the legal limit of alcohol. There could be, and there is, no challenge to the sentence of imprisonment which was imposed in respect of those circumstances. It is the length of the disqualification which is put in question before us by Mr Mitchell. 5. The appellant is the proprietor of a haulage business which employed six other drivers and an administrator. It was large enough to have substantial contracts, not least with DFDS; but it was not so large as to survive easily without the appellant's input as a driver as well as an administrator. Accordingly there is a substantial risk to his own livelihood, as well as that of others, if he should be disqualified from driving for a long period of time. 6. Against that background Mr Mitchell refers to R v Mark Barry King [2001] 2 Cr App R(S) 503. At paragraph 18 of the judgment of the court, in respect of the length of disqualification, McKay J said of the appellant: ".... with a previously good driving record his only trade .... was that of a heavy goods vehicle driver and who was a man of moderate means. A period of disqualification which he inevitably faced would put him in great financial difficulties and should be kept to the minimum required." Mr Mitchell rightly extracts from that quotation these principles: that where an appellant has a job which involves driving, where there is no apparent risk indicated by the circumstances of the particular offence to the public from his continuing to drive, and where a lengthy period of disqualification would impose financial strains upon him, it would be too punitive to impose a lengthy period of disqualification. It might defeat the purpose of the sentence, which is to mark the seriousness of the offence by a period of imprisonment, if it were to deprive the offender of his livelihood and in the present case put at risk the continued livelihood of those whom he employed. 7. We consider that the purpose of a disqualification from driving is so far as possible to protect the public. Often it may be that drivers come before the sentencing court with an appalling driving record. In such cases an extended period of disqualification may be appropriate since the offence indicates the risk to the public in the individual continuing to drive. Where circumstances do not suggest that there is any such risk, a period of disqualification, though inevitable as it is in a case of dangerous driving, can, and should in our view, be kept to the minimum. 8. This is a case in which there is no appreciable risk to the public if the appellant should continue to drive. The pre-sentence report identified genuine remorse. The probation officer described the risk of re-offending now only as low, but as very low. The appellant's record reveals some driving offences which were committed in 1992 and 1993. For the last driving offence, failing to comply with a road traffic sign, the appellant was fined £40. The appellant is now aged 36. Those offences were committed at a stage in his life when he was much younger. It is to his credit, and supportive of the probation officer's assessment in our view, that he has not been in trouble since, prior to the instant offence. It is a one-off incident which is out of character. 9. It is on that basis that we consider it appropriate to reduce the period of disqualification from five years to one of two years. We consider that sufficiently protects the public. Nor do we consider that an extended retest needs to be taken at the conclusion of the period of disqualification. To that extent only this appeal is allowed. __________________________________________

2005_12_13-658.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/3483/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/3483

a54a260c1fed83f6ee87caed2f435b09c183a47d371de73cfb6adc2e084d6953

[2007] EWCA Crim 762

EWCA_Crim_762

2007-03-06

crown_court

No. 2006/05914/A3, 2006/05916/A3, 2006/05966/A3, 2006/06056/A1, 2006/06199/A1 Neutral Citation Number: [2007] EWCA Crim 762 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Tuesday 6 March 2007 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE HEDLEY and MR JUSTICE PITCHERS _______________ ATTORNEY GENERAL'S REFERENCE Nos. 129 & 132 of 2006 UNDER SECTION 36 OF THE CRIMINAL JUSTICE

No. 2006/05914/A3, 2006/05916/A3, 2006/05966/A3, 2006/06056/A1, 2006/06199/A1 Neutral Citation Number: [2007] EWCA Crim 762 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Tuesday 6 March 2007 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ( Lord Phillips of Worth Matravers ) MR JUSTICE HEDLEY and MR JUSTICE PITCHERS _______________ ATTORNEY GENERAL'S REFERENCE Nos. 129 & 132 of 2006 UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 and R E G I N A - v - ELISABETH DELGADO-FERNANDEZ GODWIN ZAMMIT and R E G I N A - v - THANH HUE THI __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4A Telephone No: 020-7421 4040 (Official Shorthand Writers to the Court) __________________ 2006/05914/A3 & 2006/05916/A3 MR M KENNY appeared on behalf of THE APPLICANT/OFFENDER ELISABETH DELGADO-FERNANDEZ MR C W D AYLETT appeared on behalf of THE ATTORNEY GENERAL 2006/05966/A3 MR N CORSELLIS appeared on behalf of THE APPLICANT GODWIN ZAMMIT 2006/06199/A1 & 2006/06456/A8 MR P SUTTON appeared on behalf of THE APPLICANT/OFFENDER THANH HUE THI MR N HILLIARD appeared on behalf of THE ATTORNEY GENERAL __________________ J U D G M E N T THE LORD CHIEF JUSTICE: Introduction 1. We have heard together applications in two cases because they involve the same criminal conduct, namely the trafficking of women into the United Kingdom for the purpose of exploitation and the controlling for gain of those women who have come to this country in order to offer their services as prostitutes. The growth of such trafficking and the reaction on the international stage led Parliament to make it an offence under section 224 of the Criminal Justice Act 2003 . In each of these cases we are confronted by the unusual combination of applications by applicants for leave to appeal on the ground that they have received sentences that are manifestly excessive and applications by the Attorney General pursuant to section 36 of the Criminal Justice Act 1988 for leave to refer sentences on the ground that they are unduly lenient. The applicants' applications have been referred to the full court by the Registrar. We propose at the outset to summarise the facts in each case. R v Elisabeth Delgado-Fernandez and Godwin Zammit 2. On 26 October 2006, in the Crown Court at Kingston, before His Honour Judge Mitchell, the applicants and their co-defendant, Adrian Zammit, were sentenced as follows: for conspiracy to traffic into the United Kingdom for sexual explanation (count 1), Miss Delgado-Fernandez, five years' imprisonment and Mr Godwin Zammit seven years' imprisonment; for conspiracy to control prostitution for gain (count 2), Miss Delgado-Fernandez, three years' imprisonment concurrent, Mr Godwin Zammit, four years' imprisonment concurrent and Mr Adrian Zammit, two years and nine months' imprisonment; and for conspiracy to facilitate a breach of immigration law (count 3), Miss Delgado-Fernandez, five years' imprisonment concurrent and Mr Godwin Zammit, seven years' imprisonment concurrent. 3. The time spent on remand by each applicant (362 days) was taken into account towards the sentence, and all three defendants were recommended for deportation. 4. Mr Godwin Zammit pleaded guilty to the offences at an early stage, as did Mr Adrian Zammit. Miss Delgado-Fernandez was found guilty after a trial that lasted from 7 August 2006 to 6 September 2006. 5. Miss Delgado-Fernandez is Spanish and was born on 25 December 1978. She had worked as a prostitute in Spain before arriving in the United Kingdom. It was in that capacity that she met Godwin Zammit and she began a relationship with him. He is a Maltese national, born on 15 June 1958. He came to the United Kingdom in 1999 and set up the First Omega Escort Agency. Adrian Zammit is Godwin Zammit's nephew. He was born on 4 November 1984. 6. The two applicants were involved in an enterprise with Adrian Zammit which enabled women from Spain, South America and Eastern Europe to enter the United Kingdom in order to work as prostitutes. Once the women had arrived in the United Kingdom, the three defendants controlled the work they undertook and received 60% out of their earnings, out of which they paid substantial expenses. Miss Delgado-Fernandez's role was primarily to recruit women from Spain and South America and to help them enter this country illegally. Godwin Zammit took on a similar role in relation to recruiting women from Eastern Europe. They both ran the agency with the day-to-day help of Adrian Zammit, who took telephone calls and allocated the work among the women. 7. Miss Delgado-Fernandez placed advertisements on the internet inviting women to come to the United Kingdom to work as prostitutes. She also scoured personal advertisements placed in Spanish newspapers and contacted people she had known from her time when she worked as a prostitute in Spain. Fees were offered to those introducing women to her and she selected those she thought the most suitable. Godwin Zammit also paid finders' fees in relation to those he recruited in Eastern Europe and Russia. These recruitment activities formed the basis of count 1. 8. The police mounted a surveillance operation from April to October 2005. Miss Delgado-Fernandez was first seen arriving at Heathrow Airport with a Brazilian woman, Katia Correa. Godwin Zammit had arrived to meet them. Miss Correa was refused entry into the United Kingdom. Thereafter, women from South America who were already working in Spain were instructed by the applicants to fly to Dublin and told what they should say to immigration officials on arrival, which was that they wanted to go to Liverpool as tourists. They were then collected by one or other or both applicants and taken to Hollyhead by ferry. This was observed by surveillance officers on six occasions between May and October 2005. They were able to identify the women in question as prostitutes who were then advertised by the agency as soon as they reached London. This aspect of the applicants' conduct formed the subject matter of count 3. 9. Count 2 alleged that the three defendants had conspired to control the women for the purposes of prostitution. Godwin Zammit had provided a number of flats for use by the women. Miss Delgado-Fernandez encouraged the women to offer a wider range of sexual services than originally appealed to them, took them to photographers' studios to obtain photographs for display on the agency website and on occasions accompanied Godwin Zammit on visits to the flats each night to collect his share of the takings. 10. An analysis of Godwin Zammit's bank accounts during the surveillance period suggested that the agency's daily income was about £1,900, of which he took 60%, giving him a total of about £240,000 over this period. Miss Delgado-Fernandez received 5% of the earnings of each woman whom she had recruited. There is some dispute about these figures, but it is beyond dispute that the takings of the enterprise were very considerable. 11. Godwin Zammit was seen to ferry the women between the flats and to deposit money on a regular basis. 12. On 26 October 2005 the applicants were arrested. Miss Delgado-Fernandez, who speaks very little English, declined to comment in her interview. Although she pleaded not guilty, she admitted in cross-examination that she had been involved in the recruitment of at least fourteen women and that she had helped all but one to evade immigration controls. 13. Godwin Zammit from the outset admitted involvement in running the agency, although he initially denied the immigration offences. He pleaded guilty to counts 2 and 3 on arraignment on 26 April 2006. There was then some discussion as to whether it was appropriate for him to face the count 1 charge but this was resolved on 15 June 2006, whereupon he changed his plea to guilty in respect of that charge also. 14. Adrian Zammit pleaded guilty on arraignment to count 2. 15. Evidence was given by a number of women involved at the trial that none of them had been coerced into coming to the United Kingdom or into working as a prostitute. All were over 18 and were already working as prostitutes. Two alleged that they had been persuaded to indulge in sexual activities that they would not originally have been prepared to do. 16. Miss Delgado-Fernandez was found guilty on all three counts on 6 September 2006. R v Thanh Hue Thi 17. On 29 September 2006, at the Crown Court at Southwark, before His Honour Judge Rivlin QC, the applicant pleaded guilty and on 3 November 2006 was sentenced as follows: for conspiracy to traffic into the United Kingdom for sexual exploitation (count 1), five years' imprisonment, and for controlling prostitution for gain (count 3), two-and-a-half years' imprisonment concurrent. Count 2, a charge of conspiracy to traffic within the United Kingdom for sexual exploitation, was left on the file. 18. The time spent on remand (177 days) was taken into account towards the sentence and the applicant was recommended for deportation. 19. Co-defendants who also pleaded guilty were sentenced as follows: Kenny Low (on counts 1 and 3), three-and-a-half years' imprisonment; three others received fifteen months' imprisonment on count 3, and the fourth received twelve months' imprisonment on count 3. Charges had originally been brought against the applicant's wife, Mee Pang, but she became very seriously ill with AIDS and was hospitalised. In these circumstances the charges against her were dropped. 20. The applicant was involved in the trafficking into the United Kingdom of Malaysian women for the purposes of prostitution at brothels in both London and Birmingham. One of these women, Miss Joo, made a complaint to the police in January 2005 that she had been persuaded by an ex-boyfriend to take a holiday in London. Her travel from Malaysia was paid for her by her boyfriend. She was escorted by another man. On arrival she was taken to 13 Camden Hill Gardens, where she was told by the applicant that she would have to work as a prostitute to repay the people in Malaysia who had funded her coming. She was prevented from leaving that house and over half her earnings were taken by the applicant. 21. On 19 January 2005, the police attended premises at 12 Avenue Road, NW8, where the applicant lived with his wife. It was discovered that he had rented this house at a rental of £10,000 a month since April 2002, and 13 Camden Hill Gardens (under another alias) for over £8,000 a month since September 2004. Prostitution was carried on on a large scale in each house. The police closed down each of these brothels. 22. The police then commenced observation of the Avenue Road premises, which remained the applicant's home. In June 2005 the applicant took a lease of 18 Hyde Park Street, W1, at a rent of £6,000 a month and began to use these premises for running a brothel. 23. The police had found documents linking the London brothels to premises at 1 Hay Park, Birmingham. These premises were let to a Chinese man who gave his name as Rod Mok. They were also placed under observation. It became apparent that these premises were used as a brothel. The applicant was observed by the police at both premises, and also observed (as were some of his co-defendants) transporting prostitutes from one set of premises to the other. Kenny Low was responsible for the day-to-day running of the Hyde Park Street brothel. 24. Enquiries also established that the applicant and Kenny Low had paid invoices for advertisements for massage services in Chinese newspapers in both London and Birmingham. Kenny Low was seen distributing business cards for these services. 25. On several occasions the applicant was seen to deposit large amounts of cash into various banks, to a total of about £470,000. He also was attracted to gambling. He placed large sums in bets. One bookmaker estimated that he had received about £36,000. 26. On 26 April 2006, the applicant and his wife met two couples who had arrived at Heathrow Airport from Singapore. One of the women told Customs officials that she was accompanying her partner on a business trip, but the applicant left the two men in London and took the two women to the Birmingham brothel. This appears to have been the usual method of bringing prostitutes into the country. The following day the men returned to Heathrow with one of the co-defendants. Their baggage was searched and they were found to be carrying £4,000 in cash. 27. On 10 May 2006, the applicant and his wife were arrested. The co-defendants were also arrested. 28. A number of the prostitutes working at the brothels made statements. These confirmed that they knew that they were coming to the United Kingdom to work as prostitutes; that the applicant and his wife were the bosses; that their return tickets were removed from them when they arrived; and that they were told that they needed to work to pay off their debts. Two of them said that they had been met at the airport by Kenny Low. 29. Documents seized on the arrests included work sheets which established that the two brothels had received revenue of close to £2 million over the period of surveillance and that the applicant was the principal organiser. A safe deposit box relating to Kenny Low contained £59,000 in cash and telegraphic transfer details to Malaysia and more cash were found at his address. The Nature of the Offences 30. While a number of the charges with which we are concerned are for conspiracy, what is significant in these cases is the nature of the substantive offences. Potentially the most serious of the offences common to each case is that of trafficking into the United Kingdom for the purpose of sexual exploitation. The full terms of this offence, as set out in section 57 of the Sexual Offences Act 2003 , are as follows: "A person commits an offence if he intentionally arranges or facilitates the arrival in the United Kingdom of another person (B) and either -- (a)he intends to do anything to or in respect of B, after B's arrival but in any part of the world, which if done will involve the commission of a relevant offence, or (b)he believes that another person is likely to do something to or in respect of B, after B's arrival but in any part of the world, which if done will involve the commission of a relevant offence." 31. The maximum sentence for this offence is fourteen years. It is right to note, however, that the offence can be dealt with on summary trial. The Sentencing Advisory Panel, in its advice to the Sentencing Guidelines Council, provided a helpful commentary on this offence as follows: "182. Trafficking for the purposes of sexual exploitation is a significant problem in many parts of the world and international agreements such as the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (to which the United Kingdom is a signatory) have been reached in a unified effort to tackle it. Trafficking for sexual exploitation involves several elements. Firstly it requires the recruitment of people from one place to work in another, whether this is between countries or within territorial boundaries. Some victims are recruited by strangers who may, or may not, be known to friends or relatives; others are virtually 'sold' into prostitution by friends or family members. The recruiting process may involve deception of the victims as to the nature of the work they will ultimately be doing, with those trafficked often believing that they are coming to work as au pairs, waitresses or exotic dancers. Others are fully aware that they are to work in prostitution but may be deceived about the conditions of work, the number of 'clients' for whom they are expected to provide services, and the amount of money that can be earned. Often, trafficking from abroad is arranged as a 'package' with fees charged for travel, accommodation and 'management' in the UK. This can create a form of debt bondage that can never be fully paid. 183. The next step in the trafficking process is arranging or facilitating the transport of the person from the place of origin to the destination. Where this involves the crossing of international borders, it may also involve immigration offences. The arranging or facilitating of trafficking may involve the creation of false papers, or assistance in securing transport, or the provision of food or shelter en route. 184. The final element is the managing of sex workers at the destination. Individuals are often held in circumstances which effectively restrict their freedom: passports and other forms of identification may be confiscated, there may be limits on their ability to refuse clients or certain sexual practices and violence may be used to control them. Victims often face significant 'costs', for example for food, accommodation and cleaning services, which means that they receive very little money for themselves. Trafficking is a growing international industry within which victims are treated as commodities and operators can make vast sums of money. UN figures for trafficking in women for sexual exploitation are set at $7 billion a year -- equivalent to the global drug trafficking market. As the fight against drug trafficking becomes more and more effective, criminal syndicates are turning to the trafficking of women as an easier and equally lucrative option." 32. The seriousness of the offence will depend upon the circumstances of the various elements of the offence. In each of the cases before us there is a separate charge in relation to the "relevant offence" that formed the object of the enterprise. The offence of controlling prostitution for gain contrary to section 53 of the 2003 Act carries a maximum penalty of seven years' imprisonment. 33. The Sentencing Guidelines Council has published draft guidelines for the purpose of consultation. These do not yet have statutory effect and, for this reason, must be approached with caution. They do, however, helpfully set out aggravating features of the trafficking offence, most of which are equally applicable to the offence of controlling prostitution for gain. These are: "1. large-scale commercial operation; 2.high degree of planning, organisation or sophistication; 3.large number of people trafficked; 4.substantial financial (in the region of £5,000 and upwards) or other gain; 5.fraud; 6.financial extortion of the victim; 7.deception; 8.use of force, threat of force or other forms of coercion; 9.threats against the victim or members of the victim's family; 10.proved or admitted abduction or detention (unless separately charged); 11.restriction of the victim's liberty; 12.inhumane treatment; 13.confiscation of the victim's passport." Precedent 34. Before considering the sparse authorities that relate to these recent statutory offences it is helpful to refer to Attorney General's Reference No 6 of 2004 ( R v Plakici ) [2005] Cr App R(S) 19, which dealt with a series of individual offences that amounted to an extremely serious case of trafficking. The offender had arranged for the illegal entry of women and young girls into this country in circumstances that involved both deception and coercion and forced them to work as prostitutes. Counts of illegal entry attracted sentences of five years, of living on immoral earning five years, of kidnapping ten years, and of incitement to rape eight years. A total sentence of 23 years was imposed. 35. Turning to offences under the 2003 Act, in R v Maka [2006] 2 Cr App R(S) 14 sentences totalling 18 years were upheld, on a guilty plea, in the case of a man who trafficked a 15 year old girl into this country and repeatedly sold her to others for the purposes of prostitution. This court endorsed the comment of the sentencing judge that human trafficking was a degrading activity producing untold misery around the world and that the case had echoes of slavery with the girl being sold from one procurer to another. It added that the offence was intended to embrace a wide variety of different forms of conduct, identified as trafficking for sexual exploitation. 36. Much closer to the facts of the cases with which we are concerned is R v Roci and another [2006] 2 Cr App R(S) 15. In that case there were very late guilty pleas as the jury was about to be sworn. The appellants were concerned in the importation and the control in this country of prostitutes from Lithuania. While the women came to this country willingly, they were then coerced to work in unpleasant circumstances and ways contrary to their wishes and to pay over most of their earnings. The sentence on the appellant who was concerned in all these matters was reduced by this court from eleven years to nine years' imprisonment. Elisabeth Delgado-Fernandez and Godwin Zammit 37. We turn to the first of the cases before us. In sentencing the judge made these general comments in relation to both applicants: ".... there is no offence committed when a woman sells her body for sex or indeed a man paying that woman; it is what accompanies it inevitably, and that is the degree of exploitation. It is a repugnant situation This was well organised, as I have already said. It exploited a weakness in the immigration system which no doubt was looked into by Godwin Zammit and discovered to be what one might describe as a loophole -- efficient because the girls were put to work very quickly. But the real reason behind all this is not to provide some social service for anybody but commercial gain, to make money, and to make it in large or very large quantities, not of course subject to any tax. It means making money, without doubt, and a lot of money, in a way which, as I have already said, is repugnant to right-thinking people, and that is why the Act is there to deal with it. .... This was well organised importation of essentially vulnerable people because they come from countries which suffer from considerable poverty." In relation to Miss Delgado-Fernandez the judge added this: ".... it is quite clear that this organisation needed fresh girls. A supply was very necessary and you, for money -- because nobody acts in this really in the management side without seeking some sort of gain from it, and indeed it seems to me you were quite open about that in your evidence -- you conducted well-organised researches, and indeed each entry had comments upon it after you made contact with those girls." The judge commented that Miss Delgado-Fernandez had admitted all the offences in the course of her evidence, but stated that she did not consider herself guilty. The judge said that it was a pity that she had not pleaded guilty but that he would treat her, perhaps over-generously, as having not done so out of stupidity. She had been responsible for recruitment, but was less financially involved than Godwin Zammit. Whereas he received a sentence of seven years, hers would be five years. He added that this was less than she really deserved because she was a major part of the recruitment. The submissions on behalf of the Attorney General 38. For the Attorney General Mr Aylett submitted that it was appropriate to consider first the third count, for on the facts of this case this was where the gravamen of the offence lay. The applicants had been responsible for assisting in the illegal immigration of thirteen people. He referred us to the decision of this court in R v Van Binh Le and Rudi Heinrich Stark [1999] 1 Cr App R(S) 422. In that case the position was that the relevant appellant had pleaded guilty to facilitating the illegal entry of nine persons and had been paid 4,400 deutchmarks for doing so. He had imported the immigrants closely crammed into a van. He was sentenced by the trial judge to five years' imprisonment. The court observed that it was an aggravating feature where the offence had been committed for financial gain, or where the illegal entry had been facilitated for strangers as opposed to a spouse or a close member of the family. In cases of conspiracy it was an aggravating feature where the offence had been committed over a period, and, whether or not there was a conspiracy the offence was aggravated by a high degree of planning, organisation and sophistication. Plainly the more prominent the role of the defendant, the greater the aggravation of the offence. The offence was further aggravated if it was committed in relation to a large number of illegal entrants, as opposed to one or a very small number. 39. Mr Aylett submitted that all of these aggravating features were present in this case. Van Binh Le related to a time when the maximum sentence for this offence was seven years' imprisonment. A sentence of three-and-a-half years (the sentence to which the five years was reduced), with full credit for a guilty plea, had been imposed in that case. The maximum was now fourteen years, and a seven year sentence after a guilty plea was justified by the immigration offences alone. In considering the appropriate sentence for trafficking, Roci provided the appropriate guidance. The facts of that case were comparable to this. The sentence in Roci represented a ten year starting point before allowing for the guilty plea. The sentence imposed on Godwin Zammit was thus well merited -- indeed it was lenient. It provided the starting point for considering the sentence imposed on Miss Delgado-Fernandez. 40. As to her sentence, Mr Aylett submitted that it was unduly lenient. She had been fully involved at every stage of the enterprise. She did not have the benefit of a guilty plea. A sentence that was equivalent to half that imposed on Godwin Zammit was much too low. The submissions on behalf of the applicants 41. On behalf of Godwin Zammit, Mr Corsellis submitted that his sentence was manifestly excessive. He relied upon the applicant's plea of guilty and his good character. He repeated submissions made to the trial judge to the effect that this case lacked almost all the features that can make trafficking such a serious offence and that existed in Plakici and Maka . He submitted that there was no suggestion of coercion, corruption or deception as to the women's roles. They all came to the United Kingdom knowing full well the purpose of their visit. The women were all over 18, being between 23 and 28. They were all experienced prostitutes before they came to the United Kingdom. Whilst they were vulnerable by definition of being prostitutes, they were not particularly so. For example, they were not recruited while living on the streets. There were never more than four or five women working from abroad at any one time. They were always free to leave either the country or the arrangement at any time. They received their 40% share of the takings. They were given clean and hygienic premises. No violence or intimidation was every inflicted or threatened. They were not kept in poor living conditions or with very little money. 42. Mr Corsellis referred us to a series of cases where the offences consisted of living off the proceeds of prostitution, culminating in R v Elul [2001] 2 Cr App R(S) 681. The facts of that case were that the appellant pleaded guilty to four counts of living on the proceeds of prostitution. He and his wife were involved in the business of providing sexual services. Over a period of several months by advertising in newspapers they recruited about twenty women from South Africa to come to the United Kingdom to act as prostitutes. The women knew that they were to act as prostitutes when they came. The appellant's premises were used to provide a variety of sexual services. There was no suggestion of any corruption or coercion in relation to any of the premises and the establishments were hygienically run. The appellant took 50% of the monies earned at the flat each day. This court reduced the sentence of 18 months' imprisonment imposed on the appellant to twelve months. 43. Mr Corsellis submitted that the facts of that case bore close similarities to the latter part of the offending in the present case. He also challenged Mr Aylett's submission that the gravamen of this case was the offence of facilitating a breach of the immigration law. The prostitutes only entered this country for a relatively short period, leaving it with their earnings to be replaced by others. There were only four or five women here at any one time. Finally, Mr Corsellis submitted that there was an unfair disparity between his client's sentence and that of Miss Delgado-Fernandez. 44. This was challenged by Mr Kenny on behalf of Miss Delgado-Fernandez, who submitted that she played a subordinate rule in the venture. While Godwin Zammit received £242,000 during the indictment period, her share was only £18,000. He relied on the same mitigating features of the offence as had Mr Corsellis. He submitted that the judge had ample justification for discriminating between Miss Delgado-Fernandez and Godwin Zammit. She was under the control of Zammit. He had offered her the choice, if she stopped working as a prostitute, to work as an agent, and he was about to put her back to work as a prostitute. Conclusions 45. The immigration offence before us is not comparable to that in Van Binh Le , which was an example of the commercial business of smuggling into this country illegal immigrants who are likely thereafter to remain here. In this case the nature of the immigration assistance was first of all to inform the prostitutes that the easiest way of entering the country was via Ireland, and then to instruct them to fill in their immigration forms with the false information that the purpose for which they were entering the country was tourism. They were then provided with visas to enter the country on that basis. Most of them left before those visas expired. However, instead of spending their time in this country in innocent tourism, they spent their time working as prostitutes. They then returned home, so that there was no long-term increase of illegal immigrants in this country, and indeed never more than four or five at a time as a result of the applicants' activities. It seems to us that the immigration offence was part and parcel of the trafficking offence and, of course, it aggravated that offence. 46. The remaining elements of the trafficking offence lacked most of the aggravating factors identified by the Sentencing Guidelines Council. There was no deception or coercion. There was assistance for prostitutes who wanted to come to this country -- assistance with their entering the country illegally and organisation of their business while they were here on a substantial scale and for a substantial profit. 47. In these circumstances we have reached the conclusion that the sentences imposed on Godwin Zammit were manifestly excessive. We shall grant his application for leave to appeal and we shall reduce the sentences on both count 1 and count 3 from seven years to five years' imprisonment, to be served concurrently, so that the overall sentence is reduced to five years' imprisonment. 48. We consider that the judge was entitled to treat Miss Delgado-Fernandez more leniently, despite the fact that she did not plead guilty. She was very much under the control of Zammit and only received a modest share of the profits of the enterprise. Far from being unduly lenient, we consider that her sentence also was manifestly excessive. We will allow her application and reduce the sentence to four years on counts 1 and 3, to be served concurrently, so that the overall sentence is reduced to four years' imprisonment. The Attorney General's application is dismissed. Thanh Hue Thi 49. In sentencing the applicant Thanh Hue Thi the judge said this: ".... the most serious features of this case, that is the aggravating features ..., which in the main bear upon count 1, but also spill over to count 3, are as follows: First, the scale of this offending; this was business and very large sums of money were involved. Secondly, this undoubtedly involved the importation of girls into this country for the purposes of prostitution. Third, although I do believe that the prosecution have been unable to establish that there was widespread coercion, there was coercion in some instances, perhaps very few, that can actually be proved, but there is no doubt that these girls were under very strict instructions as to the manner in which they should behave and that all of this resulted in their serious exploitation." A little later, in addressing the applicant, he said: "I also bear in mind that sadly your wife is gravely ill but you were, as I have indicated, by far the most deeply involved in all of this, and the evidence shows that you were involved at least on some occasions -- I am prepared to accept that the evidence does not go beyond perhaps one or two occasions -- you were involved in serious coercion. Even apart from that, I have no doubt that it was you, perhaps together with the woman with whom you are involved, I do not know, but you certainly imposed strict and ruthless control over what was going on. Moreover, I have not the slightest doubt, and indeed the evidence certainly reveals this, that you personally benefited to a very large extent, having access to substantial sums of money, many thousands of pounds, and ready access to such sums." The Submissions on behalf of the Attorney General 50. Mr Hilliard on behalf of the Attorney General submitted that the sentence imposed was unduly lenient. He put at the forefront of his submissions the very large scale of this enterprise, which involved receipts of something like £2 million. Added to that, there was the strict and ruthless control, and in one case there was coercion in prostitution. Anticipating an argument that there was disparity between the sentence imposed on the applicant and that imposed upon his co-defendant Low, he submitted that there were grounds for distinguishing between the two: Low had had nothing to do with the incident of coercion and he had played a lower role in the hierarchy. He referred us to Attorney General's Reference No 6 of 2004 ( R v Maka ), where it was emphasised that this was a degrading offence which produced misery and called for a deterrent sentence. He also referred us to Roci where, before allowing for a plea of guilty, the sentencer must have had in mind a sentence of ten years in circumstances which, he submitted, were very similar to those in this case. He submitted, however, that the incident of coercion in this case made it more serious than Roci so that, even after a plea of guilty, the appropriate sentence should have been at least eight years. Submissions on behalf of the Applicant 51. For the applicant Mr Sutton first joined issue in relation to the judge's finding that there had been coercion in the case of Miss Joo. He drew attention to some strange features of her statement: that she had been invited by an ex-boyfriend to come to this country with another man for the purpose of sight seeing and that her ex-boyfriend paid for this. Mr Sutton submitted that it was difficult to reconcile this with the story of an innocent woman who had been deceived and then coerced into prostitution. He told us that, unfortunately, Miss Joo had been repatriated to Malaysia and he was therefore not able to require her to tender her evidence for cross-examination. 52. The judge found on the evidence that Miss Joo was an unwilling participant in this brothel and that she had been coerced into acting as a prostitute. Her evidence was that her situation reduced her to tears day after day. We can see no proper basis for challenging the finding that there was this one case of coercion. Although the judge referred to "possibly one or more" such cases, we are not aware of any evidence showing that there was more than this single case. Putting that to one side, Mr Sutton submitted that this also was a case which lacked most of the aggravating features that are so often found in relation to this offence. 53. We have compared the facts of this case with those in Roci . Although here there was the single case of coercion, the picture in Roci is of a much more rigid regime of exploitation, albeit lacking the gravity of the single aggravating feature that we have to deal with. Overall we consider that two cases are comparable and that the appropriate starting point in this case should have been ten years. From that starting point there fell to be a full reduction for the guilty plea, and then there was the further reduction made by the judge to reflect personal mitigation. Initially we were sceptical as to its justification. However, we are told that the applicant's wife, whose life expectancy is very limited, has returned to Malaysia where she is likely to die in circumstances where the applicant will not see her again. 54. In these circumstances, having regard to that item of mitigation and to the principle of double jeopardy, we have reached the conclusion that while this was a lenient sentence, it did not amount to a sentence that was unduly lenient so that it should be increased. For that reason we propose to leave the sentence as it stands. ___________________________

2007_03_06-1040.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/762/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/762

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[2008] EWCA Crim 1997

EWCA_Crim_1997

2008-08-15

crown_court

Neutral Citation Number: [2008] EWCA Crim 1997 No: 200804019 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 15th August 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ANDREW SMITH MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - R E G I N A v B, W, S, H and W - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet

Neutral Citation Number: [2008] EWCA Crim 1997 No: 200804019 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Friday, 15th August 2008 B e f o r e : LORD JUSTICE TOULSON MR JUSTICE ANDREW SMITH MR JUSTICE BEAN - - - - - - - - - - - - - - - - - - - - - R E G I N A v B, W, S, H and W - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr A Dunkels appeared on behalf of W Mr C Ward Jackson appeared on behalf of S Mr D Bartlett and Mr T O'Donohoe appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE TOULSON: This case in the Southampton Crown Court involves allegations of serious sexual abuse against ten people over a period of 40 years from 1968 to 2007. An indictment has been signed containing 32 counts. 2. 17 of these counts contain allegations against the principal alleged defender, D1. They concern five complainants. D1 is the father of three and grandfather of the other two. In relation to each of them it is alleged that he committed acts of cruelty contrary to section 1 of the Young Persons Act 1933. There are matching counts against his wife, D2, except that these contain allegations of wilful neglect rather than positive ill treatment. There are also allegations against D1 of rape, indecent assault and sexual activity or incitement of sexual activity against a child family member. There is a sixth complainant, who is also a child of D1 and D2. It is alleged that D2 but not D1 was cruel towards her. The allegations are of wilful neglect. 3. The other defendants are alleged to have been involved in different ways in a ring of abuse at the centre of which was D1. Eight of the ten defendants have been arraigned and have pleaded not guilty to all charges. Two defendants have not been arraigned and, on 10th July 2008, were found by HHJ Boggis QC to be unfit to plead under section 4 of the Criminal Procedure (Insanity) Act 1964 as amended. Under that Act in its original form, it would have been for a jury to make such a finding but, as a result of amendments introduced by the Domestic Violence, Crime and Victims Act 2004 , it is now a matter for the judge. 4. The two unfit defendants are D1 and D3, who was a friend of D1. D3 features in a single count in the indictment which alleges that he and a woman, D4, attempted to rape the sixth complainant on an occasion over 25 years ago. D1 has severe mental problems. D3 recently suffered a stroke. As a result of the judge's findings that D1 and D3 were unfit to stand trial, the question arose how the case was to proceed. This appeal arises from the judge's ruling on that question. 5. A trial is due to begin before HHJ Boggis on 15th September 2008. On 18th July 2008, he conducted a case management hearing which he decided should be treated as a preparatory hearing pursuant to section 29 of the Criminal Procedure and Investigations Act 1996 . In his ruling he said: "The question for me is whether there can be one jury that decides the guilt or innocence of all the defendants who are fit to stand trial and can also decide whether the two defendants who are not fit to stand trial did the act." He did not answer that question in those direct terms but he said that it would be "inappropriate" and "entirely wrong" for there to be a single jury deciding all outstanding issues and that, although regrettable, it was "inescapable" that there would have to be duplication of witnesses because two defendants were unfit to stand trial. He concluded by saying that there would be a trial of the fit defendants and that he would then decide where matters went after that. The prosecution appeal against his ruling by leave of the judge. 6. Under section 35(1) of the Criminal Procedure and Investigations Act 1996 , an appeal lies to this court from any ruling of a judge under section 31(3). So the first questions for us are whether the judge made a ruling under section 31(3) and, if so, whether he was entitled to do so. Section 29 provides: "(1) Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, a case of such seriousness or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing— (a) before any time that the jury are sworn, and (b) for any of the purposes mentioned in subsection (2), he may order that such a hearing (in this Part referred to as a preparatory hearing) shall be held. (2) The purposes are those of— ... (d) assisting the judge's management of the trial; (e) considering questions as to the severance or joinder of charges." Section 31 provides: "(1) At the preparatory hearing the judge may exercise any of the powers specified in this section. ... (3) He may make a ruling as to— (a) any question as to the admissibility of evidence; (b) any other question of law relating to the case; (c) any question as to the severance or joinder of charges." 7. It is common ground that the judge could not have conducted a preparatory hearing if the only defendant or defendants had been found unfit to stand trial. But in Kanaris [2003] Cr.App.R 1 at paragraph 37, Lord Hutton, with whom the other members of the House of Lords agreed, said that there was no rule of statute or practice which prevented a judge from ordering a separate preparatory hearing in respect of one defendant jointly charged with other defendants in the same indictment if he considered that it was in the interests of justice to do so. The House of Lords was there concerned with a case where there was a question as to the fitness of one defendant to stand trial and therefore there could not be a preparatory hearing in respect of him. However, the House of Lords considered that it was perfectly permissible for the judge to conduct a preparatory hearing in relation to others. Accordingly, the judge did have jurisdiction to conduct this preparatory hearing if the other criteria for doing so were met. 8. In our judgment, the case is one of complexity and he did have jurisdiction to hold a preparatory hearing to decide whether the case against the fit defendants should properly proceed separately from or jointly with the determination of whether the unfit defendants committed the acts alleged against them. This involved a question of law which would assist his management of the trial. It also necessarily involved a decision as to severance because his decision had the effect of reducing the indictment from 32 counts to 15 counts. As to whether he made a ruling within section 31(3), it is debateable whether he made an explicit ruling on a question of law, although he certainly posed a question of law, but in our judgment we need not debate that matter further because his ruling certainly did involve a question as to severance. For those reasons, we conclude that he was entitled to conduct a preliminary hearing and that we have jurisdiction to entertain this appeal. It is in our view desirable that the court should be able to consider, prior to next month's hearing, whether the trial of the fit defendants and the determination of the question whether unfit defendants did the acts alleged may and should proceed at one and the same time before the same jury, and that we should not be astute to uphold technical objections to our doing so if we can properly avoid it: see R v Ashton [2006] 2 Cr.App.R 15. 9. If we had concluded that we had no jurisdiction to entertain an appeal, the only other potential way of obtaining a review of the judge's decision would have been by an application for judicial review of the decision whether the issues relating to the unfit defendant should be postponed. If we had considered that such a course was both necessary and available, we could have reconstituted ourselves as a Divisional Court but we do not consider it necessary to pursue that issue further, although it was discussed in argument, because we consider that we have jurisdiction to entertain this appeal for the reasons stated. 10. We then turn to the judge's decision. We have to consider two questions. The first is whether in law it is permissable for the trial of fit defendants and the determination of whether unfit defendants did the acts alleged to proceed together. If so, the second question is whether in the present case we should disturb the judge's decision. There is no direct authority on the first point but it was considered in an interesting article by Vera Baird and Claire Wade entitled The Criminal Procedure (Insanity and Fitness to Plead) Act 1991 and the Juries Act 1974 : Irreconcilable problems? [1999] Crim LR 656. As the article explains, the law in relation to people found unfit to stand trial was changed by Parliament as a result of the case of Valerie Hodgson. She had mental health problems and lived with her father. He was murdered. She was arrested and charged with his murder. She was found to be unfit to stand trial. Under the law as it then stood, she was committed without further ado to a mental hospital. There she remained until fresh evidence showed that her father's murderer was someone else. She had been detained in the meantime for a murder that she had not committed without any court investigation to determine whether in fact she was responsible for the killing. As a result, a new procedure was introduced into the Criminal Procedure (Insanity) Act 1964 by the insertion of a new paragraph 4A through the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 . 11. Section 4 A, as originally introduced, provided as follows: "(1) This section applies where in accordance with section 4(5) above it is determined by a jury that the accused is under a disability. (2) The trial shall not proceed or further proceed but it shall be determined by a jury (a) on the evidence (if any) already given in the trial; and (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence; (c) whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. (3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him. (4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion. (5) A determination under subsection (2) above shall be made- (a) where the question of disability was determined on the arraignment of the accused, by a jury other than that which determined that question; and (b) where that question was determined at any later time, by the jury by whom the accused was being tried." 12. At the time when this section was introduced, section 11 of the Juries Act 1974 provided: "(1) The jury to try an issue before a court shall be selected by ballot in open court from the panel, or part of the panel, of jurors summoned to attend at the time and place in question. ... (4) Subject to subsection (5) below, the jury selected by any one ballot shall try only one issue (but any juror shall be liable to be selected on more than one ballot). (5) Sub section (4 ) above shall not prevent— (a) the trial of two or more issues by the same jury if the trial of the second or last issue begins within 24 hours from the time when the jury is constituted, or (b) in a criminal case, the trial of fitness to plead by the same jury as that by whom the accused is being tried, if that is so directed by the court under section 4(4) (b) of the Criminal Procedure (Insanity) Act 1964 , or (c) in a criminal case beginning with a special plea, the trial of the accused on the general issue by the jury trying the special plea." 13. It was suggested by Baird and Wade that section 11 of the Juries Act may have been overlooked at the time of the introduction of section 4 A into the Criminal Procedure (Insanity) Act 1964 . The 1991 legislation did not address the possibility of joint trials and it was suggested that for the same jury to determine the guilt of fit defendants and the question whether an unfit defendant had done the act alleged would fall foul of section 11(4) of the Juries Act. The article also suggested that there would be overwhelming inequity in a jury trial of fit and unfit defendants because the unfit defendant could not be convicted. This would have the particular potential of causing injustice to a fit defendant where the cases of fit and unfit defendants involved cut throat defences. 14. Since that article was written, there has been further legislative change. By section 22 of the Domestic Violence, Crimes and Victims Act 2004 , as already noted, the issue of fitness to plead is now to be determined by the court and not by the jury. Section 4 of the Criminal Procedure (Insanity) Act has been amended to that effect. The amendment also necessitated consequential amendment to section 4 A and there has also been amendment to section 11 of the Juries Act. Section 4 A(5) of the 1964 Act now reads simply "Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried". Section 11(5) (b) of the Juries Act 1974 has been deleted. So, whatever else may be said, the Juries Act was not overlooked in the latest round of legislative changes in this area. 15. The submission of the prosecution is that the provisions of the Juries Act do not preclude a jury hearing simultaneously the issue of the guilt of the fit defendant and the issue whether unfit defendants did the acts alleged. We have received written submissions on the appeal to the contrary, although the contrary argument was not developed in oral argument. 16. In addressing the question whether there can be a joint trial of those issues, it is helpful to consider first the situation where a defendant is found unfit during the course of a trial involving more than one defendant. For example, what would have happened if D3, who is the eighth of the defendants named in the indictment, had suffered his stroke towards the end of the trial when he was about to give evidence? Under section 4 A(5) of the 1964 Act as amended, the question whether the unfit defendant did the act charged must be decided by the jury which had been trying him. So the jury would not be discharged. If, at the end of the trial, they were not satisfied that the defendant did the act charged against him, he would be entitled to be acquitted on the relevant count because the Act expressly says so. If the jury were satisfied that he did the act they would make that finding of fact. 17. What of the fit co-defendants? It would be most unfortunate if the law required the jury to be discharged from giving verdicts in their cases and there had to be a retrial. The 1964 Act does not require that to happen nor in our judgment does section 11 of the Juries Act. In principle, we see no reason why it should make a difference at what stage a defendant's unfitness occurs. The Criminal Procedure (Insanity) Act draws no such distinction. There is a quite separate question whether as a matter of discretion there should be a joint trial of the various issues. The stage at which the unfitness occurs may be pertinent when considering that question, but that is a question which needs to be answered in each case on a fact specific basis. 18. We have yet to address the question how section 11 of the Juries Act can be read so as to fit with this conclusion. Are there irreconcilable problems as the title to the Baird and Wade article challengingly suggests? It could be argued that, on a literal reading, section 11(4) would prohibit a jury from determining more than one count against one defendant. Every judge is taught to tell any jury in a case involving more than one count, or more than one defendant, that the jury must consider separately the issues in relation to each count and each defendant and make separate decisions upon them. This requirement was reflected in the traditional oath taken by each member of the jury that he or she would "faithfully try the several issues joined between our Sovereign Lady the Queen and the defendants and give true verdicts according to the evidence", although that traditional form of words has now been shortened. 19. The joinder of different defendants in a single indictment and the inclusion in an indictment of more than one count is not only every day practice but has a long pedigree. It is governed by a mixture of primary legislation, secondary legislation and case law. Section 4 of the Indictments Act 1915 provides that: "Subject to the provisions of the rules under this Act charges for more than one misdemeanour may be joined in the same indictment." It is unnecessary to go into the details of the Indictment Rules. In R v Merriman [1973] AC 584 at page 607, Lord Diplock observed that, from earliest times, where there has been a connection between defendants in the commission of an offence or offences, this has been treated as justification for charging them in the same indictment. He quoted Hale's Pleas of the Crown (1778) Vol 2 page 173: "If there be several offenders that commit the same offence, though in law they are several offences in relation to the several offenders, yet they may be joined in one indictment as if several commit a robbery or burglary or murder." 20. Mr Bartlett, on behalf of the prosecution, submitted that this time honoured practice is prevented from falling foul of section 11(4) of the Juries Act by the saving provision of section 11(5) (a), which permits "the trial of two or more issues by the same jury if the trial of the second or last issue begins within 24 hours from the time when the jury is constituted". 21. We are unpersuaded by this explanation for various reasons. First, it would be an extraordinarily oblique way of dealing with the everyday situation of different defendants and different counts in an indictment. Secondly, sub section 11(5) (a) is, by its language, pointing towards a jury embarking on trials of successive issues within a short time. Thirdly, it would in principle leave it impossible to amend an indictment to introduce a new count more than 24 hours after the commencement of the trial, unless possibly the new count was a redefinition of something contained in the original indictment. It would not cover the situation, for example, where a person charged with theft went into the witness box to explain that he was a handler for in such circumstances the prosecution would not then be entitled to apply to introduce a count of handling, no matter how just that procedure might obviously be. However, we think that section 11(5) (a) has relevnace as a pointer to the purpose of the section. From its language it seems reasonable to surmise that it may go back to the time when criminal and civil juries used to deal with cases with great despatch and it may have been thought administratively inconvenient to have to reballot and empanel a fresh jury between each. Some support for this explanation may be found in Professor Oldham's work on the Mansfield Manuscripts (1992, University of North Carolina Press). In volume 1 at page 138, he describes the work of the jury in Lord Mansfield's day: "Proceedings on the criminal side were adapted to a high case volume, slowed only imperceptibly by the occasional appearance of defence counsel. The docket of the sittings at the Guildhall and at Westminster Hall proceeded at a more deliberate place. Counsel were ordinarily present and a new jury was ordinarily empanelled for each trial." In footnote 326, he records: "On assize, procedures were more akin to those at the Old Bailey at least in terms of having the same jury sit for a day, hearing as many cases as practicable. The jury pattern on assize is revealed in the Agenda Books for the Home Circuit and comparable, though less complete, records for other circuits." 22. In the time and with the limited resources available to the court, we have tried to put the theory to the test by research into the legislative origins of section 11 of the 1974 Act . Such progress as we have made is due to the help which we have received, and gratefully acknowledge, from the Statute Law Revision Team at the Law Commission. This is a team of experts in historical legislative research. It is dedicated to carrying out a systematic survey of the statute book in order to find what provisions are obsolete and to prepare bills for their abolition. Since its work is little known and seldom acknowledged, we are glad of this opportunity to mention it. Its work is important for keeping or making the statute book up to date and vital if the aim is to be achieved of having a fully comprehensive statute law database accessible to the citizenry of this country. 23. There have been a large number of statutes about the jury. In Professor Oldham's book Trial by Jury (2006, New York University Press) he lists, in appendix 4, 50 statutes from Magna Carta to 1730 dealing with qualifications for jury service, and that is only one aspect of the statutes dealing with juries. The immediate predecessor of section 11 of the Juries Act 1974 was section 26 of the Courts Act 1971 , but before that the trail becomes obscure. Going back to 1825, there was a Juries Act which, according to Holdsworth, consolidated over 60 statutes. Section 26 of that Act contained detailed provisions for jury empanelment. Each juror summoned to attend any court of assize or nisi prius had his name written on a distinct piece of parchment or card as nearly as possible of equal size. They were to be put together in a box provided for that purpose. When an issue was brought on to be tried, the associate or prothonotary of the court was to draw out 12 parchments or cards of those (all men, of course) who would be empanelled, subject to any challenges. Once they returned their verdict, their names would be returned to the box: "... there to be kept with the other names remaining at that time undrawn, and so toties quoties as long as any issue remains to be tried." But there was a proviso. This was that: "where no objection shall be made on behalf of the King or any other party it shall be lawful for the court to try any issue with the same jury that shall have previously tried or been drawn to try any other issue without their names being returned to the box and redrawn ... and so toties quoties as long as any issue remains to be tried." So we have there a statutory provision for a jury, once empanelled, to hear later issues, subject to objection but there is a missing gap where the 24-hour restriction contained in section 11(5) (a) came in. 24. Interesting as this may be as a matter of historical research, the appeal from HHJ Boggis needs to be decided without further delay. We are satisfied that section 11(4) of the Juries Act 1974 , when it speaks of "one issue", is to be interpreted in this way. When a jury is empanelled to decide whether allegations contained in an indictment are proved by the evidence presented to the jury, that is the relevant issue for the purposes of section 11(4) . What may properly be contained in the indictment is governed by other legislation and case law, so there is no irreconcilable conflict. Where a jury has been empanelled to decide whether a person is guilty of a charge in the indictment, that necessarily includes finding whether he committed the actus reus . If during the course of a trial of co-defendants one becomes unfit, the trial of the issue of his guilt comes to an end, but the proceedings continue in order for the jury to determine as a fact for the purposes of section 4 A of the Criminal Procedure (Insanity) Act whether he committed the actus reus . The proceedings continue for that purpose on the indictment, for that document identifies the alleged acts and, as already noted, if at the end of the trial the jury is not satisfied that he committed the act or acts alleged, the defendant is to be acquitted on the relevant count or counts. It is a more limited issue than that which the jury was originally empanelled to decide, but it is an ordinary rule of pleading that the greater includes the less, see Biles v Caesar [1957] 1 WLR 156 . (By contrast, section 11(5) (b) and (c) made special provision for cases where the matter subsequently determined by the jury was outwith the scope of that which it was originally empanelled to decide.) The same principle must in our judgment apply if the unfitness occurs before the commencement of proceedings before a jury. 25. We then turn to the critical question whether there was an error of law by HHJ Boggis. In our judgment, he was not right to conclude that it was inescapable that there must be separate proceedings before the jury in relation to the fit and unfit defendants. In considering how the court ought justly to proceed, there were four sets of interests to be considered: those of the unfit defendants, the fit defendants, witnesses and the public. Listing them in that order does not imply any particular ranking in relative importance. 26. We consider first the position in relation to D1. His role is central to the entire matters which the jury will be considering. He is currently on remand in prison. Some concern was expressed during the hearing about whether he should not be more appropriately in a mental hospital, but that is not a matter that we can address. Concern was also expressed about the possible impact of the custody time limits in relation to him. Again, that is not a matter currently before us but it is obviously desirable from his viewpoint that the question of whether he did do the alleged acts should be decided sooner rather than later. If the jury is not sure that he did them, he is entitled to be set at liberty. If the jury are satisfied that he did all or some of the acts alleged, then the court will address directly the question of what order should be made in relation to him. It is not clear whether the judge has formally appointed anybody to represent D1, but submissions made by those formerly representing him do not suggest any reason why it would be unjust for the issue whether he did the acts alleged to proceed as soon as possible simultaneously with the trial of other defendants. None of the fit defendants has suggested that it would be in any way prejudicial to them for the jury simultaneously to consider the issue whether he did the acts alleged. They recognise the inevitability that in substance, if not in form, the jury is going to have to be deciding that in any event. 27. From the point of view of witnesses, the balance of advantage is obvious. A large number of complainants and other witnesses are going to have to give harrowing evidence about matters alleged to have happened to them over a span of many years. The trauma of having to do so twice hardly needs to be discussed further. From the public interest, again, it is obvious that, if the proceedings can fairly and justly be conducted simultaneously rather than successively they should be. We conclude in relation to D1 that the issue whether he did the acts alleged should be determined jointly with the trial of the fit defendants. 28. Different considerations arise in relation to D3. Although the matter alleged against him is grave, it is a single allegation of a matter which is alleged to have occurred very many years ago. He is, relatively speaking, one of the minor defendants. We gave leave for the purposes of these proceedings for him to be represented by counsel. It was submitted on his behalf that it would be unfair for proceedings against him to continue jointly with the fit defendants. That objection was supported by D4. We have not been into this matter in detail because Mr Bartlett for the prosecution sensibly did not seek to press this point. He recognised that there would be no major problem if the issue in relation to D3 were severed from the proceedings due to start next month. The problem for witnesses would be on a different scale if everybody had to give evidence twice in relation to D1. On the count which involves D3 there is one complainant and three witnesses to whom that complainant related what she said had happened to her. 29. We would not accept, as a matter of generality, the suggestion in the Baird and Wade article that there is an obvious or necessary injustice in proceedings going ahead jointly in relation to whether an unfit defendant did the act alleged and whether a fit defendant is guilty. The purpose of such a hearing is to try to arrive as nearly as possible at the same result as if there had been a trial, the dual objectives being that, if it could not have been proved after a full trial that the person in question did the acts alleged, he should be acquitted, but, if it could be proved, he should be eligible to be detained under the protectionary powers. However, on the particular facts, we have not been persuaded that we should interfere with HHJ Boggis' order in relation to D3. 30. The result is that we allow the appeal and direct in relation to D1 that the hearing of the issue whether he did the acts alleged should proceed on the indictment not as a trial of his guilt but as a hearing under section 4 A of the Criminal Procedure (Insanity) Act 1964 , jointly with the trial of the fit defendants. It will be for the judge to appoint someone to represent D1 if that has not already been done. All that we have said in this judgment is without prejudice to any further application for severance of any particular count or counts which may be made to the judge.

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[2022] EWCA Crim 427

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2022-03-24

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: 2021/04035/B1 NCN [2022] EWCA Crim 427 Royal Courts of Justice The Strand London WC2A 2LL Thursday 24 th March 2022 B e f o r e: LORD JUSTICE HOLROYDE MR JUSTICE JAY MR JUSTICE BENNATHAN ____________________ R E G I N A - v - PAUL BOND ____________________ 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 H A Godfrey QC and Mr R W Fitt appeared on behalf of the Applicant Mr M J Brompton QC, Miss G Jones QC and Mr F Baloch appeared on behalf of the Serious Fraud Office ____________________ J U D G M E N T Thursday 24 th March 2022 LORD JUSTICE HOLROYDE: Introduction 1. This applicant was convicted of two offences of conspiracy to give corrupt payments. He was subsequently sentenced to a total of three years and six months' imprisonment. His application for leave to appeal against his sentence was dismissed by this court, differently constituted, on 10 th December 2021. He now applies for an extension of time (271 days) in which to apply for leave to appeal against conviction. The Registrar has referred the application to the full court. 2. The applicant was one of four men charged by the Serious Fraud Office ("SFO") on an indictment containing five counts alleging conspiracy to give corrupt payments, contrary to section 1 of the Prevention of Corruption Act 1906 . The other accused were Basil Al Jarah ("BAJ"), Ziad Akle ("Akle") and Stephen Whiteley ("Whiteley"). Count 1 (against BAJ and Akle), count 2 (against all four accused) and count 3 (against BAJ, Akle and Whiteley) alleged conspiracies to give corrupt payments to Oday Al Quoraishi ("Oday"), an agent of the South Oil Company. Count 4 (against BAJ and the applicant) and count 5 (against BAJ alone) alleged conspiracies to give corrupt payments to public officials in Iraq. In each of the counts, the persons named as co-conspirators included Ata, Cyrus and Saman Ahsani (collectively, “the Ahsanis"). 3. In very brief summary, the charges alleged corrupt activity in respect of lucrative contracts which were to be awarded by the Government of Iraq in relation to the export of crude oil from that country. Counts 2 and 4, in which the applicant was charged, related to a project ("the SPM project") involving the installation in the Persian Gulf of Single Point Moorings: floating buoys which allow tankers to load oil offshore. A fuller summary of the allegations is contained in the judgment of 10 th December 2021, which has been published as R v Akle and Bond [2021] EWCA Crim 1879 . All relevant parts of that judgment should be treated as incorporated into this judgment. 4. The applicant pleaded not guilty to counts 2 and 4. In his defence statement dated 15 th April 2019 he stated the general nature of his defence: he did not admit that any corrupt payments were made as alleged in the charges; and if they were, he denied any knowledge of their corrupt nature, and denied being party to the alleged (or any) conspiracy. He referred in some detail to the matters with which he took issue and, in stating his reasons for taking issue with those matters, he again indicated that he did not admit that there had been a conspiracy to give corrupt payments to anybody. 5. On 15 th July 2019, BAJ pleaded guilty to the counts which he faced. He subsequently asked for a number of similar (but more serious) offences to be taken into consideration when he was sentenced. The First Trial 6. The trial of the remaining three accused ("the first trial") was heard in the Crown Court at Southwark, before His Honour Judge Beddoe and a jury, between January and June 2020. As in this court, Mr Brompton QC was the leading counsel for the SFO and Mr Godfrey QC for the applicant. Akle (who was first on the indictment) was convicted of the offences charged in counts 1 and 2 and was subsequently sentenced to five years' imprisonment. Whiteley (who was second on the indictment) was convicted of the offence charged in count 2 and was subsequently sentenced to three years' imprisonment. Count 3, on which the jury could not reach any verdict, was left to lie on the file against those defendants. 7. In the applicant's case, the jury could not reach any verdicts. In January 2021 he was retried, before the same judge, on what had been counts 2 and 4 of the indictment, now renumbered as counts 1 and 2. At the conclusion of that retrial he was convicted and sentenced as we have indicated. Akle's Appeal 8. Akle appealed against both conviction and sentence. His appeal was heard in October 2021, as was the applicant's application for leave to appeal against sentence. The reserved judgment of the court was handed down, as we have said, on 10 th December 2021. 9. Akle's grounds of appeal related to three rulings given by the judge in the course of the first trial, and to what were alleged to have been serious failings in disclosure by the SFO in relation to the activities of David Tinsley ("Tinsley"), an American citizen who was actively involved in assisting the Ahsanis in relation to their prosecution in the United States of America. The nature and extent of Tinsley's activities, and of his contacts with the SFO, are set out in the judgment of 10 th December 2021, and need not be repeated here. 10. The three rulings to which we have referred were as follows: (i) On 21 st January 2020, the judge heard and refused an application made by counsel for Akle, to stay the proceedings as an abuse of the process. Akle's counsel had argued that the SFO had acted with Tinsley in a way which breached Akle's right to a fair trial, and he had sought (not for the first time) disclosure of all material which might reasonably be considered capable of assisting that argument. The judge accepted that aspects of the SFO's contacts with Tinsley had been "ill-advised", but rejected the submissions that Akle could not have a fair trial and/or that it was not fair to try him. In giving his ruling, the judge acknowledged that he did not have "the whole picture" and was only dealing as best he could with the material he had. (ii) Also on 21 st January 2020, the judge granted an application by the SFO to adduce BAJ's guilty pleas before the jury as evidence of the existence of the conspiracies and of BAJ's participation in them. He refused an application on behalf of Akle to exclude that evidence on grounds of fairness, pursuant to section 78 of the Police and Criminal Evidence Act 1984 ("PACE"). The judge was satisfied on the material before him that BAJ's pleas were freely entered into and were a true reflection of his guilt. (iii) Later in the trial, counsel for Akle sought leave to cross-examine the officer in charge of the case about the involvement of Tinsley with the Ahsanis, the SFO, BAJ and Akle. He did so because Akle's case was that BAJ's guilty pleas had been obtained by improper means, were not genuine pleas of guilty and were therefore unreliable as evidence of the matters which the SFO sought to prove by them. The judge refused to permit such cross-examination. He gave a number of reasons for his decision, one of which was that Akle's defence involved a denial of his own participation in any conspiracy, but did not seem to deny that there was or may have been corruption of Oday and others. 11. In relation to the rulings on 21 st January 2020, we understand that both Mr Godfrey on behalf of the applicant, and leading counsel representing Whiteley, had briefly indicated that they supported the submissions made on behalf of Akle. They had not submitted separate skeleton arguments, and were discouraged by the judge from developing any oral submissions. 12. The effect of the rulings was that the SFO were able, pursuant to section 74 of PACE, to rely on BAJ's guilty pleas as conclusive evidence of the existence of the conspiracies and of BAJ's participation in them. In his closing submissions on behalf of the applicant, Mr Godfrey accepted that there had been corruption and focused on the applicant's denials of any knowledge of, or participation in, the making of corrupt payments. The Disclosure of Additional Documents 13. In his appeal against conviction, Akle again pursued requests for disclosure of material relevant to his arguments relating to the activities of Tinsley. This court directed the SFO to disclose certain material. As a result, a bundle of documents, some 650 pages in number, was for the first time provided to Akle's representatives. We shall refer to this, for convenience, as "the new material". It was not at that stage provided to those representing the applicant, because he was appealing only against his sentence. 14. The new material proved to be of central importance to Akle's appeal against conviction. Counsel for Akle, Mr Darbishire QC, submitted that it allowed an understanding of what had previously been obscure. Some of the key features of the documents are noted at [68] to [86] of the judgment of 10 th December 2021. 15. At [91] to [94] of that judgment, the court summarised the relevant law in relation to the SFO's duty of disclosure under the Criminal Procedure and Investigations Act 1996 ("CPIA"), the Code of Practice made under that Act , and the Attorney General's guidelines on disclosure. It noted that by section 3 of CPIA, the disclosure test will be satisfied where material might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused; that in applying that test, the parties' respective cases should not be restrictively analysed; that the purpose of disclosure is to enable an accused person to present a tenable case in its best light; and that in deciding whether material satisfies the disclosure test, consideration should be given to, amongst other things, its capacity to support submissions which could lead to the exclusion of evidence, or to a stay of proceedings where the material is required to allow a proper application to be made. 16. The court's conclusions about the new material in relation to Akle's appeal against conviction are set out in [95] to [108] of the judgment. The following points are of particular relevance to the present application: (i) The SFO had accepted that the new material had been relevant to the issue of abuse of process. In the court's view, it was also relevant to the issues relating to the admission or exclusion of BAJ's guilty pleas. The court held at [96]: "… When copies were requested by the defence, they should have been provided. The refusal to provide them was a serious failure by the SFO to comply with their duty." (ii) The court added at [97]: "That failure was particularly regrettable given that some of the documents had a clear potential to embarrass the SFO in their prosecution of this case. We do not suggest that any individual official of the SFO deliberately sought to cover anything up. We are however entirely satisfied that the result of limiting disclosure to the summaries in the schedules was that neither the defence nor the judge had anything like the full picture which is now available to this court. …" (iii) The court also accepted, for reasons which it set out at [99] to [104], that if the documents had been provided to the defence before or at the start of the trial, Akle's counsel "would have had significantly stronger arguments available to him on the issues relating to BAJ's guilty pleas" [98]. Further, if the documents had been available, "the defence would have been able to present their case in its best light" [102]. The Quashing of Akle's Convictions 17. We should set out in full (though omitting footnotes) the conclusion which the court reached at [105] to [107]: "105. In summary, we are satisfied that there was a material failure of disclosure which significantly handicapped the defence in arguing that the evidence of BAJ's convictions should be excluded pursuant to section 78 of PACE. We think it striking that in resisting the application to exclude such evidence, the SFO relied on the fact that BAJ was legally represented when he decided to plead guilty to the charges against him, and on the concession by defence counsel that it was not possible to discharge the burden imposed on the defence by section 74 of PACE. Had the documents been disclosed, neither of those arguments would have been available to the SFO: the documents would have shown, much more clearly than appeared from the summaries in the schedules, that the SFO knew that Tinsley was deliberately operating behind the backs of BAJ's lawyers, and that Tinsley wanted to control whom BAJ spoke to; and we think it wholly unlikely that the concession, which was made on the basis of the schedule entries alone, would have been made. 106. As we have noted, the judge expressly recorded that he did not have 'the full picture'; and even without the full picture, he rightly held that the SFO should have had nothing to do with Tinsley. If the documents which have belatedly been provided had been available to the defence at trial, both they and the judge would have had a much fuller picture. The defence would have been better equipped to submit that the SFO should not be permitted to rely on BAJ's guilty pleas to prove the existence of the precise conspiracies with which Akle was charged, and thereby to gain the evidential advantage which they had mentioned to Tinsley. As it was, the defence were denied the stronger position to which they were entitled. In consequence, through no fault of the judge, Akle did not have a fair trial. We find it impossible to say that the judge, if addressed by counsel in possession of all relevant information, would inevitably have made the same decision on the application to exclude evidence of BAJ's guilty pleas. 107. Furthermore, even if the judge had permitted the SFO to rely on BAJ's convictions to prove the existence of the conspiracies, and BAJ's participation in them, the defence would have been in a significantly stronger position when applying to adduce evidence relevant to the reliability of those convictions as evidence that BAJ was guilty of the offences charged. Once BAJ's convictions were before the jury, Akle was entitled to seek to persuade the jury, on the balance of probabilities, that BAJ was not in fact guilty of the conspiracies which he admitted. As Mr Darbishire submitted, that would in practice involve the defence seeking to put before the jury an explanation why BAJ might have admitted crimes of which he was not guilty. The documents which have now been provided were the source of relevant evidence in that regard, but they were withheld from the defence. If trial counsel had had them, we are confident that he would have been able to make effective use of that evidence, in particular by cross-examination of the relevant SFO officers. We cannot accept Mr Brompton's submission that the evidence was irrelevant to BAJ's guilt and therefore inadmissible: evidence could have been placed before the jury which was relevant to BAJ's guilt, because it was capable of suggesting an alternative reason for him to have pleaded guilty, namely that his pleas were part of a package which freed him from the risk of prosecution for more serious offences." 18. For those reasons, the court concluded that Akle's convictions were not safe. His appeal was accordingly allowed and his convictions set aside. The Applicant's Ground of Appeal 19. The applicant brings his present application in the light of, and in reliance on, the decision in Akle's case. His ground of appeal is: "1. The SFO fundamentally failed to comply with its duties of disclosure in relation to material that would have permitted the defence on behalf of Mr Bond to: (a) mount a potentially successful opposition to the SFO's application to adduce the guilty pleas of BAJ as evidence going to prove the existence of the conspiracies; or alternatively, (b) mount a potentially successful application to exclude those pleas under section 78 of PACE; or alternatively, (c) in the event that the pleas of BAJ were admitted into evidence by the learned judge, mount through the trial process an attack on the reliability and credibility of those pleas as true evidence of BAJ's guilt and therefore as true evidence of the existence of the conspiracies. 2. The Court of Appeal has already found that there was material non-disclosure of documents by the SFO regarding the question of the admissibility and reliability of BAJ's guilty pleas. The court has found that this material non-disclosure means that Ziad Akle did not receive a fair trial. It is submitted that the same logic applies to the case of Mr Bond and it follows that his trial was also unfair and his convictions should be quashed accordingly." 20. Having received that ground of appeal, the SFO rightly disclosed the new material to the applicant's representatives. Summary of the Applicant's Submissions 21. On behalf of the applicant, Mr Godfrey first submits that the court should exercise its power under rule 36.3(a) of the Criminal Procedure Rules to extend the time in which to apply for leave to appeal, on the grounds that the applicant's representatives did not know the significance of the new material until the judgment of 10 th December 2021 was handed down, that they then acted promptly, and that it is in the interests of justice to hear the appeal. 22. Mr Godfrey goes on to submit that the new material shows that the SFO were aware of, and encouraged, the activities of Tinsley in seeking to persuade BAJ to plead guilty, and that the SFO's motive was to strengthen the case against the applicant as well as against Akle. In this regard, Mr Godfrey points to the willingness of the SFO to allow BAJ to plead guilty to the offences on the indictment and to have other, more serious offences – relating to BAJ's role in five other conspiracies, concerning contracts worth in excess of 1 billion US dollars – taken into consideration. He also points to the fact that one of the items in the new material is a record of a phone call on 12 th September 2019 in which Tinsley indicated to the SFO case team that he was confident that BAJ would plead guilty, that Akle was very close to pleading guilty, and that he thought that both the applicant and Whiteley would follow. 23. Mr Godfrey acknowledges that Tinsley did not have any direct contact with the applicant. He nonetheless submits that if the new material had been disclosed at the time of the first trial, it would have enabled all three defendants to argue against BAJ's guilty pleas being adduced in evidence. Although other evidence was available to the prosecution if those pleas were excluded, he submits that the jury may or may not have accepted it as proving the existence of the conspiracies. The applicant would therefore have been able to maintain the approach indicated in his defence statement. Once BAJ's guilty pleas had been admitted, however, it was unrealistic for the applicant to do anything other than accept the existence of the conspiracies. It was also unrealistic, at the retrial before the same judge and without any relevant change of circumstances, to seek to re-litigate submissions which had been considered and rejected by the judge at the first trial. Mr Godfrey emphasises that decisions as to the conduct of the defence case were necessarily taken on the basis of the evidence and unused material then available, which did not include the new material. Summary of the SFO's Submissions 24. Mr Brompton accepts that this court has already found that the SFO made errors of disclosure relevant to the admissibility in evidence of BAJ's pleas. He further accepts that if the new material had been disclosed to Akle before or during the first trial, it would also have been disclosed to the applicant and Whiteley. He submits however that the matters which led to the quashing of Akle's convictions have little or no bearing on the issues in the applicant's case, and that the failures of disclosure identified in Akle's case did not prejudice this applicant and did not prevent his having a fair trial. He accordingly submits that the application should be refused. He submits that at the first trial this applicant made no application for disclosure, made no application to stay the case against him as an abuse of the process, served no skeleton argument seeking to exclude evidence of BAJ's guilty pleas, and merely said that he supported the submissions made by counsel for Akle. Mr Brompton points out that at the retrial the applicant did not apply to exclude the guilty pleas of BAJ, or the convictions of Akle and Whiteley on which the SFO also relied. He points to those omissions as indicating that the new material related to matters which were of no real relevance or assistance to the applicant's defence. He also emphasises the fact that the applicant originally sought leave to appeal against sentence only, and makes submissions as to the strength of the case against the applicant. 25. Mr Brompton argues that Akle's primary defence was that there was no conspiracy as alleged, and that payments to Oday had been made for a legitimate and not a corrupt purpose. In contrast, he submits, the applicant's defence at his retrial was that there was a conspiracy to give corrupt payments, but that the applicant was not party to it. It is submitted that BAJ's guilty pleas were therefore "largely irrelevant" to the applicant's case, and that accordingly there was no proper basis on which he could apply to exclude those pleas. Moreover, the fact that the business Unaoil was corrupt was actively relied on as part of the defence case at the retrial. The issues related to whether the applicant had played any knowing part in the admitted conspiracies, as to which it is submitted that the SFO were able to adduce strong evidence that he had. Even if the pleas and convictions of others had not been before the jury, Mr Brompton submits that there was "a huge body of evidence" establishing the existence of the conspiracies. He submits that the admission of BAJ's guilty pleas therefore did not prejudice the applicant's defence. 26. We are grateful to counsel for their detailed written and oral submissions, and we are also grateful to all those who have assisted leading counsel in the preparation and conduct of this application. Although we have summarised the arguments briefly, we have taken them all into account. Analysis 27. As we have noted, the general nature of the case disclosed in the defence statement was not merely that the applicant denied participation in any conspiracy to give corrupt payments: it also included the important point that the applicant did not admit that the alleged conspiracies existed. The SFO was thereby put on notice that it would have to prove that element of the charges against the applicant. Whatever the strengths or weaknesses of the other evidence available to the SFO on that issue, they in fact proved it by adducing evidence of BAJ's convictions. They did so in the face of opposition by counsel for Akle, supported by Mr Godfrey. There was an obvious advantage to the SFO of proceeding in that way: the effect of section 74(2) of PACE is to create a presumption that a person who is proved to have been convicted of an offence "shall be taken to have committed that offence unless the contrary is proved". 28. Once the evidence of BAJ's convictions had been admitted by the judge, it is in our view unsurprising that the applicant did not seek to argue that there were no such conspiracies as were alleged. There was nothing improper in the applicant's tacitly accepting that that argument had effectively been taken away from him, and therefore shifting his focus to other issues in the case. 29. The important point, for present purposes, is that the applicant took that course in ignorance of the existence of the new material, which we have no doubt was relevant to the admissibility of BAJ's convictions. The judge, similarly, made his rulings in ignorance of the existence of the new material. This court has already found that the new material should have been disclosed to Akle, and it is accepted that, if it had been, it would also have been disclosed to the applicant. We have quoted passages from the judgment of 10 th December 2021 which explain how the failure of disclosure significantly handicapped the presentation of Akle's case. In our judgment, it also caused a handicap to the presentation of the applicant's case. We are bound to say that it is an unattractive stance for the SFO first to fail in their disclosure obligations and then to seek to rely on decisions as to the conduct of the case which were all made by the defence on the basis of incomplete information. 30. Whatever may be said about a lack of vigour on the part of the applicant's representatives in supporting Akle's applications, and whatever tactical shift there may have been in the focus of the applicant's case by the end of the trial, the simple fact is that the first two rulings were made by the judge at a time when there was a live issue between the SFO and the applicant as to whether there had been any such conspiracies as alleged. The applicant had explicitly put that in issue in the defence statement which he had properly given in accordance with section 6 and 6A of CPIA. The new material was unarguably relevant to that issue. The failure of the SFO to disclose the new material to the applicant was therefore as serious as the SFO's failure to disclose it to Akle. It is in our view unrealistic to think that the non-disclosure had no material effect on the applicant's ability to present his case in its best light. 31. Similar considerations apply to the SFO's reliance on the fact that, at the retrial, the admissibility of BAJ's guilty pleas was not expressly challenged by the applicant, even on the basis of a formal challenge accepting that the judge had already ruled on the point. We agree with Mr Brompton that a formal challenge of that nature often is made at a retrial, and it could have been made in this case. But the key point, once again, is that decisions as to the conduct of the case were made on the basis of insufficient disclosure and therefore in ignorance of the existence of the relevant material. Moreover, at that stage of the proceedings the SFO were also able to rely on the conviction of Akle to prove the existence of the conspiracy alleged in count 2 (count 1 at the retrial). Thus a further obstacle to any successful submission by Mr Godfrey at the retrial was the ability of the SFO to rely on a conviction which this court has subsequently found to be unsafe. It is, again, unrealistic to think that the applicant's case would have been conducted in the same way if proper disclosure had been made. Conclusion 32. For those reasons, we accept Mr Godfrey's submission that the logic of the decision in Akle's case applies equally to the applicant's case. Like Akle, the applicant was prevented from presenting his case in its best light. We are satisfied that his convictions are not safe. 33. For reasons which he has explained, Mr Brompton does not ask this court to exercise its power under section 7(1) of the Criminal Appeal Act 1968 to order a retrial. That is, in our view, a proper and fair position for the SFO to take. 34. We therefore grant the necessary extension of time and give leave to appeal against conviction on counts 2 and 4 (counts 1 and 2 at the retrial). We allow the appeal and quash those convictions. 35. MR GODFREY: My Lord, thank you very much. The only matter that remains to be dealt with is the question of costs. 36. LORD JUSTICE HOLROYDE: Yes. 37. MR GODFREY: Mr Bond, whose employers had a Directors and Officer Insurance Policy, was covered by insurance for the costs of the trial and retrial, and indeed for the costs of today's hearing. I would wish to make an application for costs to be paid, to follow the event, and to be paid by the SFO to the insurers who have funded Mr Bond's legal fees. I have no information at present as to quantum in any shape or form, but would invite the court to allow submissions to be made in writing in relation to such application, as I know – I do not know the detail, but I know was done in the case of Mr Akle. 38. LORD JUSTICE HOLROYDE: Yes. It is not necessarily as simple a proposition as costs following the event in this context, Mr Godfrey. 39. MR GODFREY: I appreciate that. 40. LORD JUSTICE HOLROYDE: So you apply, in effect, for time to put in written submissions on that topic? 41. MR GODFREY: I do, my Lord, yes. 42. LORD JUSTICE HOLROYDE: And no doubt you would wish to discuss with counsel for the SFO whether any accommodation can be reached between the parties? 43. MR GODFREY: I do. 44. LORD JUSTICE HOLROYDE: Yes. Mr Brompton, on that basis, do you want to say anything about this application? 45. MR BROMPTON: No, my Lord. 46. LORD JUSTICE HOLROYDE: You will no doubt have much to say about the application itself . 47. MR BROMPTON: I am sure I will, yes. 48. LORD JUSTICE HOLROYDE: But until you have seen what it is, you are not really in a position to respond to it? 49. MR BROMPTON: Just that, my Lord. May I ask, so far as the timetable is concerned, for relatively prolonged periods of time in order to give the parties the opportunity to liaise? 50. LORD JUSTICE HOLROYDE: Yes. 51. MR BROMPTON: I am sure it should be possible to do so. 52. LORD JUSTICE HOLROYDE: Yes. We will just rise for a moment, just to consider. ( The court adjourned briefly to confer ) 53. LORD JUSTICE HOLROYDE: Mr Godfrey, Mr Brompton, we think it is eminently sensible of you both to speak in terms of a fairly generous period of time to make the submissions. In addition to all the other complications which arise in an application of this nature, my Lord, Jay J, murmurs the word "subrogation" for your consideration, which will no doubt be a further paragraph or two of any application. 54. So, what we have in mind – unless either of you wants to argue against it – is to direct, Mr Godfrey, that you make any application within six weeks from tomorrow, that would by 6 th May; and then, Mr Brompton, a reply six weeks after that, which would be 17 th June. At that stage, we will give written directions as to any further steps which need to be taken. There is obviously no need at the moment for any hearing to be listed. We will address that if and when it becomes necessary. 55. MR GODFREY: I am very grateful, my Lord. Thank you very much. 56. LORD JUSTICE HOLROYDE: Anything else, gentlemen? 57. MR GODFREY: No, thank you very much. 58. MR BROMPTON: Thank you. 59. LORD JUSTICE HOLROYDE: Thank you all. ___________________________________ 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_03_24-5297.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/427/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/427

43e06eace7f8b9ba0a35c3ae54806e1368db79e31053dd7add2dfdab51ec6e0a

[2004] EWCA Crim 2615

EWCA_Crim_2615

2004-10-14

crown_court

No: 200401182/A8 Neutral Citation Number [2004] EWCA Crim 2615 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 14th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE RICHARDS MR JUSTICE BEAN - - - - - - - R E G I N A -v- STEPHEN RICHARD RIX - - - - - - - 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 Sh

No: 200401182/A8 Neutral Citation Number [2004] EWCA Crim 2615 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 14th October 2004 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE RICHARDS MR JUSTICE BEAN - - - - - - - R E G I N A -v- STEPHEN RICHARD RIX - - - - - - - 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 DU FEU appeared on behalf of the APPELLANT MR J MORGANS appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. MR JUSTICE RICHARDS: On 6th February 2004 at Norwich Crown Court, the applicant pleaded guilty to three offences for which he was sentenced by His Honour Judge Downes as follows: on a count of burglary, to 4 years' imprisonment; on a count of obtaining property by deception, to 12 months' imprisonment, and on a count of blackmail, to 6 years' imprisonment. All those sentences were expressed to be concurrent, therefore producing a total sentence of 6 years. He now renews an application for leave to appeal against sentence following refusal by the Single Judge. 2. The facts of the offences are these. The complainant was a 34 year old man who had suffered from schizophrenia since university. He had lived independently in a flat since May 2002 and had recommenced his studies. On 15th July 2003 he went on holiday with his parents, leaving his property locked and secured. He returned on the evening of 31st July to find that his home had been broken into; a window had been broken in order to gain entry. There had been an untidy search of all the rooms and property to the value of £6,000 had been stolen. Also taken were personal items and private documents which indicated his medical difficulties. It was subsequently established that the burglary had been committed by the applicant who was a near neighbour of the complainant. 3. On 24th October 2003 the applicant applied for a credit card with documents containing financial details of the complainant and he succeeded in obtaining property to the value of £129. 4. On 14th November 2002 the complainant received a hand delivered letter, subsequently found to have been written by the applicant, demanding £800. The money was to be placed at a specified location by 6.00 pm that evening. The letter contained threats that the author would let people on the estate know that the complainant was a "schizo paedophile" - it also warned him not to contact the police. It stated that the money was wanted to enable the author to take his wife's ashes to Thailand. On 18th November another letter was sent stating that the author was disappointed with the complainant and giving him another chance to follow the same instructions by 6.00 pm that evening. The letter said that if he did not comply with the instructions, he would regret it. 5. The complainant contacted the police and the applicant was arrested at his home. In interview he made full admissions. 6. In the complainant's statement he said that the burglary had been a shattering blow to him and he was very shocked. He was left feeling anxious and unsafe and had to spend time with his parents. He was worried that his flat would be burgled again if he was not there. This resulted in him not leaving his home. He felt his stability had been destroyed, his concentration had been badly affected and he suffered from depression. He was also worried that he would be liable to pay the debt from use of the credit card and his identity would be used to obtain further credit or for other purposes. This exacerbated his feelings of instability and he could not sleep. It is right to note that he was subsequently informed that he would not be liable for the debt. He said that, when he received the blackmail letter, he realised it was from the burglar, who knew a lot about him. He was concerned and horrified by the allegations made against him and felt physically ill. He was aware of the effects that that sort of labelling could have. He found the effect of the blackmail particularly difficult to describe. He said that his earlier feelings were magnified ten-fold, compounded by the potential loss of his home if the threats had been carried out. He felt that he was losing hope of a happy and stable future. He could not believe that the burglar was a near neighbour. This affected his trust in others and the local community. He did not know what the future held for him. The events had a severe emotional affect on him and had affected his concentration so much that he was unable to carry out simple tasks. He had been unable to study and his education classes had suffered considerably. 7. The applicant was born in September 1950 and is therefore now aged 54. He had a total of 16 court appearances between 1969 and 1992, for a very large number of offences, including offences of dishonesty and drug offences. His longest custodial sentence had been one of 3 years' imprisonment, in 1974. He had succeeded in keeping out of trouble, however, since 1992. The pre-sentence report described him as having a troubled background and indicated that much of his earlier offending had been drug related. He had settled down in the 1990s with a wife and son but suffered the grave misfortune that they were killed in a car crash. At the time of these new offences the applicant had fallen back into his old ways and was taking drugs and was abusing alcohol. 8. It is apparent that the offences were motivated by the suspicion that the complainant was a paedophile and there was a premeditated decision to break into the flat to look for evidence. According to the pre-sentence report, the applicant continued to maintain his initial suspicions about the complainant and the report expressed a concern about lack of remorse on the part of the applicant. We are told, however, that by the time of sentencing the applicant had acknowledged that what he was saying was totally baseless and that he was by then remorseful and had indeed written to the complainant. This was accepted by the sentencing judge. 9. One other matter to which we should refer is that the pre-sentence report stated that it was to the credit of the applicant that he had used his time on remand in a constructive way by withdrawing from drugs and alcohol and contacting those who would be able to assist him in putting himself onto a more stable basis for the future. There was also a psychiatric report but it does not add anything material for present purposes. 10. In sentencing the applicant the judge stressed the vulnerability of the complainant, his victim, and the impact that the offences had had upon him. He referred to the deliberate targeting of the victim and said that he proposed to treat the burglary and credit card offences as aggravating features of the blackmail. 11. Mr Du Feu, on the applicant's behalf, has made commendably succinct and well presented submissions to this Court, stressing five points in the applicant's favour. First, that he made full admissions in interview and entered pleas of guilty at the earliest opportunity. Secondly, that he had shown remorse, as we have already indicated. Thirdly, that there was the long gap of some 12 years in his offending between 1992 and the present offences. Fourthly, the personal circumstances of the applicant, including, in particular, the loss of his wife and son, to which we have also referred. Finally, the applicant's constructive attitude as attested to in the pre-sentence report. Having regard to those matters in particular, Mr Du Feu submits that a sentence of 6 years' imprisonment was simply too long. 12. As was said in R v Davis [2004] 1 Cr App R(S) 31 , one of the authorities to which Mr Du Feu referred in his written submissions, the gravity of the offences of blackmail varies considerably according to the circumstances. Here, the deliberate targeting of a highly vulnerable victim made it a particularly serious offence. The effect of the burglary and credit card offences was seriously destabilising. The additional effects of the blackmail offence were plainly traumatic. Even though the allegation of paedophilia had no truth in it, the threat to inform the neighbours had a devastating effect on the victim's confidence and ability to cope with life. In view of his psychiatric condition, this is entirely understandable and was a readily foreseeable consequence of the applicant's conduct in blackmailing him. 13. Having regard to those considerations, and the totality of the offending in this case, we are in agreement with the Single Judge that a sentence of 6 years' imprisonment, although stern, could not be said to have been manifestly excessive. The renewed application is therefore refused.

2004_10_14-335.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/2615/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/2615

40f6724740f935a5fc6b64f5d53d6d7dac434ef63c9a20189f279e7791f8dc79

[2020] EWCA Crim 673

EWCA_Crim_673

2020-05-21

crown_court

Neutral Citation Number: [2020] EWCA Crim 673 No: 201901991/A4, 201901915/A3 & 201901227/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 21 May 2020 B e f o r e: LORD JUSTICE HOLROYDE MRS JUSTICE ANDREWS DBE MR JUSTICE MARTIN SPENCER R E G I N A v PETER ASHFORD R E G I N A v STEPHEN KING R E G I N A v TOBY ROGERS Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS, Tel No:

Neutral Citation Number: [2020] EWCA Crim 673 No: 201901991/A4, 201901915/A3 & 201901227/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday 21 May 2020 B e f o r e: LORD JUSTICE HOLROYDE MRS JUSTICE ANDREWS DBE MR JUSTICE MARTIN SPENCER R E G I N A v PETER ASHFORD R E G I N A v STEPHEN KING R E G I N A v TOBY ROGERS 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 K Walton appeared on behalf of the Applicants King and Rogers (via videolink) Mr S Dyble appeared on behalf of the Applicant Ashford ( via video link ) Mr P Grieves-Smith appeared on behalf of the Crown ( via videolink ) J U D G M E N T (Approved) 1. LORD JUSTICE HOLROYDE: Breach of a sexual harm prevention order ("SHPO") or a sexual offences prevention order ("SOPO") is an offence punishable with imprisonment. It is not however an offence listed in either schedule 3 (sexual offences) or schedule 5 (other offences) to the Sexual Offences Act 2003. A court dealing with an offender for breach of an SHPO or SOPO therefore does not have the power to make a new SHPO. The consequences of that limitation upon the court's powers, and the scope of the court's power to vary an existing SHPO, arise for consideration in each of these three cases. It is for that reason that, although otherwise unconnected, they have been listed for hearing together. 2. We express at the outset our gratitude to all counsel for their written and oral submissions. 3. Peter Ashford, now aged 67, was sentenced on 14 May 2019, in the Crown Court at Ipswich to a total of six years' imprisonment for two offences of breach of a SOPO and three offences of breach of a SHPO. He was also made subject to a SHPO. His grounds of appeal challenge the length of his prison sentence and the lawfulness of the SHPO. His application for leave to appeal against sentence has been referred to the full court by the Registrar. 4. Stephen King, now aged 70, was sentenced on 24 April 2019 in the Crown Court at Croydon to 14 months' imprisonment for one offence of breach of an SHPO. He was also made subject to an SHPO. His grounds of appeal challenge the lawfulness of that order. His application for leave to appeal against sentence has been referred to the full court by the Registrar. 5. Toby Rogers, now aged 26, was sentenced on 4 March 2019 in the Crown Court at Warwick, to a total of three years' imprisonment for one offence of breach of a SHPO and one offence of failing to comply with notification requirements. The judge also ordered that an existing SHPO of five years' duration be extended by 10 years from the date of sentence. His original grounds of appeal challenged the extent of the credit he received for guilty pleas. Leave to appeal was refused by the Single Judge. He now seeks leave to renew his application for leave to appeal on the basis of fresh grounds of appeal which challenge the lawfulness of the extension of the SHPO. 6. Before going into more detail about the individual applications, it is convenient first to set the statutory framework and then to make some general observations. 7. Provision is made in respect of SHPOs by sections 103A – 103K of the Sexual Offences Act 2003, which replaced (with effect from 8 March 2015) earlier provisions relating to SOPOs. 8. Section 103A(1) and (2), so far as material for present purposes, give a court the power to make an SHPO where it "deals with" a defendant for an offence listed in schedule 3 or schedule 5 and is satisfied that it is necessary to make an SHPO for the purpose of protecting the public or any particular members of the public from sexual harm from the defendant. As we have indicated, the offence of breach of an SHPO is not included in either schedule. That fact was overlooked in each of these three cases and, we understand, has been overlooked in other cases as well. Perhaps that is because many would assume that the offence of breach ought to be, and therefore is, included when in fact it is not. That, however, is a matter for Parliament. 9. There is a separate power under subsections (3)-(7) for a magistrates' court, on application by a chief officer of police or by the Director General of the National Crime Agency, to make an SHPO against a "qualifying offender" who has "acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made". Where an application under subsection (4) has been made but has not yet been determined, section 103F gives the court a power to make an interim SHPO for a fixed period specified in the order. 10. By section 103C, an SHPO prohibits the defendant from doing anything described in the order. It has effect for a fixed period specified in the order of at least five years, or until further order. Subsection (6) provides: i. "(6) Where a court makes a sexual harm prevention order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order ceases to have effect." 11. It is necessary to quote in full the provisions of section 103E: i. " 103E SHPOs: variations, renewals and discharges (2) A person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging a sexual harm prevention order. (3) The persons are— (a) the defendant; (b) the chief officer of police for the area in which the defendant resides; (c) a chief officer of police who believes that the defendant is in, or is intending to come to, that officer's police area; (d) where the order was made on an application by a chief officer of police under section 103A(4), that officer. (4) An application under subsection (1) may be made— (a) where the appropriate court is the Crown Court, in accordance with rules of court; (b) in any other case, by complaint. (5) Subject to subsections (5) and (7), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the sexual harm prevention order, that the court considers appropriate. (6) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of — (a) protecting the public or any particular members of the public from sexual harm from the defendant, or (b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom. ii. Any renewed or varied order may contain only such prohibitions as are necessary for this purpose. (7) In subsection (5), 'the public', 'sexual harm, 'child' and 'vulnerable adult' each has the meaning given in section 103B(1). (8) The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and— (a) where the application is made by a chief officer of police, that chief officer, or (b) in any other case, the chief officer of police for the area in which the defendant resides. (9) Subsection (7) does not apply to an order containing a prohibition on foreign travel and no other prohibitions. (10) In this section, 'the appropriate court' means – (a) where the Crown Court or the Court of Appeal made the sexual harm prevention order, the Crown Court; (b) where an adult magistrates' court made the order, that court, an adult magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates' court acting for a local justice area that includes any part of the chief officer's police area; (c) where a youth court made the order and the defendant is under the age of 18, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court acting for a local justice area that includes any part of the chief officer's police area; (d) where a youth court made the order and the defendant is aged 18 or over, an adult magistrates' court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates court acting for a local justice area that includes any part of the chief officer's police area. ii. In this subsection ‘adult magistrates' court' means a magistrates' court that is not a youth court." 12. Section 103I, so far as material for present purposes, makes it an offence for a person, without reasonable excuse, to do anything which he is prohibited from doing by an SHPO, an interim SHPO or an SOPO. A defendant guilty of such an offence is liable on summary conviction to imprisonment for a term not exceeding six months and/or a fine and, on conviction on indictment, to imprisonment for a term not exceeding five years. 13. As we have noted, this offence of breach of an SHPO, etc, is not one of the offences listed in schedules 3 and 5 to the Act. There is therefore no power to make a fresh SHPO where a court is dealing with a defendant solely in respect of an offence of breach of an SHPO, etc, or in respect of an offence of breach and another offence or offences, none of which are listed in schedules 3 and 5. In R v Hamer [2017] EWCA Crim 192 , [2017] 2 Cr App R 13 this court confirmed that that was so, and went on to consider whether the same prohibitions could have been imposed by amending the existing SOPO. The then provisions of section 108 of the 2003 Act made provision for variation of SOPOs in terms which are materially identical to the present section 103E. It was held that there had been no valid application complying with the requirement that the application be made by a chief officer of police. There was, therefore, no power to vary the existing order. 14. It may be noted that in R v Hamer there had been other procedural deficiencies, including a failure to give the defendant notice of an application to amend the existing SOPO: rule 31.5 of the Criminal Procedure Rules, applicable both to magistrates' courts and to the Crown Court, requires service of a written application, and the application cannot be granted unless the persons required to be served have had at least 14 days in which to make representations. In view of its decision that the application had not been made by a person entitled to apply, the court did not need to reach any conclusion about those other deficiencies. It is not clear from the judgment whether any point was taken as to whether, in any event, the Crown Court would have jurisdiction to vary an SOPO made by a magistrates' court. 15. Section 103E, which we have quoted in full, is prescriptive as to the only persons who may make an application for a variation of an SHPO, and as to the court to which any application must be made. 16. In R v Ashton [2006] EWCA Crim 794 , [2007] 1 WLR 181 this court considered the legal consequences of an irregularity in the way an accused came to be sentenced in the Crown Court. It referred to the earlier decisions in R v Sekhon [2003] 1 WLR 1655 and R v Soneji [2006] 1 AC 340 and concluded [at 4, 5] that: i. "... it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ('a procedural failure'), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue. ii. 5. On the other hand, if a court acts without jurisdiction - if, for instance, a magistrates' court purports to try a defendant on a charge of homicide - then the proceedings will usually be invalid." 17. The court accepted a submission that the approach to such issues is to avoid determining cases on technicalities when they do not result in real prejudice and injustice and to ensure that they are decided fairly on their merits. 18. It does not appear that R v Ashton was cited to the court in R v Hamer . It is however clear that the court in R v Hamer regarded a contravention of the statutory provision as to who might make the application as going to the jurisdiction of the court. We respectfully agree. In our view, it is to be inferred from the terms of section 103E that Parliament intended that a court should only have jurisdiction to vary an existing order if the application was made by one of the persons whom the section permits to make it, and made to the court prescribed by the section. If Parliament had intended otherwise, it could easily have legislated in more permissive terms, to the effect (for example) that a court may vary an SHPO on application by the prosecutor. We think it significant in this respect that when SHPOs replaced SOPOs in 2015, Parliament chose to enact section 103E in materially the same terms as the predecessor legislation. 19. We take a different view, however, of Parliament's intention in respect of the requirements of section 103E(3) as to the form of the application and as to strict compliance with all applicable rules of procedure. A failure to comply with one of those requirements can in our view be regarded as a procedural defect, not intended to invalidate the proceedings, and to be addressed in accordance with the principles stated in R v Ashton at [4]. 20. It follows from what we have said that the Crown Court does not have power under section 103E to vary, renew or discharge an SHPO which was made by an adult magistrates' court or a youth court. It does not, however, follow that in such circumstances there must always be a separate hearing in the magistrates' court or youth court. By section 66 of the Courts Act 2003 a Circuit Judge or Recorder has the powers of a District Judge (Magistrates' Courts) in relation to criminal causes and matters. Provided that an application under section 103E has been made to the prescribed court by one of the persons who is permitted to make it, a judge or recorder dealing with the defendant in the Crown Court may be invited to exercise the power of a District Judge (Magistrates' Courts) sitting in that prescribed court to grant a variation pursuant to section 103E. 21. The final situation which we must consider is that of an offender who has previously been sentenced for an offence listed in schedule 3 or schedule 5 and was made subject to a suspended sentence of imprisonment and an SHPO. If he is subsequently convicted of a breach of that SHPO and consequently falls to be dealt with for breach of the suspended sentence order, but is not also before the court for any offence listed in schedules 3 and 5, can the Crown Court make a fresh SHPO? In our view, it cannot. Where an offender is convicted of an offence committed during the operational period of a suspended sentence, the court is required to deal with him in one of the four ways specified in paragraph 8 of schedule 12 to the Criminal Justice Act 2003. In doing so, the court is not "dealing with the defendant in respect of an offence listed in schedule 3 or 5" for the purposes of section 103A: it is imposing upon the defendant the consequences of his reoffending during the operational period of the suspended sentence. An SHPO made when the suspended sentence was imposed remains in force unless and until action is taken to revoke or vary it. 22. We now turn to consider the individual cases. 23. Mr Ashford had been made subject to an SOPO by a magistrates' court on 2 August 2010. He had been released in March 2010 from a lengthy prison sentence and his behaviour had caused the police to apply for an SOPO. He was quickly in breach of the order and on 13 January 2011 was sentenced to three years' imprisonment for four offences of breach. 24. On 9 January 2019 he was sentenced by a magistrates' court to a suspended sentence of 16 weeks' imprisonment for offences of failure to comply with notification requirements and sending an obscene communication. The latter offence is listed in schedule 5 to the Act, and the magistrates' court exercised its power to make a new SHPO to continue until further order. He was prohibited from, amongst other things, "contacting or communicating with any female child under the age of 16 years by any means". Paragraph 7 of the SHPO prohibited him from "loitering within 20 metres of playgrounds, parks or designated play areas where children under the age of 16 may be present". We are surprised that it was thought appropriate to use such an imprecise term as "loitering" to define the prohibited conduct. 25. Almost immediately, Mr Ashford breached that new order. It appears that he regularly walked his dog in a particular area at a particular time of day, and he had since September 2018 had a number of meetings with a woman and her six-year-old daughter who were walking their dog. He had given the girl gifts of painted stones and sweets. He continued to talk to the girl (always in the presence of her mother) on at least six further occasions between the new SHPO being imposed on 9 January, and 24 January when he was seen by a police officer. These events were charged on indictment as two offences of breaching the SOPO of August 2010 and two offences of breaching the SHPO of January 2019. 26. On 30 January 2019, Mr Ashford was seen near the playing field of a primary school. He was there for about half an hour in company with another man who had a camera with a zoom lens, which was said to be used to photograph wild flowers. On 16 April 2019 he was convicted by a magistrates' court of an offence of breaching paragraph 7 of the SHPO and was committed to the Crown Court for sentence for that offence. The breach of the suspended sentence order was to be dealt with by the magistrates' court. 27. On 14 May 2019 in the Crown Court, Mr Ashford pleaded guilty to the offences charged on indictment. 28. The judge was faced with a more difficult sentencing process than he should have been. It appears that much of the relevant material had not been uploaded onto the Digital Case System or had only been uploaded at a very late stage. Perhaps for that reason, the prosecution opening of the facts lacked clarity. In the course of it the judge, on learning of the terms of the SHPO of 9 January 2019, suggested that the terms of paragraph 7 were ambiguous and invited the prosecution advocate to redraft it so that defence counsel could decide whether to "consent to that amendment". An amended draft was later agreed between counsel. 29. Mr Ashford has previous convictions as a young man for offences of dishonesty, but more importantly he also has convictions over many years for offences reflecting his sexual interest in children. Those convictions include offences of unlawful sexual intercourse with girls aged under 16, offences of indecent assault on a female and offences of buggery and attempted buggery. A pre-sentence report assessed a very high risk of sexual recidivism and a high risk of harm to children. It noted that when supervised in the past, Mr Ashford had sought to minimise the seriousness of his offending and had denied any sexual intent. 30. The judge commented in his sentencing remarks that Mr Ashford had continued to reoffend despite the sentences and orders imposed by the courts and assessed him as being unable to avoid communicating with very young children, despite the courts' attempts to prevent him from doing so. The judge placed each of the offences in the highest category of the relevant definitive guideline, with a starting point of three years' custody and a range up to four-and-a-half years. He concluded that there was no prospect of reform or rehabilitation, that Mr Ashford was a danger to young children and that his primary duty was to protect the public from further harm. As to the suspended sentence imposed on 9 January 2019, which he mistakenly said was a term of four weeks, the judge said: i. "If I'm required to sit as a district judge under section 66 of the [Courts] Act, then I do so. And I will send that suspended sentence breach to myself and deal with it at the same time. But I emphasise that Mr Dyble had no objection to me doing that in any event, to provide a speedy resolution to your criminal course of conduct. And therefore, I sentence you for those matters on the indictment for which you pleaded guilty, the committal for sentence in respect of loitering within 20 metres of the play area. And for the breach of the suspended sentence order." 31. The judge had regard to totality. He sentenced Mr Ashford to concurrent terms of three years' imprisonment for each of the two breaches of the SOPO. He also imposed sentences of three years' imprisonment for each of the two breaches of the SHPO charged on indictment and for the third breach which was the subject of the committal for sentence. Those sentences were concurrent with each other but consecutive to the other sentences. As to the breach of the suspended sentence, the judge said this: i. "... there's absolutely no reason why that shouldn't be activated in full, making a four-week sentence to be imposed but that too will run concurrently with all other sentences." 32. Thus, the total prison sentence was six years. 33. The judge was satisfied with the amended terms which counsel had agreed in relation to paragraph 7 of the SHPO and said: i. "The sexual harm prevention order, which continues to run indefinitely, will be amended in paragraph 7 so that it reads that you are prohibited from being within 20 metres of playgrounds, parks or designated play areas." 34. The grounds of appeal are that the total sentence was manifestly excessive in length, in particular because the judge placed the offences in too high a category when applying the guideline and wrongly imposed a consecutive sentence, and that the variation of the SHPO was unlawful. The respondent submits that the total sentence was just and proportionate to the seriousness of the offending. 35. We consider first the challenge to the length of the sentence. In terms of the Sentencing Council’s definitive guideline, we agree with the judge that each of the breaches of the SOPO and the SHPO fell into Category A culpability. We see some force in Mr Dyble's submission that the harm fell short of Category 1 and should have been in Category 2, so that the starting point for a single offence would be two years with a range up to three years. We are however unable to accept that the total term of six years was manifestly excessive. There were repeated offences which continued even after the fresh SHPO had been made, and each offence was seriously aggravated by the many previous convictions for sexual offences against young children. Even if the judge had taken the Category A2 starting point for any one offence, he would have been entitled to adjust that starting point upwards to reflect the aggravating features; and there was no error of principle in making one group of sentences consecutive to the other. The Totality guideline requires the court to impose a total sentence which, whatever its precise structure, reflects all the offending behaviour and is just and proportionate. The total sentence was stiff, but there is, in our view, no ground on which it can be argued that it was disproportionate. 36. As to the suspended sentence, there was no power to commit that separately to the Crown Court for sentence and therefore the course suggested by the judge, in the remark which we have quoted, could not have been taken. The judge was, however, empowered by section 66 of the Courts Act 2003 to exercise the powers of a District Judge and so to deal with the breach of that suspended sentence as a magistrates' court. The judge clearly fell into error as to the total length of the suspended sentence which had been imposed on 9 January 2019. Nonetheless, the order which he pronounced was that the suspended sentence should be activated in full. The effect, in law, was that he activated the total term of 16 weeks but ordered it to run concurrently with other sentences. 37. As to the SHPO, it follows from our general observations that the judge had no power to make a fresh SHPO. He had no power as a Crown Court judge to vary the SHPO made by a magistrates' court. No application under section 103E to vary the SHPO had been made to the appropriate magistrates' court and the judge therefore could not exercise the power of a District Judge in that regard. In any event, given that the offence of breach of the SHPO had been the subject of a committal for sentence, there was, as we have said, no power for a magistrates' court or a District Judge to commit the breach of the suspended sentence order alone to the Crown Court for sentence. In those circumstances the judge could not make the purported variation of the SHPO, which was accordingly of no effect. 38. It follows that the SHPO continued in the terms ordered by a magistrates' court on 9 January 2019. We agree with the judge that the terms of paragraph 7 are ambiguous and inappropriate. Any variation of them must however be the subject of a separate application properly made to the appropriate magistrates' court. 39. In the result, our order in Mr Ashford's case is as follows. We grant leave to appeal. We allow the appeal to the limited extent that we quash the order purporting to vary the terms of the SHPO of 9 January 2019. The sentences of imprisonment remain as before. We direct that the Crown Court record be amended to show that the total suspended sentence of 16 weeks, not 4 weeks, was activated in full but ordered to run concurrently with other sentences. 40. We turn to the case of Mr King. Originally, his grounds of appeal were limited to a challenge to the width of one of the prohibitions contained in the SHPO. Additional grounds have however been prepared as a result of the Registrar’s alerting the parties to other issues. Leave is now sought to rely additionally on those amended grounds, which argue that there was no power to impose a new SHPO and no power to vary the existing order. 41. Mr King has convictions over five decades for many offences, the majority being for sexual offences. His previous convictions include offences of sexual intercourse with a girl aged under 13, gross indecency with a child, indecent assault on a female aged under 14 years and offences relating to indecent images of children. 42. On 3 December 2016 an interim SHPO was made by a magistrates' court. A final order, to continue until further order, was made on 15 December 2016. It prohibited Mr King from, amongst other things, having contact with "any other registered sex offender" without prior approval from the local Public Protection Unit. In June 2017, and again in September 2017, he was sentenced to terms of imprisonment for offences of breaching the order. One of his breaches involved his having contact with his friend Mr Cater, a registered sex offender. 43. Whilst serving the sentence imposed in September 2017, he continued to have contact with Mr Cater, by phone calls from the prison. On 20 March 2019 he pleaded guilty before a magistrates' court to that offence of breach of the SHPO and was committed for sentence to the Crown Court. On 24 April 2019, in the Crown Court, he was sentenced to 14 months' imprisonment for the offence of breach. As we have indicated, there is no challenge to the length of that sentence, and it is therefore unnecessary for us to say anything more about that. We focus on the SHPO which the judge purported to make. 44. It appears that a Detective Constable had made a statement or written submission seeking a variation of the terms of the existing SHPO. That was not an application by a chief officer of police, and it was made to the Crown Court rather than to the magistrates' court which had made the existing SHPO: it therefore failed to comply with the requirements of section 103E. Prosecution counsel nonetheless put forward this application to the judge and it appears to have been the subject of some discussion during the hearing. In his sentencing remarks, the judge said: i. "You will be subject to the Sexual Harm Prevention Order, a new one. That is the one we have just discussed, with those amendments suggested by your counsel, and that will last for an indefinite period of time." 45. The SHPO which the judge purported to impose included, at paragraph 13, a prohibition on contact with "a registered sex offender or convicted sex offender". The original ground of appeal challenges that part of the order on the basis that it would unfairly prevent Mr King from having contact with his friend even if Mr Cater's name is removed from the sex offender register and would thereby improperly subvert the notification regime. 46. In the additional grounds of appeal, it is submitted that the judge clearly stated that he was imposing a new SHPO, but he had no power to do so. Nor was there any power to vary the existing SHPO because no proper application had been made to the appropriate court by a person entitled to make it. 47. The respondent accepts these submissions. It follows from the observations which we made much earlier in this judgment that we too accept the submissions as correct. The judge had no power either to make a fresh SHPO or to vary the existing one. 48. The respondent – understandably anxious that the consequence of quashing the SHPO made by the judge might be to leave Mr King free from any SHPO - draws attention to the magistrates' court's record for 20 January 2019. This shows that the District Judge who committed Mr King to the Crown Court for sentence purported to grant an application to discharge the SHPO made on 15 December 2016 and revoked that order; and purported to make an interim SHPO "for 6 weeks or until the main application is determined". This interim order prohibited Mr King (subject to the usual savings) from having contact of any kind with "any other registered sex offender or convicted sex offender". 49. In our judgment, the District Judge had no power to make either of those orders. As we have noted, section 103E(7) limits the circumstances in which an order may be discharged before it has been in force for five years: those circumstances could not apply in Mr King's case because there was no application by a chief officer of police. The power to make an interim SHPO only arises where a valid application to vary has been made but not yet determined; and, as is now common ground, there was here no valid application to vary. 50. In those circumstances, the respondent invites this court either to make no order on the application for leave to appeal, or to reconstitute as a Divisional Court and quash the orders purportedly made by the District Judge on 30 January 2019, thus restoring the SHPO made on 15 December 2016. It is implicit in this second invitation, and counsel Mr Grieves-Smith confirmed in his oral submissions, that if there was an application for judicial review of the District Judge's orders, it could not and would not be resisted by the defendant magistrates' court. 51. We do not think it appropriate to take the first of the two proposed courses. We do not accept the submission that the making of no order could be justified by reference to the decision of this court in R v Reynolds [2007] EWCA Crim 538 , [2008] 1 WLR 1075 . The court there was dealing with a very different situation where a judge had passed a sentence which was valid and effective but was less severe than the sentence which should have been imposed in accordance with mandatory sentencing provisions. The court was unable to substitute the sentence required by those provisions, because to do so would breach the restriction in section 11 of the Criminal Appeal Act 1968, but was able to respect the judge's finding of dangerousness by leaving in place the sentence which had been imposed. Here, in contrast, the procedural history which we have briefly summarised has involved a succession of errors, culminating in an order which we have found to have been made without jurisdiction. In all the circumstances of this case, it would not be right to take a course which would leave that order in place. 52. We are however persuaded that the second course is appropriate. 53. For those reasons, my Lady Andrews J and I reconstitute ourselves as a Divisional Court of the Queen's Bench Division, Administrative Court. We treat the Form NG1 and amended grounds of appeal as an application by Mr King for judicial review of the District Judge's orders of 30 January 2019. We dispense with service, dispense with the need for an acknowledgment of service and waive all time limits. We are satisfied that the District Judge's orders on 30 January 2019 purporting to revoke the SHPO of 15 December 2016 and to make an interim SHPO were unlawful. We quash those orders. 54. Returning to a constitution of three judges of the Court of Appeal, Criminal Division, we grant leave to appeal. We allow the appeal to the extent that we quash the SHPO purportedly made by the judge. The sentence of imprisonment remains as before. 55. The consequence of our orders is that Mr King remains subject to the SHPO of 15 December 2016. Any application to vary the terms of that order must be made to the appropriate magistrates' court by a person who is permitted to make it. 56. We turn finally to the case of Mr Rogers. On 20 March 2015, having been convicted of a number of sexual offences, he was made subject by the Crown Court to an SHPO for five years. The terms of the SHPO prohibited him from seeking, or being in, the company of any child under the age of 16 "other than that which is inadvertent and unavoidable in the course of the defendant's lawful daily activities or with the prior written permission of the relevant child's parent or guardian (who has been informed of the defendant's convictions) and the prior written permission of the social services or the chief constable for the area concerned." Within months, he began a relationship with a woman who had children aged six and four. He pleaded guilty in January 2017 to four offences of breach of the SHPO and one of breach of the notification requirements. He was committed for sentence to the Crown Court where, on 24 March 2017, he received a total of 20 months' imprisonment. The SHPO remained in force. 57. He was released on licence from that sentence in September 2017, but recalled to prison a year later. He had formed a relationship with a woman who had children aged 10 and eight and had on a number of occasions stayed overnight in her home. He resumed that relationship upon his release in October 2018. 58. On 12 October 2018 he pleaded guilty before a magistrates' court to an offence of breaching the SHPO by staying overnight with his partner on five occasions and an offence of failing to comply with notification requirements. He was committed for sentence to the Crown Court, where on 4 March 2019 he was sentenced to three years' imprisonment for the breach offence and 12 months' imprisonment concurrent for the notification offence. In addition, the judge purported to extend the duration of the existing SHPO. 59. The judge held that the breach offence fell into Category A1 of the guideline. Having regard to the aggravating features of the offence, the appropriate total sentence after trial would have been 45 months' imprisonment. The judge gave credit of one-quarter for the guilty pleas. 60. The original grounds of appeal did not challenge the length of the notional sentence after trial but argued that the level of credit was insufficient. Leave to appeal on that basis was refused by the single judge, and that application has not been renewed to the full court. Instead, leave is sought to add a fresh ground of appeal to the effect that the judge had no power to make the SHPO. 61. Prosecuting counsel in his opening address had said that the current SHPO "needs addressing". He apologised for the fact that he had not had time to draft "a fresh order", but indicated that there was nothing in the existing order which needed to be amended except the end date. 62. The judge in his sentencing remarks said: i. "I am going to extend the sexual harm prevention order; it is going to last from ten years from today, ten years from today. The sexual harm prevention order in the same terms that it was made on the earlier occasions as are uploaded will be in existence." 63. It is common ground between the parties, and we agree, that the judge had no power to make a fresh SHPO. However, we accept the submission that the judge in his sentencing remarks did not purport to do so, but rather to vary the existing SHPO by extending its duration. The order which was drawn up in the Crown Court was in ambiguous terms, apparently referring both to a new order and to an extension of the existing order; but the order of the court is that which was pronounced by the judge. 64. As to whether the judge had power to vary the existing order, the respondent submits that there was substantial compliance with the requirements of section 103E, such that it would be appropriate for this court to make no order on the application for leave to appeal, thus permitting the SHPO, as extended in duration by the judge, to remain in force. The respondent relies on the fact that at an early stage of proceedings a Detective Sergeant who compiled a form MG5 case summary noted the following in a section of the form headed "Application for order(s) on conviction": i. "Order applied for: SOPO ii. Application for extension of sexual harm prevention order (SHPO) iii. Conditions: continuation of current conditions". 65. It is submitted that the intention of the prosecution to seek an extension of the SHPO was thus made clear to Mr Rogers at an early stage and there was ample time for him to make representations. 66. We see the force of that argument by the respondent and we acknowledge the practical convenience of approaching the matter in that way. We are conscious that the SHPO of 23 March 2015 has by now expired and that accordingly, if the judge's order is quashed, there will be no SHPO in force unless and until a fresh application is made. We are not however able to accept the submission. Just as there was ample time for the defence to consider the prospect that an extension might be sought, so there was ample time for the prosecution to ensure that any application was correctly made by the appropriate person. If the only deficiencies were those relating to compliance with the Criminal Procedure Rules, the position might be different, though even then it would be necessary to give careful consideration to the facts that no written application for an extension was ever made to the Crown Court (or any court) and that the first formal indication of any such application was given orally by counsel towards the end of his opening, in the muddled terms to which we have referred. But, consistently with the decision in R v Hamer and with our observations earlier in this judgment, there is in our view no escape from the fact that the application was not made by a chief officer of police. We accept that in principle a chief officer of police may authorise one or more junior officers to make written applications for variations on his behalf and in his name; and we accept that when the application has properly been made, it can be presented in court by the prosecution advocate. But there is no suggestion in this case (or indeed in Mr King's case) that there was in fact authorisation of r junior officer to make an application on behalf of and in the name of the chief officer. All that happened here was that the prospect that an extension of the SHPO would be sought was mentioned by the Detective Sergeant in the case summary. The only application was that made orally by the prosecuting advocate. 67. For those reasons, the order which we make in Mr Rogers' case is as follows. We grant leave to vary the grounds of appeal and leave to appeal. We allow the appeal to this extent: we quash the order purporting to extend the SHPO. The prison sentence remains as before. 68. As these three cases illustrate, sentencing in cases of breach of an SHPO can give rise to a number of difficulties. We are very conscious of the pressures on busy judges and advocates, and that these are matters which may fall to be dealt with at the last stage of proceedings, often following shortly after the verdict of a jury. We hope that this judgment will alert them to some of the potential pitfalls. 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_05_21-4901.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2020/673/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2020/673

01d18c9f1ff4e9d3f60dcfa3bd67459f388214d97232e20358ee7cdc5f498cec

[2018] EWCA Crim 2501

EWCA_Crim_2501

2018-10-24

crown_court

Neutral Citation Number: [2018] EWCA Crim 2501 Case No: 2017/05151/B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/10/2018 Before : LORD JUSTICE HICKINBOTTOM MRS JUSTICE WHIPPLE DBE and THE RECORDER OF WESTMINSTER HER HONOUR JUDGE DEBORAH TAYLOR Between : REGINA - and - MARK HODGE (Transcript of the Handed Down Judgment. Copies of this transcript are available from: WordWave International Limited A Merrill Communications Company 165 Fleet S

Neutral Citation Number: [2018] EWCA Crim 2501 Case No: 2017/05151/B1 IN THE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 24/10/2018 Before : LORD JUSTICE HICKINBOTTOM MRS JUSTICE WHIPPLE DBE and THE RECORDER OF WESTMINSTER HER HONOUR JUDGE DEBORAH TAYLOR Between : REGINA - and - MARK HODGE (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 Ali Naseem Bajwa QC appeared on behalf of the Applicant Ms Michelle Heeley QC appeared on behalf of the Crown Hearing dates : 24 October 2018 Judgment As Approved by the Court Crown copyright © LORD JUSTICE HICKINBOTTOM : 1. This appeal concerns offences to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. Consequently, no matter relating to the complainant (to whom we shall refer as “B”) shall be included in any publication if it is likely to lead members of the public to identify that person as the victim of any of those offences. This prohibition shall last during her lifetime, unless it is waived or lifted in accordance with s.3 of that Act . 2. On 22 June 2015 in the Crown Court at Birmingham (His Honour Judge Bond and a jury), the Applicant was convicted by a variety of unanimous and majority verdicts of five offences, namely two counts of rape (COUNTS 1 and 2), one count of assault by penetration (COUNT 3) and two counts of sexual assault (COUNTS 4 and 5). On 30 June 2015, he was sentenced by Judge Bond to a total of 11 years' imprisonment. He now seeks leave to appeal against conviction, his application having been in part refused and in part adjourned to the full court by the single judge. 3. At the relevant time, the Applicant was 49 years old and a man of good character. He was senior partner in a firm of solicitors, and married with three young children. The complainant's mother, A, worked at his firm. 4. On 14 October 2013, the Applicant, A, and her daughter B went out to celebrate B's 18th birthday. During the course of the evening, they each consumed a large amount of alcohol. B became "really drunk". 5. In the early hours of the following morning, the three of them returned to the family home of A and B, where it had been pre-arranged that the Applicant would spend the night. A went to bed. The Applicant went to the kitchen to make a cup of tea for B. What happened that evening to that point was uncontentious; but, in respect of what happened next, the accounts of the Applicant and B substantially diverged. 6. It was the prosecution case that the Applicant, in the kitchen while making tea, hugged and kissed B twice (COUNT 4). She pulled away, but he put his hand up her skirt and his finger into her vagina (COUNT 3). They thereafter moved into the living room, where B's clothes were removed. The Applicant was also naked. He kissed her, fondled her breasts and licked her vagina (COUNT 5). He then put his penis into B's face and ordered her to put it in her mouth. She repeatedly told him "no"; but he proceeded to put his penis into her mouth in any event, without her consent (COUNT 2). She pulled away, but he then proceeded to put his penis into her vagina also without her consent (COUNT 1). 7. We pause to note that the jury found the Applicant guilty of all counts, but they gave a special verdict in relation to COUNT 5 to the effect that they were not sure that the Applicant had licked B's vagina. So far as this appeal is concerned, that is of no direct moment; but it does show the care with which the jury considered their verdicts. 8. Returning to the morning of the incident, between 01.24 and 07.00, B exchanged a number of text messages with her friend, C. The first text read: "Please help me". Later, B intimated to her that, despite her makeup and clothes being there, she did not want to enter the room in which the Applicant was sleeping; and she asked C to look after her. 9. At 08.33 that morning, the Applicant sent B a text message: "Very kind of you last night to invite me out. Had a good time. Hope you are feeling okay today. I'm not feeling too bad at the mo. Your mum looks shit". B did not reply. B went to school that day and she told C that the Applicant had raped her. 10. On 20 October 2013, six days after the night of the incident, the Applicant sent B a text message: "Hi, [B]. Fancy baby-sitting for me on Saturday xx". 11. On 22 October 2013, the Applicant and his children visited B's family home. Neither the Applicant nor B made any mention to each other or to anyone else as to what had happened 12 days earlier. 12. On 3 November 2013, three weeks after the incident, B told her sister, D, that the Applicant had raped her. B then told her parents, and they informed the police. The following day the police spoke to B, but she said she would not support a prosecution. However, on 6 November 2013, she gave the police an ABE video interview in which she said she would now support a prosecution. The same day the Applicant was arrested. He gave a "no comment" interview and was released on bail. 13. On 9 November 2013, the police seized cushions from the sofa in B's living room, i.e. the sofa upon which B said the rape had taken place. Upon forensic examination the Applicant's semen was found on one of the cushions. 14. On 8 January 2014, the police again interviewed the Applicant. They had by now disclosed to him the recovery of his semen from the cushion. It seems that he did not expect semen to be found, because he accepted in his oral evidence at trial that the day after the incident he had checked the sofa and found no semen staining where the incident the previous night, whatever form it had taken, had occurred. In any event, the Applicant remained silent during his interview; but read a prepared statement in which he described the allegations as "distressing". That made no reference to any incident occurring that evening. 15. However, later he was charged; and, in his defence statement, he provided an explanation for the presence of semen on the cushion. He said that he had fallen asleep on the sofa in shirt and pants, and woke up to find B masturbating him. He woke upon ejaculating. He never consented to that act. That was the version of events he maintained at trial. 16. The versions of events maintained by B and the Applicant respectively did not allow for mistake. In terms of the substance of their accounts, at least one was lying. It was the jury's task to consider whether the prosecution had satisfied them so that they were sure that B was telling the truth. 17. On the basis of the Applicant's account, B had sexually assaulted him by masturbating him without his consent whilst he was asleep. The two grounds of appeal relied upon by the Applicant, through Mr Bajwa QC, turn on the differences between how the judge dealt with evidence relating to B as complainant and evidence relating to the Applicant, also (he submits) in effect a complainant. 18. First, he submits that, although the judge warned the jury about the danger of stereotypes and assumptions in relation to B as a complainant and the Applicant as alleged perpetrator of rape (see transcript vol IV, page 43A-D), he erred in failing to warn the jury about the risk of approaching the evidence in relation to the Applicant's allegation that he was sexually assaulted by B with such preconceptions or assumptions. The error was more pointed, he submits, because i) the warning that was given was overtly targeted at B's complaint and only that complaint; ii) and the judge questioned the Applicant (at transcript vol III, pages 78A 79E) about why he (the Applicant) did not ask B at some stage why she had sexually assaulted him the way he maintained she had – to which the Applicant responded, in effect, that he felt embarrassed by the incident, he wished to have a return to normalcy and he also did not have an appropriate opportunity. The Applicant said that he could not speculate as to why B might have done such a thing, although it was suggested that it might be as a result of B falling out with her parents. This questioning, Mr Bajwa submits, whilst not objectionable in itself, compounded the judge’s error of not warning the jury about making assumptions in respect of B as an alleged sexual offender and the Applicant as a complainant. 19. The single judge refused leave to appeal on this ground. In our view, he was right to do so. At the trial, the Applicant was charged with rape and other sexual offences against B. B was the complainant. The Applicant made no complaint about B to the police, and maintained a "no comment" stance in interview until the disclosure to him of the forensic evidence that semen had been found on the cushion of the sofa on which B had said the rape had taken place. He then made a prepared statement to the effect that nothing had happened sexually between them that evening. Later, in his defence statement, he said that she had masturbated him on that sofa that night whilst he was asleep and without his consent. That was not a complaint. It was his explanation for his semen being found on the sofa. 20. The Applicant as defendant and B as complainant were not required to be treated in exactly the same way, even though the Applicant's explanation was that it was B and not he who was the perpetrator of actions that may have amounted to sexual offences. There are various ways in which the evidence of a defendant and that of a complainant are treated differently. For example, the availability of special measures and a good character direction. These differences reflect a number of matters, for example that the defendant bears no burden of proof and in certain circumstances the complainant properly requires some degree of reasonable protection. As we have indicated, the purpose of the trial was to determine, not whether they believed the Applicant's version of events, but whether they were satisfied to the criminal standard that B's version of events was essentially true. Although that in itself required the jury, before returning a guilty verdict, to consider and reject that the Applicant's version of events might be true, that was the purpose of the trial. The jury were told and reminded several times as to where the burden of proof lay, and that the principal evidence upon which they must base their decision was essentially that of B. 21. In our view, the judge's summing up with regard to these issues cannot arguably be faulted. He set out fairly and fully (at transcript vol IV, pages 42D-G and 44 and following) the Applicant's response to each allegation made by the Crown. In the circumstances of this case, we do not consider anything else further was required. The conviction is not unarguably unsafe on the basis of this ground of appeal. 22. Second, Mr Bajwa submits that the judge erred in the manner in which he dealt with the evidence of the Applicant's wife and colleague with regard to what might be described as "recent complaint", i.e. the complaint that he had been sexually assaulted by B that evening. 23. During the course of the trial, the Crown called recent complaint evidence from B's friend C and her sister D. In his turn, the Applicant called evidence from his wife, E, that on 6 November 2013 (three and a half weeks after the night of the incident and following his return home after his arrest), the Applicant told her that the complainant had masturbated him whilst he was asleep on the sofa; and from a work colleague, F, to the effect on 10 November 2013 (four weeks after the night of the incident and four days after the Applicant's arrest), he had told her that B had put "her hands inside his pants" whilst he was asleep on the sofa. 24. Again, it is submitted that the judge should have treated this evidence of D and F essentially in the same way that he treated the evidence of C and D which spoke of recent complaints of B to them. Mr Bajwa makes no complaint about how the judge treated the evidence of C and D, but he submits that the Applicant was entitled to essentially similar treatment for the evidence of recent complaint upon which he relied. 25. However, as Mr Bajwa accepts, the recent complaint provisions in s. 120(4) of the Criminal Justice Act 2003 , which provide that under certain circumstances a previous statement by a witnesses is admissible as evidence of any matters stated of which oral evidence by him would be admissible, are not applicable here because the condition in s. 120(7) (b) (that the relevant offence is one to which the proceedings relate) is not satisfied. 26. Nevertheless, Mr Bajwa submits that s. 120(2) applies. That provides as follows: "If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible." 27. We accept, at least for the purposes of this application, that that provision does apply here. 28. Ms Heeley QC for the Crown submitted that the reference to "witness" in that provision does not apply to a defendant. However, again for the purposes of this application and in the Applicant's favour, we accept that it does. The Crown's case at trial was that the Applicant had fabricated the allegation that B had sexually assaulted him. He gave evidence. Therefore, his statements to his wife and colleague to which we have referred, if and in so far as they were accepted by the jury, were "admissible as evidence of any matter stated", namely that B had sexually assaulted and masturbated him without his consent on the relevant evening. 29. Mr Bajwa submitted that the judge erred in failing to direct the jury that this was evidence of that matter. In the judge's directions to the jury, he set out the relevant evidence of the two witnesses and then continued: "As I have already directed you, it is a matter for you to determine the accuracy and reliability of each of these witnesses." 30. Mr Bajwa complains that the judge erred in not going on to say that, in so far as this evidence regarding what he told E and/or F was or may have been true, the jury should take that into account in assessing the truthfulness of the Applicant's version of events in the Applicant's favour. That is a narrow point, but one which Mr Bajwa submits is at least arguable for the purposes of this application. 31. However, again, we do not find anything exceptional or arguably wrong with the directions given by the judge; and certainly nothing that arguably might render the conviction unsafe. We consider that as matters were left with the jury, they were at least adequately directed that, to the extent that they found the evidence of either E or F accurate and reliable, that was evidence that they would have taken into account in the Applicant's favour in assessing the truthfulness of his version of events. Any more detailed direction that might have been given, as Mr Bajwa accepts, would have had to have attached various caveats, including the caveat as to the timing of this evidence in the chronology of the events, namely that, to the extent that they considered this evidence might be true, then the Applicant told these two people that he had been assaulted only after he knew of the version of events that B had given to the police albeit before the availability of the forensic evidence. In all of the circumstances, Counsel then representing the Applicant may have preferred the direction that was given rather than a fuller direction that set out, as it must have done, these various caveats. In any event, we consider that the direction that was given to have been adequate. Again, we do not consider the verdicts arguably unsafe on this ground. 32. We consider that Mr Bajwa has made his submissions on the Applicant's behalf as well as they could have been made. However, for the reasons we have given, we are unable to accept that any is arguable. The directions of the judge to the jury were, in our view, unimpeachable. Furthermore, the evidence against the Applicant was strong and his explanation for the damning forensic evidence was, if not fanciful, inherently improbable. Whilst the findings of fact were of course a matter for the jury, on the evidence they had we consider their verdicts are entirely unsurprisingly. In any event, in our view, they are not arguably unsafe. 33. For those reasons this application is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2018_10_24-4423.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2501/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2501

3e6c7137fe5601d2dd2594f6b2d1d1fbe2da0c82b6ddd8d2985be039c14af443

[2006] EWCA Crim 773

EWCA_Crim_773

2006-03-22

crown_court

No: 200502690/B1 Neutral Citation Number: [2006] EWCA Crim 773 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 22nd March 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE ANDREW SMITH MR JUSTICE MACKAY - - - - - - - R E G I N A -v- GILLIAN PAULA BECKINGHAM - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (O

No: 200502690/B1 Neutral Citation Number: [2006] EWCA Crim 773 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Wednesday, 22nd March 2006 B E F O R E: THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE ANDREW SMITH MR JUSTICE MACKAY - - - - - - - R E G I N A -v- GILLIAN PAULA BECKINGHAM - - - - - - - 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 HOCKMAN QC appeared on behalf of the APPELLANT MR A WEBSTERS QC appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: On 21st April 2005, following a 10 week trial at Preston Crown Court, before Poole J, the appellant was convicted, by the jury's unanimous verdict on count 9, of failing to discharge a duty under section 7 of the Health and Safety at Work Act 1974 . The jury failed to agree in relation to counts 1 to 7, which alleged manslaughter. No sentencing has taken place because it is presently contemplated that, in any event, the Crown will seek a retrial of the appellant in relation to manslaughter. 2. The co-accused was the Barrow Borough Council. They, on the direction of the judge, were acquitted on the seven counts of manslaughter which were laid against them as well as against the appellant. The council pleaded guilty to count 8, which lay against them, which was the same allegation as against this appellant, namely, a failure to discharge a duty under, in their case, section 3 of the Health and Safety at Work Act 1974 . The appellant appeals against conviction by leave of the Full Court, differently constituted, following refusal of leave by the Single Judge. 3. In summary, the material events were these. In July/ August 2002 there was an outbreak of Legionnaires disease in the Barrow-in-Furness area. The source of the bacteria which caused it was found to be the cooling towers for the air conditioning and heating system of a building in Barrow-in-Furness which included a theatre, which was operated by the council and was known as Forum 28. The dangers posed by the Legionella bacterium and the conditions giving rise to it were, at the time, well recognised and covered by a Code of Practice issued by the Health and Safety Executive, initially in 1995, and then superseded by an approved Code of Practice L8, in relation to the compliance of building owners with their duties under the Health and Safety at Work Act. 4. The appellant is a qualified architect and she was employed by the council as head of Design Services Group which, among other things, advised and acted for other departments in relation to the maintenance of council buildings. Those duties included negotiating and entering into maintenance contracts for the air conditioning and ancillary equipment in Forum 28. The appellant was nominally subject to supervision from the Director of Development but in practice ran her department without supervision. 5. Until the end of 2000, the air conditioning maintenance contract at Forum 28 was undertaken by a company called Halls through its subsidiary, Streamline. There were concerns with regard to Hall's efficiency and so a quotation was sought from another firm, Interserve. In April 2001 Halls were given notice of termination of their contract. There were a number of meetings, in particular in July 2001, between the appellant and others, in relation to what Interserve should be asked to quote for. The contract negotiated with Mr Maddock, the commercial manager of Interserve, was to start on 1st September 2001. It was the case for the prosecution that that contract did not include, as it should have done, provisions for appropriate testing and sampling of the water, in order that the system could run safely. 6. In January 2002, a Mr MacDonald, who was Interserve's engineer, according to his evidence reported that the cooling towers and plant room needed replacement and that the chemical barrels supplying the automatic dosing system were almost empty, so no water treatment was taking place. From the end of July 2002, the staff at Barrow General Hospital noticed an unusually high number of patients presenting with symptoms which on 1st August were diagnosed as Legionnaires disease. The cooling towers at Forum 28 were shut down on that day and the following day the particular strain of Legionella was identified: the cooling towers at Forum 28 were the only source of that bacterium in the area. It was in consequence that the seven counts of manslaughter were framed relating to seven victims who had, sadly, died having contracted this condition. 7. The appellant was arrested on 6th September 2002. In her first interview she denied having responsibility for the content of the maintenance contract at Forum 28 and she denied responsibility for what had occurred. In a later interview, she denied it was the responsibility of her group to arrange and implement maintenance contracts at public buildings. She suggested that the technical manager, Mr Borthwick, employed at Forum 28 had failed in his duties and that she relied on Interserve to ensure that everything was done properly. 8. In interview, on 10th December, she accepted it was her department's responsibility to arrange for the contract for Forum 28 and that she had assumed an important role, but she claimed that she had no real understanding of the aspects of water treatment which were relevant. She agreed that she had arranged for the provision of water treatment to be removed from the contract. She was critical of senior management for failing to train her properly, and she denied personal responsibility for the outbreak. The Crown's case against her was, in part, that she had, during the course of these interviews, shifted her ground and told lies. 9. So far as count 9 is concerned, the allegation was that, between March 2001 and August 2002, the appellant, as an employee of the council, had failed to take reasonable care for the health and safety of herself and others who might be affected by her acts or omissions at work, thereby exposing such persons to the risk of contracting Legionnaires disease, from the discharge of Legionella bacteria from the cooling towers of Forum 28. 10. The Crown, at the behest of the defence, served ten particulars to support the allegation made in the statement of the offence in count 9. It is unnecessary to rehearse those particulars. They are not in dispute. They include two alleged acts and eight alleged omissions. 11. At the close of the prosecution case, a submission was made on behalf of the defence that there was no case to answer in relation to count 9. The judge rejected that submission. This gives rise to the first ground of appeal, both in its original form and in a proffered amended form, by way of additional grounds postulated a few days ago in Mr Hockman's supplementary skeleton. To that, in a moment, we shall return. 12. The jury was directed, in due course, that they had to be sure that one or more of the particulars was made out and be sure that, by reason of it or them, the defendant failed in her duty to take the required reasonable care for the health and safety of those who might be affected. They were also directed that failures by others did not exempt the defendant from liability and it was for the jury to determine what constituted reasonable care. It was for them to decide, also, as a question of fact, what was and was not included in the terms of the agreement with Interserve. The alleged inadequacies of the summing-up give rise to other grounds of appeal to which we shall shortly come. 13. It is unnecessary for the purposes of this appeal and would be undesirable, in view of the retrial of the appellant which is already contemplated, for us to rehearse the evidence which was heard by the jury and comprehensively reviewed by the judge in his summing-up. 14. The way in which Mr Hockman QC, who did not appear at the trial, presented the case for the appellant to this Court was under three headings. The first, in relation to the contractual aspect of the matter, was in support of the first ground of appeal on which the Full Court gave leave. The contention is that the evidence was such that the judge should not have permitted the case to go to the jury and should have acceded to the submission of "no case" made at the close of the prosecution evidence. It is submitted that the prosecution case on culpability was irremediably undermined by the evidence of the prosecution witnesses, Mr Maddock and Mr Borthwick, to whom we have referred. 15. By the more recently proffered grounds of appeal on this aspect of the matter, Mr Hockman seeks to contend that the summing-up was inadequate in relation to the contractual situation which the jury had to assess and such was the deficiency in the prosecution case, with regard to the contractual position, that the judge ought not to have allowed the case to go to the jury. Mr Hockman, frankly accepts that, in the course of the trial below, Mr Maddock was not questioned along the lines that the only contract was the written contract and therefore such oral conversations as had taken place with the defendant were a non-contractual irrelevance. Mr Hockman further accepts that the contractual points which he now seeks to take were not canvassed before the judge at the time a submission of no case was made. 16. In our judgment, it is not appropriate, in the circumstances of this case, when the contractual position was not evidentially or in submission explored at the trial below, to permit the grounds of appeal to be amplified by reference to that matter at this stage. Focussing, in the light of that observation, on the question of whether or not the material before the jury gave rise to a case to answer, it is, in our judgment, plain that there was a case to answer, in the light of matters canvassed before the jury. It was for the jury to decide whether the water treatment, including the monitoring of the impact of the treatment on bacterial levels, was or was not within the contract between the council and Interserve, as negotiated and not merely facilitated by the appellant. It was for the jury to decide whether, in the light of their conclusions as to that aspect of the matter, there was a consequential breach of the duty of care owed by the appellant. Without seeking to be in any way exhaustive in relation to the prosecution evidence which, as it seems to us, called for an answer, we identify a number of its features. There was exhibit 28, referred to in the summing-up at page 179B, namely the appellant's own note, made after the outbreak had occurred: This indicates, on its face, that dosing/monitoring had been excluded from the Interserve contract. There is exhibit 16, referred to in the summing-up as at page 39, namely the minutes of a meeting on 20th July, at which the appellant was present, at which it appears that it was agreed that checking/dosing should be omitted, as, at that stage, it was contemplated it would be carried out in-house or locally. There was the admission made by the appellant in interview that the decision on 20th July, to withdraw water sampling and dosing from the contract: that is referred to in the summing-up at page 256C. There was also the evidence of Mr MacDonald, to which we have very briefly referred and the evidence from Mr Borthwick. There was also the aspect of the matter that, until after the first interview, the appellant was accepting that water treatment had not been included in the contract and that she was, she accepted at that stage, negotiating the contract. 17. Those matters, which we merely highlight among others, were such as to constitute a case for the jury's consideration. As to the submission that the evidence of Mr Borthwick and Mr Maddock undermined the prosecution case, that, as it seems to us, was entirely a matter for the jury, in the light of what conclusions they reached as to what aspects of that evidence they could accept and as to what impact the evidence they accepted had upon the prosecution case. In that regard, there is a subsidiary complaint made in the grounds with regard to the direction given that the evidence of Mr Maddock required confirmation before it could be relied on. It is apparent from the terms of the direction that it was given by reference to the prosecution being able to rely on the evidence of Maddock. We do not accept Mr Hockman's submission that, that direction having been given, it was incumbent on the judge to give a further direction that the jury could, even absent confirmation, rely upon the evidence of Mr Maddock so far as the defence were concerned. We also reject the allegation that the summing-up was in general terms unbalanced and unfair. In our judgment, it was, in general terms, fair and balanced and it contained many characteristically trenchant observations by the judge, in relation to the shortcomings of others apart from the appellant. As it seems to us, therefore, there is no substance in the first part of Mr Hockman's submissions, either in their written or in their oral form as presented to us. 18. The third heading of Mr Hockman relates to what is, for the most part, contained in ground 5 of the grounds of appeal. It is directed to a criticism of the way in which the judge directed the jury with regard to the duty of care on the appellant and as to possible breach of that duty. The relevant passage is set out in the summing-up at page 18C to H. It is unnecessary to rehearse that passage. Mr Hockman's submission is that, over and above what the learned judge said by way of direction to the jury at that stage, he ought also to have directed them that the appellant was only to be fixed with that level of knowledge of risk that a reasonably careful and conscientious manager in her position at that time, with access to the knowledge available to her at the time ought, in the view of the jury, to have had. He should have warned the jury not to apply an unrealistically high standard of perfection or to use hindsight which would not have been available to the appellant at the time. There is no doubt that some judges, in summing-up a case of this kind, might have given a direction which incorporated some aspects of that. The crucial question, however, is whether, the way in which the judge did direct the jury in the passage we have identified was such as might render the jury's verdict unsafe. In our view, that criticism cannot be sustained. He correctly directed the jury that they were to set the standard of what was reasonable care. He directed them that, in determining that question, they should consider all the circumstances; and he identified, specifically, a number of matters to which they should have regard. He also referred to the significance, potentially, of the acts and omissions of others including the council itself and Mr Maddock. In our judgment, there is no reason for regarding the direction which the judge gave in that passage as impairing the safety of the jury's verdict. 19. There remains however the "options" matter, as Mr Hockman put the second part of his submission. The relevant parts of the summing-up, which give rise to the question of whether this Court's decision in R v Brown 79 Cr App R 115 was adequately reflected, start at page 17. There, having rehearsed the ten particulars, on which the prosecution relied, the judge said: "...all that does is to state, in precise form, the case the prosecution has been presenting and the defence has been meeting ... You do not have to find all elements of the particulars proved against Gillian Beckingham, but you must be sure that one or more of those particulars is made out, and be sure by reason of it or them she failed in her duty to take the required, reasonable care, that is to say care for the health and safety of those who might be affected by her acts or omissions..." At 17G, the judge went on: "Before you can convict the defendant of this count 9, members of the jury, you must be sure of these things. [He identified four matters, the third of which is pertinent]... by way of one or more of the particulars that have been cited in evidence, and of which I have just reminded you, that while acting within the scope of her duty she failed to take that reasonable care." 20. The learned judge, during the course of his summing-up, handed to the jury certain written directions on this aspect of the matter, which are, so far as is presently relevant, in these terms: "In the context of count 9, you should consider the ten particulars of breach of duty by acts or omission alleged by the prosecution in their list of particulars under count 9, together with the evidence of the defendant in response to those particulars. In respect of the particulars of breach, ask yourself in relation to each (a) was this within the scope of duty (b) was she in breach of her duty in respect of that alleged failing. If she was in breach in respect of any one of those alleged failings she is guilty of the offence, under count 9." Mr Hockman submits that those directions ought to have included a further specific direction, in accordance with Brown , that the jury must all be agreed that at least one of the particulars was proved; they must also be agreed which one was proved; and that it was not enough if only some of them were sure on one allegation and others were sure on another, if there was no one allegation on which they were all agreed. Absent any such direction, Mr Hockman submits there were at least ten alternative routes to the verdict of guilty which the jury returned. There may have been no unanimity in relation to one of the ten particulars on which the Crown relied. It may well have been common ground before us that not all the ten particulars were of equal importance and significance. But that was the way in which the case was presented to this jury. The way in which Mr Webster QC, for the Crown, puts the matter is this: he accepts that there is nowhere to be found in the summing-up a single passage in accordance with Brown . But he took us to five separate passages in the summing-up, at page 17G, 20C, 129A, 275E and 277, where, in each case, the judge directed the jury that they must be sure, in relation to one of the particulars which the judge was dealing with in that passage. Mr Webster submits that any jury so directed, applying its common sense, must have concluded that they must be sure in relation to one of the particulars, at least, before they could convict. In the alternative, Mr Webster draws attention to the strength of the prosecution evidence in support of his submission, that, even if there was a non- direction by the judge, the verdict should be regarded as safe. We are unable to accept Mr Webster's submissions. As it seems to us, having regard to the way in which this case was presented by the prosecution, it was incumbent on the judge specifically to direct the jury that they must unanimously be sure that one or more of the particulars relied on as supporting the offence was made out and that this gave rise to a breach of duty under section 7 . 21. In the absence of such a direction, we cannot be sure that the jury's verdict on count 9 would necessarily have been the same. We say this because it is not possible to say, in the light of the directions which the judge gave and did not give, by which route the jury reached their verdict or whether they were unanimous on any of the ten particulars on which the count depended. 22. In those circumstances, this appeal must be allowed and the conviction on count 9 will be quashed. 23. THE VICE PRESIDENT: Mr Webster, what do you say about a retrial in relation to count 9? 24. MR WEBSTER: The Crown does intend to pursue the charges of manslaughter. The matter is due to be heard on 7th April, in this building, for directions. We would seek also to retry the defendant in relation to this count. 25. THE VICE PRESIDENT: Mr Hockman, can you resist a retrial on count 9? 26. MR HOCKMAN: No, my Lord. 27. THE VICE PRESIDENT: Very well, we shall give directions that a new indictment be preferred which will include count 9. It will be preferred within 28 days and a plea will be taken to it within 2 months from today. We shall grant, so far as it is necessary to do so, a representation order for leading and junior counsel and solicitors for the retrial in relation to count 9.

2006_03_22-766.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/773/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/773

f450dadbdd09482e0dbf3e4c90580e316d9bb3e09a721750e255d32c1546a0fe

[2011] EWCA Crim 1174

EWCA_Crim_1174

2011-05-16

crown_court

Neutral Citation Number: [2011] EWCA Crim 1174 Case No: 201001268 D3 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southwark Crown Court MR JUSTICE SIMON T20097396 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/05/2011 Before : LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE TREACY and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between : Ali Dizaei Appellant - and - The Queen Respondent - - - -

Neutral Citation Number: [2011] EWCA Crim 1174 Case No: 201001268 D3 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM Southwark Crown Court MR JUSTICE SIMON T20097396 Royal Courts of Justice Strand, London, WC2A 2LL Date: 16/05/2011 Before : LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION MR JUSTICE TREACY and MR JUSTICE CRANSTON - - - - - - - - - - - - - - - - - - - - - Between : Ali Dizaei Appellant - and - The Queen Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr M Mansfield QC and Mr M Ryder QC (instructed by Ralli ) for the Defendant Ali Dizaei Mr P Wright QC and Mr P Evans (instructed by Crown Prosecution Service ) for the Crown Hearing dates : 22nd and 23rd March 2011 - - - - - - - - - - - - - - - - - - - - - Judgment PLEASE NOTE A re trial has been directed. This judgment may be reported. Further comments on the pending case is subject to the same rules as any other pending prosecution Lord Justice Hughes: 1. In February 2010 the applicant was convicted by a jury of the offences of misconduct in a public office and doing acts with intent to pervert the course of justice. He was at the time a very senior serving police officer. The allegation was that in the course of a minor and wholly personal dispute with a civilian he arrested the man for threatening behaviour when he knew there was no justification for doing so, thus abusing for personal reasons the considerable power given to him for public purposes. 2. After conviction, grounds of appeal were lodged which complained of the admission of certain evidence at the trial. Those were not properly arguable, were rejected as such by the single judge, and are now recognised to have nothing in them. However, the defendant now relies on material going to the general credit of the other party to the personal dispute, who was, inevitably, a principal Crown witness at the trial. It is said that it is material which was not available at trial and which is of such a nature that it renders the conviction unsafe. 3. Very properly, the Crown does not dispute that the material put before this court significantly discredits the witness in his general standing. It contends, however, that the conviction is nevertheless safe. It submits: i) that the important part of the material either was, or could easily have been, available to the defence at the trial and that the defendant must have made a decision either not to investigate it in detail or not to deploy it; and/or ii) that the conviction does not really depend on the evidence of the discredited antagonist, but is soundly based on other evidence which sufficiently shows that whatever may be the general character of the antagonist, he was telling the truth about what happened on the occasion in question. The case at trial 4. During the last few weeks of 2007 and the first part of 2008 there were serial discussions between the defendant, a commander in the Metropolitan Police, and his antagonist, an unemployed man aged 25 who went by the name of Waad Al-Bhagdadi (or sometimes ‘Milad’), about the creation of a personal website for the defendant. There was no dispute that the defendant decided to have the website, nor that he and Al-Bhagdadi met and discussed setting it up, and it was agreed that the defendant frequently supplied Al-Bhagdadi with material which he suggested ought to appear on it. There had been an earlier disagreement resulting in a break in discussions between about mid February and mid May, but they had otherwise lasted from the end of November 2007 until summer 2008. There arose a dispute as to the terms of the discussions and as to what, if any, agreement had been reached. In particular, Al-Bhagdadi’s case was that the defendant had agreed to pay for the website, whereas the defendant said that he had not. 5. On the evening of 18 July 2008, the defendant drove with his wife to an Iranian restaurant in Hammersmith Road which he patronised from time to time and where he clearly knew very well the owner, Mr Eshragi, and some of his staff. The couple arrived at about 21.15. The defendant was either on duty or had been; at all events he was in full uniform initially, then in shirtsleeves from a little after arrival, and plainly visible for the senior policeman he was. They had a meal at a table inside the restaurant and for some of the time the defendant sat at an outside pavement table speaking to various others who came and went. They were still there nearly two hours later at about 23.00 when they were ready to leave and were escorted to their car by Mr Eshragi. Whilst they were sitting in the car about to leave Mr Al-Bhagdadi arrived at the restaurant. It is clear that he too knew the owner and some of the staff; apart from being a patron, he had devised a website for the restaurant. On his arrival, there ensued an argument between him and the defendant, conducted in part through the open passenger side car window and in part on the pavement at the front nearside of the car when the defendant got out of the driver’s seat. The row was about the website, payment, and whether the defendant had or had not let down Al-Bhagdadi by not responding to his calls. Each afterwards said that the other had been the more aggressive. There was no suggestion of any physical contact between the men. 6. This argument came to an end, having lasted something less than two minutes. The defendant went back to his car and Al-Bhagdadi went into the restaurant and sat at a table in the back corner where he spoke to one of the waiters. The defendant did not leave. He emerged from his car again and re-entered the restaurant, visibly carrying in his hand either a radio or a telephone. He ordered Al-Bhagdadi to leave, and returned to his car. Al-Bhagdadi did not want to leave. After speaking to Mr Eshragi, Al-Bhagdadi did leave. By then it was three or four minutes since the defendant had ordered him out, but the defendant was still sitting in the car outside. Al-Bhagdadi turned left along the pavement, without going to the car. Very shortly after he did so, the defendant’s wife got out of the car and went to sit at one of the pavement tables, leaving the defendant sitting in his car and now, clearly, no longer on the point of driving away home. A timed recording showed that near enough simultaneously with Al-Bhagdadi leaving and the defendant’s wife leaving the car, Al-Bhagdadi made a mobile telephone 999 call. He used it to complain, inappropriately for an emergency line but unmistakeably, that he was being bullied by the defendant, whom he named. That call began at 23.12.34. 7. The defendant remained in the car until 23.19.50. In the intervening seven minutes or thereabouts he spoke to Mr Eshragi, and his wife also came to the car at one point. Meanwhile, Al-Bhagdadi had not altogether left the vicinity. It may be that he was still in sight, at or near the corner with Avonmore Road to the left, about 20 metres along the pavement. He must have been using his telephone, because he was still making the 999 call. When at the end of this seven minute period the defendant drove away from the front of the restaurant he admittedly did so having determined to arrest Al-Bhagdadi under section 5 Public Order Act 1986 , that is to say for threatening, abusive or insulting words or behaviour likely to cause another person harassment alarm or distress. He stopped the car, got out and confronted Al-Bhagdadi, by now around the corner in Avonmore Road and still on the telephone to the emergency operator. He arrested him. 8. Events at and outside the restaurant were recorded on its closed circuit television. That plus the recording of the 999 call meant that the bare facts which we have thus far recounted were largely undisputed at the trial. 9. It was not in dispute at the trial that Dizaei had got out of his car and gone back inside the restaurant specifically to order Al-Bhagdadi out. It was common ground that there came a time when Mr Eshragi asked Al-Bhagdadi to leave. There was an issue whether this was because Eshragi was anxious to placate Dizaei or Dizaei was simply helping out Eshragi with no personal input into his intervention, but the resolution of this issue did not depend entirely on Al-Bhagdadi’s evidence. 10. The camera did not show what if anything Al-Bhagdadi was doing after walking away from the front of the restaurant, and during his 999 call, nor did it show what passed between the two men when the defendant drove up to him, got out of the car, and arrested him. 11. It was Dizaei’s case at trial that as Al-Bhagdadi went away towards the corner of Avonmore Road he called out a threat to ‘sort him out’ or ‘beat him up’, gestured offensively towards him from a distance, stood laughing and speaking with patrons sitting outside the next door restaurant, and having gone around the corner looked back several times. This, he said, led to him deciding to arrest him. Al-Bhagdadi’s evidence was that he had stayed in the general area of the corner because he was telephoning his complaint to the police, that he had looked back round the corner once because he heard the defendant shout a threat at him, but that he had himself neither shouted nor gestured offensively. 12. There was a further dispute at the trial as to exactly what happened when Dizaei arrived, in his car, in Avonmore Road, confronted Al-Bhagdadi and arrested him. Dizaei’s case was that Al-Bhagdadi pushed him hard in the chest with the flat of his hand and, when told he was being arrested, poked the defendant once in the abdomen with a sharp object which he said later turned out to be a shisha pipe mouthpiece. Al-Bhagdadi denied doing either thing. By the time of these events, if they occurred, the decision to arrest Al-Bhagdadi had, however, admittedly already been made. There was no doubt that when Dizaei arrived to arrest him, Al-Bhagdadi was still on the telephone to the emergency operator, nor that Dizaei took the telephone from him and told the operator that he was making an arrest and wanted assistance. 13. There were important other strands to the case for the Crown. i) In the immediate aftermath of the arrest, the defendant completed an ‘Evidence and Actions Book’ (‘EAB’) with a longhand account of the incident. This account was arguably inconsistent in some significant respects with the facts, and indeed with the evidence which he later gave. It made no reference at all to the defendant’s connection with, or use that night of, the restaurant. It contained no mention of the defendant going into the restaurant to order Al-Bhagdadi out, but rather asserted that he had noticed the other being refused service. It recorded the assertion that it was only as Al-Bhagdadi was confronted in Avonmore Road and was being arrested, indeed only after he had pushed the defendant in the chest, that he ‘appeared to call 999’. Whilst the defendant told the jury that he did not see the object with which he said he was poked, the EAB asserts that he had looked down just before being poked, and had seen what appeared to be a knife. ii) Acting Inspector Warwick gave evidence that at the scene the defendant spoke of having been ‘threatened’ (not struck) with the pipe mouthpiece. Further he said that there was quite a number of people milling about at the scene and that he ( the Act ing Inspector) announced when standing close to the defendant that the officers should get the names of potential witnesses; at that, he said, the defendant said something in Farsi and almost everyone dispersed, with no attempt by the defendant to ask them to stay. iii) The investigating police officers gave evidence that the defendant told them that he had previously received voicemail calls and/or messages from Al-Bhagdadi which were either threatening or abusive. They said that they asked him to preserve them, but that they were later told that he had unfortunately deleted them. The defendant’s case at trial was that the messages were better described as unpleasant than as threatening but that in any event his calls were routinely deleted for justifiable reasons. iv) The senior officer in charge, Detective Superintendent Cassidy, gave evidence that about a fortnight after the incident the defendant initiated a private conversation with him, said that Al-Bhagdadi had, so he understood from community leaders, confessed and expressed remorse, and asked obliquely but unmistakeably for the prosecution to be dropped. The defendant’s case was that the Superintendent had comprehensively misunderstood the conversation. v) The medical examiner who inspected the defendant’s torso on the night of the incident gave evidence of two (not one) areas of inflammation on the abdomen. She did not think that either was consistent with impact from the pipe mouthpiece. She said that the defendant appeared to be trying to stretch the skin during her examination. She concluded that the marks were more likely to be self-inflicted, for several reasons relating to their appearance and the underlying tissue, which she gave. She was, however, contradicted, at least so far as interpretation of the marks went, by an experienced consultant pathologist called by the defence, whose opinion differed, and it was contended that she had apparently taken into account non-medical evidence in arriving at her conclusions. 14. The foregoing summary is not a complete narrative of the issues and arguments at trial, but illustrates the fact that there were aspects of the Crown case which did not depend on the evidence of Al-Bhagdadi. Also independent of Al-Bhagdadi, and perhaps more importantly, was the contemporaneous evidence of the CCTV and recorded 999 call. The ‘fresh’ credibility material 15. The material affecting Al-Bhagdadi’s general reputation and credibility which is put before us falls into two parts: i) material relating to his origins and entry into this country; and ii) material relating to benefit claims. 16. At the time of the trial Al-Bhagdadi was understood to be of Iraqi birth and his birthday to be 1 June 1985. He was routinely led to state those facts when he gave his evidence, and he incidentally confirmed Iraqi birth when the Judge later made an enquiry about his languages. He also used the name Milad, which was the name by which the defendant knew him. The following facts are now known: i) he was not born in Iraq but in Iran, where he lived throughout his minority; his family was indeed Iraqi but had left Iraq for Iran to avoid the regime of Saddam Hussein not long before he was born; they were not citizens of Iran but were allowed to live there; in Iran they used the family name Maleki, which was used by part of his father’s extended family; ii) his correct date of birth is 16 June 1983, not 1 June 1985; iii) his mother came to the UK before he did and was granted the right to remain here; she said she came directly from Iraq and she also understated his age by two years so that he should appear still to be a minor when she (and he) applied for permission for him to join her; he endorsed that false place and date of birth and en route for the UK via Syria obtained Red Cross identity papers which repeated the false date, using a bogus document obtained in Damascus to do so. 17. It does not, we think, follow that ‘Al-Bhagdadi’ is properly described as a false name. Baghdad does appear to be the place of the family’s origin. No doubt there was a good deal of movement between Iran and Iraq at the time in question, and probably much of it unavoidably informal or unofficial. Nor does it appear to follow that Al-Bhagdadi has made false statements to English immigration authorities to obtain entry or the right to remain, and it seems that he was not interviewed and thus did not, except insofar as he presented the Red Cross document describing himself as two years younger than he was. Nor is it clear that he would not in any event have been granted the right to join his mother, who had been accepted as a refugee. What this material does, however, show, is that he obtained a false document in Damascus to assist his entry to the UK by understating his birth, that he allied himself with his mother’s account that the family came directly from Iraq rather than after spending many intervening years in exile in Iran, and that he maintained those false details throughout, including on oath before the jury. 18. This information as to origin is accepted to be substantially new. It was not known at the time of the trial, nor is there any suggestion that the defence ought to have discovered it. 19. As to benefit claims, the following facts are now known and were accepted before us: i) Al-Bhagdadi’s father’s name was Sabree Al-Bhagdadi; ii) Sabree died in March 2006, it would seem whilst on a visit to other members of his family in Sweden; Al-Bhagdadi attended his funeral there; iii) when he died, Sabree was entitled to, and was drawing, pension credit of something over £100 per week; after his death, this pension continued to be paid until January 2010; until July 2007 it was paid into a Halifax bank account in Sabree’s name and drawn out via cashpoint machines; the bank was at some stage given an address for Sabree in Hendon where he never lived but an acquaintance of Al-Bhagdadi (or the acquaintance’s partner) did; Al-Bhagdadi is shown to have used that account in 2009/2010 and has admitted using it “for family purposes”; in July 2007 a request was made to pay the pension instead to a Barclays bank account in Al-Bhagdadi’s own name, which account he has admitted he used; the total sum paid as pension after Sabree’s death approaches £20,000; iv) in January 2008 Al-Bhagdadi made a claim for carer’s allowance on the assertion that he was caring for his father Sabree; such allowance was thereafter paid into the Barclays account until October 2010; Al-Bhagdadi has admitted to police officers that he was a party to this claim, made after the death of his father; the sums paid were between £40 and £50 per week; v) in April 2008 an application was made in the name of Sabree for a single loan payment from the social fund; it was granted in the sum of £315 which was paid to the Halifax account referred to at (iii) above; vi) when Sabree died he was in receipt of attendance allowance; this allowance continued to be paid until February 2011 at the rate of between £60 and £70 per week; it was paid into the Halifax account referred to at (iii) above. It was accepted before us that there is a strong case of serial benefit frauds by Al-Bhagdadi, and of a less than completely frank account of them given when taxed subsequently by police officers in the course of pre-appeal investigations. 20. The issue before us has been whether this material is fresh, or was available and known to the defendant at the time of his trial but deliberately not pursued. If it were the case that a deliberate decision were made at the trial not to adduce the evidence, or to pursue a known possibility of doing so, then the material put before us would not afford the defendant any ground of appeal, and we should decline to receive it. There is ordinarily only one trial, and it is the duty of all parties to lay before it all the relevant evidence at their disposal on which they wish to rely. This court has power under section 23 of the Criminal Appeal Act 1968 to receive evidence which was not before the court of trial and to consider whether or not it provides grounds for saying that the conviction is unsafe. But it will not ordinarily do so, and a conviction will not ordinarily be unsafe, if it is sought to rely here on evidence which a defendant chose not to rely on before the jury. Such a strategic decision as to whether a line of possible defence is or is not to be pursued often has to be made at a trial. There are numerous reasons which may lead to a decision not to do so; that an attempt to pursue it may trigger a response from the other side which it is preferred to avoid is only one example. It is apparent that in this case the very experienced team conducting the defence was alert to this issue. We have accordingly investigated with some care the question whether the benefit evidence was available but was not pursued for good reason. 21. The evidence of Mrs Dizaei, called before us, demonstrated that after the trial she made the enquiries which uncovered the material about Al-Bhagdadi’s origins, which we have no doubt is properly described as new or fresh. Her enquiries included travelling to Iran. Her evidence also revealed this. The acquaintance with the Hendon address to whom we have referred at paragraph 19(iii) above was also known to the defendant and his wife personally. Well before the trial he gave them some information alleging that Al-Bhagdadi had asked him to present himself to the Halifax bank as ‘Sabree Al-Bhagdadi’ in order to activate an account. Thereafter bank statements had been received at the Hendon address, and the acquaintance gave a few sheets of them to the defendant, relating, she thought, to early 2009. Mrs Dizaei’s evidence to us was that it was not known that Sabree was the father of the witness Al-Bhagdadi, nor that he was by then dead. She discovered that he was the father, she said, at the trial. She discovered when he had died, she said, only when she went to Iran afterwards and investigated the family. 22. Making all proper allowance for the difficulties of her speaking through an interpreter, we did not find the evidence of Mrs Dizaei wholly satisfactory. She had previously made a statement which suggested that she and her husband had been told before the trial that Sabree was dead; this she told us was a mistake. She told us that when she and the defendant were given whatever information they were, he telephoned his solicitor to ask what could be done about it. But her evidence to us left unanswered questions as to why the information which she and the defendant were given was not followed up. Nevertheless, a recording of a recent (ie post-trial) conversation between Mrs Dizaei and the informant tends on balance to support her assertion that she was at that later stage eliciting the information as to Sabree’s death. 23. At the trial, it is apparent that leading counsel for the defendant was in possession, amongst no doubt a large amount of other material, of these few sheets of bank statements. He was also instructed by the defendant that there was a suggestion, possibly from the restaurant owner, Mr Eshragi, that on some previous occasion Al-Bhagdadi had been in possession of a bank card which had not been accepted. The transcript discloses a delicate and largely exploratory cross examination of Al-Bhagdadi on the subject of bank cards, but it made very little progress. Counsel was able to ask Al-Bhagdadi who Sabree was, and elicited the information that he was the father of the witness, and either was, or had been, in Sweden. His death was not volunteered, but no question directly requiring that information was asked and it is not clear whether the witness was using tenses accurately. A question whether Sabree had received attendance allowance when in England, founded no doubt on the bank statement sheets in counsel’s hand, elicited the answer yes. The witness was asked to allow his bank records to be checked for the issue of cards; this was done and an admission duly made as to the date of the issue of his Barclays card. But the topic went no further. 24. Mr Mansfield QC tells us that he had no instructions that Sabree was dead. We accept that information given to the court by counsel. It is, moreover, we think apparent from the cross examination. We have asked ourselves the further question whether the defendant himself may have decided not to pursue this avenue of enquiry, thus leaving counsel uninformed of what was known. It is certainly difficult to see why further enquiry was not made once the defendant and his wife had the information they had, which comprised not only the existence of the bank statements, but also that Al-Bhagdadi had asked the acquaintance to pose as Sabree at the bank. There is no trace in the cross examination of that latter piece of information having reached counsel, but we recognise that the acquaintance was a potentially unreliable source and was not available as a witness; it is possible that in those circumstances it was thought that no progress could usefully and properly be made in cross examination. There was no evidence before us from the defendant himself and there has been no waiver of privilege such as would put before us the instructions which he gave to his lawyers. All that said, we are sure that the only proper conclusion is that we cannot be satisfied that the information now available about the benefit claims, stemming from the vital fact that Sabree was dead, was known to the defendant, nor that he made a deliberate decision not to investigate it. We do not believe that it is likely that he alone elected to keep such information from his lawyers, or set unaided about the calculation of any likely riposte from the Crown. It is necessary to caution oneself, in this court, about the dangers of concentrating with hindsight on what would, in the preparation for trial, have been one of a great number of potential lines of enquiry, not only about Al-Bhagdadi but about many other topics. The manner in which the present information emerged, not even in the initial grounds of appeal but only some time later, confirms our conclusion. 25. It follows that we receive the benefit evidence, as well as the family origin evidence, as fresh. The safety of the conviction 26. Mr Mansfield invites us to say that the fresh evidence might have affected the jury’s conclusions, and that that means that the conviction is unsafe. We do not agree that it is as simple as that. The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. The line between the case where this court can properly be satisfied of the safety of a conviction notwithstanding fresh evidence and the case where it cannot is no doubt sometimes a fine one; the decision is unique to the facts of each case. The question for this court is, however, whether the conviction is safe and not whether the defendant is guilty. This court does not re-try the defendant and cannot do so, because it does not hear the whole case. Ordinarily it hears no evidence at all, and when it does, as here, it is limited to fresh material. This court is not, therefore, in a position to substitute itself for the jury. En route to deciding whether the conviction is soundly based (ie safe) this court will consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. In many cases, it is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury’s deliberations, since ex hypoethesi the jury has not seen it. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty. We agree with the analysis of Pendleton [2001] UKHL 66 ; [2002] 1 Cr. App. R. 34 and Dial [2005] UKPC 4 ; [2005] 1 WLR 1660 made by this court in Burridge [2010] EWCA Crim 2847 (see paragraphs 99 – 101). Where fresh evidence is under consideration the primary question “is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.” ( Dial ). Both in Stafford v DPP [1974] AC 878 at 906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to “test its view” as to the safety of a conviction. Lord Bingham, who gave the leading speech in Pendleton , was a party to Dial . 27. In the present case, we do not think that we are assisted by consideration of the jury impact question. We are not convinced that revelation that a person coming from the cauldron of Iraq/Iran mis-stated his age and obtained a false document in Damascus would by itself have much impact on a jury considering his evidence in this case. But it is obvious that the fresh information about benefit claims would have had some impact on the jury’s deliberations. What matters is whether the conviction is safe despite it. It is relevant that the fresh material does not go directly to whether or not the defendant abused his power as a senior police officer in pursuit of a private grievance. It is not evidence about what happened outside the restaurant. It goes to the issue before the jury only indirectly, by casting doubt on the general character and reliability of Al-Bhagdadi. It does not follow, if the fresh material about Al-Bhagdadi is indeed accurate, that he is not telling the truth about the events of 18 July 2008. We also accept that if such material were to be deployed in an all-out attack on the character of the witness, extraneous to what he did or did not do on the day in question, there might be consequential admission of other material. 28. There is, in this case, a good deal of evidence independent of Al-Bhagdadi. The principal planks of it are, as it seems to us, the CCTV, the tape and timing of Al-Bhagdadi’s 999 call, Acting Inspector Warwick’s evidence, the defendant’s EAB, written before he had seen what the two recordings showed, the request to Detective Superintendent Cassidy to drop the prosecution of Al-Bhagdadi and (perhaps) the medical evidence. Of these, the CCTV, the 999 call and the EAB are not only independent of Al-Bhagdadi but are not in dispute, although there is argument as to interpretation. We accept that the other evidence in the case, not limited to these principal planks, might be regarded by a court of trial as sufficient to demonstrate that Al-Bhagdadi is indeed telling the truth and that the defendant is not. But the court of trial has had no opportunity to consider the case as it now stands. It has had no opportunity to ask itself whether the other evidence either proves the case on its own, or, more likely, sufficiently supports what Al-Bhagdadi says, despite whatever is known about him, nor has it had the opportunity to put into the balance anything else which may become admissible. That would be a different trial from the one which took place; too different, we think, for this court to be able to be satisfied that the conviction is nevertheless soundly based. The result is that we, as a court of appeal which cannot and should not attempt to make itself into a jury in order to assess the whole case, on paper and without seeing the witnesses, simply do not know whether this conviction is soundly based or not. In those circumstances we are driven to the conclusion that it cannot be regarded as safe. Order 29. It follows that we give leave and this conviction must be quashed. We have been provided with written submissions on each side as to the consequences. We are satisfied that it is in the interests of justice that there should be a re-trial. We direct that it shall take place at Southwark Crown Court or at such other place as may be arranged by the presiding judges of the South-Eastern Circuit, and that the defendant must be arraigned within two months of the handing down of this judgment unless this court otherwise directs.

2011_05_16-2735.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2011/1174/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2011/1174

61b2d127480906ece6d5d7309af9aebcc5aab0239a3217f3189e2b3603e96372

[2006] EWCA Crim 3121

EWCA_Crim_3121

2006-12-12

supreme_court

Neutral Citation Number: [2006] EWCA Crim 3121 Case No: 2006/01210 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT HIS HONOUR JUDGE STONE QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 December 2006 Before : LORD JUSTICE PILL MR JUSTICE HODGE and THE RECORDER OF CARDIFF (SITTING AS A JUDGE OF THE COURT OF APPEAL, CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - DINCER & ORS

Neutral Citation Number: [2006] EWCA Crim 3121 Case No: 2006/01210 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WOOLWICH CROWN COURT HIS HONOUR JUDGE STONE QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 12 December 2006 Before : LORD JUSTICE PILL MR JUSTICE HODGE and THE RECORDER OF CARDIFF (SITTING AS A JUDGE OF THE COURT OF APPEAL, CRIMINAL DIVISION - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - DINCER & ORS Appellants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MR PETER CLEMENT for the Respondent MR IAN JOBLING for the Appellant Rafit Dincer MR MARCUS BONNELL for the Appellant Ruknettin Basbaydar MR MICHAEL HALL for the Appellant Engin Gundiz MR RAMIZ GURSOY for the Appellant Erdal Ozmen MS KIM HOLLIS QC, and MISS JENKINS for the Appellant Irfam Comooglu MR MICHAEL LAVERS for the Appellant Etem Gezen Hearing dates : 16 November 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Pill: 1. The proceedings involved eleven defendants charged with a variety of offences. On dates in December 2005 and January 2006, in the Crown Court at Woolwich before His Honour Judge Stone QC, each of them pleaded guilty to offences and were sentenced, though not all at the same time. Rifat Dincer pleaded guilty on 22 December 2005 on Count 1 of indictment 7301, an offence of conspiracy to commit blackmail (“the blackmail offence”) and an offence of conspiracy to commit arson being reckless as to whether life was endangered (“the arson offence”) (Count 4/7361). He was sentenced to 8 years imprisonment for each offence, the sentences to run concurrently. He was also ordered to return to custody to serve 45 days of an earlier period of imprisonment, to be served before the sentence of 8 years began. 2. Erdal Ozmen pleaded guilty, on 23 December 2005, to the blackmail offence, and to the arson offence. He also pleaded guilty to offences of wounding with intent to cause grievous bodily harm, (Count 2/7361) and possessing a firearm within intent committed on 2 October 2003 (Count 3/7361). He was sentenced on 17 February 2006, to 4 years imprisonment on the blackmail offence, and 4 years concurrent on the arson offence. This was to be consecutive to 11 years for wounding with intent, with 11 years concurrent with that for possessing a firearm with intent, making a total of 15 years imprisonment. 3. Irfan Comooglu pleaded guilty, on 27 January 2006, to the blackmail offence and the arson offence. On 10 February 2006 he was sentenced to 8 years imprisonment for each offence, the sentences to run concurrently, but consecutive to a sentence of 7 years imprisonment imposed at Snaresbrook Crown Court on 5 October 2004 for offences of causing grievous bodily harm with intent and of possessing a firearm with intent to fear or violence. 4. Engin Gundiz pleaded guilty on 22 December 2005 to the blackmail offence and to the arson offence. On the same day, he was sentenced to 4 years imprisonment for each offence, sentences to run consecutively, making a total of 8 years imprisonment. 5. Ruknettin Basbaydar pleaded guilty on 26 January 2006 to the blackmail offence. On 10 February 2006 he was sentenced to 8 years imprisonment. He was ordered to return to custody to serve 480 days of an earlier sentence, to be served before the current sentence began. 6. Etem Gezen pleaded guilty on 22 December 2005 to the arson offence and the blackmail offence. On the same day, he was sentenced to 8 years imprisonment on each count, the sentences to run concurrently but consecutive to a sentence of 6 years imprisonment imposed on 5 October 2004 for offences, committed jointly with Comooglu, of causing grievous bodily harm within intent and of possessing a firearm with intent to cause fear of violence. 7. Co-defendants Mehmet Aziz Karatas, Abdullah Baybasin, Sait Yuzen, Ibraham Kadir Aslan and Sinan Batall Gul each pleaded guilty to the blackmail offence. Aslan also pleaded guilty to wounding with intent, jointly with Ozmen, and to possessing a firearm with intent to endanger life and without a certificate. On the blackmail offence, Karatas and Yuzen were sentenced to 6 years imprisonment, Gul to 5 years and Aslan to 4 years. Aslan was sentenced to 12 years imprisonment concurrent on the wounding and firearm offences and 3 years imprisonment concurrent for possession of the firearm without a certificate, making a total of 12 years imprisonment. Baybasin was sentenced at a later date to 12 years imprisonment for the blackmail offence and 10 years imprisonment consecutive for an offence, on a separate indictment, of conspiracy to supply heroin, making a total of 22 years imprisonment. 8. The offences arose out of the activities of a Turkish Kurd gang known as the “Bombacilla”. Baybasin was the leader of the gang and, as the judge found, Basbaydar the second in command or Chief of Staff. They operated within the Turkish Kurdish community in North London and ruthlessly exploited their own countryman. They took a fee or a percentage from debts collected in respect of the sale or lease of property or from money lent by Baybasin. They collected protection money and practised extortion. They had access to weapons and used and threatened violence to achieve their ends. Substantial sums of money were obtained. 9. From April until the end of 2003, the police conducted a surveillance operation at the gang’s headquarters in Green Lanes, Haringey. The activities of the gang were covertly recorded on audio and video tapes which demonstrated the extent of individual defendant’s involvement. Not all the conspirators were criminally involved throughout the whole period. 10. On 2 October 2003, an attack was made in the vicinity of a petrol station in North London, in the course of which a large number of shots were fired. Halil Ates was targeted and injured. The judge described the offence as “gang warfare on the streets of London”. Ozmen and Aslan were recognised at the scene (Indictment 7361 counts 2 and 3). This was clearly a serious offence by them in its own right. 11. On the following evening, 3 October 2003, seven of the conspirators decided to use a petrol bomb at an off-licence belonging to the parents of the victim of the attack the previous night. Dincer was to throw the bomb and demonstrated to others how he would do so. He put a mask on his face and was claimed by the prosecution to have had a leading role in this offence. Gundiz drew a plan of the area and discussed the route to be taken. Ozmen’s part in the conspiracy was also demonstrated by the covert surveillance. Having set out on the enterprise, the appellants did not carry out the bombing for reasons which have not become clear. This was clearly a serious offence by them in its own right. 12. The other sentences imposed on Comooglu and Gezen had been passed by His Honour Judge Pitts at Snaresbrook Crown Court on 5 October 2004. Gezen pleaded guilty; Comooglu was convicted following a trial. They were involved in a raid on 5 September 2003 at a club in Crossway, Stoke Newington. The club was a social club used by members of the Turkish community. Gezen discharged a firearm two or three times into the ceiling. The purpose of the raid was to cause grievous bodily harm to those in the club. Judge Pitts described the case as “very serious indeed”. It was committed within the period of time covered by the conspiracy to commit blackmail but it remained unclear to the Crown whether the raid was pursuant to the principal conspiracy. Baybasin was told of the raid, on the evidence, only after it had happened. The prosecution accepted that they could have sought to join this offence to the main conspiracy. It will be necessary to return to the issue of the relationship of these offences to the blackmail and arson offences, for which sentences consecutive to that for this offence were imposed. 13. The judge made an assessment of the positions of the defendants in the hierarchy. Reference has already been made to Baybasin (leader) and Basbaydar (number two or Chief of Staff). Yusen was fairly senior, Karatas a senior negotiator and Comooglu, Gezen and Gul were enforcers. Dincer was near the bottom, Ozmen and Aslan a little above mere foot soldiers and Gundiz was the most junior and youngest member amongst the defendants. 14. When imposing sentences on 10 February 2006, the judge said of the blackmail offence: “The conspiracy to blackmail was an extortion racket, a mafia type operation run by Abdullah Baybasin. He had a large gang of thugs of whom you were part – the so called Bombacilla, or Bombers – and you acted as his thugs doing his dirty work. The racket was run against your own countrymen, the Turkish and Kurdish communities in North London, exploiting their terrified helplessness in the face of this organised gang. The racket was ruthless and violent, it extorted money on a large scale, it terrified its victims, and it did so by its toll of real violence, and threats of violence. It involved firearms, machetes, knives and a sword.” 15. The judge described the offence as very serious. He recalled that he had in December stated that “a substantial discount on sentence was available for those pleading guilty in December”. He stated that he would take account of the mitigation and “do justice as between you, that is reflecting the relative seriousness of your offending”. When sentencing individual appellants, the judge did not specifically differentiate between them in terms of discount for plea. 16. When sentencing on 17 February 2006, the judge described the other offences: “The arson conspiracy involved a plan to firebomb premises, without care whether anyone would be injured and or killed. This is a very serious conspiracy as well, but I taken into account that the conspiracy was not, in the end, carried through. The wounding and the possession of a firearm with intent was a further serious crime which could easily have resulted in the death of Mr Ates, or other people. A number of rounds of ammunition was fired off in a pubic place. You [Ozmen] are indeed fortunate that you are not now convicted of an even more serious offence. I make due allowance in my sentence for the fact that you were not yourself the man wielding the gun.” 17. Before referring to individual appellants, we consider the sentencing remarks of Judge Pitts when sentencing Comooglu and Gezen on 5 October 2004, that is before the current sentences, for the offence stated at paragraph 12 above. The judge referred to the forthcoming trial for the current offences and stated that he put them entirely out of his mind. The judge described the offence as “a joint enterprise to cause really serious bodily harm to the innocent customers of the club, aggravated by the carrying of a firearm to induce fear of violence”. 18. The judge stated that the attack was “some form of gang business”. He referred to the surveillance at 337 Green Lanes and to observation there of Comooglu and Gezen. He added: “You both were carrying out orders from above. Of that I have no doubt at all. I don’t think on this evidence for one moment that this was a raid that was actually planned by you for your own purposes. You were there acting as workers, or employees, if you like, for others more senior than you. … I think you were the workers carrying out … You nevertheless were senior personnel on the raid”. 19. The judge was in our view clearly correct in his assessment of the seriousness of the offences. Substantial custodial sentences were required in each case. Like the judge, we have in mind of course the need to sentence fairly as between appellants. Dincer, Comooglu, Gundiz and Gezen were each sentenced to a total of 8 years imprisonment for the blackmail offence and the arson offence, though in the case of Gundiz there were two consecutive sentences of 4 years and in the other cases concurrent sentences of 8 years. Basbaydar was sentenced to 8 years imprisonment for the blackmail offence alone. Ozmen was sentenced to a total of 4 years imprisonment for those two offences. In his case, the sentence was consecutive to that of 11 years for the offence of 2 October 2003. The sentences of Comooglu and Gezen were consecutive to those imposed on 5 October 2004. Mr Clement, for the prosecution, has produced a helpful schedule giving relevant particulars of each defendant. 20. Dincer is 40 years old. The judge referred to his previous conviction for affray for which the appellant was on licence during the period of the conspiracy. He was ordered to serve 45 days before beginning the current sentence and that ruling is upheld. He had served earlier custodial sentences. On his behalf, Mr Jobling relies on the low position of Dincer in the hierarchy. He had himself been a victim of the gang, and had been threatened, before he decided to join them. The police had taken a serious view of the violence inflicted on him. He had pleaded guilty on 22 December 2005. Dincer relies, as do other appellants involved in the arson offence, on the fact that the conspiracy lasted a short time and was not carried out. 21. Ozmen is 26 years old. Reliance is placed by Mr Gursoy, on his behalf, on Ozmen’s low position in the hierarchy and to the fact that, while Aslan’s sentence for the blackmail offence was made concurrent with that on the 2 October offences, Ozmen’s was made consecutive. Further, on 2 October, it was Aslan who handled the weapon and fired the shots, as the judge accepted. Ozmen received only one year less for that offence. Neither Ozmen nor Aslan had previous convictions. He is five years older than Aslan. The overall sentence was too long, it is submitted. 22. Comooglu is now 26 years old and has no relevant pre-Snaresbrook convictions. He too had suffered violence from other members of the gang. On his behalf, Miss Hollis QC submits that the sentence for the blackmail offence should have been lower than that imposed on Basbaydar having regard to their different positions in the hierarchy, though Basbaydar was charged with the blackmail offence alone. Miss Hollis submits that the judge had insufficient regard to totality, the sentence being ordered to run consecutively to that imposed at Snaresbrook. The offence considered there could have been incorporated in the overall conspiracy, as the prosecution accept. Miss Hollis relies upon the sentencing remarks of Judge Pitts. Other members of the gang could have been, but were not, charged with serious substantive offences. While Comooglu did not plead guilty until late January, an indication had been given at the beginning of the month. 23. Gundiz is now 22 years old, 19 at the time of the offence, and was at the bottom of the hierarchy. He entered an early plea, the first to be tendered. The judge accepted that the plea was tendered “in the teeth of considerable pressure to do otherwise”. That notwithstanding, he received the same sentence as that imposed on others higher up, for example Dincer and, on his behalf, Mr Hall submits that the total sentence of 8 years was too long. 24. Basbaydar is 28 years old. He had pleaded guilty in 2002 to offences of purchasing or acquiring a firearm and possessing a firearm without a certificate. He was sentenced to a total of 3 years imprisonment and had become involved in the blackmail offence very soon after his release from prison. He had been expelled from the gang for a short time. On his behalf, Mr Bonnell submits that the judge had placed too great an emphasis on the appellant’s perceived position in the hierarchy and too little on the actual criminality of each defendant, to the disadvantage of Basbaydar. 25. Counsel further submits that the judge incorrectly calculated the unexpired portion of the previous sentence in that, in accordance with Section 116(8) of Powers of Criminal Courts (Sentencing) Act 2000 (“ the 2000 Act ”), the date of the commission of the new offence should have been 16 February 2004, the closing date of the conspiracy charged in the indictment. The subsection provides that: “Where the new offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days” By virtue of section 116(1) and (2), the return to custody can only be as long as that part of the original sentence which remained on the day when the new offence was committed, that, it is submitted, being 16 February 2004. The total sentence is too long, it is submitted. Karatas, who had a senior position and was involved throughout the conspiracy, received only 6 years. 26. Gezen is 28 years old and, save for the Snaresbrook offence, the judge understandably took no account of his previous offences. The judge stated that the present offences “represent a further serious escalation of criminal activity”. On Gezen’s behalf, Mr Lavers makes the same submissions as to totality as were made on behalf of Comooglu. Judge Pitts had stated at Snaresbrook that Comooglu and Gezen were acting on orders and it was not suggested that they belonged to a gang other than this one. The Snaresbrook offence should have been treated as an act in furtherance of the general conspiracy. 27. It is further submitted that Ozmen’s sentence for participation in the two conspiracies was reduced to a total of 4 years imprisonment, the judge having regard to his long sentence for the wounding offence, and the same approach should have been adopted in the case of Gezen. Further, there was disparity in relation to Yuzen and Karatas who were senior in the hierarchy much received sentences of only 6 years (though they were not charged with the arson offence). 28. Before expressing our conclusions, we make general observations: (a) We consider that the judge’s approach to the level of sentences for particular offences was appropriate. Moreover by reference to the surveillance material, the judge had a good opportunity to assess the extent of each defendant’s participation. Where we allow appeals, it is on the basis that totality and relationship between offenders was inappropriately considered. (b) In relation to the arson offence we bear in mind that the substantive offence was not committed and that, compared with the blackmail offence, the conspiracy was of short duration. (c) We consider that the judge was justified in placing Basbaydar “near the top of the organisation” and in stating: “you were involved in giving instructions for violence; you were associated with the use of weapons; you were involved with the extortion of money”. (d) We are satisfied that appropriate credit was given for guilty pleas and that failure to give specific consideration in his sentencing remark to the dates of pleas has not in itself created unfair disparity. (e) We do not consider that that judge erred in law in requiring Basbaydar to serve 480 days of an earlier sentence. On the present charges and evidence, Section 116 (8) of the 2000 Act did not require the judge to calculate the period from 16 February 2004, the last date of the very long period of conspiracy charged. There was evidence of Basbaydar’s participation from early October 2003. The reference in the sub-section to an offence having been committed over “2 or more days”, apt for a substantive offence, was not apt, and was not intended, to cover an offence of conspiracy involving conduct over a long period of time. (f) We far from criticise the prosecution for proceeding on the Snaresbrook offence in advance of the main trial. Its features, including serious violence and threat of violence in a public place with many people present, made separate and prompt treatment appropriate. However, we find that there is force in the submissions on behalf of Comooglu and Gezen that, having regard to the sentencing remarks of Judge Pitts, greater weight should have been given on sentence to the context of the earlier offence in the overall criminality of the many offenders. (g) Ozmen has a legitimate complaint of disparity in that Aslan’s sentence for the offence of 20 October 2003 was ordered to run concurrently with that for the blackmail offence and his consecutively. No explanation was given by the judge. (h) However, when considering totality, we bear in mind that while Ozmen took a lesser part in that offence than did Aslan, he also committed the arson offence and Aslan did not. 29. Taking the above factors into account, our conclusions are: (a) Dincer’s appeal is dismissed, save that a sentence of 6 years concurrent, instead of 8 years concurrent, is imposed for the arson offence. Total sentence 8 years. (b) Ozmen’s sentence for the offence of 2 October 2003 will stand but will run concurrently with the sentences for the blackmail offence and the arson offence. Total sentence 11 years. (c) Comooglu is sentenced to 4 years imprisonment for the blackmail offence and 3 years imprisonment for the arson offence concurrent with each other but consecutive to the Snaresbrook sentence of 7 years imposed on 5 October 2004. Total sentence for current offences 4 years (overall 11 years). (d) The overall sentence on Gundiz is 6 years imprisonment. We achieve that by making the sentences for the blackmail offence and the arson offence consecutive, as did the judge, but reducing the sentence for the arson offence to 2 years imprisonment. (e) The appeal of Basbaydar is dismissed. (f) Gezen’s appeal is allowed to the extent of imposing a sentence of 4 years imprisonment for the blackmail offence and 3 years imprisonment for the arson offence, concurrent with each other but consecutive to the Snaresbrook sentence of 6 years imposed on 5 October 2004. Total sentence for current offences 4 years (overall 10 years). 30. Where appropriate in accordance with those conclusions, the sentences imposed by the judge are quashed and those stated in the previous paragraph substituted. Appeals are allowed to the extent stated above.

2006_12_12-989.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/3121/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/3121

8bb89963159d1239e7aa3e96c9ef7ff683ec79e91b5dfa4b0e9f52c671ee16af

[2008] EWCA Crim 585

EWCA_Crim_585

2008-03-18

supreme_court

Neutral Citation Number: [2008] EWCA Crim 585 Case No: 2006/05550/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT Her Honour Judge Goddard QC T2005/7656 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2008 Before : LORD JUSTICE DYSON MR JUSTICE MADDISON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - Ngyuen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcrip

Neutral Citation Number: [2008] EWCA Crim 585 Case No: 2006/05550/B2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT Her Honour Judge Goddard QC T2005/7656 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/03/2008 Before : LORD JUSTICE DYSON MR JUSTICE MADDISON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - Ngyuen Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Edward Rees QC (instructed by Moss & Co) for the Appellant Simon Denison (instructed by CPS ) for the Respondent Hearing dates: 26/02/2008 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Dyson, giving the judgment of the court: Outline of the case 1. On 2 October 2006 in the Central Criminal Court (Her Honour Judge Goddard QC), the appellant was convicted by majority verdict (10:2) of murder. He appeals against conviction by leave of the Full Court. 2. On the night of 23/24 December 2005, the appellant and the deceased, Billy Gregory, were involved in an incident in the Earl of Chatham public house in Woolwich. The appellant struck the deceased in the side of the neck with a glass, causing him to bleed profusely. He died from his injuries the following day. The Crown case was that the appellant was under the influence of alcohol, became angry and deliberately used the glass as a weapon to cause injury. The defence was that the deceased had made threats, used racist language and then assaulted him, and that the appellant had acted in self-defence. 3. On 7 December 2005, the appellant had been involved in an earlier incident at the Great Harry, another public house in Woolwich. On that occasion, he broke a glass and used it to cause injuries to 3 men. At an early stage of their case, the Crown applied for leave to adduce this incident as evidence of bad character under section 101(1)(d) of the Criminal Justice Act 2003 (“the CJA 2003”) on the basis that it was relevant to the question whether the appellant had a propensity to commit offences of the kind with which he was charged ( section 103(1)(a) ). 4. The judge ruled that the evidence of the earlier incident could be admitted. The single ground of appeal is that the judge was wrong so to rule. Before we come to the ruling, we need to say more about the Crown case in relation to both incidents. The Crown case in respect of the Earl of Chatham incident 5. On the evening of 23 December, the Earl of Chatham was packed with people. At some point in the evening, the appellant and the deceased had an altercation, but there was no violence. About 40 minutes passed. The appellant and the deceased went separately to the lavatory. Neither knew the other was there. The appellant was standing holding a pint glass when the deceased walked in, also holding a pint glass. The lavatory is very small and several men were using it. 6. According to the lavatory attendant, Jonathan Sampson, the deceased accidentally bumped into the appellant, knocking him off balance. The appellant responded angrily and the deceased said something back. The appellant then struck him with the glass that he was holding. It shattered and blood immediately gushed out. Mr Sampson did not agree with the suggestion put to him by counsel for the appellant that, moments beforehand, the deceased had been holding the glass near to the appellant’s face. 7. Adrian Pryce was also inside the lavatory. He heard bickering and the appellant and the deceased fighting. He saw the appellant put a pint glass in the deceased’s neck. He did not hear any racist comments. 8. Also in the lavatory was Dean Rogers. He said that he heard words being exchanged and a loud smack. It sounded like a gun and as if a great deal of force had been used. He saw the 2 men fighting. 9. The appellant was arrested and he told a police officer that he had been in a fight and had been beaten up. He threatened a paramedic and continued to be aggressive at the hospital. In interview he refused to answer questions. He provided a prepared statement in which he said that he had been threatened and provoked by the deceased’s behaviour. The Crown case in respect of the Great Harry incident 10. On the evening of 7 December, there were 4 members of staff on duty at the Great Harry public house. These included Alan Munn and Philip Rogers. Among other persons present were Derek Rogers, Mark Jobbins, Timothy O’Sullivan and Thomas O’Shea. All of these witnesses gave evidence at the trial of the appellant. CCTV footage was also shown to the jury. 11. Mr Jobbins described how the appellant became involved in an incident between some soldiers and Mr O’Sullivan and Mr O’Shea. Mr Jobbins could see no reason for the appellant becoming involved. The soldiers then moved out of the way and, according to Mr Jobbins, the appellant then “steamed into” Mr O’Sullivan and Mr O’Shea and put his hands up to one of them in a fighting stance. These 2 men then went to the bar. Mr Jobbins said that some time later, the 2 men and the appellant were near each other in the bar. Mr O’Sullivan reached to grab the appellant and Mr O’ Shea tried to keep them apart. Mr Jobbins then described how the appellant took a wine glass, smashed it and held the stem between two fingers of his right hand with the other arm ready to defend or attack. He did not see the scuffle that followed, and the next thing he saw was the appellant “flying through the air” until he hit the cigarette machine. 12. Philip Rogers, the barman, said that the appellant picked up the wine glass and smashed it on the table. He then saw the appellant standing with the broken end of the glass in his fist, his arm by his side, taut and clenched up in an aggressive stance. The appellant took a swing at Mr Munn with the glass. 13. Derek Rogers said that he saw the appellant with the stem of the glass between his fingers. He got behind the appellant and pulled him to the floor. Alan Munn spoke of the appellant swinging the glass at Mr O’Sullivan and Mr O’Shea who had been cut. 14. Mr O’Sullivan and Mr O’Shea were not regarded by the Crown as reliable witnesses. This was because, contrary to what was apparent from the CCTV, they said that they had not gone over to attack the appellant at the start of the incident. But they were tendered for cross-examination at the request of the defence. They said that the appellant had broken the wine glass and jabbed Mr O’Sullivan with it in the head and neck. Mr Derek Rogers, Mr O’Sullivan and Mr O’Shea all suffered cuts from the broken glass. Mr O’Sullivan was the most seriously injured, requiring 14 stitches to his head wounds. 15. We shall refer to the alleged assaults on these 3 men as “the Great Harry assaults”. The decision not to prosecute for the Great Harry assaults 16. On 7 December, Mr O’Sullivan was seen by the police. He said that he did not want to give any details of the offence but on 9 December he said that he did wish to press charges against the appellant. On 22 December, however, the CPS decided that no further action would be taken because there was insufficient evidence to proceed. It seems that Mr O’Sullivan did not attend appointments and the CPS decided that he was to be “discounted as a viable witness”. But matters did not rest there. Mr O’Sullivan was interviewed and made a statement on 8 January 2006. Apparently, he changed his mind after he learnt of the Earl of Chatham incident. A statement was taken from Mr O’Shea on 10 January. In the light of the evidence thus obtained, on 1 February 2006 the police arrested the appellant in respect of the Great Harry assaults. 17. It is accepted by Mr Denison on behalf of the Crown that by February or March 2006, the Crown had sufficient material to prosecute the appellant for the Great Harry assaults. They decided not to do so, but rather chose to seek to rely on them in the murder proceedings as evidence that the appellant had a propensity to commit offences of the kind with which he was charged. The application and the ruling 18. The application was based on section 101(1)(d) and 103(1)(a) of the CJA 2003. That is to say that the bad character evidence was relevant to an important matter in issue between the appellant and the Crown, namely whether he had a propensity to commit offences of the kind with which he was charged. Mr Denison told that judge that, if the application were granted, he would not call Mr O’Sullivan or Mr O’Shea, since their denial that they had attacked the appellant was shown by CCTV footage to be untrue. Nevertheless, he would call the other witnesses. The Great Harry assaults were admissible because they were relevant to (i) whether the appellant had a propensity to commit offences of the kind with which he was charged and (ii) whether he intended to kill Mr Gregory or cause him really serious bodily harm. 19. The judge held that, although there were factual differences between the Great Harry assaults and the Earl of Chatham incident, what they had in common was that on each occasion the appellant had taken a glass in anger and used it as a weapon. She noted that the earlier incident was a single incident. But it was admissible because it showed a tendency to unusual behaviour and/or “its circumstances demonstrated probative force in relation to the offence charged”. 20. The judge then considered the forensic history of the earlier incident to see whether admission of the evidence would be unfair. She referred to the submission made by Mr Rees QC (which has been repeated to this court) that the CJA 2003 was not meant to circumvent the public interest in having a trial. Moreover, if the jury were not sure about the case against him, the evidence of the Great Harry assaults would adversely colour their views. They would find it difficult, if not impossible, to know how to use this evidence. In acceding to the Crown’s application, the judge said: “In my judgment, the prosecution were entitled to take the course they did as a matter of procedure but, if that course led to unfairness, their application would fail. In my judgment, it will not do so. The jury will have to be sure of the facts before they can use them, applying the criminal burden and standard of proof. I do not see that the directions to the jury will be so complicated that they cannot be followed. Juries do differentiate between counts and return different verdicts in other cases and there is no reason to think that there is room for prejudice.” The summing up 21. The jury heard a considerable amount of evidence about the Great Harry assaults, which the judge summarised in her summing-up in a way of which no complaint is made. Indeed, there is no complaint of any kind about the summing up. 22. She gave the jury a careful direction as to the relevance of the Great Harry assaults in these terms: “You heard evidence that he has been accused before of using a glass as a weapon at the Great Harry public house on 7 th December. It is important that you understand why you have heard this evidence and how you can use it. I have to and do emphasise that you must not convict him simply because he has been so accused before. You hear about it because it may help you to resolve an issue or issues between the prosecution and the defence, namely the question as to whether he has a propensity, or a tendency, deliberately to use a glass as a weapon, the question as to whether he has a propensity, or a tendency, to do so unlawfully - - that is not in necessary and reasonable self-defence - - and the question as to whether on 23 rd /24 th December his intention was to cause at least really serious bodily harm. First of all, you have to decide what happened in the Great Harry. There is no charge on the indictment so you will not be asked for a verdict. Nevertheless the prosecution have to make you sure of any fact before you can bring it into your consideration of the events of 23 rd /24 th December. The facts that the prosecution say are relevant are three, that on 7 th December: (i) He deliberately broke a glass, intending to use it unlawfully as a weapon. (ii) He used it with the intention of causing really serious bodily harm. (iii) He used it unlawfully. If you are not sure of any of those facts, the events in the Great Harry are irrelevant to your deliberations on the charge of murder. If you are sure of those facts, how do you bring it into your deliberations? When you are considering your verdict on the charge of murder, you have to be sure that the prosecution have proved the elements in that charge, as I have directed you, before you can return a verdict of guilty. You cannot convict him only, or even mainly, on the basis of facts you find proved arising out of events on 7 th December but, when you are considering whether the prosecution have proved murder, if the facts of 7 th December make you sure that, bearing in mind it is only one incident, the defendant had a tendency deliberately and unlawfully to use a broken glass as a weapon, then you can consider whether that makes it more likely that he is guilty of murder. So such a tendency amounts to some additional evidence pointing to guilt but you must bear in mind that, even if he did have such a tendency, it does not necessarily prove that he committed this offence.” 23. After the completion of the summing up, the jury sent a note in the following terms: “Re the Great Harry. Should we not all be sure of the relevant facts? Can those jurors who are sure of the 3 relevant facts still take them into account in their deliberations on the charge of murder?” The reference to the 3 relevant facts was to the 3 facts relating to the Great Harry assaults which the judge had mentioned in the passage which we have already quoted. 24. In response to that question, the judge directed the jury as follows: “What is important is that you must be unanimous in your verdict. Before any verdict of guilty is returned, you must be sure that the ingredients of murder or manslaughter have been proved. In coming to that verdict, some may rely on some piece of evidence, others may attach importance to some other aspect of the evidence. In other words, you do not have to travel the same evidential route. Before any of you take the events of the Great Harry into account in your deliberations, you must be sure of all three relevant facts. Those of you who are sure of those relevant facts in the Great Harry are entitled to take it into account, bearing in mind that you cannot convict the defendant only or even mainly on events in the Great Harry. In my written directions to you, I have pointed out that, even if you are sure that there is a tendency to use a glass unlawfully, that does not necessarily prove that the defendant committed the offence of murder or manslaughter. Those of you who are not sure of the three relevant facts will not take it into account and, therefore, you do not all have to be agreed on the Great Harry. You all have to be sure of your verdict.” The appellant’s submissions 25. In summary, Mr Rees submits that the judge was wrong to rule as she did because the evidence of the Great Harry assaults (i) would have such an adverse effect on the fairness of the proceedings that it should not have been admitted: see section 101(3) of CJA 2003 and/or section 78 of PACE 1984; and (ii) was not probative of and, therefore, not relevant to any matter in issue. Although Mr Rees addressed us principally on (i), it is logical to start with (ii), since if the evidence was not relevant, it could not be admitted and it is not necessary to consider whether it was unfair to admit it. Relevance 26. Mr Rees submits that, although the Great Harry assaults involved the use of a glass in a public house, the circumstances of the 2 incidents were otherwise so dissimilar that they were insufficient to establish a propensity or pattern. In particular, Mr Rees identifies the following distinguishing features between the 2 incidents. In the Great Harry assaults, the appellant was alleged to have persisted in actively seeking a confrontation with certain customers and to have picked up and broken a wine glass in order to use it as a weapon and his alleged use of the glass followed after 3 men had attacked him in an attempt to prevent him from using the glass against them. In the Earl of Chatham incident, the appellant had not been holding the glass as a weapon at the time of the initial physical contact in the lavatory and the alleged assault appears to have occurred by what Mr Rees describes as a “chance medley”: the deceased appears to have entered the lavatory by coincidence after the appellant had entered and the violence that ensued was a direct and spontaneous response to physical contact in a confined space. 27. We remind ourselves that this court will not interfere with a judge’s judgment as to the capacity of prior events to establish propensity unless satisfied that the judge was plainly wrong: see R v Hanson [2005] Cr App R 21 para 15. In our judgment, so far from being plainly wrong, we are satisfied that the judge was entitled, and indeed right, to decide that the Great Harry assaults were relevant to whether the appellant had a propensity to commit offences of the kind with which he was charged. As Mr Denison points out, there were common to the 2 incidents the fact that (i) they occurred only 18 days apart, (ii) they both involved the alleged deliberate and unlawful use of a glass to cause really serious bodily harm with intent to do so, and (iii) they both occurred when the appellant had been drinking alone in a public house and after he had become involved in an argument with the victim. Unfairness 28. Mr Rees QC places emphasis on the fact that the Crown made an informed and deliberate decision not to charge the appellant with the Great Harry assaults, but rather to rely on them as evidence of bad character in support of the alleged murder. He submits that there must be some limit to the Crown’s ability to introduce evidence of serious, untried offences as evidence of bad character under section 101(1)(d) of the CJA 2003. For reasons that we summarise below, Mr Rees submits that this limit was exceeded in this case. 29. At the outset, however, we should record that Mr Rees makes 3 concessions. First, he accepts that, if the appellant had been charged and indicted for the Great Harry assaults, it would have been open to the Crown to apply to join the assault counts in the murder indictment. Secondly, he accepts that admissible bad character evidence is not confined to evidence of criminal convictions. This follows from the wide definition of a person’s bad character in section 98 as “evidence of, or of a disposition towards, misconduct on his part”. “Misconduct” is defined in section 112(1) as “the commission of an offence or other reprehensible behaviour”. In this case, the bad character evidence amounted to an allegation of the commission of an offence. The judge, therefore, rightly directed the jury that they should be satisfied to the criminal standard of proof that the appellant had committed the Great Harry assaults as a necessary (but not sufficient) condition of their relying on them as establishing propensity. 30. Thirdly, Mr Rees accepts that the response given by the judge to the jury question was correct: see R v Kevin Brown (1984) 79 Cr App R 115. Any member of the jury, if sure of all 3 of the relevant facts identified by the judge (see para 22 above), could take the Great Harry assaults into account, even if other members of the jury felt unable to do so because they were unsure. As the judge put it, they did not all have to travel down the same evidential route. But by whatever evidential route they reached their verdict on the murder charge, at least 10 of them had to be sure of the appellant’s guilt before the jury could convict him of murder. 31. There are 3 strands to Mr Rees’s argument on unfairness. First, Mr Rees submits that it is relevant to a consideration of fairness that the Crown made a deliberate decision not to prosecute the appellant for the Great Harry assaults. In this respect, the case is to be contrasted with cases where the Crown is prevented by order of the court from pursuing a prosecution. As he puts it in his skeleton argument, “if judges start to allow application in the absence of good reason for not prosecuting separately, they may set a dangerous norm in which prosecutors find it expedient to “prosecute” multiple criminal allegations in this way rather than by way of trial on indictment”. We should add that, in advancing this submission, Mr Rees expressly disavows any suggestion that the Crown did not act in good faith in making their decision. 32. Secondly, he submits that the admission of evidence of the Great Harry assaults was unfair to the appellant, since it put him in a less advantageous position than that in which he would have been if he had been charged and tried for the assaults, whether in a separate previous trial or on a count or counts added to the murder indictment. Mr Rees argues, for example, that if the assaults had been the subject of a separate previous trial and the appellant had been acquitted, they could not subsequently have been relied on as evidence of propensity to commit an offence of the same kind as murder. Further, he says that the position would have been the same if some of the jurors had been sure of guilt of the assaults, but the jury as a whole could not agree on a verdict one way or the other. In both cases, it would have been necessary for the judge to direct the jury that none of them, even those who were sure of the appellant’s guilt of the Great Harry assaults, could take those assaults into account as evidence of propensity when considering the murder charge. That is because, as Mr Rees puts it, an acquittal by a jury is a finding that an offence has not been committed which no juror is entitled to disregard when considering another charge. 33. Finally on fairness, Mr Rees submits that there is a real risk that the judge’s direction to the jury that, unless they were satisfied of the appellant’s guilt of the Great Harry assaults to the criminal standard of proof, they should disregard them, was likely to be ineffective. It was asking too much of a jury to expect them to apply this direction faithfully and conscientiously. 34. We turn to the first strand of Mr Rees’s argument. Section 101(3) of the CJA 2003 provides that the court must not admit evidence under section 101(1)(d) if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The focus is, therefore, on the effect on the fairness of the proceedings of admitting the evidence. For reasons that we explain at paras 38 to 42 below, we reject the submission that a defendant is necessarily worse off if the evidence is admitted under section 101(1)(d) and is not made the subject of a prosecution and trial. If that is right and there is no suggestion of bad faith, then it seems to us that the reason why the Crown decides to adopt the section 101(1)(d) route rather than prosecute has little if any relevance. 35. In R v Smith and other cases [2005] EWCA Crim 3244 , [2006] 2 Cr App R 4 , this court considered a case where a defendant was told that no further action would be taken against him in relation to certain alleged sexual offences. The Crown later started proceedings against the defendant which included the offences in respect of which they had said that no further action would be taken. The counts in respect of those offences were stayed as an abuse of process. The Crown then applied to adduce the evidence which would have supported the stayed counts. The judge granted the application under section 101(1)(d) of the 2003 Act . An appeal against the judge’s ruling was dismissed. 36. In giving the judgment of the court, Scott Baker LJ said: “77. The relevant underlying principle seems to us to be this. Prima facie all evidence that is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. In R. v Z [2000] 2 Cr.App.R. 281 it was accepted by the defendant that the evidence of the three complainants in respect of whose complaints he had been acquitted was relevant to the question whether he was guilty of the offence of rape with which he had been charged. The issue was not whether the defendant was guilty of having raped the three other complainants; he was not being put on trial again for those offences. The only issue was whether he was guilty of the fresh allegation of rape. Lord Hope of Craighead said at p.283 that the guiding principle was that prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. He said that the objection to the admissibility of the evidence was based on Lord MacDermott’s statement in Sambasivam v Public Prosecutor, Federation of Malaya [1950] A.C. 458 , 479 that the effect of the verdict of acquittal pronounced by a competent court after a lawful trial is not restricted to the fact that the person acquitted cannot be tried again for the same offence. He said that it is binding and conclusive in all subsequent proceedings between the parties of the adjudication. Lord Hope went on: “But I agree with my noble and learned friend Lord Hutton that the observation which is contained in the second of these two statements is in need of qualification in order to confine its application to its proper context. The principle which underlies both statements is that of double jeopardy. It is obvious this principle is infringed if the accused is put on trial again for the offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which may result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.” 78. If evidence of previous allegations is in principle admissible notwithstanding that the accused was acquitted of charges based on those allegations in a previous trial, it is difficult to see why in principle evidence relating to allegations that have never been tried (i.e. because of a stay for abuse of process) should not be admissible. The defendant’s protection comes through the judge’s discretion under s.101(3) or, in an appropriate case, through s.78 of the Police and Criminal Act 1984. …” 37. In our judgment, that reasoning applies with equal force to a situation where the Crown decides not to prosecute as it does to a situation where the Crown is prevented from prosecuting by order of the court. On the assumption that in both cases the bad character evidence is relevant, we can see no difference in principle between the two cases. If (as we have held) the judge was right to decide that the bad character evidence was relevant, then it was in principle admissible unless its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. We do not accept that the mere fact that the Crown chooses to rely on relevant bad character evidence which it decides not to make the subject of a criminal charge can of itself have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Something more is needed. The need for something more brings us to the second strand of Mr Rees’s argument. 38. We accept that, if (i) the Great Harry assaults had been tried separately, (ii) they had been tried before the murder trial and (iii) the appellant had been acquitted of the assaults, it is unlikely that the assaults would have been left to the jury as potential evidence of propensity in relation to the charge of murder. In that event, the appellant would have been in a more advantageous position than that in which he was. But that comparative disadvantage is contingent on the three hypotheses we have identified. Moreover, the disadvantage also depends on the contingency that, where the assaults are not tried separately, some members of the jury are not sure of the defendant’s guilt of the assaults. 39. What if he had been tried for the Great Harry assaults together with the murder and he had been acquitted of the assaults by a majority? Would those jurors who were sure of his guilt be allowed to rely on the evidence of the assaults as establishing a propensity when considering the murder charge? As we have said, Mr Rees concedes (rightly in our view) that the judge’s response to the jury question (para 24 above) was correct: the jury did not have to travel down the same evidential route. That answer was correct as regards taking into account the Great Harry assaults where they were not the subject of a prosecution. In a case where evidence of bad character is relied on as establishing propensity, we can see no logical basis for saying that it is material to the question of whether the jury can rely on the evidence for that purpose that it is the subject of a prosecution. In the present case, the jury could only convict the appellant of murder if they were sure that the elements of murder had been proved to the criminal standard of proof. What evidence led them to that conclusion if that was the conclusion they reached was a matter for them. They could take into account the Great Harry assaults only if they were sure of the 3 relevant facts to which the judge referred in her answer to the jury question. 40. Mr Rees argues that, if the assaults had been joined as a count or counts on the murder indictment, an acquittal by the jury would be a finding that an offence had not been committed which no juror would be entitled to disregard when considering another charge. That justification finds support in the statement by Lord MacDermott in Sambasivam v Public Prosecutor, Federation of Malaya that a verdict of acquittal is binding and conclusive in all subsequent proceedings between the parties to the adjudication. But as was pointed out in the passage from R v Smith which we have set out at para 36 above, that statement was qualified by the House of Lords in R v Z. Those jurors who, being sure of a defendant’s guilt on count 1, rely on it as evidence of propensity to commit offences of the same kind as count 2, are not convicting the defendant on count 1. They are relying in part on the evidence of propensity to convict him on count 2. 41. Let us suppose, however, that we are wrong to hold that an acquittal by a majority does not prevent dissenting jurors from taking into account their view of a defendant’s guilt on one charge as establishing his propensity to commit offences of the same kind as another charge. In our judgment, the possibility that a defendant might be worse off in this respect, if the evidence of bad character is admitted as was done in the present case rather than made the subject of a trial, does not of itself mean that the evidence should not be so admitted because it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. First, when the judge is asked to decide whether to admit evidence of bad character under section 101(1)(d) and 103(1)(a) , he has no means of knowing what the jury are likely to decide. All he can say is that there is a possibility that some jurors may and others may not be satisfied of the defendant’s guilt of the misconduct which is relied on as evidence of propensity. As against that possible detriment to the defendant of admitting the evidence where there is no trial, there is to be weighed the benefit to the defendant of having to meet a bad character case based on evidence which, as in the present case, will not lead to a criminal charge. Mr Rees suggested that this was no real benefit to a defendant, but we do not see how that can be right. 42. Quite apart from the impossibility of assessing the likelihood of the jury being split in relation to the other charge(s), the judge would be faced with the equally impossible task of weighing against that likelihood the benefit to the defendant of not facing criminal charges. In our judgment, such an assessment and weighing would be wholly artificial and unrealistic. We do not consider that Parliament can have had such an exercise in mind when enacting section 101(1) . But if the approach of Mr Rees is right, it seems to us that this is precisely the kind of exercise that judges are required to perform. Our view that this cannot have been intended by Parliament reinforces us in our conclusion that the premise on which Mr Rees’s argument is based is wrong. 43. Finally, we turn to the third strand of Mr Rees’s argument. We cannot accept that the direction given by the judge in this case was too much for the jury to apply faithfully and conscientiously. In our judgment, it was clear and should have been easily intelligible. They were told that they could not rely on the Great Harry assaults unless they were sure of the 3 relevant factors. There is no criticism of the judge’s summing up as to the elements of murder. In our view, there is no basis for any suggestion that any jurors may have applied a lesser standard of proof either in relation to the Great Harry assaults or the murder. Conclusion 44. For these reasons, we consider that this appeal must be dismissed.

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[2007] EWCA Crim 806

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Neutral Citation Number: [2007] EWCA Crim 806 Case No: 2003/6182/D4 & 2001/3682/B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) HHJ CHARLESWORTH GRIGSON J Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/12/2006 Before : LORD JUSTICE LATHAM MR JUSTICE MITTING and MR JUSTICE TEARE - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - MARVIN GITTINS & SAFDAR KHAN Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2007] EWCA Crim 806 Case No: 2003/6182/D4 & 2001/3682/B1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) HHJ CHARLESWORTH GRIGSON J Royal Courts of Justice Strand, London, WC2A 2LL Date: 14/12/2006 Before : LORD JUSTICE LATHAM MR JUSTICE MITTING and MR JUSTICE TEARE - - - - - - - - - - - - - - - - - - - - - Between : R Appellant - and - MARVIN GITTINS & SAFDAR KHAN Respondents - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Guy Kearl, QC appeared for the Appellant Marvin Gittins Mr Rodney Jameson, QC appeared for the Appellant Safdar Khan Hearing date: 14 th December 2006 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Latham: RULING 1. In both these cases, the court granted a retrospective representation order in circumstances where counsel acting on behalf of each of the appellants had been privately paid for the application for leave to appeal. In both cases counsel have, quite properly, accepted that if they are paid under the representation order, they cannot retain any money paid to them privately for the purposes of these applications. We wish to make it quite clear that we do not consider for one moment that counsel in either case have acted in any way improperly. 2. The problem, however, is that public and private funding should not co-exist. That, of course, is the reason why counsel will forgo the fees that they have received, or are entitled to receive, under the private funding arrangements. The question which we have to determine is whether or not by reason of the private funding arrangements, they are entitled to payment under the representation orders. It is unnecessary in order to answer that question, to set out in any detail the relevant regulations. Suffice it to say that the court is empowered to make a representation order at any stage in the proceedings after the notice of leave to appeal has been given (Schedule 3, paragraph 10(5) of the Access to Justice Act 1999). And where a representation order is granted, the judge (or appropriate officer) may specify the stage of proceedings at which a representation order shall take effect. (para 10(6)). 3. The consequence is that, after a successful application for leave to appeal, a representation order is frequently made which covers both retrospectively the work done in relation to and including the application and prospectively the appeal. The only relevant restriction on payment is contained in paragraph 22 of the Schedule which provides: “Where a representation order has been made, the assisted person’s solicitor or advocate, whether acting under a representation order or otherwise, shall not receive or be a party to the making of any payment for work done in connection with the proceedings in respect of which the representation order was made........” 4. This is the only mechanism in the Schedule which seeks to give effect to the principle that public and private funding should not co-exist. It does so by rendering unlawful the receipt or payment of any money in proceedings in which the representation order has been made. The wording makes it clear that that prohibition only takes affect after the order has been made. There does not seem to us to be any way in which the paragraph could be construed so as to catch a receipt or payment made before the making of the order. In any event, in the present cases, the question is whether or not payment should be made under the representation order. And the paragraph has nothing to say as to that. In other words, there is no statutory mechanism which disentitles counsel in the present cases from receiving money from public funds under the representation orders. 5. This is clearly capable of producing an unsatisfactory result. A representation order could be made to operate retrospectively when the court is unaware that the previous work has been privately funded. It seems to us that the remedy lies in ensuring that the court is informed of whether or not such private funding has been in place. It can then decide whether to make a representation order retrospective and if so on what terms. Any application for such a representation order should therefore state whether or not private funding has been in place at any time prior to the application; and if that information is not given, or is unclear, the court should decline to make any representation order retrospective, or otherwise. If private funding has been provided for the period before the application, and the court nonetheless considers that the representation order can be made retrospective it should always be on terms which ensure repayment of any sum so paid to who ever has been making the payments. It may however be preferable to adjourn the application for a representation order in so far as it relates to past work until the hearing of the appeal, when the court can consider the matter in the light of all the circumstances, including the outcome of the appeal. If the appeal is successful, the question may be whether a retrospective representation order, or a defence costs order, would be most appropriate. 6. In the present cases, we can see no justification for withholding payment for the work done by counsel; but counsel should be prepared to provide proof that any payments made to them other than under the representation order have been repaid.

2007_04_04-1063.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/806/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/806

b1b9a1f77835938f696df90448379512154ed5b1651b68c03b1bbd5cbff10dd2

[2008] EWCA Crim 1899

EWCA_Crim_1899

2008-07-24

crown_court

Neutral Citation Number: [2008] EWCA Crim 1899 No: 200705951 C4, 200705952 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 24 July 2008 B e f o r e : LORD JUSTICE GAGE MR JUSTICE STADLEN HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v (1) JAVED SHAH (2) ARMAN ALI SHAH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of th

Neutral Citation Number: [2008] EWCA Crim 1899 No: 200705951 C4, 200705952 C4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Thursday, 24 July 2008 B e f o r e : LORD JUSTICE GAGE MR JUSTICE STADLEN HIS HONOUR JUDGE ROGERS QC (Sitting as a Judge of the Court of Appeal, Criminal Division) - - - - - - - - - - - - - - - - - - - - - R E G I N A v (1) JAVED SHAH (2) ARMAN ALI SHAH - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr D Van Duyvenbode appeared on behalf of the First Appellant Miss G Ong appeared on behalf of the Second Appellant Mr D Radcliffe appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE GAGE: On 12 October 2007 at Snaresbrook Crown Court, these two appellants were convicted of wounding with intent. On 10 December 2007, Javed Shah was sentenced to four years' detention in a Young Offender Institution, and an order made pursuant to section 240 of the Criminal Justice Act that 59 days spent on remand should count towards his sentence. Arman Shah was similarly sentenced to four years' imprisonment. A similar order under section 240 was made in respect of his sentence. Each of these appellants, who are brothers, appeal against their convictions by limited leave of the single judge. They also renew applications for leave against refusal of two grounds of appeal. The issue at trial was identity. Each of the appellants raise the defence of alibi. 2. The facts are follows as disclosed by the evidence. On 8 June 2006 at about 6 o'clock in the evening, the complainant, Waseem Perviez, was on his way home after playing a game of football at a friend's house at The Drive in Ilford. The prosecution alleged that as Waseem approached his home he was attacked by the two appellants and two other men. Following the attack, Waseem was taken to hospital where he received treatment. His injuries were: lacerations and bruising to the head area; bruising and swelling to the left eye; bruising and swelling to the left arm and shoulder; bruising to the back and flank; and an abrasion to the thumb. The lacerations were stitched and dressed, but he suffered ongoing problems with the vision to his left eye. The appellants were arrested some time after the assault. 3. The prosecution's case was that Javed Shah, the younger brother of Arman Shah, with two other men attacked Waseem outside his home. During the course of the attack, Arman Shah arrived in a car. He had a knife and joined in the assault on Waseem. The defence case at trial was that both the appellants were at Café Tarook and the Exchange Shopping Mall with a number of friends at the time of the incident. They were not responsible, they said, for the assault, and relied on the evidence of alibi witnesses. Arman Shah relied on the fact that he had reported to the police that he had been assaulted on 6 June 2006 by, among others, Waseem. It was suggested that this was the reason for Waseem blaming him for taking part in the attack on 8 June 2006. 4. In evidence, Waseem said that he had known Javed Shah for about ten years. They had been friends at one time, but their families had fallen out. He also knew Arman Shah. He said that as he approached his home on 8 June 2006 he saw Javed Shah and the two other men. Javed was wearing a grey hooded top with long sleeves and dark blue bottoms. He gave a description of the other two men. He believed one was of Afghan or Pakistani origin; the other of Asian origin. All three were armed with what appeared to be bricks cemented with rocks. When he was confronted outside his house by these three men, he said Javed Shah said: "I've come to kill you". At this point Waseem was outside his front door and the three men were just beyond the path leading to the front door. He tried to leave, but they started to attack him. Javed struck him on the left side of his temple. The two other men started hitting him on his head and body. They were hitting him with bricks and swearing and egging each other on. He said that he managed to get away and ran in the direction of the main road, but he was struck with a brick on the back of the leg which caused him to fall and drop his mobile telephone. On the ground he was surrounding by all three men, and Javed told the others to "finish him off". 5. Javed had a hammer which was about 12 inches long, with a black handle, and hit him with the flat side of the hammer on the left side of his head. The others were kicking him on his body. He said that a blue car approached and stopped. Arman Shah got out holding a knife in his right hand. Waseem felt the knife go into his hand once and the back of his head twice. He felt kicking on his back and left shoulder, and that he thought this was being done by Arman because he was the only one standing behind him; the others were in front. 6. The attack ended when passers-by shouted at the men to stop, causing them to run off in the direction of the blue car. Members of the public came to his assistance. An ambulance was called and he was taken to hospital. He remembered at hospital his parents and cousin came to see him and police officers spoke to him. He said that he was able to name those who had assaulted him. 7. He was cross-examined by counsel for each of the appellants. It was suggested to him that he had told the police that he did not know who had assaulted him or why. It was further suggested to him that he gave the police descriptions of those who had assaulted him which were different from the descriptions of the appellants. He said that he did not remember telling the police that he did not know who had assaulted him. He said that he had not told the police that Javed Shah was involved when he first spoke to them because at that time he was unconscious. He accepted that his mother was present when the ambulance came, and he spoke to her when or just before he got into the ambulance. His mother was present when he was giving police descriptions of those who had assaulted him. He denied that she had only come into the room after police had spoken to him. He said that Arman Shah's name was mentioned by his mother at the hospital because he had mentioned it to her. 8. In cross-examination by counsel representing Arman Shah, he said that he was aware that on 6 June Arman Shah had made an allegation against him. He agreed that he was present at the Exchange in Ilford on 6 June, and he agreed that there had been an altercation between him and Arman Shah on that date. He said that he did not know that Arman Shah had reported the matter to the police. He was not aware that on 8 June Arman Shah had a black eye or had reported the matter. He could not remember if he had mentioned the knife to the police. He remembered that his mother had said in the presence of the police at the hospital that Arman Shah had been after him. 9. Two witnesses gave evidence of what they had seen of the attack. Neither was able to identify any of those who took part. The prosecution called two police officers who had attended the hospital and spoken to Waseem. The effect of their evidence was that Waseem was reluctant to talk to them. Waseem gave a description of those who had attacked him, but provided no names, nor did he say why he had been assaulted. Later he told one of the police officers, Police Constable Pluck, that Arman Shah was responsible and provided his address. This was after Waseem's mother had given the name of Arman Shah. Waseem agreed with the name given by his mother, and the officer did not record the name of Javed Shah in his notebook. 10. Police Constable Bhimra, the second police officer, said that Waseem told the officers that he did not know who had assaulted him. His evidence was that, whilst the officers were talking to Waseem, his mother arrived at the hospital and was present when the police were speaking to Waseem. His evidence was that Waseem's mother persuaded him to give the police the name of the person who had assaulted him. He said that Waseem's mother came into the room after he had been provided with the first descriptions of those who Waseem said had attacked him. She told the officers that Arman Shah was responsible. Her name is Nighat Perviez. She gave evidence. She said that she came up the road and saw the ambulance. She spoke to her son and asked him what had happened. All he said was "Arman Shah". She arrived at the hospital and told the police that she did not witness the assault, but that it was "down to Arman Shah". 11. Javed Shah was arrested and interviewed approximately six weeks after the incident. Arman Shah was not arrested and interviewed until a day in August 2006. At interview, each appellant said that the incident was nothing to do with him. Javed Shah said that he could not remember where he was after such a long time, but he thought it likely that he was at Café Tarook because he went there regularly. He said that he could have been with his brother and no one else. Arman Shah said that he had nothing to do with the incident and could have been elsewhere. Neither of the two appellants named witnesses subsequently called on their behalf as alibi witnesses. In defence statements, served pre-trial in or about February 2007, neither gave details of their alibi evidence. It was not until April that a handwritten alibi notice was given giving the details of those who were subsequently called as witnesses to support the alibis. 12. Each of the appellants gave evidence. Each said that he believed he was at Café Tarook at the time the assault was alleged to have occurred. Each remembered that it was around the time of the World Cup, and that they were with friends at Café Tarook. They said that they had been reminded by others where they were on that date. A witness, Mohammed Faisil Shah, a Special Constable with the British Transport Police, said in evidence that he had known Arman Shah for four years. On 8 June, at half past 4 in the afternoon, he said that he went to an internet cafe two doors away from Café Tarook. He said that he was there for about 45 minutes, leaving between 5.15 and 5.30. He was on his way to visit an aunt, but popped in to Café Tarook to see if there was anyone there who he knew. He said both appellants were present and he stayed to chat to Javed Shah about football and also had something to eat. He remembered that Arman Shah had a black eye which Arman attributed to an assault on an earlier occasion. The witness said that he had left just after 6 o'clock, and later saw Arman at about 7.00 to 7.10 in the evening, when he, Arman, was buying milk from an off licence. In cross-examination he said that he was able to be precise about the date and times because it was the day before the start of the football World Cup. 13. Kashif Khan gave evidence that he was studying mathematics in Manchester in May 2006. He said that he had known Arman Shah for eight years, and that at 3.30pm on 8 June he saw him at Café Tarook. He said that Arman was with Javed and two others. He teased Arman about his black eye, and all three went to the Exchange at about 4 o'clock. They stayed there for about an hour before returning to the café for a further hour. He left the café with a group including Arman between 6.30pm and 7pm. In cross-examination he told the jury that he had had exams at the end of May. He would not have remained after his exams, but could not say when the term ended. He could not say if the term ended in May. 14. There are a number of grounds of appeal, all are common to both appellants. In view of the conclusions which we have reached on the overall safety of the convictions, it is only necessary for us to deal with grounds 1, 3 and 4 of the four grounds on which leave has been given. It is unnecessary for us to refer to two further grounds on which leave to appeal was refused, but there is an application to renew the application for leave. 15. Ground 1 of the notice of appeal is the principal ground of appeal. In this ground, counsel for the appellants criticises the judge for failing to give the jury a Lucas or lies direction in respect of the alibi evidence. Counsel, Miss Ong, who has deployed the arguments on behalf of both appellants before us, relies on the standard Judicial Studies Board direction in relation to alibi evidence in which judges are advised to give a direction in two limbs where alibi is raised. The first limb of the direction explains to juries that it is not for the defendant to prove his alibi; it is for the prosecution to disprove it. There is no dispute in this case that the judge gave that direction. The second limb is to explain to the jury that a false alibi is not necessarily evidence of guilt. It may arise from a desire to bolster a genuine defence. This is the standard lies or Lucas direction given where the prosecution rely on lies in support of its case. There is equally no dispute that, in this case, the judge did not give such a direction. During the course or at the end of his summing-up he was reminded by Miss Ong for Arman Shah that he had not given the second limb of the standard JSB direction. He was invited to do so, but declined to accede to that application, saying that, in the circumstances of the case, it was unnecessary to do so. It would seem from the transcript that, in his opinion, such a direction might have done more harm to the defence than good. 16. It is submitted on behalf of both these appellants that in this case such a direction should have been given because the prosecution allege that the fact that no details of alibi evidence were given by either appellant until after interview meant they were lying in interview and that their alibi evidence was false. Miss Ong submits that there are a number of reasons why the judge's failure to give such a direction was wrong and an error. Firstly, she submits that both appellants were not interviewed until some weeks after the commission of the offence. It is submitted that, when interviewed, they might reasonably not have been able to remember where they were on 8 June, hence their inability to say with whom they were on that date. Accordingly, they are, it is submitted, not necessarily lying at interview nor in their defence statements when they were unable to give the details of their subsequent alibi evidence. Their evidence was that, after interview, they had been reminded by friends where they had been at the time the assault occurred. 17. Secondly, the defence case was that Waseem had implicated them by reason of a longstanding feud between the two families, which had manifested itself in an attack on Arman Shah on 6 June. It is submitted that this was a classic case where a jury might infer guilt from a false alibi for what is known as "the forbidden reasoning". Miss Ong, who, as we have said, developed this submission on behalf of both appellants, submits that because each appellant had, when interviewed, said that he was unable to remember where he was on 8 July, this means that it is a classic case where each might have thought it necessary to bolster their defence. 18. Mr Radcliffe, who appears on behalf of the prosecution, submits that this is a case where a Lucas direction was not required. The issue for the jury was the simple one of whether the victim, Waseem, was telling the truth, or whether the appellants may have been telling the truth. In the circumstances, he submits, the authorities show that no Lucas direction was required. 19. As a general rule, the full alibi direction should be given, but as counsel for the prosecution, Mr Radcliffe, rightly points out, it is not an invariable rule: see for example R v Harron [1996] 2 Crim App R 457 and R v Nyanteh [2005] EWCA Crim 686 . However, in R v Burke and Pegg [1996] 1 Crim App R 163, the court decided before Harron this court gave as one of the four situations where a lies direction was appropriate was when alibi is raised. Later, this court, in R v Middleton (unreported), a decision in which Judge LJ gave the judgment of the court dated 23 March 2000, made observations to which we must refer. The transcript of the judgment has been helpfully supplied to us by counsel. At paragraph 18 the following appears: "The steady and almost unstoppable stream of reported decisions and appeals to this Court on the subject of lies told by a defendant, and the directions which should be given by the trial judge when he does so, has tended to obscure the essential simplicity of the principle. People do not always tell the truth. Laudable as it may be to do so, whatever the circumstances, they do not, or cannot, always bring themselves to face up to reality. Innocent people sometimes tell lies even when by doing so they create or reinforce the suspicion of guilt. In short, therefore, while lying is often resorted to by the guilty to hide and conceal the truth, the innocent can sometimes misguidedly react to a problem, or postpone facing up to it or attempt to deflect ill-founded suspicion, or fortify their defence by telling lies. For example, a married man who has had consensual sexual intercourse with a woman and is then faced with an allegation of raping her will sometimes untruthfully deny the act of sexual intercourse at all, in order selfishly to avoid embarrassment to him of his wife's discovery of his infidelity or, less selfishly perhaps, the consequent anguish that the knowledge may cause to her and to their children." 20. Later in the judgment in the same case, the court continued at paragraph 22: "Where, however, there is no risk that the jury may follow the prohibited line of reasoning, then a Lucas direction is unnecessary. On the whole, approaching the matter generally, it is inherently unlikely that such a direction will be appropriate in relation to lies which the jury conclude that the defendant must have told them in his evidence. In this situation, the consequence of the jury rejecting the defendant's evidence is usually covered by the general directions of law on the burden and standard of proof, and if a Lucas direction about lies told by the defendant in his evidence to the jury is given, it will often be circular and therefore confusing in its effect." It may be that the judge in this case had that in mind when he was invited to give the direction to the jury. 21. In this case, it is true that the issue between the prosecution witnesses and the defence witnesses was clear-cut. There was little room for mistake. The victim knew both appellants. Arman Shah's case was that the victim's allegation resulted from a family feud in a previous incident. It follows that the issue for the jury was which side was telling the truth. Nevertheless, the prosecution made great play of the fact that the appellants had not given details of their alibi evidence, nor mentioned their witnesses in defence statements. The judge dealt with this in his summing-up. At page 28, letter D, he said: "He [Javed Shah] was cross-examined at quite some length and I mean no disservice to counsel if I do not repeat it. Suffice it to say, the heart of the cross-examination went towards the alibi and saying, effectively, 'In interview there was no mention of alibi, no mention of other people. You said that your brother knew wherever you were'. The Crown said to him, 'It doesn't end there. Look at the defence case statement'." 22. The judge went on to describe to the jury what a defence statement was, and continued as follows: "Miss Maxwell-Burnside put to the defendant, 'Your defence case statement made no mention of alibi. It specifically said 'no witnesses', and that is in April. But come 25 July suddenly you are producing another document saying, 'Oh, by the way my defence is alibi and here are the following people who can vouch for my alibi''. So she is testing him in relation to that and his general explanation is either to start with, 'I didn't think it was important', or, 'I wasn't asked specifically about it', or, 'I couldn't remember, but eventually when I did remember I gave the details to my solicitor and that is why back in July we gave that matter'." 23. In our judgment, this cross-examination goes further than just suggesting that the alibi is false; it challenged the appellants' credibility because there had been no mention of the details of the alibi until a late stage. In the circumstances, in our judgment, a Lucas direction was not only desirable; it ought to have been given. The difference in this case to those cases where the issue is purely which side is telling the truth is, as Miss Ong points out, in this case when first asked about the incident some weeks after it had happened, the appellants may genuinely have been unable to recollect where they were on 8 June. They might also have thought that their bare assertion that they could not remember precisely where they were or with whom they were might require the reinforcement by calling false evidence. This is just the sort of case where a Lucas direction should have been given. 24. We think there is force in this submission, and the judge ought to have coupled the Lucas direction with the first limb of the JSB specimen direction on alibi evidence. 25. We turn to ground 3. In this ground, Miss Ong submits on behalf of her client, Arman Shah, and adopted by counsel for Javed Shah, that the judge failed to summarise important facts of the defence. This ground concentrates on what Miss Ong describes as the chronology of Waseem's complaint. The matters relied on are best summarised in the skeleton argument of Mr Van Duyvenbode on behalf of Javed Shah. It is submitted that the judge failed to mention the following passages in the cross-examination of Waseem. There is no mention, for instance, of Waseem's failure to name the appellants when first spoken to by police officers at the hospital. There is no mention of the description he gave of his assailants, which was quite different from any fair description of the two appellants. The judge did not mention that Waseem did not say that a knife had been used in the attack when first spoken to by the police officers. Nor was there any reference to the defence suggestion that Waseem was influenced by his mother when describing what happened to him. The judge did not remind the jury that it was only later, on the evening of 8 June 2006, that Mrs Perviez gave the name of Javed Shah to the police. 26. It is submitted that, whereas here, the defence was that Waseem had deliberately and falsely blamed the appellants for the attack on him, these were important and significant factors supporting the defence case. Mr Radcliffe, for the prosecution, rightly submits that it is not the duty of the judge when summarising the evidence to refer to every last detail of the evidence which may support the defence. But in this instance, in our judgment, it can properly be said of these omissions that the result is that the judge's summary does not fairly reflect the force of the cross-examination by defence counsel. This is in marked contrast to the judge's full summary of prosecuting counsel's cross-examination of the appellants on why there was no reference to alibi witnesses by them at interview or in their defence statements. 27. We turn finally to ground 4. This ground overlaps with ground 3. The appellants complain that the judge misdirected the jury on an important piece of evidence. At page 22 of the summing-up, letters B to C, the following passage appears: "What happened next in the account, and let's go back to Waseem, is an ambulance is called and he was taken to King George's Hospital. Before that his mother had come out and his mother had asked him what had happened and he had told his mother that it was Arman Shah and his brother in relation to that who had attacked him. That may be relevant later on." 28. We take this passage to be a reference to the evidence given by Waseem himself. It seems clear that not only did Waseem not give this evidence, but his mother did not say when she came to give evidence that he had told her that Javed was involved when she saw him being put into the ambulance. Again, it is submitted that in the context of the defence allegation that Waseem had deliberately falsely implicated the appellants in the assault on him, it was, to say the least, an unfortunate error which the judge, when it was pointed out to him, refused to correct. 29. In our view, grounds 3 and 4, whether on their own or cumulatively, might not have been sufficient to render the verdicts unsafe. However, when taken together with the judge's failure to give a Lucas direction in respect of the alibi evidence, we cannot find ourselves able to be sure that the verdicts are safe. 30. In the circumstances, as we announced earlier today, we will allow the appeals of each of the appellants and quash the convictions. 31. Are there any further matters to be dealt with? 32. MR RADCLIFFE: My Lord, there is the question about a retrial. 33. LORD JUSTICE GAGE: Yes. 34. MR RADCLIFFE: I am instructed to ask for a retrial, and the usual directions will follow if the court decides that that is the appropriate course. 35. LORD JUSTICE GAGE: Yes. Miss Ong? 36. MISS ONG: The only submissions I would make would be succinct in relation to that, my Lords. There has already been a notice to the complainant and his family about the appeal and the grounds of such an appeal, and the danger is, of course, contamination would already have brought itself in the complainant's mind. That is really the main submission that I would make on the appellants' behalf, and particularly in relation to my particular lay client, Arman Shah. It is not without significance because, as the complainant and his family are now aware of the issues relating to the appeal, it may well be, and bearing in mind the long history of conflict between these families, that any retrial would result in his tailoring his evidence to meet with what were the matters of complaint. 37. LORD JUSTICE GAGE: No doubt that would give you further ammunition, if there is a retrial, to cross-examine him. 38. MISS ONG: It may well do. But that is really my main point on behalf of the appellants. They have now been nine months in custody. 39. LORD JUSTICE GAGE: Yes, I see. Mr Van Duyvenbode? 40. MR VAN DUYVENBODE: My Lord, nothing further to add. Miss Ong has made the points that perhaps exist on behalf of both appellants. 41. LORD JUSTICE GAGE: We will just retire for a moment. (Short adjournment) 42. LORD JUSTICE GAGE: We think that there must be a retrial in this case, and we so direct. So the order of the court will be: we allow the appeals; we quash the convictions; we specify that the offences on the indictment, that is count 1 in each case are crossed, and that the appellants must be retried on that count. We direct that a fresh indictment be preferred. We direct that the appellants be rearraigned on the fresh indictment within two months. We direct that the venue for the trial should be such Crown Court as is indicated or directed by the senior presiding judge of the south eastern circuit. We certainly would grant representation orders for the retrial. 43. Are there any further applications? 44. MISS ONG: There are applications for bail on behalf of both appellants. They had, prior to their convictions, been enjoying bail. They kept their conditions. In our submission, they should be readmitted to bail. 45. LORD JUSTICE GAGE: Mr Duyvenbode? 46. MR VAN DUYVENBODE: My Lord, similarly Javed Shah was a man of previously good character before he came to trial. There was no difficulties on bail, and I would ask for bail to go forward. 47. LORD JUSTICE GAGE: We shall make the usual order that we make in cases such as this, and specifically concerning the facts of this matter. You must make your applications to the Crown Court Judge, which will mean that we would invite the senior presiding judge of the south eastern circuit to direct as soon as possible to which Crown Court this matter should be remitted for retrial. 48. Very well, thank you all very much for your submissions. (Court registrar raises issue about reporting restrictions) 49. Do any of you have any views? 50. MISS ONG: We think it unlikely that a member of the jury may pick up on a law report, if it was reported, between now and the retrial. 51. LORD JUSTICE GAGE: Again, in an excess of caution, without specifically consulting my colleagues, I would normally grant such an application and again leave it to the Crown Court Judge to decide whether it is necessary. It depends to some extent where the matter is to be tried. We will make the usual order, but there can be a further application to the Crown Court Judge. Is there any material conflict between the two defendants? 52. MISS ONG: There are two matters that spring to mind, my Lord. First of all, one does have some minor convictions and the other does not. 53. LORD JUSTICE GAGE: One does have what? 54. MISS ONG: Mr Arman Shah does have a couple of minor convictions; Mr Javed Shah does not, and the other, I suppose, potential conflict is that although the complainant knows both of them very well, his essential conflict was with Arman Shah and his immediate family and not specifically with Javed Shah prior to 8 June. So those are the only two distinguishing features that I can point to. 55. LORD JUSTICE GAGE: Right, separate representation then. If, on the other hand, you have to come back to this court after it, and it is the same, sort of, joint approach, I would doubt that you would get separate representation for that. 56. MISS ONG: Thank you.

2008_07_24-1607.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2008/1899/data.xml

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dbbb3e9b6884f25625444da738b1e15db914cb5f73f5067d39539a271325fc1a

[2004] EWCA Crim 1313

EWCA_Crim_1313

2004-05-27

supreme_court

Case No: 2003/4317/W5 Neutral Citation Number: [2004] EWCA Crim 1313 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT DERBY Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday 27 May 2004 B e f o r e : LORD JUSTICE BUXTON MR JUSTICE NEWMAN and MRS JUSTICE RAFFERTY - - - - - - - - - - - - - - - - - - - - - E Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of

Case No: 2003/4317/W5 Neutral Citation Number: [2004] EWCA Crim 1313 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT DERBY Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday 27 May 2004 B e f o r e : LORD JUSTICE BUXTON MR JUSTICE NEWMAN and MRS JUSTICE RAFFERTY - - - - - - - - - - - - - - - - - - - - - E Appellant - and - THE CROWN Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr M Hurst (instructed by Messrs Robinsons for the Appellant) Mr Paul Mann QC and Mr J Janes (instructed by The Crown Prosecution Service for the Respondent) - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Buxton : 1. There is an extant order under section 39 of the Children and Young Persons Act 1933 forbidding the publication of any report that would identify the complainants Background 2. Mr E was convicted of four counts of indecent assault, committed against his two daughters S and K. The evidence against him consisted of video interviews with the two complainants, who were aged 6 and 4 respectively at the time of the interviews. After these interviews had been taken, the girls went to live with foster parents. As a result of complaints that they made to those foster parents, they were again interviewed on video, some fifteen months after the video interviews that formed the evidence in the trial. In those interviews S alleged that sexual abuse similar to that alleged against the appellant had been committed by her mother; an aunt and uncle; and another aunt and her son. She also alleged physical abuse against an aunt and two other persons. K did not repeat on video previous complaints of sexual abuse, but she alleged physical abuse against some of those mentioned by S, and other people. No-one was interviewed or charged as a result of those allegations. 3. At the trial Mr Michael Hurst, counsel for Mr E, applied to the judge under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine the two complainants about their later allegations; the thrust of his case being that it was wholly implausible that the children would have been abused by so many people; the later allegations were therefore almost certainly a fabrication or fantasy; and that that cast considerable doubt on the veracity of the allegations brought against Mr E. The judge refused that application, on the basis of the 1999 Act as subsequently understood in this court. Mr E says that his being precluded from this line of questioning made his subsequent conviction unsafe. What is a “sexual experience”? 4. Section 41(1) of the 1999 Act forbids, without leave, questioning about “any sexual behaviour of the complainant”. By section 41(1) (c) sexual behaviour means “any sexual behaviour or other sexual experience”. What happened to S and K could not be described as sexual behaviour on their part, but it is asserted to have been sexual experience. In a bold argument Mr Hurst, who conducted the appeal with admirable care and discretion, submitted that in the particular case of S and K the experience that they had undergone, deplorable though it was, could not be characterised as a sexual experience. That was because they were too young to have the understanding of sexual matters that would lead them to appreciate the true nature of the experience. 5. Mr Hurst relied on the wording of the statute, but also in particular on what he said had been the purpose of these provisions. He drew attention to the account of the background to the provision that was given in R v A (No2) [2002] 1 AC 45 , in particular by Lords Steyn and Hope of Craighead, both of whom pointed to concerns about conviction rates in cases of rape; and the use of evidence of sexual conduct of doubtful relevance to the issues in the case to attack and humiliate complainants; which was thought to be inspired by the twin myths that unchaste women were more likely to consent to intercourse and in any event were less worthy of belief, citing McLachlin J, as she then was, in Seaboyer (1991) 83 DLR (4 th ) 193. Mr Hurst suggested that the cross-examination that he sought fell outside any of those particular areas of concern. We would agree. But it is plain that the House of Lords did not suggest that the Act is limited in its reach to the rape cases that were most influential in securing its enactment, even though it is understandable, in a case that directly raised the issue of consent in rape, that that background would have been referred to. The wording of the Act refutes any such limitation. It is concerned with “sexual offences”, and not just with rape. It cannot be limited to issues of consent, because section 41(3)(a) specifically envisages its application to issues that are not issues of consent. And, more generally, it is very difficult to think that, if the question had been put to it, Parliament would have been content with legislation that protected adult complainants in rape cases, but not juvenile complainants in indecent assault cases. 6. Granted that the Act does prima facie apply to a case such as the present, what of the meaning of sexual experience? An objective observer, or someone familiar with the ordinary use of the English language, would certainly say that what was experienced by R and K was indeed a sexual experience. The lack of perception of the patient cannot alter that fact. And it would be highly undesirable, and thus highly unlikely that Parliament could have intended, that the law should be otherwise. First, if the application of the Act did depend on the perception of the patient, then many vulnerable people, not just young children but also persons with learning difficulties or the complainants in cases such as Williams [1923] 1 KB 340 or Adcock [2000] 1 Crim App R(S) 563, would lose its protection. Second, Mr Hurst said that it was evident that S and K lacked the relevant perception. Even if that is so, in a case involving children not very much older than S and K such an assumption could not be made. If the law were as the appellant contends, such children would, presumably, have to be examined as to their sexual perceptions and knowledge in order to determine whether the legislation applies to them. We cannot think that that is what Parliament intended. R v T [2002] 1 WLR 632 7. Granted that the Act prima facie is applicable to the present case, Mr Hurst’s strongest point was drawn from the decision of this court in R v T , that “normally questions or evidence about false statements in the past by a complainant about sexual assaults or such questions or evidence about a failure to complain about the alleged assault which is the subject matter of the charge, while complaining about other sexual assaults, are not ‘about’ any sexual behawviour of the complainant. They relate not to her sexual behaviour but to her statements in the past or to her failure to complain.” The judge applied that rule to permit the cross-examination of S about her failure to mention, indeed a specific denial of, abuse of her, as opposed to abuse of her sister, when she was first interviewed; and inconsistencies between a part of her evidence and one of her later allegations. He however refused to permit the wider cross-examination that Mr Hurst sought. 8. In so ruling, the judge had in mind guidance given by this court at a later stage of the judgment in T . The court pointed out that the trial judge in that case had been concerned as to how cross-examination of the type that it was minded to permit might develop. If the complainant can be asked about previous or (as in our case) subsequent allegations, she may assert that those allegations were indeed true. The court considered that the questioner would be bound by that answer, relying on R v S [1992] Crim LR 307; but that even on that basis (see § 40 of the judgment) “the very problem, or one of the problems, which the 1999 Act was intended to guard against, could be created: her reputation in the eyes of the jury might well be severely injured and the deterrent effect on other potential complainants in sexual cases would continue to operate” We may venture to comment that the decision of this court in S did not depend on the normal rule that an answer as to credit is final, but left the matter as one of discretion, albeit a discretion only to be very sparingly exercised: so it cannot necessarily be assumed that courts in the future may not be invited to apply the analysis stemming from Funderburk (1990) 90 Cr App 466 to purely collateral issues. But, even leaving that concern aside, the threat posed to the objectives of the Act by investigation of other complaints remains very real. 9. This court in T provided a solution, at §41 of its judgment: “the defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue. If those requirements are not met, then the questions would not be about lies but would be ‘about [the] sexual behaviour of the complainant’ within the meaning of section 41(1) . The judge is entitled to seek assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue.” That requirement met in T . It was not met in the present case. Because none of the later allegations had been investigated, there was no evidence that they were untrue. Mr Hurst said that by their extensive nature they were simply implausible, and could properly be represented to the jury as such. But he also agreed that, in order to start on that road, he would have to do what he applied to the judge to do, and put the allegations to the complainants. And, having done that, he would have to ask them of the allegations’ truth or falsehood: the very course that this court in T said should be avoided. And this case is more extreme than the situation envisaged in T , where all that was in issue would have been an allegation by the complainant of previous (lawful) intercourse. Here, what is in issue is criminal conduct by named third parties. If the cross-examination elicited assertions by S and K that their subsequent complaints had been true, then the court would be faced with the dilemma of either letting those allegations to stand unanswered; or descending into factual enquiries with no obvious limit and wholly collateral to the issue in the case. 10. The judge was therefore right to exclude this cross-examination, for the reasons given in T . Further, if we may be permitted to say so, this case demonstrates the wisdom of that ruling, as a particularly clear example of the confusion that any other approach would cause in the conduct of a trial. The European Convention on Human Rights 11. The effect of the judge’s ruling in the present case was therefore not, as in T , that the 1999 Act did not apply to the particular questions sought to be asked; but that it did apply to those questions, because the foreseeable outcome of the questions was further questioning as to the complainants’ sexual behaviour. The exclusion of the questioning therefore involved issues under article 6 of the ECHR, such as were considered by the House of Lords in A . This aspect of the case was raised before the judge, but was only lightly touched on before us (the point was not mentioned either in the Grounds or in the appellant’s skeleton argument). Nonetheless, we need to deal with it. 12. In A the House of Lords, while stressing the general importance of the fair trial provisions of article 6, was concerned with the difficulties caused by the apparent prohibition by section 41(3)(c) of questioning about a prior consensual sexual relationship between the accused and the complainant, an issue that was or at least was potentially relevant to the accused’s defence of consent or belief in consent. In our case, we are concerned with questioning the purpose of which is to impugn the credibility of the complainants, a line of questioning in respect of which section 41(4) forbids the judge from giving permission. Althugh A , or so far as we are aware in any other authority, does not decide whether and to what extent section 41(4) is compatible with the requirements of article 6, we do have the benefit of the observations on that section of Lord Hope of Craighead in A . 13. In §§ 91-95 of his speech Lord Hope emphasised that, within the absolute right to a fair trial, article 6 does not give the accused an absolute and unqualified right to put whatever questions he chooses. The critical question is proportionality: if limitations are placed on questioning, those limitations must strike a fair balance between the general interest of the community and the protection of the individual. Lord Hope thought, at §95, that where the objective was to impugn credibility the defendant could not in any event object to a limitation on questioning on sexual behaviour, because no inferences as to the complainant’s credibility can be drawn from sexual behaviour on other occasions. Our case does not yield quite that simple answer, because the questioning in our case is excluded not because it is sought to show that the complainants lack credibility because of their sexual behaviour; but because investigation of the implications for their credibility of their subsequent complaints inevitably leads to investigation of their sexual behaviour. However, applying the general principles set out by Lord Hope, we have no doubt that the outcome in this case is proportionate and consistent with the ECHR. 14. The court in T recognised and accepted that section 41(4) did not exclude investigation of previous, or subsequent, complaints. It offered a method whereby that could be done whilst maintaining the important values of protecting vulnerable witnesses from intrusive or irrelevant questioning; avoiding speculation; protecting the interests of third parties; and containing the trial within manageable limits. It is only because those requirements as laid down in T are not met in this case that the prohibition of the questioning, and thus the potential inconsistency with the ECHR, arises at all. 15. Furthermore, this case provides a particularly forceful and specific illustration of why the general approach in T is legitimate and necessary in the interests of proportionality. Precisely because there was no evidence of the falsity of the further complaints, it was impossible for the court to know or even to speculate as to where the enquiry into the girls’ allegations might lead: or whether, if the matter were fully investigated, it would advance the appellant’s case. That is exactly the difficulty posed by collateral enquiries into issues of credibility, and the reason why in general terms courts will not embark upon such enquiries. But, quite apart from the general need to keep the trial within reasonable bounds, such an enquiry would in this case effectively require the girls to undergo an investigation, conducted on an unclear and unformulated basis, into other occasions of alleged abuse, just for the speculative hope of establishing something that might add to the significant matters relating to their credibility that the judge had permitted to be adduced. We are entirely clear that the ECHR rule of proportionality excludes any such exercise. The evidence in this case 16. Mr Mann QC pointed out that the material relied on in this case was significantly different from that used in other cases. All the discussion in the cases is of the relevance of earlier false or allegedly false allegations. Here, the supposedly false allegations had only been made, or at least only been formally made, fourteen months after the making of the allegations that were in issue in the case. He questioned the extent to which, even if the evidence had been admitted, it would have been or could properly have been useful to the jury in assessing the credibility of the earlier allegations. 17. We see force in that argument. If the evidence were admissible, consideration would have to have been given to whether it should be admitted, and whether, if admitted, it could have assisted the jury. In the event, however, we do not need to pursue that enquiry. This appeal is dismissed in any event.

2004_05_27-252.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/1313/data.xml

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1c6124fd4e26479dc4b4ffb148e6c601fe71090987fc22c9e937d7b16a5a56ad

[2013] EWCA Crim 943

EWCA_Crim_943

2013-05-21

crown_court

Neutral Citation Number: [2013] EWCA Crim 943 Case No: 201301260/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 21st May 2013 B e f o r e : LORD JUSTICE LAWS MR JUSTICE MACKAY HIS HONOUR JUDGE MELBOURNE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v MOHAMED JELU AHMED CHOWDHURY - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merril

Neutral Citation Number: [2013] EWCA Crim 943 Case No: 201301260/A2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 21st May 2013 B e f o r e : LORD JUSTICE LAWS MR JUSTICE MACKAY HIS HONOUR JUDGE MELBOURNE INMAN QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - - R E G I N A v MOHAMED JELU AHMED CHOWDHURY - - - - - - - - - - - - - - - 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 L Seelig appeared on behalf of the Appellant - - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE MACKAY : On 6th December 2012 in the Crown Court at Portsmouth, having heard evidence from prosecution and defence, His Honour Judge Price made a finding of fact that the appellant, who brings this appeal as of right, had failed to surrender to his bail without reasonable excuse. He sentenced him to 12 months' imprisonment. He purported to direct that the time served on remand should not count towards that sentence. That last direction was in the traditional phrase a "brutum fulmen" in view of the repeal of section 240 of the Criminal Justice Act 2003 . It is argued that it has a relevance to this appeal as we will develop. 2. The facts were simply these. The appellant was charged with one count of harassment and two of threats to kill - the complainant being his wife. 3. There is no need to set out the particulars of offence. They are frankly and fully set out in paragraphs 7 and 8 of counsel's advice and grounds. But they were, if true, serious offences of matrimonial violence. 4. He was bailed and he failed to attend his trial. A warrant was issued for his arrest and he was at large for almost exactly 13 years, having relocated himself from the south coast to the Leeds area where he had gone to ground. Ironically he came to the attention of the police as a result of his own application for leave to remain in the United Kingdom. 5. The matter was restored to court. It became clear that the health of the wife had so deteriorated over the period of 13 years that she was not capable of giving coherent evidence. No evidence was offered and the charges were dismissed and the Bail Act offence was tried with the result we have set out. 6. It is argued that 12 months, being the maximum sentence available for a Bail Act offence treated as a contempt of court, was a manifestly excessive response. The guidelines on failure to surrender suggest a range of sentences and advise that the assessment of culpability requires consideration of the reason why the defendant failed to appear which can range from forgetfulness or fear of the outcome of the hearing, to a deliberate act. Where the failure is deliberate it will be relevant whether it was designed to disrupt the system to the defendant's advantage. That, in our judgment, was most certainly the case here. 7. The seriousness of the underlying offence, the guidelines suggest, should not affect the assessment of seriousness but the nature of that offence may affect the degree or likelihood of harm caused such as where it is a violent or sexual offence and an acquittal for that offence will not affect the seriousness of the failure to surrender. 8. The aggravating features, as we see it and as the judge saw it, were the length of the delay and disruption to the administration of justice (13 years) and the fact that this was a determined and in the event successful attempt to avoid the jurisdiction of the court and undermine the course of justice. 9. The guidelines suggest a sentencing range from a medium range community order to 40 weeks but quite rightly say that matters of aggravation may require a sentence outside that range. Realistically today, in his effective and well delivered submissions, Mr Seelig concedes that a departure from the guideline range may be justified in an appropriate case. 10. He seeks to argue that the strength of the case against him is irrelevant, basing himself on R v Clark [2000] 1 Cr App R(S) 224, which is, if it is authority for anything, authority for the proposition that a subsequent trial resulting in an acquittal after a failure to surrender does not entitle the defendant, who has not surrendered, to claim credit or some form of reduced sentence. To seek to derive from this case the opposite proposition that avoiding a strong case was not an aggravating feature does not, in our judgment, run. The guidelines do not preclude a sentence at the top end or limit indeed of the court's powers nor would they have power so to do. 11. Mr Seelig advances a further argument that the judge's ineffective attempt to order that time on remand should not be taken into account indicates that he had, if anything, a higher sentence in mind as the appropriate disposal for this offence. We are not so much concerned with what was in the judge's mind. He was evidently of a very unfavourable disposition towards the defendant, having heard what he considered his rather dishonest attempt to avoid liability and contest the hearing, unsuccessfully in the event. The question for us is whether, at the end of the day, a 12 month sentence, albeit the maximum available was a manifestly excessive disposal of this matter. 12. We consider this was an extreme case of its kind. No fair trial was possible. The underlying charge related to a serious matter and it is fair to say that the defendant's own conduct indicated he had little confidence in his ability to resist it on the merits of the case. He did not do himself the favour of admitting what he had done when that was obvious and therefore was entitled to no mitigation to reduce the sentence. The judge was, in our judgment, entitled to sentence as he did. We cannot describe the resulting sentence as manifestly excessive. 13. This appeal must therefore be dismissed.

2013_05_21-3177.xml

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a576df6da6ed7eaa10acb4a7a69a201d649cd00ea7b2378d74c07bfd1df4324d

[2023] EWCA Crim 1410

EWCA_Crim_1410

2023-09-12

crown_court

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

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved. Neutral Citation Number: [2023] EWCA Crim 1410 IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NO 202301699/A2 Royal Courts of Justice Strand London WC2A 2LL Tuesday 12 September 2023 Before: LORD JUSTICE SINGH MRS JUSTICE LAVENDER MR JUSTICE JOHNSON REX V ROBERT WOOLDRIDGE __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) _________ MR W PARKHILL appeared on behalf of the Applicant. _________ J U D G M E N T (Approved) LORD JUSTICE SINGH: Introduction 1. This is an application for leave to appeal against sentence, which has been referred to the Full Court by the Registrar of Criminal Appeals. The applicant pleaded guilty to three offences on 14 April 2023, in the Crown Court at Exeter. On 19 May 2023, the applicant was sentenced by Mr Recorder Tait in the following way. On count 1, which was an offence of possessing a controlled drug of Class A with intent to supply, which related to cocaine, there was a sentence of 66 months’ imprisonment. On count 2, which was an offence of possessing a controlled drug of Class A with intent, this time being diamorphine, the sentence was also one of 66 months’ imprisonment, made concurrent. On count 3, which was obstructing a constable, under section 23(4) (a) of the Misuse of Drugs Act 1971 , no separate penalty was imposed. Accordingly, the total sentence was one of 5 years and 6 months’ imprisonment, and an appropriate order was made for the forfeiture and destruction of the drugs. The applicant was convicted therefore of an offence of Class A trafficking, as defined in section 313(5) of the Sentencing Act 2020 , or the Sentencing Code. 2. At the date of the offences the applicant was aged 46. He had been convicted of previous drug trafficking offences on 24 January 2003, 22 April 2004, 4 October 2011 and 12 January 2016. In accordance with the provisions of section 313 of the Sentencing Code, the judge was under a duty to impose an appropriate custodial sentence of 7 years’ custody, unless the court was of the opinion that there were particular circumstances which related to an offence or the offender that would make it unjust to do so in all the circumstances. Section 73(3)(a) of the Sentencing Code allows for credit for a guilty plea, provided that it does not reduce the appropriate custodial sentence below 80 per cent. 3. The relevant legislation has been amended. The test of unjust in all the circumstances was applicable at the relevant date, since the offending occurred on 30 June 2021. An amended test has been introduced requiring there to be exceptional circumstances in relation to offences committed after 28 June 2022 (see section 313(2) (a) of the Sentencing Code). The Facts 4. At 10.15 am on 30 June 2021, officers noticed a group of known Class A drug users huddled near some public toilets. They were on their mobile phones. Whilst making phone calls one of the group walked towards a nearby post office. Shortly afterwards the applicant was seen also to make his way to the post office, where he met up with a known drug user. They walked to a side path out of view. A few seconds later, the drug user came out of the alleyway and the applicant left in the opposite direction. Officers were aware that the applicant lived nearby, located him and arrested him. He shouted that he was not a drug dealer, possibly to inform others of police presence. He told officers that he was buying not selling. Upon being searched, officers located £50 in his trouser pocket, £250 in his wallet, a mobile phone which was ringing and placed on the floor and a yellow Kinder egg containing eight wraps of crack cocaine (that was the subject of count 1) and three wraps of heroin (which was the subject of count 2). Whilst the mobile phone was on the floor the applicant stamped on it, damaging the screen, that was the subject of count 3. The phone was examined and found to contain messages indicative of the applicant being involved in drug supply and phone calls from drug users. In interview, the applicant denied that the cash was from, or that he was otherwise involved in, drugs supply. The Sentencing Process 5. The applicant was born on 4 December 1974, and so was aged 48 at the date of sentence. He had 43 convictions for 151 offences, spanning the period from 1988 to 2021. His relevant convictions included possessing a controlled drug of Class A with intent to supply in 2003, 2004, 2011 and 2016. 6. The sentencing court had the advantage of a pre-sentence report. This stated that the applicant was involved in drug dealing to fund his own long-standing drug use, which at the time was heroin. He had been abstinent from drugs for 2 years with his methadone dosage reduced from 85 millimetres to 45. He had made impressive and significant efforts to move away from that previous lifestyle. Although aware of the challenges, he appeared determined to maintain the changes. He stated that his lengthy criminal record was almost totally related to his drug use. He had resided with his mother since 2019 and was in a relationship. He was unable to work due to poor physical and mental health. Given his significant progress, efforts and level of motivation, he was assessed as a medium level of reoffending. This was likely to increase if he relapsed into drug use. There was no suggestion that he posed an imminent risk to the public. He was assessed as a low risk of serious harm to all groups and a low risk of serious recidivism. Prison was said to be likely to disrupt the progress he had made. He had the opportunity to receive mental health treatment in the community, which would have been invaluable to maintain his abstinence. 7. The sentencing court also had a liaison and diversion report, which said the following. In respect of the applicant’s mental health and vulnerabilities, he was clean of all drugs, with his opiate dependency managed with a diversionary script of methadone, by residing between his partner and his mother, for whom he was her carer, he maintained a level of social stability, for the first time, making him feel relatively safe. He continued to experience symptoms of PTSD, significant anxiety and moderate depression. He was aware that he needed to address the root causes of these by completing long-term psychological interventions and trauma recovery work. He was able to identify the triggers that deteriorated his mental state. To cope with daily experiences, he avoided most social situations. He attended professional appointments and obligations but found it difficult. He would have been able to comply with a sentence within the community as he presented a realistic prospect of rehabilitation and was motivated to change the pattern of his past offending appellant behaviour. This would also allow him access to trauma recovery work to address his underlying mental health needs. 8. In his sentencing remarks the Recorder noted that the applicant had similar convictions going back to 2004. The applicant had not learned his lesson, as he again faced a minimum term of 7 years’ imprisonment. In the Recorder’s view there were no exceptional circumstances within the meaning of the legislation. It would have flown in the face of Parliament to do anything other than impose a minimum sentence of 7 years’ imprisonment. This was reduced by 20 per cent in accordance with the legislation to which we have referred. It would appear that the Recorder erroneously referred to “exceptional circumstances” because the amendment to the legislation had not taken effect at the date of this offending. 9. Since the time of sentence, there has been a prison report, which this Court has seen, which states that the applicant was a standard prisoner who had adhered to the wing rules and regime. He had shown a positive attitude and asked to complete programmes but had not completed any offender behaviour work. He had engaged in work to address his drug issues. He had a positive adjudication from 24 June 2023, when he refused a cell mate despite residing in a double cell. This charge was proven, and he received a caution for an undefined number of days. Relevant Legal Framework 10. In Attorney General’s Reference (R v Marland) [2018] EWCA Crim 1770 , at paragraphs 22 to 31, Simon LJ said that the starting point, in considering a sentence where the minimum sentencing provisions apply, is to recognise that Parliament intended that a minimum sentence should be passed unless the particular circumstances of the offences and the particular circumstances of the offender made such a sentence unjust. He recognised that the Court is not looking for “exceptional circumstances” but “particular circumstances” – see, for example, R v Hickson [2002] 1 Cr App R(S) 71; [2001] EWCA Crim 1595 , in particular, at paragraphs 19 to 20, where Waller LJ, noted the distinction in the statutory language between the two phrases. Nevertheless, Simon LJ continued that in R v Lucas [2012] 2 Cr App R(S) 14, at paragraph 13, Jackson LJ said that this Court must loyally apply the minimum sentencing provisions and must not treat “perfectly normal circumstances” as being “particular circumstances” in order to circumvent the operation of those provisions. In Marland, at paragraph 30, Simon LJ observed that, although the minimum sentence provisions in the Firearms Act 1968 ( section 51 A) referred to “exceptional” and not “particular” circumstances, the same approach must apply as indicated by the Court in Lucas . Certain, albeit limited, principles can be derived, he said, from the terms of the statute and case law. First, the provisions of the minimum sentencing provisions are intended to have deterrent effect. Second, normal circumstances are not to be regarded as particular circumstances. Third, the Court must come to the view that those particular circumstances are such as to make it unjust to have passed the minimum sentence in all the circumstances. Finally, Simon LJ said that one way of testing whether a sentence will be unjust in the particular circumstances is to ask whether the sentence is “markably more severe than the sentence which would be passed applying the Sentencing Council Guidelines for the offence”. But he said this has to be measured against the deterrent element which underlies the minimum sentencing provisions. 11. Finally, in setting out the relevant legal framework, we should refer to the decision of this Court in R v Silvera [2013] EWCA Crim 1764, at paragraph 6, where Lewis J summarised the proper approach to the sentencing in context such as this in the following way: “... The correct approach is to have regard to the Sentencing Council Guidelines and then to ensure that the final sentence imposed is not less than the minimum sentence required by section 111 of the Sentencing Act. Further, the three year minimum term is not the starting point. [That was a reference to the 3-year minimum term applicable in that context relating to burglary.] Rather, the judge must go through the proper sentencing exercise in accordance with the guidelines and should then cross-check to ensure that the sentence is no less than the minimum term required. In some circumstances it may be significantly more.” Grounds of Appeal 12. In the grounds of appeal, the applicant advances two points. First, it was unjust, in all the circumstances, to impose the minimum sentence, given the strides he had made to rehabilitate himself. His need for treatment to combat his mental health had only been identified in his 40s. He successfully completed a community order. Secondly, in the written grounds, it was submitted that the sentence should have been suspended. Despite the starting point and the range in the Guidelines, if afforded a full third for his plea and proper credit for his other mitigation, it was submitted that he should have received a period of custody capable of being suspended. At the oral hearing before us Mr Parkhill, who did not settle the written grounds, accepted that that was not a realistic suggestion but submitted nevertheless that a community order could and should be considered as suggested in the report from the Probation Service, particularly so that the applicant’s mental health issues can be addressed. 13. On behalf of the applicant, it is accepted that the defendant was subject to the minimum sentence provisions, having regard to his previous convictions for supplying Class A drugs. Nevertheless, it is submitted that the sentence was wrong in principle because the Recorder applied the wrong statutory test, referring to “exceptional circumstances” rather than the legislation as it was in force at the material date. Further, it is submitted that by reference to the particular circumstances relating to the applicant, albeit it is accepted not the particular circumstances relating to the offence, there were circumstances which would make it unjust to impose the minimum sentence otherwise required by the legislation. Our attention has been drawn in particular to the Criminal Justice Liaison and Diversion Report, to which we have referred and to relevant parts of the pre-sentence report. 14. It is submitted that putting aside the minimum sentence provision, the Sentencing Guideline applicable to this case would have resulted in a recommended starting point of 4 years 6 months’ custody with a range of 3 years 6 months up to 7 years. This is because it was agreed, and remains the case, that this was a category 3 offence and that the defendant had played a significant role . Nevertheless, it is submitted that the sentence should have been towards the lower end, if not below the recommended range. 15. In our judgment, that submission fails to acknowledge the obvious point that the applicant had, as is accepted, a bad criminal record, including for serious drugs offences. It is unrealistic, in our view, to proceed on the basis that, even leaving aside the minimum sentence provisions applying the Guideline would have resulted in a sentence towards the lower end of the recommended range. To the contrary, in our judgment, it would have to be at the upper end of the range in any event. 16. Although the Recorder did not go through the exercise which was required by Silvera , and may erroneously have referred to the amended legislation, we have reached the conclusion that these were not material to the appropriateness of the sentence in fact passed. 17. The submissions which have been eloquently made on behalf of the applicant by Mr Parkhill, in our judgment, do not point to anything other than the sort of “normal circumstances” which sadly sentencing courts and this Court frequently encounter in cases of this kind. It is laudable that the applicant has now taken steps to address his difficulties, in particular his mental health issues. But nevertheless, the reality is that he continued to offend and, in particular, to commit these serious drugs offences after the relevant time. The fact that the legislation has not had the deterrent effect on this particular applicant that it is intended to have, does not make it unjust to impose the minimum term in his case. 18. At the end of the day, the question for this Court is whether it is arguable that the sentence in fact passed was manifestly excessive. We have reached the conclusion that it is not. The application for leave is therefore refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

2023_09_12-5813.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2023/1410/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2023/1410

e7eaa1a009a13c15a5091f2be65d73119e213ddcdaab447df885e637a6a440d1

[2016] EWCA Crim 1523

EWCA_Crim_1523

2016-10-18

crown_court

Case No: 201601913 A1 Neutral Citation Number: [2016] EWCA Crim 1523 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT HHJ AUBREY QC T20107971 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/10/2016 Before : THE LORD CHIEF JUSTICE MR JUSTICE TURNER and MR JUSTICE WILLIAM DAVIS - - - - - - - - - - - - - - - - - - - - - Between : Anthony Geraghty Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case No: 201601913 A1 Neutral Citation Number: [2016] EWCA Crim 1523 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM LIVERPOOL CROWN COURT HHJ AUBREY QC T20107971 Royal Courts of Justice Strand, London, WC2A 2LL Date: 18/10/2016 Before : THE LORD CHIEF JUSTICE MR JUSTICE TURNER and MR JUSTICE WILLIAM DAVIS - - - - - - - - - - - - - - - - - - - - - Between : Anthony Geraghty Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Keith A Sutton and Martin Reid (instructed by The Crown Prosecution Service ) for the Appellant Keir Monteith (instructed by Emmersons Solicitors Limited ) for the Respondent Hearing dates : 16 th June 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Mr Justice Turner : The Background 1. On 15 April 2011 in the Crown Court at Liverpool the applicant pleaded guilty to five drug related offences the most serious of which was conspiracy to import approximately two tonnes of cocaine in respect of which, on 19 October 2011, he received a sentence of 20 years imprisonment passed by HH Judge Aubrey QC. The sentences for each of the other offences were ordered to be served concurrently to this sentence and to each other. He appeared with nine co-defendants each of whom also received long sentences of imprisonment for serious drug related offending. 2. On 27 February 2013, the same judge imposed on the applicant a Financial Reporting Order (“FRO”) under section 76 of the Serious Organised Crime and Police Act 2005 for a period of fifteen years together with a Confiscation Order in the sum of £9,044.74. 3. The applicant now seeks leave to appeal against his sentence of imprisonment. However, he faces two significant hurdles even before any consideration of the substantive merits, if any, of his grounds. Firstly, he has already and unsuccessfully applied for leave to appeal to this Court against the FRO. Secondly, his application is made nearly five years out of time. The Procedural History of the Appeal 4. When the matter came before this Court on 16 June 2016, there was much confusion and uncertainty as to the sequence of events which had given rise to the long delay. Accordingly, we granted the applicant an adjournment in order to give him the opportunity to waive legal professional privilege in the hope that the material and information thus obtained would cast some light on the issue. The applicant duly signed a formal waiver document on 6 July 2016. 5. This exercise has prompted the disclosure of a very considerable tranche of documentary material together with formal written responses from counsel, Mr Stone QC and Ms Mushtaq, each of whom has advised the applicant in the period following his conviction and sentence. A response has also been served by Mr Robinson of Emmersons Solicitors Limited who have acted for the applicant since early 2012 following the termination of the retainer of their predecessors. The picture which has emerged of the events of the years which have elapsed since then betrays a significant lack of focus and coherence in the way in which the case has been progressed. 6. On 7 November 2011, comfortably within the 28 day time limit within which any appeal notice ought to have been filed, Mr Barraclough of counsel, who had represented the applicant throughout, drafted detailed advice and grounds supporting the contention that the period of imprisonment imposed upon the applicant was manifestly excessive. Significantly, however, a contemporaneous handwritten note appears at the head of the advice stating “lodged then withdrawn”. This, it is conceded, is a reference to the fact that the applicant asked his solicitors to withdraw the appeal at that stage. 7. The basis upon which the applicant took issue with the advice and grounds drafted by Mr Barraclough is not clear from the material with which we have been provided. The consequence of the applicant’s decision not to proceed with the appeal at that stage, however, was that the 28 day time limit for the service of an appeal notice had predictably expired before new counsel was retained. Indeed, the applicant was fully aware of this at the time as is revealed in the skeleton argument drafted on his behalf which notes that the applicant had instructed his original solicitors upon withdrawing the appeal “to ask for an extension of time”. 8. Three months after sentence had been passed and two months after the applicant was out of time with respect to the filing any appeal notice, he wrote directly to fresh counsel, Mr Stone, asking for his advice. Mr Stone saw the applicant in conference on 24 February 2012 but, at this stage, had not seen the full case papers and, in the absence of public funding, was acting on a pro bono basis. Funding was eventually put in place on 22 May 2012 with new solicitors, Emmersons, acting on behalf of the applicant. Mr Stone then read the documents in the case and rapidly came to the unequivocal view that the applicant had no arguable grounds of appeal against either conviction or sentence. Furthermore, Mr Stone was unavailable to appear on the POCA hearing which at that stage had been listed to take place on 3 October 2012. Accordingly, the brief with respect to the confiscation proceedings was passed to Ms Mushtaq of counsel. 9. Eventually, on 23 February 2013, the applicant was made the subject of a confiscation order and FRO. By email dated 30 April 2013, Mr Stone QC (as he had by then become) suggested to his instructing solicitors that he should relinquish all further involvement in the case to Ms Mushtaq. He volunteered to waive the entirety of his fee so that Ms Mushtaq could “readdress the issues”. His solicitors agreed to this suggestion. 10. Mr Stone QC clearly intended that he should play no further part in the case. However, Ms Mushtaq appears to have assumed that her role continued to be limited to the confiscation and related ancillary matters. No thought appears to have been given to the possibility that any appeal against the prison sentence might prove, in procedural terms, to be inextricably linked to a challenge to the FRO. 11. In the event, Ms Mushtaq lodged grounds of appeal against the FRO and, on 30 July 2013, the single judge refused permission observing that: “The 15 year period, although the maximum, was not wrong. Under section 75(5) it had to run for more than about 8 or nine years in order to have effect after your release on licence. An effective period of 6 or 7 years after your release cannot be said to be excessive”. 12. On 13 December 2013, this Court, [2013] EWCA Crim 2357 , refused a renewed application for leave to appeal against the FRO in the following terms: “We turn finally to the applicant Geraghty, who has not sought to appeal against his prison sentence of 20 years for his part in the main conspiracy to import cocaine (Count 4 of indictment 1) and for other offences, but renews his application for leave to appeal against the Financial Reporting Order which was made in his case. It is submitted on his behalf that any such order was wrong in principle, or alternatively that the duration of the order for the maximum permitted term of 15 years was manifestly excessive. We cannot accept those submissions. The judge was entitled to make the assessment he did of the risk of future re-offending, and in the light of that assessment it cannot be said that the order was unnecessary. Nor was it disproportionate or excessive in its duration; the order does not impose any particularly onerous demands upon Geraghty, and its duration has to take account of the fact that he will be in prison for a number of years, and that important parts of the order will not effectively bite until he is released”. 13. Thus, it is plain from the reasoning, both of the single judge and of the Full Court, not only that the length of the prison sentence was assumed not to be the subject of appellate challenge but also that the assessment of the appropriateness of the length of the FRO was, at least in part, contingent upon the length of time the applicant could be expected to remain in custody. Put simply, had the prison sentence been shorter then the length of the FRO would have been more vulnerable to challenge. This, however, was not a point which had occurred to Ms Mushtaq. In a written advice dated 12 November 2013, she referred to the FRO as being “the subject of a separate appeal” to any challenge to the length of the prison sentence. She went on to conclude that there were grounds to appeal the latter and advised that her grounds and advice “should be submitted as soon as possible”. 14. Four months later, no grounds and advice had been filed and, by letter dated 24 March 2014, the applicant dispensed with the services of Ms Mushtaq. There is a dispute between Ms Mushtaq and Mr Robinson of Emmersons as to who was responsible for the lack of appellate progress over this period which we do not find it necessary to resolve. 15. Later in 2014, the applicant’s present, and fourth, counsel, Mr Monteith, was instructed to advise on appeal against the prison sentence. He prepared a written advice dated 1 March 2015 in which he called for sight of a number of documents following receipt of which he said he would advise further. By July 2015, Mr Robinson was able to inform the applicant that information had been provided to counsel and that he expected to receive a response “any time soon”. 16. In the event, it was not until 2 January 2016 that counsel provided the further advice citing a frustrated hope to have a conference with the applicant and “pressure of work” as the reasons for the egregious ten month delay. After further unhurried exchanges between the applicant and his legal team over the contents of the proposed appeal bundle, Form NG was finally served on the Court on 30 March 2016 i.e. about four and half years out of time. Against this background, the assertion in the Grounds of Appeal that “there are good reasons” for the delay is brave indeed. Jurisdiction 17. The first issue to be considered is the jurisdictional question as to whether the earlier and unsuccessful application for leave to appeal against the FRO now precludes this Court from further consideration of the applicant’s present challenge to his sentence of imprisonment. 18. Section 9(1) of the Criminal Appeal Act 1968 provides: “ A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings ”. 19. Section 50 (1) of the 1968 Act provides insofar as is material: “ Meaning of “sentence” (1) In this Act “sentence”, in relation to an offence, includes any order made by a Court when dealing with an offender…” There follows a list of orders which are to be taken to be included within the scope of this section. However, the list is by way of example only and although an FRO is not therein expressly referred to it is clear that such an order is one which is “made by a Court when dealing with an offender”. 20. This was the conclusion reached by this Court in R v Adams [2009] 1 W.L.R. 301 : “24 The first question however is whether this Court has jurisdiction to deal with the financial reporting order at all. That is because there is no statutory provision which expressly provides (as has been the case in a number of other statutory provisions) that such orders shall be considered to be sentences of the Court for the purposes of the right of appeal under the Criminal Appeal Act 1968 . The problem that would be presented if it was not to be treated as a sentence of the Court is that it would be an order made which was related to a matter arising on indictment, and therefore judicial review would be precluded as well. The consequence would be that there would be no apparent means whereby any defendant wrongly subjected to a financial reporting order could have the matter rectified. That is clearly a consequence which this Court should avoid if it can possibly do so. The solution, it seems to us, is that, for the purposes of the 1968 Act, the financial reporting order is indeed a sentence”. 21. Section 9 of the 1968 Act does not expressly limit any prospective appellant to a single appeal in respect of two or more orders following the same conviction. However, it has long been recognised that, normally and in the interests of finality, successive appeals will not be entertained. As this Court held in Hughes [2010] 1 Cr App R(S) 25 at paragraph 6: “The words of s.9(1) do not explicitly restrict the appellant or the Court to a single appeal. That is, however, their plain effect. Similar words in other statutes in relation to powers of appeal have always been held to have that effect”. 22. The Court went on to cite with approval the case of Pinfold [1988] 87 Cr. App. R. 15 in which it was held: “So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But in the view of this Court, one must read those provisions against the background that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings…We have been unable to discover, nor have counsel been able to discover, any situation in which a right of appeal couched in similar terms to that has been construed as a right to pursue more than one appeal in one case”. 23. In Hughes , however, in contrast to the present case, the application for leave was directed to precisely the same sentence or order which had already been considered by the Court of Appeal on an earlier occasion. In this case it is argued that, on the correct construction of the relevant statutory provisions, the FRO fell outside the scope of the earlier sentencing exercise which had involved the passing of the sentence of imprisonment and thus the applicant was provided with a launching platform from which could spring a distinct appellate challenge untrammelled by the general rule against second appeals. 24. In support of this approach, the applicant relies on the case of Odesanyi [2005] EWCA Crim 2260 in which the applicant had been sentenced to a long term of imprisonment in respect of drug importation offences. About six weeks later in the same Court before the same judge the applicant was made subject to a confiscation order in the sum of £225,520. An application for leave to appeal against conviction was unsuccessful and was followed by an application for leave to appeal against sentence which, again, was unsuccessful. Undeterred, the applicant made a third application to appeal the confiscation order. The Court proceeded on the assumption, in the applicant’s favour and in the absence of contemporaneous documentation, that the first application for leave to appeal against sentence had been limited to the sentence of imprisonment. The issue arose as to whether the Court had jurisdiction to entertain the second application for leave to appeal against sentence. In this context, Longmore LJ observed: “5. …The first matter which concerns the Court is whether there is jurisdiction to consider this application. Section 11(2) of the Criminal Appeal Act 1968 in general terms permits but one appeal against all elements of a sentence passed on the same day or on different days and declared to be substantially one sentence — see section 10(4) of the Act, the exact words of which are: “… any two or more sentences are to be treated as passed in the same proceeding if— (b) they are passed on different days but the Court in passing any one of them states that it is treating that one together with the other or others as substantially one sentence”. Here the confiscation order was made on 15th November 1996 but was not (we feel it necessary to assume) the subject of any complaint. In the case of Neal [1999] 2 Cr.App.R (S) 352, the confiscation order was only made after the appeal against the sentence of imprisonment had been disposed of. That authority is, therefore, unhelpful in a case where the appeal against sentence is mounted after the confiscation order has been made. 6 Because of the long delay the transcript of the confiscation order as made by the judge and his reasons for it is no longer available. We do not know, therefore, whether the Court stated that it was treating the confiscation order and the sentence of imprisonment as one sentence — to use the wording of section 10(4) of the Act. It is, however, unlikely, just as in Neal , that any such statement would be made — in Neal because it was inappropriate and here because it is unlikely that the judge would, some three months later, have gone to the trouble of so stating. We, therefore, somewhat reluctantly, consider that we have jurisdiction to entertain the application”. 25. In its Grounds of Opposition, the prosecution purport to concede this jurisdictional point but it is not open to the parties to circumscribe the statutory jurisdiction of this Court by agreement. We are in a far better evidential position than was the Court in Odesanyi and are not compelled to give the applicant the benefit of any doubt as to what the judge may or may not have said when making the FRO. We have been provided with a transcript of the judge’s remarks when he considered the appropriate length of the FRO. He observed: “Furthermore, the Court firstly has to then consider the duration of the order and the terms of such an order. In the Court’s judgment, bearing in mind the length of the sentence that this defendant is currently serving in the particular circumstances of the case, it is appropriate for the Court to make an order that this Financial Reporting Order will last for some 15 years”. 26. It is evident from this passage that the judge was expressly treating the terms of the FRO as being inextricably bound up with the length of the sentence of imprisonment he had earlier imposed. The inescapable conclusion is that he was thereby stating that he was treating the terms of the order as substantially one sentence with the sentence of imprisonment. Indeed this Court in Wright [2009] 2 Cr. App. R. (S.) 45 recognised the relevance of the fact, circumstances and length of a sentence of imprisonment with respect to the appropriateness of the making, and duration, of a financial reporting order. 27. Moreover, we reject the suggestion that in order for a case to fall within the scope of section 10(4)(b) of the 1968 Act the judge must make a declaration which follows, verbatim, the precise wording of the subsection. Such an approach would be unduly mechanistic and would mark an unwelcome triumph of form over substance. 28. We, therefore, conclude that the case of Odesanyi does not, as a matter of course, provide a jurisdictional route which an applicant can follow in order to bring a second application for permission to appeal against sentence where the sentencing judge has stated (either explicitly or by necessary implication) that he is treating any substantive sentence when taken together with any subsequently imposed order falling within section 9 of the 1968 Act as substantially one sentence. 29. This applicant had the opportunity to challenge the length of his prison sentence long before he sought unsuccessfully to seek leave to appeal against the FRO. He failed to take up that opportunity. Both the single judge and the full Court dealing with the challenge to the FRO proceeded explicitly and necessarily on the basis that the length of the prison sentence was unchallenged. Thus, we find that the applicant has thereby forfeited any jurisdictional basis upon which he may make any further applications to this Court. 30. We observe, in passing, that cases, such as Neal , where a second or subsequent order is only made after the appeal against an earlier order has been disposed of, will continue to be capable in appropriate cases of providing an exception to the general rule against repeated applications. Moreover, as this Court recently observed in Yasain [2016] Q.B. 146 , there is a residual category of cases in which the Court enjoys a very limited jurisdiction to avoid real injustice in exceptional circumstances to exercise an implicit power to reopen a concluded appeal where it is necessary to do so. No such real injustice or exceptional circumstances can be found in this case not least because of the inordinate delay in bringing the appeal and its lack of substantive merit. Delay 31. It follows from the analysis above that this application fails on grounds of want of jurisdiction but, even if we had found in the applicant’s favour on this issue, we would not have granted the necessary extension of time. In the recent cases of Wilson [2016] EWCA Crim 65 and Roberts [2016] EWCA Crim 71 this Court has emphasised the importance of observing time limits in the context of appeals. There is a strong public interest in achieving finality in litigation. In a case such as this where the delay is so very long the Court will inevitably be looking for compelling reasons to justify granting an extension of time. We find no such reasons here. On the contrary, the chronology submitted in support of the application to extend time in this case reveals an all too familiar picture of fitful and desultory progress punctuated by episodes of dissatisfaction with successive legal advisors. 32. We also bear in mind in this case that counsel’s original advice on appeal was strongly positive but, notwithstanding this, the applicant himself decided not to proceed expeditiously with any application for leave to appeal. As we have already observed, he took this decision in the full knowledge that it would thus become necessary for him to obtain the leave of the Court for an extension. 33. As time wore on, the applicant and his advisors appear to have laboured under the misapprehension that not only days but weeks, months and years could be allowed to drift past without accruing further significant procedural prejudice to the applicant’s prospects of appellate success - as if the damage had already been done. We would wish to make it clear that early delays, far from providing a licence for further procrastination, make it even more important that an appeal is progressed thereafter with proper expedition. The merits 34. In any event, we find no merit in any of the four substantive grounds of appeal. 35. The applicant was a regional supplier in wholesale quantities of Class A drugs and was intimately involved in the planning of their importation into the UK. His offending was seriously aggravated by a previous conviction for conspiracy to supply controlled drugs in respect of which he had served a substantial sentence of imprisonment. On these facts, the sentence of twenty years was entirely appropriate. The judge expressly referred to and applied the principle of totality by passing concurrent sentences with respect to the four relatively less serious counts to which the applicant had also pleaded guilty. The quantity of cocaine involved was described as between two or three tonnes in the judge’s sentencing remarks and up to two tonnes on the later confiscation hearing. The difference between the two descriptions falls far short of justifying any reduction in sentence. An argument based on disparity is raised but this fails to take into account the reality of the applicant’s high level involvement in the conspiracy which was accurately reflected in the sentencing remarks of the judge. The minute and, ultimately fruitless, exegesis of the nuances of the involvement of the other defendants relied upon in the applicant’s grounds fails to demonstrate any objectionable disparity in sentence and thus takes the matter no further. Furthermore, the factors of personal mitigation advanced fall far short of any which would render the sentence manifestly excessive. 36. In the circumstances, the application is dismissed.

2016_10_18-3836.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2016/1523/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2016/1523

6089a8e62ec8aa615730a54b13572581377efca223f6730d83ed4efac8848fa5

[2010] EWCA Crim 1619

EWCA_Crim_1619

2010-07-12

crown_court

Case No: 200901398 D5 Neutral Citation Number: [2010] EWCA Crim 1619 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD HH JUDGE MURPHY QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/07/2010 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE HOLMAN and HIS HONOUR JUDGE PERT QC (sitting as an additional judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : MOHAMMED ALI Applicant - a

Case No: 200901398 D5 Neutral Citation Number: [2010] EWCA Crim 1619 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIELD HH JUDGE MURPHY QC Royal Courts of Justice Strand, London, WC2A 2LL Date: 12/07/2010 Before : LORD JUSTICE STANLEY BURNTON MR JUSTICE HOLMAN and HIS HONOUR JUDGE PERT QC (sitting as an additional judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : MOHAMMED ALI Applicant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S Kamlish QC and O Osman (instructed by Howells ) for the Applicant Hearing date: 11 June 2010 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Stanley Burnton: Introduction 1. On 11 January 2007 in the Crown Court at Sheffield, before HH Judge Murphy QC and a jury, the applicant was convicted of murder and of two counts of attempted murder. He has applied for an extension of time of 2 years, 1 month and 8 days and leave to appeal against his conviction, following refusal by the single judge. This is the judgment of the Court on his applications. The facts 2. At around 5.30 pm on 3 June, 2006, a silver Volkswagen Bora motor vehicle driven by Adil Khan was on Osgathorpe Road, Sheffield. His front seat passenger was his brother Lukman Khan. In the back of the car were Tahir Younis (rear nearside), Kashif Nasim (rear off side) and Ibrahim Ilyas in the middle. Adil Khan was intending to turn onto Abbeyfield Road but saw a blue Volvo motor car stationary at the junction. The Bora pulled into the junction and stopped alongside the Volvo, off-side to off-side. At that point a man got out of the Volvo and fired eight bullets into the side and through the back window of the Bora. At some stage the gunman pulled a balaclava down over his face. Kashif Nasim, although injured, got out of the car and ran into Osgathorpe Park and from there to the Northern General Hospital. Adil Khan drove to the same hospital where he deposited Ibrahim Ilyas and Tahir Younis. 3. Ibrahim Illyas was treated for his injuries but pronounced dead at 6.20 pm. The cause of death was multiple gunshot wounds, there being a total of six entry wounds (count 1). Kashif Nasim was treated for gunshot wounds to his back (count 2) and Tahir Younis had an injury to his right outer thigh (count 3). 4. The applicant was arrested in Middlesbrough on 4 June 2006 at 1.25 am, i.e. within hours of the shooting. He was interviewed 5 times on 5 and 6 June and answered no comment to all questions. On 6 June he signed a written statement in which he denied being the gunman. It made no mention of any alibi. 5. On 28 September 2006 a defence statement was prepared and signed by him. It too made no mention of an alibi. 6. On 30 October 2006, two and a half weeks before the trial was due to begin, a supplemental defence statement was served on behalf of the applicant. For the first time, the defence of alibi was put forward. It stated that at the time of the shooting the applicant was at the Taj Mahal restaurant in Doncaster with his cousin Gharib Dawood and a solicitor by the name of Duncan Smith. 7. On 3 November 2006, the police interviewed Smith. They investigated his account of his being with the applicant when the shooting took place. Without going into details, it can safely be said that they completely demolished his story. As a result, when the applicant came to give evidence at his trial, he accepted that he had not in fact been with Smith at the time of the shooting. The Prosecution Case 8. The prosecution case was that the applicant murdered Ibrahim Ilyas and attempted to murder Tahir Younis and Kashif Nasim. The motive was connected with drug dealing in the area. Earlier that afternoon there had been what was referred to at the trial as a “precursor” event in which the deceased was said to have been threatened by the applicant. The deceased had been a drug dealer and at the time of his death had traces of cocaine and cannabis in his body. His mother gave evidence that he had told her that the applicant had asked him to sell drugs but that he had said he was not interested. 9. Tahir Younis, Adil and Lukman Khan and Kashif Nasim identified the applicant as being responsible for the shooting. They all subsequently retracted their statements and were treated as hostile witnesses. Another witness, Suheel Rahman failed to make a positive identification in that he could not make a decision between two members of the parade, the accused and another. 10. The Volvo had been stolen and was later found burnt out in Psalter Lane, Rotherham. There was no forensic evidence linking it to the applicant. 11. The prosecution relied upon cell site analysis and telephone calls from two mobile phones which, it was alleged, traced the applicant fleeing the scene following the shooting. The defence case 12. The applicant denied he was the gunman. Witnesses who sought to identify him as such were mistaken or, worse, he was being set up. He was not in Sheffield at the time of the shooting but was at the Taj Mahal Restaurant in Doncaster with his cousin, Gharib Dawood. He spoke to various people there including the waiter, the owner and a white man who was a builder. He had no quarrel or grudge against the deceased or any of the people in the car. He denied that he was a drugs dealer and said he was not trying to get the deceased involved in running drugs for him or to get him out of the way as a drugs rival. There was no background of animosity between them. There had been a quarrel in the street earlier that afternoon but he was only partially involved as a peacemaker. The deceased’s lifestyle was such that he might have had enemies. 13. It was coincidental that the ‘blue’ phone ascribed to him by the prosecution was taken to Rotherham at just about the time of the killing and then to the Psalter Lane area at about the time of the burning of the Volvo. He had given the blue phone to his brother Saddaqat a few days before the shooting. Saddaqat had left it in the car of Sajeed Mahmood (the owner of the Taj Mahal) who, by coincidence, returned it to the applicant in the restaurant that night. 14. So far as Smith was concerned, the applicant said that he had been told that Smith had said he had been with him at the Taj Mahal restaurant, and he had accepted that if Smith had said that it must have been the case. He now realised that Smith had been wrong. The discharge of a juror 15. During the course of the trial, a police officer, DI Wragg, discovered that one of the jurors was the godfather of his child. He brought this to the attention of prosecuting counsel, who brought it to the attention of the judge. The defence applied for the discharge of the juror. The judge refused the application, holding that in the circumstances there was no risk of prejudice or an appearance of bias. The grounds of appeal 16. The grounds of appeal are numerous, and are as follows: (1) Defence counsel had unjustifiably failed to adduce evidence that the applicant had provided his solicitors with particulars of his alibi before he was charged. (2) Defence counsel had unjustifiably failed to have Duncan Smith interviewed before deciding not to call him and advising the applicant that he should not be called. (3) Evidence of the investigation by the police into Duncan Smith’s alibi evidence had been wrongly admitted in evidence. (4) The arrest of Natalie Miller (wrongly referred to as Natalie Smith in the applicant’s grounds and skeleton argument), a solicitors’ clerk working for the applicant’s solicitors, at court on 14 December 2006 and the seizure of a solicitor’s notebook and a defence witness statement were unjustifiable acts of bad faith during the trial by the police which should have resulted in the proceedings being stopped as an abuse of process. (5) The Court’s failure to investigate the contact between DI Wragg and a juror renders the conviction unsafe. (6) The failure to discharge the juror following contact between him and DI Wragg during the trial renders the conviction unsafe. (7) The failure to discharge the jury following that contact renders the conviction unsafe. (8) There had been an inexcusable failure by the applicant’s lawyers to interview and to call witnesses who would have significantly assisted the defence case or undermined that of the prosecution. (9) Jury protection issues. (10) There had been disclosure failures by the Crown (11) Bad character evidence had been wrongfully admitted. (12) The applicant’s lawyers had negligently failed to show CCTV from the Northern General Hospital to their client. 17. Mr Kamlish QC did not pursue grounds (4) and (9), and we say no more about them. 18. It can be seen that most of the grounds criticise trial counsel and solicitors. The applicant waived privilege, and we have the written responses of his counsel and solicitors to these criticisms. 19. It is also worth pointing out that no criticism is made of the summing up. The extension of time 20. On one view, the question whether time should be extended should be considered as a preliminary issue, since if the application for an extension of time is refused, that is the end of the application. In practice, however, the Court often considers this application in the light of the merits of the case. The greater the merits of the case, the stronger the reasons for doubting the safety of the conviction, the more ready the Court may be to extend time. 21. There is, however, another consideration involved in the present case. An extension of time of the very great length required in the present case may well affect the recollections of witnesses and the availability of evidence, and may prejudice the fair determination of an appeal if leave is given. In the present case, the delay has detracted from the evidence that the applicant’s trial lawyers would otherwise have been able to provide. In particular, the solicitor responsible for the applicant’s case was Miss Amanda Wardaugh of Olliers. She sadly died in 2008. The consequences of her death have been exacerbated by the fact that Olliers are missing some files and notes, and some employees involved with the case have left. 22. The applicant was represented at trial by David Lane QC and Balbir Singh. David Lane was and is a highly experienced criminal advocate. Balbir Singh is a senior junior with considerable criminal experience. They made the point that since relevant matters had occurred 2½ years before they were asked to comment on the application for leave to appeal, their recollections were not fresh, and they had both forgotten matters of importance and detail. Moreover, in spite of extensive searches, Mr Lane’s trial brief and working papers could not be located. His chambers had moved in December 2008, and his trial brief may then have been lost or destroyed. He therefore had no working papers with which to refresh his memory. Olliers had located only part of Mr Balbir Singh’s brief. 23. We have a chronology that seeks to explain and excuse the considerable delay on the part of the applicant. Some of the delay is explicable, but a considerable period is not. 24. In these circumstances, the Court will carefully scrutinise the grounds of this application before deciding whether to extend time and to grant leave to appeal. Ground (1): Defence counsel had unjustifiably failed to adduce evidence that the applicant had provided his solicitors with particulars of his alibi before he was charged. 25. On 6 June 2006, at 18.29, two days after his arrest, the applicant provided his solicitor, then Rebecca Cooke of Olliers, with a written statement that included his alibi. It stated: “…. I wish to state that at and around the time of the shooting I was not present at the scene. I wish to raise an alibi defence to the murder of Ibrahim Ilyas. On 03/06/06 I was with Gharib Dawood who is my cousin. Around the time of the shooting I would have been with him at my friend’s restaurant in Doncaster. My friend is called Sajid Mahmood and I did see him later that evening at the restaurant. That is all. I wish to state at this stage and I do not want this information to be disclosed to the police as I am being set up by the prosecution witnesses in this case. The other males named as being present in the vehicle by the police at the shooting are dangerous people and have clearly set me up by naming me. I fear what they may do to my alibi witnesses if it is disclosed and am also in fear that they will threaten my family. …” 26. It is submitted on behalf of the applicant that his counsel should have called Miss Cooke to produce this evidence, having regard to the great play made by the prosecution of his delay in disclosing his alibi. 27. We reject this ground. In the first place, there was no explanation for the applicant’s failure to mention his alibi when arrested within hours of the murder, or later on 4 or 5 June. He first mentioned the alibi to his solicitor during her fourth interview with him. Why should he have wanted to be detained in custody when he had such an obvious answer to the charge? This was the point made by the prosecution, with such effect. The justification put forward for not disclosing the alibi made no sense. Why should the applicant’s family be threatened if he disclosed that he was with his cousin? Moreover, if he feared violence from the witnesses to the murder, that was a reason to inform the police, not a reason to suppress the information. Thirdly, no mention was made of Duncan Smith. The statement would add to the prosecution case that the applicant knew that Duncan Smith had not been at the restaurant, and that he was a false alibi witness. 28. Furthermore, as the applicant’s trial counsel appreciated and pointed out, calling Miss Cooke would have involved a waiver of privilege. How extensive that waiver might have been is not clear, but her advice on his alibi would certainly have become open. She would have been asked whether he mentioned Duncan Smith, and when and in what circumstances Duncan Smith came to appear as an alibi witness. The prosecution would have investigated why the alibi was disclosed so late. It was obviously a sensible decision for trial counsel to advise, as they did, against disclosure of the alibi until they had seen the prosecution’s cell site evidence, and if it was incriminating until they knew whether the applicant had a sensible explanation of it. Otherwise, if that evidence was inconsistent with the alibi, that would have been immensely damaging. This reasoning impinged on the applicant’s explanation for the cell site evidence. Furthermore, whatever the extent of the waiver of privilege, to claim privilege when the prosecution asked such questions would have suggested to the jury that the applicant had something to conceal, that he was waiving privilege only when it suited him. 29. In our judgment, trial counsel had good reason not to call Miss Cooke. Ground (2): Defence counsel had unjustifiably failed to have Duncan Smith interviewed before deciding not to call him and advising the applicant that he should not be called. 30. This ground is hopeless. As a result of the police investigation of his alibi evidence, Smith was charged with attempting to pervert the course of justice. He instructed solicitors. In his original statement, he had said he had been in his Doncaster office earlier on the day of the murder. However, according to his solicitor, he subsequently said that he had not been in that office for 2 years and had lost the keys. On 12 December 2006, his solicitor spoke to Miss Wardaugh on the telephone. According to her note: “He does however warn me that this will be an unmitigated disaster if we call him. He will be asked all about his relationship with Ali and the Ali family and would open a can of worms for the trial. He said if we insist on calling him he has been advised not to answer questions and to simply say to the Judge that it may incriminate him …” 31. Faced with this, it would have been foolhardy in the extreme to have called Smith. It is unsurprising in these circumstances that the applicant agreed in writing that Smith should not be called. A decision not to interview him would not have been open to criticism, since there was ultimately no point in having him interviewed, even if he would have agreed to being interviewed. In fact, however, an attendance note of 13 December 2006 states that he was interviewed by AW and RC for an hour: AW was Miss Wardaugh, RC was Miss Cooke of Olliers. He was under the influence of alcohol and had been advised by his solicitors not to give evidence. Trial counsel state that it would have been a disaster to have called him. We consider their view to be not merely defensible but obviously right. This ground appears to us to be based on a false assumption that Smith was not interviewed, but on any basis it is without any merit whatsoever. Ground (3): evidence of the investigation by the police into Duncan Smith’s alibi had been wrongly admitted in evidence. 32. The evidence obtained by the police was admissible when called in order to rebut the then anticipated alibi evidence of Duncan Smith. The only question is, therefore, whether the defence should have objected to the admission of the evidence of DS Hayward, who gave this evidence at the trial, on the ground that it represented hearsay evidence for which leave had not been given. We have no doubt that, in so far as the evidence consisted of business and computer records (e.g., of a credit card debit and records of motorway registration number recognition cameras), if objection had been taken the judge should and would have allowed it to be adduced. In so far as it included witness evidence, any objection would have led to the witness being called. As the applicant’s trial counsel rightly observed, a procession of unchallenged witnesses (or of witnesses who, if challenged, would have been obviously telling the truth) would have done nothing to assist the defence case. 33. This ground too is without merit. Ground (5) to (7): contact between a juror and an officer in the case 34. DI Wragg was the police officer who was tasked with investigating Duncan Smith. 35. On 4 December 2006, he made a witness statement in which he disclosed contact with a juror. He stated that in the course of a conversation with his partner she had mentioned that her cousin’s husband was on jury service on a murder trial at Sheffield Crown Court. He was the godfather to DI Wragg’s daughter. He had not disclosed any details of the case other than that it was a murder trial. DI Wragg asked him to contact him, which he did on Sunday 3 December. DI Wragg had explained he was trying to avoid any possible compromise of either of them, and asked him if he was the juror on the Mohammed Ali case, to which he replied “Yes.” The conversation then ended. 36. DI Wragg’s statement was served on the defence on 4 December. The matter was mentioned to the judge by prosecuting counsel, and in due course Mr Lane applied for the discharge of the juror. His application was refused. 37. There was no reason to suspect that DI Wragg had been less than candid. He had disclosed the contact, and his relationship with the juror. There was no evidence of contamination, and we note that DI Wragg did not inform the juror that he was engaged in the Mohammed Ali trial. 38. We see no basis for criticising trial counsel for not suggesting that further investigation was required. DI Wragg did not testify before the jury, so that his veracity was not in issue before them. We think that the judge was right to conclude that there would be neither bias nor an appearance of bias in the circumstances. It follows that these grounds must fail. (8) There had been an inexcusable failure by the applicant’s lawyers to interview and to call witnesses who would have significantly assisted the defence case or undermined that of the prosecution . 39. There are broadly 3 groups of potential witnesses to be considered. The first group are witnesses whose evidence goes to the issue as to the recognition of the applicant as the gunman. The three men in the VW Bora car made statements shortly after the murder that they recognised the applicant as the gunman. They retracted their statements; they testified and were treated as hostile by the prosecution. They all said that they had seen the gunman’s face before he had fully pulled down the balaclava helmet he wore to conceal his identity. 40. Three of the witnesses who, it is suggested, should have been proofed and called by the defence had made statements to the effect that the gunman was at all times concealed by his balaclava. They were Hussain Khan, Rashid Rehman and Kashmir Malik. They were the subject of a letter from the CPS dated 13 November 2006 stating that they were no longer to be regarded as witnesses of truth, and therefore were not relied upon by the Crown. 41. Trial counsel say that all decisions as to which witnesses were to be called on behalf of the applicant were made in conjunction with him. We accept their statement. There was in fact very good reason not to call these Hussain Khan, Rashid Rehman and Kashmir Malik. The Crown, apparently had concerns that these witnesses had not come forward until after the applicant’s arrest. They had connections with the applicant and his family. More importantly, if they were no longer regarded by the CPS as witnesses of truth, it is clear that the CPS had material on which to base this assertion which would be deployed if they were called. The defence had good reason not to call these witnesses, and there would have been no purpose in proofing them. 42. There are a number of possible witnesses about whom trial counsel cannot recall any discussion: Kobir Miah, Ailya Khan, Bakish Khan and Asif Younas. Their evidence would have gone to the issue whether the applicant had been recognisable shortly before the shooting. Given the length of time between the trial and any complaint by the applicant, to whom the absence of their evidence would have been obvious, we are not able to accept that trial counsel had no good reason not to cause them to be proofed and called. Some of them say they went to the hospital after the murder and that the surviving occupants of the Bora did not or could not identify the applicant. In any event, their evidence would not explain how or why it was that those in the Bora car did immediately identify the applicant, and no sensible reason has been put forward why they should have wanted to incriminate the applicant and exculpate the true murderer. More obviously, their evidence would have gone nowhere towards explaining away the other matters relied upon by the prosecution. 43. Ailya Khan is on a list of witnesses mentioned in an undated attendance note as the subject of a decision that they should not be called. We infer that her evidence was discussed with the applicant and the subject of consideration, advice and decision. 44. The second group of witnesses may be referred to as the Osgathorpe Park witnesses. Two independent witnesses who gave evidence at the trial said that a man who had been shot ran into the park and said that he had been shot by Mohammed Ali. They remembered the name because it is also that of the famous boxer. Zoë Parker and Nushrat Khan came forward after the trial. We have no information as to how they were traced. They do not mention that the applicant was identified by name in the Park. However, their evidence does not explain that of the independent trial witnesses. 45. Niaz Khan was a witness who it is said would have confirmed that the applicant had not been in possession of his “blue” telephone at the time of the murder. He was a defendant in a trial also taking place at Sheffield Crown Court. It is not surprising that he was not called. 46. There are other suggested witnesses (Barab Hussain and Wahid Yousef) whose names do not appear on the contemporaneous list of witnesses MA/2 and whom trial counsel do not recall discussing. They too are late appearances whose appearances have not been explained. We do not see any basis for criticising the trial lawyers. Whether their or any other testimony now suggested could affect the safety of the convictions is something we address below. The defence called 10 witnesses in support of the applicant’s alibi, his case on telephones, the finding of the body armour and the precursor incident. We are not surprised that despite this the applicant was convicted, having regard to the very strong the case against him. 47. Given the strength of the other evidence against the applicant, we do not think that other witnesses who assert that the victims did not in fact know the identity of the gunman would have or could have affected or could now affect the verdicts or their safety. For this reason, we would not consider giving leave for them to testify. (10) Disclosure failures by the Crown 48. These relate to matters so peripheral that even if the CPS were at fault, it is impossible to consider that they could affect the safety of the convictions. (11) The wrongful admission of bad character evidence 49. The prosecution successfully applied to adduce in evidence two photographs of the applicant holding firearms, two sets of body armour, one of which was found in his bedroom, and a statement of a witness treated as hostile to the effect that he had seen the applicant stroking his beard with a gun. It is submitted that this evidence did not suggest any propensity to use guns, and could not and should not have been admitted under section 101(1) (d) of the Criminal Justice Act 2003 , which was the basis of its admission. 50. The applicant’s difficulty under this ground is that on his case this was not bad character evidence. He said that the photographs had been taken in Pakistan, where his handling the guns, which were photographer’s props, was not an offence. If so, the photographs were not evidence of any criminal offence or other reprehensible character. The possession of body armour is not illegal or reprehensible. However, this evidence was clearly relevant to the issue whether the applicant had been correctly identified as the gunman: it would have been another unfortunate coincidence that the man identified as the gunman showed an attraction to guns, and had body armour at home. If the photographs, and the witness statement, related to the possession in this country of unlicensed weapons, this was bad character evidence and was rightly admitted as relevant to the issue as to the correct identification of the applicant as the gunman, quite apart from any question of propensity. It is to be noted that section 101(1) (d) includes, but is not limited to, evidence going to propensity, and in our judgment includes evidence tending to show that a disputed identification of a defendant was correct. (12) The failure of defence lawyers to view CCTV evidence from the hospital. 51. Olliers dispute that there was any such failure. The purpose of viewing the CCTV, apparently, was to identify those who were at the hospital after Adil Khan had arrived there. This was not obviously important or even relevant evidence. Nor do we think that calling evidence to the effect that those at the hospital did not know who the killer was (which is the effect of the evidence that it is said would have been discovered) would have affected the trial verdicts, given that there had been an identification of the applicant to independent witnesses immediately after the shooting, the fact that he was indubitably identified at the hospital by Tahir Younis to PCs Stocksbridge and Crookes, and given the other evidence against the applicant. Generally 52. In his devastating closing speech for the prosecution at the trial, Mr Richardson QC set out no less than 19 “unhappy coincidences” that pointed to the applicant being the gunman. Parenthetically, the late appearance of his alibi is not one of them. However, the fact that there were two alibi witnesses who had been “mistaken” was included. Each of the matters to which Mr Richardson referred supported the identification of the applicant as the gunman. The applicant’s explanations of his having identified Duncan Smith as an alibi witness, and of the cell site evidence, were patently incredible. Mr Kamlish has sought to undermine some of the matters relied upon by the prosecution, but it is necessary to view them in their totality and having regard to their cumulative effect. We do not set them out here, this being a judgment on an application for leave to appeal and not on an appeal. Suffice it to say that their cumulative effect, against the evidence in the case, leaves us with no doubt as to the safety of these convictions. 53. For these reasons, we conclude that it would be wrong to extend the applicant’s time to apply for leave to appeal. His applications will be refused.

2010_07_12-2446.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/1619/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/1619

c7503287b7fdc930587a244298a994b785dd08c75f7d2eea74e6a6cec8755ab3

[2007] EWCA Crim 3436

EWCA_Crim_3436

2007-11-08

crown_court

No: 200701129 B3 Neutral Citation Number: [2007] EWCA Crim 3436 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 8th November 2007 B e f o r e : MR JUSTICE KING HIS HONOUR JUDGE WARWICK MCKINNON (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - R E G I N A v IAN DOUGLAS HURST - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communicati

No: 200701129 B3 Neutral Citation Number: [2007] EWCA Crim 3436 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Thursday, 8th November 2007 B e f o r e : MR JUSTICE KING HIS HONOUR JUDGE WARWICK MCKINNON (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - R E G I N A v IAN DOUGLAS HURST - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr M Pascall appeared on behalf of the Appellant Mr B Stork appeared on behalf of the Crown - - - - - - - - - - - - - - J U D G M E N T 1. MR JUSTICE KING: Ian Douglas Hurst was born on 21st January 1965. He is now aged some 42 years of age. On 12th February 2007, at the Crown Court at Guildford before His Honour Judge Addison, he was convicted of assault occasioning actual bodily harm. The particular offence dated from events some time before, namely in September 2005. 2. The particular offence was a serious case of road rage upon an elderly victim. The detailed facts are these. At about 6.40 in the evening, the 72 year old victim-to-be, a Mr Hayley, was travelling alone in his car. He noticed a car travelling close to his rear bumper and attempting to overtake him. The driver of this car was the appellant. There was also a female passenger in the car. The appellant became annoyed when he was unable to pass the victim's car. He finally managed to pull diagonally in front of him, blocking his progress. He pulled open the driver's door and punched the victim five or six times in the face. Mr Hayley was unable to defend himself. The appellant's girlfriend was yelling at him to leave Mr Hayley alone. Mr Hayley was still wearing his seat belt. He suffered a cut to his eyebrow and lip, which required a stitch, and painful swellings to his face. The appellant slammed the door shut and kicked it. He drove off. He subsequently changed the number plates on his car. 3. Mr Hayley, not surprisingly, was extremely distressed as a result of this accident. His health sadly deteriorated and his heart has been under investigation. He has suffered from flashbacks. It was a serious case of actual bodily harm. 4. On 27th April 2007 the same court came to sentence the appellant for this offence. The court imposed a hospital order pursuant to section 37 of the Mental Health Act 1983 (" the Act ") with a restriction order without limit of time pursuant to section 41 of the Act . 5. The appellant now appeals with leave of the single judge against the making of the restriction order. No appeal is made against the making of the hospital order as such. On the evidence before the court, such an order was patently proper. 6. The effect of a restriction order is that it prevents the appellant from being discharged, granted leave of absence or being transferred to another hospital without approval of the Home Secretary, although in certain circumstances he may be discharged by a Mental Health Review Tribunal. As the single judge said in granting leave in this case, a restriction order has far-reaching consequences. 7. Under the terms of section 41 , a judge may, when he makes a hospital order, make a restriction order provided first that, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing offences if set at large, he considers it necessary for the protection of the public from serious harm to do so; and secondly, at least one of the medical practitioners whose evidence is taken into account has given evidence orally before the court. 8. In an ordinary case, where the object is that the offender should receive treatment and be at large again as soon as he can be safely discharged, a restriction order is of course not appropriate. However, it is recognised that a restriction order ought to be made where the judge considers that the public needs to be protected from serious harm in the case of, for example, a violent offender. The section places responsibility for making a restriction order on the judge if, in his opinion, it is necessary for the stated purpose. The fact that all the medical witnesses advise against such an order does not mean that it is wrong in principle. However, there must be evidence on which to base such an order. 9. In Birch [1989] 11 Cr App R (S) 202 at paragraph 213, this court, in the judgment of Mustill LJ, emphasised that a court is required to assess for the purposes of a section 41 order not simply the seriousness of the risk that the defendant will re-offend, but the risk that if he does so the public will suffer serious harm. The harm in question need not be limited to personal injury, nor need it relate to the public in general. Nevertheless, the potential harm must be serious and a high possibility of a recurrence of minor offences will no longer be sufficient. 10. Equally, however, in Golding [2006] EWCA Crim 1965 , this court made clear that, in assessing the question of risk, the court is not bound to judge the issue simply by looking at a defendant's antecedents. 11. There is no issue in this case but that there was here a high risk of the appellant re-offending. The issue raised on the appeal centres essentially upon whether there was evidence before the judge properly to justify the conclusion that the public required protection by way of a restriction order from this appellant causing serious harm by re-offending. Was there evidence sufficient to justify an assessment of risk that if the appellant re-offended the public would suffer serious harm and that a restriction order was necessary to protect the public from that risk? 12. Particular difficulty has arisen because the medical evidence before the judge was all one way in not recommending the making of a restriction order, and although the appellant has a number of previous convictions for violence, including convictions for actual bodily harm and common assault, there was no evidence to show he had caused serious harm in the past. 13. Unfortunately, the judge did not explain in his sentencing remarks why he was disagreeing with the medical recommendation. He did not deal in any specific way with the evidence given either in writing by the two psychiatrists or the oral evidence called before him from one of them, Dr Andrews. On the need for a restriction order, his remarks were short and gave little away as to what his process of reasoning had been on the issue of assessment of risk of serious harm. The judge said this, having rehearsed the facts of the instant case: "You have a bad record for driving offences, dishonesty and violence. If I had not heard medical evidence I would have imposed an extended sentence under section 227 of the Criminal Justice Act 2003 . But I have heard from two doctors, Dr Andrews and Dr McLauchlan, written statements, and I am satisfied that you are suffering from mental illness and that it is of a nature or degree which makes it appropriate for you to be detained in a hospital for medical treatment. I am of the opinion, having regard to all the circumstances, including the nature of the offence and your character and antecedents, that the most suitable method of disposing of your case is by means of an order under this section. I am satisfied that arrangements have been made for you to go to the Alpha Hospital in Woking under section 37 of the Mental Health Act 1983 and that a bed is available to you there. So I do make a hospital order under section 37 that you go to the Alpha Hospital in Woking. I have also to consider whether to make a restriction order under section 41 of the Mental Health Act 1983 and I then have to consider whether having regard to the nature of the offence, your antecedents and the risk of your committing further offences if set at large, that it is necessary for the protection of the public from serious harm to do so, then I may make a restriction order. Well, in my view it is necessary for the protection of the public and the risk of your committing further offences if set at large, and for the protection of the public from serious harm, to make a restriction order and I do so. I do not attach any limit of time to that. Yes, thank you. That is all." 14. In granting leave, the single judge explained he had done so (a) because the sentencing judge had not explained why he did not accept the medical evidence, and (b) because of the far-reaching consequences of the restriction order. 15. We turn to consider the evidence as to the appellant's antecedents, personal background and medical history. 16. The medical evidence before the judge consisted of written reports from two consultant psychiatrists: first, Dr McLauchlan, his report being that of 7th March 2007, updated on 13th March; and, secondly, Dr Andrews, his written report being of 23rd April 2007. Oral evidence was given by Dr Andrews himself. In addition, Dr Andrews has provided to this court a written updated report of 25th September 2007 and an addendum of 31st October 2007. 17. Dealing first with the antecedents, undoubtedly this appellant has a long series of previous convictions: 43 in all, covering 111 offences. Many relate to theft, many relate to drug offences. They relate to the police, the courts and the prisons. 12 of them, however, relate to offences of violence against the person. We consider it important to list what they were, but we say at once that on the evidence none of them included evidence that serious harm had been caused: on 11th December 1980, assault occasioning actual bodily harm ("ABH"); 11th February 1982, ABH; 30th December 1982, ABH; 20th September 1983, ABH; 21st December 1984, ABH; 11th February 1986, ABH; 3rd March 1987, ABH; 4th October 1991, common assault; 18th October 1995, assaulting a police officer and ABH; 1st September 1998, common assault; 15th September 1999, common assault; and 18th October 2005, common assault. 18. There was a pre-sentence report before the court, which described the appellant as a man troubled by a history of drug and alcohol abuse with a range of associated offending. The report described how the appellant had not responded well in the past to community penalties and attempts at drug rehabilitation. There had been no previous orders made under the Mental Health Act. 19. On the assessment of risk of re-offending and risk of harm, the report assessed the risk of re-offending as high with a raised risk of harm to the appellant's former partner. On the question of dangerousness and assessment of the risk of harm for the purposes of the dangerous offenders provisions of the Criminal Justice Act 2003 , which embrace a similar concept of a significant risk of serious harm being caused by re-offending, the following passage appears: "There have been previous offences of violence, mostly committed whilst under the influence of alcohol and drugs and against a background of mental health problems. There is evidence that he has potential to cause harm, but there is no history of causing serious harm. However, when considering the observations and concerns made within the Psychiatric Reports regarding Mr Hurst's current mental health, Mr Hurst is having 'paranoid and persecutory delusional beliefs' about others that already have, and could again, lead to aggressive, violent outbursts. If Mr Hurst is reluctant to accept treatment, it is noted that there is likely to be a further deterioration in his mental health." 20. Dr McLauchlan had treated the appellant during his time at the Abraham Cowley Unit in Chertsey between August 2006 and March 2007. The appellant first came to that unit following a transfer from HMP Highdown under sections 48 and 49 of the Act because of an apparent deterioration in his mental health, in particular the development of paranoia and persecutory delusional beliefs. Dr McLauchlan reported that the appellant's behaviour at the Abraham Cowley Unit had caused concerns, and at times the appellant had become threatening. He had not responded well to the medication provided to him. His mental state had seemed to improve in January 2007, but again had deteriorated after his conviction for the present offence in early February. On 4th March 2007 the appellant had to be restrained and had allegedly bitten the hand of a member of staff. He was then transferred back to HMP Highdown. 21. We interpose here that in one of Dr Andrews' reports, in the context of what had been happening at the Abraham Cowley Unit, there are notes that on 10th November 2006 the appellant had become confrontational and aggressive towards members of staff and refused to comply with his medication. The situation had escalated and the police had had to be called in. It was thought that alcohol and possibly illicit substances were responsible for the deterioration of the appellant's mental state and resulting aggressive behaviour. However, once the appellant returned to the prison at Highdown his condition, said Dr McLaughan, settled and he was then assessed by Dr Andrews with a view to his admission to the Alpha Hospital in Woking. 22. Dr McLauchlan's diagnosis, based on his last assessment of the appellant in March 2007 shortly before his transfer back to prison, was that the appellant was suffering from a psychotic illness, probably post-traumatic schizophrenia. He believed the condition was post-traumatic because there was evidence that after the appellant had been injured in a road traffic accident in September 2005 (a few days after the incident giving rise to the present offence) his mental health had begun to deteriorate significantly, although Dr McLauchlan believed he was also psychotic at the time of the offence. Dr McLauchlan recommended an order under section 37 of the Act . He did not consider it necessary to impose any further restriction. 23. The appellant, as indicated, was at the prison at Highdown. He was there between 4th and 26th March 2007. He was then transferred to the Alpha Hospital in Woking under sections 48 and 49 of the Act . There Dr Andrews examined him for the purposes of his report of April 2007. In that report Dr Andrews noted that the appellant was beginning to settle down at the hospital and his mental health was improving. Dr Andrews believed that the appellant was suffering from paranoid schizophrenia. He recommended an order be made under section 37 of the Act , but without any restriction order under section 41 . In his report under the heading of "Risk Factor", he said the following: "He [the appellant] has a history of abusing alcohol and illicit substances which lowers his inhibition and threshold for tolerance. He has a history of violence. There is a high risk of assaulting members of staff and possibly members of the public." In his recommendations, he stated this: "Douglas currently shows evidence of paranoid schizophrenia. The nature and degree of this illness warrants detention and treatment in the hospital. He is a danger to others and requires consistent treatment in a secure setting. I recommend that he is transferred to Alpha Hospitals Woking under Section 37 of the Mental Health Act 1983 , without restriction order." 24. It is noteworthy that although Dr Andrews spoke of a high risk of the appellant assaulting members of staff and members of the public and of his being a danger to others, there was no express assessment that there was a real risk of the appellant causing serious harm in any future offending. However, it was obvious in the light of those comments that Dr Andrews should explain to the judge why he did not think a restriction order was necessary. He was called before the judge and asked that very question. He told the court that there were types of illness that responded to medical treatment and types that did not. He emphasised that the appellant was starting to respond to the medication he was receiving at the Alpha Hospital. He was developing an insight into his condition, albeit limited at present. In terms of his long-term management, it was the development of an increasing awareness of his own mental health problems which was the key to ensuring that he would take his medication and could be treated in the community. That would take time to develop, but the limited insight he had now developed was a positive sign. Although there were elements of risk in the appellant's history, Dr Andrews' view was he would respond to treatment that would manage the risk satisfactorily. Dr Andrews expressly said to the judge that he did not think the appellant presented the appropriate level of dangerousness within the meaning of section 41 . He also explained that at or before the time of the discharge of any order under section 37 , the hospital would apply for supervision under section 25 A of the Act in order to assist in effectively managing his treatment in the community. 25. We have already set out the judge's sentencing remarks. 26. The grounds of appeal in the notice of appeal in effect assert that the section 41 order was wrong in principle in that there was no or insufficient evidence to justify the making of the order and the judge had failed to explain his decision to make one. 27. The detailed grounds are as follows: (1) The written evidence from the two psychiatrists whose evidence was before the court did not recommend the making of a restriction order; (2) When giving oral evidence, Dr Gilbert Andrews confirmed that he did not believe a restriction order was required. He said that the appellant had responded well to treatment he had received in the last few weeks before sentence. He was of the view that, in the light of that positive response to treatment, he was likely to continue to respond well and any risk would be managed satisfactorily; (3) Whilst the appellant has previous convictions for assault occasioning actual bodily harm and common assault, there was no evidence to show that he had caused serious harm in the past; (4) There was no or insufficient material before the court to indicate that there was a risk that the appellant would cause serious harm to others in the future; and (5) The judge, in his sentencing remarks, failed to explain in clear terms why he was making a restriction order when no such order was represented by the psychiatrists. He failed to address Dr Andrews' observations and justify his decision to impose an order under section 41 of the Act . 28. We have considered all the material which was before the judge. We have also had the benefit of considering the updated material to which we have referred. In the updated report of 25th September 2007, Dr Andrews said that the appellant had undoubtedly presented with psychotic symptoms. However, having observed him in the unit Dr Andrews was now doubtful about the diagnosis of paranoid schizophrenia. He was currently showing evidence of major depressive disorder. If he started drinking again and stopped his medication there was a high chance of him becoming psychotic again. The appellant, Dr Andrews said, was suffering from dissocial personality disorder with features of alcoholism and depressive illness and episodic psychotic breakdowns. This warranted further detention and treatment, and his dangerousness would be minimised if he took his medication and refrained from illicit drugs and alcohol. However, the appellant had made significant progress and was not in need of a restriction order. In other words, Dr Andrews maintained his previous opinion. He also made what might be thought is a particularly compelling point, that a lack of a restriction order would assist in the planning of the appellant's rehabilitation and the next stage of his treatment. 29. The one problem with that updated report was that Dr Andrews had not had any details of the index offence for which sentence was passed and he had not discussed those details with the appellant. In a letter of 17th October 2007 written to this court Dr Andrews said: "I have now applied to the Ministry of Justice for further information on the index offence. I will make an effort to discuss the significance of the index offence with him before I can make any recommendations to the Criminal Appeal Office". 30. It is now clear that Dr Andrews has now had access to the details of the offence. He has written to the court by letter dated 31st October 2007, in which he sets out discussions he has had with the appellant about the offence. The following appears: "I agree that he [the appellant] was labouring under abnormal belief at that time and had false perception of events. [The appellant] also shared with me a copy of his past convictions and we went through some of the instances of [actual bodily harm] in detail. He told me that he had a reputation in his earlier life that always preceded him, in that he was known to be dragged into problems. There have been 12 charges of offences against persons and there are a total of 8 charges of actual bodily harm. Of the 8 charges, 7 were carried out between the ages of 15-22. The other offence of ABH took place when he was 30 years old. He was said to have spat on a police officer and resisted arrest. Except for this one episode there has been no evidence of significant violence from the age of 22. [The appellant] informed me that most of these outbursts of violence happened when he was intoxicated either with alcohol or illicit substances. [The appellant] started seeing Ms Kim Fisher, Psychotherapist at Alpha Hospital Woking and is addressing various significant issues. In particular, he is discussing the effects of alcohol and other substances on his mood and behaviour. He is taking some responsibility for his past behaviour and has expressed a desire to remain abstinent when he leaves the hospital. He also has acknowledged that he is going to need supervision and support when he lives in the community. Bearing this in mind, I would conclude that he has low to moderate risk of assaulting others. His propensity for violence would be substantially minimised if he stays off alcohol and other illicit substances. In conclusion, I have satisfied myself that I have seen the details of the index offence, my recommendation made in my earlier report of 25 September 2007 remains the same." Of course, that was a recommendation for a hospital order without a restriction order. 31. Having considered all these matters we have come to the conclusion that the submissions made in the grounds of appeal are well made out. We conclude that on the material before the judge it was not a justifiable conclusion in the terms of section 41 that it was necessary for the protection of the public from serious harm to impose a restriction order. There was ample material to support a finding of a high risk of re-offending involving violence. However, in our judgment there was insufficient evidence to justify what was a strong conclusion resulting in an order with far reaching consequences for the offender, both that there was a risk of sufficient seriousness that if the appellant were to re-offend the public would suffer serious harm, and that in the circumstances of this particular offender a restriction order was necessary to protect the public from that risk. 32. We emphasise the requirement under section 41 that a restriction order be considered "necessary". It may well be that the judge in this case was influenced by the history of violence to staff while the appellant was at the Abraham Cowley unit and the observations made by Dr Andrews in his written report of there being a high risk of the appellant assaulting members of staff and members of the public. However, as we have indicated, those observations were subsequently qualified by Dr Andrews in his oral evidence to the effect that in an appropriate setting the appellant's condition was being properly addressed and was responding to appropriate medication and that the degree of risk was diminishing. It was unfortunate in these circumstances the judge did not himself address the evidence given by Dr Andrews or explain why he felt it necessary to depart from the recommendation of both medical experts that a restriction order was not required in this case. We have already noted the emphasis put by Dr Andrews in his updated report to this court on the planning of the appellant's rehabilitation and the next stage of his treatment, and the hindrance which a restriction order would place upon the same. 33. In all these circumstances, although we sympathise with the judge in the approach he took, given in particular the facts of the index offence, we have concluded that the section 41 order should be set aside. Accordingly, the section 41 order is set aside and in substitution there will simply be a section 37 hospital order without restriction.

2007_11_08-1269.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2007/3436/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2007/3436

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[2021] EWCA Crim 587

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2021-04-22

crown_court

[2021] EWCA Crim 587 Case No: 201902389/90 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON HIS HONOUR JUDGE JOHN T20177420 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22 April 2021 Before : LADY JUSTICE SIMLER MR JUSTICE SWEENEY and HIS HONOUR JUDGE PATRICK FIELD QC - - - - - - - - - - - - - - - - - - - - - REGINA And TARIK HILL Ms S Hobson for the Appellant Mr I Sheikh for the Respondent Hearing dates 17 March 2021 - - - - - - - - - - - - - -

[2021] EWCA Crim 587 Case No: 201902389/90 B5 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT KINGSTON HIS HONOUR JUDGE JOHN T20177420 Royal Courts of Justice Strand, London, WC2A 2LL Date: 22 April 2021 Before : LADY JUSTICE SIMLER MR JUSTICE SWEENEY and HIS HONOUR JUDGE PATRICK FIELD QC - - - - - - - - - - - - - - - - - - - - - REGINA And TARIK HILL Ms S Hobson for the Appellant Mr I Sheikh for the Respondent Hearing dates 17 March 2021 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, The date and time for hand-down is deemed to be 22 April 2021 at 10.30am This judgment is subject to an order made pursuant to s.4(2) of the Contempt of Court Act 1981 postponing publication of any report of these proceedings until the conclusion of the re-trial in order to avoid a substantial risk of prejudice to the administration of justice in those proceedings. NOTE : THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981. IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS. Lady Justice Simler: Introduction 1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the 1992 Act . 2. On 7 January 2019 in the Crown Court at Kingston Upon Thames (before HHJ John and a jury) the appellant was convicted of assault occasioning actual bodily harm (counts 1 and 6), putting a person in fear of violence by harassment (count 2), controlling or coercive behaviour in an intimate or family relationship (count 3) and false imprisonment (count 5).The offences were all committed against the same young woman to whom we shall refer as TC. The offences in counts 5 and 6 occurred on 4 March 2017. The indictment also included an offence of rape of TC on 4 March 2017, but the jury were unable to reach a verdict on that count (which was count 4, rape). 3. There was a retrial of count 4 and on 23 March 2019 in the same court before the same judge, the appellant was convicted by a jury of the rape of TC on 4 March 2017. 4. On 20 June 2019 the appellant was sentenced by HHJ John to an extended sentence of 20 years under section 226 A of the Criminal Justice Act 2003 (the “CJA”) comprising a custodial term of 15 years and a licence period of five years on count 4, with that sentence reflecting the totality of the offending on all six counts. There were shorter concurrent sentences on the other counts, including a 36 month sentence on count 3, for the controlling or coercive behaviour offence. 5. The appellant appealed with leave given by the Full Court against his conviction for rape and against sentence. He was represented by Ms Sally Hobson who was trial counsel at the second trial, though not the first. She advanced two main grounds of appeal. The first related to the conduct of the trial judge which was said to be hostile and bullying and led to an unfair trial. The second concerned the admission and treatment of evidence of the convictions resulting from the first trial. Taken alone or in combination, she submitted that these matters meant that the conviction for rape was unsafe and should be quashed. 6. The appeal was resisted. We received written and oral submissions from Mr I. Sheikh, who appeared for the prosecution at both trials, and submitted that there was no error in the judge’s approach to the admission and treatment of the conviction evidence. Further, the judge did not ‘bully’ defence counsel or make it impossible for her to do her duty. His interventions were appropriate and justified at all times; and did not come close to preventing the appellant from having a fair trial. 7. At the conclusion of the hearing of the appeal we announced that the appeal against the conviction for rape would be allowed but indicated that we would give our reasons in writing. These are our reasons for allowing the conviction appeal. The facts 8. The appellant formed a relationship with TC in September 2016. She had two young children from a previous relationship. He had moved in with her by late September. She later described the relationship as fine to begin with but as souring by early 2017. 9. In her Achieving Best Evidence interview on 14 May 2017, TC described a number of incidents where the appellant physically and verbally abused her, starting in January 2017. On 3 January 2017 he twisted her wrist around and behind her back because she challenged him in relation to messages on his mobile phone from other women. She began to cry, and he apologised. She did not report the incident to anyone immediately but mentioned it to her friend, Antonia Fyfe, sometime later. On 4 January they were in her car and he grabbed her wrist as she was driving him to work. He apologised and said he did not mean to do it. 10. On a further occasion, there was an argument in her daughter’s bedroom. The appellant punched TC to her side. This was the first occasion on which he actually struck her. She ended up on the floor and he placed and pressed his foot on her neck. She got up to change her daughter’s nappy. He took hold of the nappy, held her down on the mattress and threatened to put the nappy on her face, take pictures and post them on Instagram. He then put a small amount of faeces from the nappy on her face. She was upset and crying. He let her go and she ran to the bathroom to clean up. Later in the kitchen, she refused to do something he asked her to do, and went upstairs. He told her that if she did not come downstairs, he would drag her down. He twice attempted to drag her downstairs by her wrists, but she was able to run back upstairs on each occasion. On the third attempt, she sat on the floor, so he dragged her by her arms down the stairs dragging her chest and side against the stairs. By the time they reached the bottom of the stairs, her head was facing down. He laughed and began to make derogatory remarks, saying that she could not look after her own child. The children were told to go upstairs. Once they had gone upstairs, the appellant assaulted TC as she sat on the sofa by punching and striking her. He told her she was weak and pathetic. She said that she suffered bruising as a result of the assault but did not go to a doctor because she wanted to protect him. She cared for him and thought the violence might be a one-off. (These matters were all the subject of the convictions on counts 1 to 3 at the first trial.) 11. There was a further incident when TC drove the appellant to Brixton to find out about a new barber’s shop job. She waited in the car for him and when he did not come out, she went in to find out what was happening. He was having a haircut. He was angry that she had come in to find him. As they were driving home, he started flicking a lighter at her and said words the effect, “ if you don’t shut up I’m gonna light your hair on fire ”. Once at home an argument started. He again got out the lighter and kept flicking it towards her hair. Then he pressed the lighter against her chest causing her pain. He then twisted her arm behind her back, got her mobile phone and went through it before deleting the name of a male contact. TC did not report the incident to the police because on each occasion she hoped the behaviour would not be repeated. 12. On the morning of 4 March 2017, TC was due to visit her mother, but the appellant did not want her to go. They argued and he would not let her leave her bedroom. During the course of the argument, he took her mobile phone and smashed it against the wall. The appellant told her daughter to go into another room and subsequently locked TC in her bedroom. The child was screaming and TC wanted to leave the room to attend to her daughter. The appellant began to assault her by beating her with his belt and punching her head and body. He choked her and jumped on her whilst she was on the floor. He then left her in the room for around three hours. (This conduct was the subject matter of the conviction on count 5 at the first trial.) 13. When he returned to her bedroom, she was lying on her bed, feeling dizzy. She begged him to let her go but he assaulted her again. (This resulted in the conviction on count 6 at the first trial.) He then unbuckled his jeans and (knowing she was on her period) told her to perform oral sex on him if she wanted to be allowed out of the room. She said that she felt dizzy from the assault. He tried to force her mouth open using his penis. He persisted for some minutes. She resisted and asked repeatedly to leave to go to her daughter. He forced his penis into her mouth, and eventually she did what the appellant wanted. He ejaculated inside her mouth and then allowed her to leave the room. She went into her daughter’s bedroom, where she found her daughter asleep. This was the subject matter of count 4, re-tried at the second trial. 14. Later that day, at around 6 or 7 pm, the appellant told her that he would get her mobile phone fixed, but they had to go to Michelle Dill’s house. Michelle Dill was his former partner and the mother of his three children. When that relationship came to an end, Michelle Dill obtained a restraining order against the appellant on 14 April 2016, designed to prevent him from conduct likely to amount to harassment. The appellant and TC went to Ms Dill’s house, and then on to a mobile phone shop in Tooting Broadway, where the phone was repaired. Later that evening, TC went out with her family for the evening. She did not report what had happened and did not seek medical help. 15. During March 2017 the appellant began to send text messages to Michelle Dill apologising and saying he wanted to marry her and be together as a family. In May he was spending periods of time with her and they were discussing this possibility. However Michelle Dill found out that he was not telling the truth and was seeing other women. 16. In May 2017, Michelle Dill contacted TC through WhatsApp. They had further and increasing contact. Michelle Dill urged TC to contact the police. At first TC was reluctant and felt she was not ready to do so. According to the account given by TC, it was Michelle Dill who eventually pushed her to go to the police. 17. The appellant was arrested and interviewed on 15 May 2017. In his police interview he denied assaulting TC. He accepted that they had arguments but said he had never been violent towards her. He said that none of the incidents described by TC had occurred and he had never seen any injuries on her. He claimed that she had begun to drink and was depressed and cried a lot. This got him down. He claimed that she would spend most of her time in her bedroom and he would remain in the kitchen. He said that the relationship between them began to break down in December 2016. He denied falsely imprisoning her on 4 March 2017. He denied assaulting her and forcing his penis into her mouth. He denied having oral sex with her on that day or preventing her from leaving her bedroom to attend to her daughter who was screaming for her mother. He said he went to work and she could have left her bedroom whenever she wanted to. He believed that TC had colluded with Michelle Dill to make up the allegations against him. 18. The defence case at the second trial was that the appellant did not rape TC. He gave evidence at the trial that although the relationship with her was volatile, she was able to stand up for herself. He maintained that he did not assault her or act in a controlling manner as she had alleged. He said he was not there on 4 March 2017 and had an alibi as he was working at the barber’s shop in Brixton for the entire day. The cell site and telephone evidence relied on by the prosecution showing his mobile telephone being used in the vicinity of TC’s house during the day on 4 March 2017, proved nothing because he was not the person using the phone that day. He had left the phone at TC’s house when he went to work, and had asked her to send certain messages to his mother on it. The messages were all sent by her at his request. 19. We were told by Ms Hobson that, although at one stage the appellant was planning to rely on WhatsApp messages on his mobile phone that were sent that day (4 March), in the event the defence decided not to rely on these messages in the second trial. Accordingly, TC was not asked about the WhatsApp messages in cross-examination by Ms Hobson. However, it appears that the prosecution made a late decision in the course of the second trial, to rely on the WhatsApp messages, and they were uploaded to the DCS on the morning of 15 May 2019, part way through the second trial. The Investigating Officer then gave evidence about the messages and was cross-examined by Ms Hobson, leading to the judge’s first intervention complained of by Ms Hobson (see below at paragraph 36), about her failure to put the defence case in relation to the WhatsApp messages to TC. In the absence of the jury immediately afterwards, the judge made clear that if necessary, they would have to “trouble” TC to return to court, and that he would not be happy about this. 20. The appellant gave his explanation for the WhatsApp messages in evidence: he said he called TC from work on his second (Nokia) phone, which he had taken with him to work, and asked her to send a couple of messages on his behalf on the other phone, left at home by him. The appellant also relied on evidence from Eric Dixon, his work colleague at the barber shop, to support his alibi. Dixon said that although he could not specifically recall 4 March 2017, he could not recall a Saturday when the appellant was not working at the barber shop, in part because this is one of the busiest days of the week at the barber shop. The conviction appeal (1) The challenged admissibility ruling 21. As we have indicated, at his first trial in January 2019, the appellant was convicted on all but one (count 4) of the six counts on the indictment. He did not seek permission to appeal these convictions. 22. Shortly before the retrial, on 13 May 2019, there was a hearing of the prosecution’s application to admit the convictions on counts 1 to 3 as bad character evidence: important explanatory evidence said to put in context the allegation of rape on 4 March and to be evidence of propensity (gateways in sections 101(1)(c) and (d) CJA). More significantly for the purposes of this appeal, the prosecution also applied to admit the evidence supporting counts 5 and 6 and those convictions as relating to or having to do with the facts of the outstanding allegation of rape and so admissible under section 98(a) CJA. The prosecution sought to rely on the convictions to show that the appellant was present at TC’s home on 4 March 2017 and they were therefore evidence supporting the allegation of rape. 23. The application was opposed on the appellant’s behalf by Ms Hobson. In relation to counts 5 and 6, she emphasised to the judge that the appellant maintained his defence that he was not there on 4 March, and none of the offences had occurred. She submitted to the judge that she was entitled to advance that case before the jury. It is fair to say that there was some lack of clarity as to whether she was contending that the convictions should not therefore go in at all, or whether she accepted they (or the underlying evidence) could go before the jury, but that the appellant had to be permitted the opportunity to persuade the jury that those offence were not committed by him and he was wrongly convicted of them. She also argued that the convictions on counts 1 to 3 were not important explanatory evidence, nor relevant to propensity. In any event, she relied on section 101(3) CJA and/or section 78 Police and Criminal Evidence Act 1984 (“PACE”) and submitted the evidence should be excluded. 24. Neither Ms Hobson nor Mr Sheikh referred the judge to section 74(3) PACE, which is regrettable. 25. During the course of legal argument, the judge said (and repeated) words to the effect that: “On the other hand, you are not able to run your case on the basis that the false imprisonment and the actual bodily harm did not occur.” And that “You [the defence] are not permitted, in my judgment, to have a second bite of the cherry in front of this jury about it, by suggesting it did not happen.” Far from correcting the judge, Mr Sheikh said that he agreed with the judge’s approach, and “ it seems the defendant wants to treat this new jury as an appellate court and to re-run the hearing de novo, and that must be wrong .” 26. The judge admitted the evidence of all five convictions. In rejecting the defence arguments, he ruled as follows in relation to counts 5 and 6: “11. I am quite satisfied not only that the convictions on counts 5 and 6 should be before the jury but that it would be quite wrong if they were not. Of course, the defendant’s continued stance of maintaining he was elsewhere presents him with an evidential difficulty. However, this is not one of those cases in which it would be wrong to admit convictions because it would close off all issues for the defendant: see R v Smith [2007] EWCA Crim 2105 . He cannot be prevented from running his alibi again or indeed from asserting that he was not guilty on Counts 5 and 6, but the jury cannot be invited effectively to re-try those Counts . It remains open to them to conclude that they are not satisfied that the alleged rape took place. 12. I reject the submission that the evidence should be excluded either under section 101(3) or under section 78 PACE 1984 (as to which no separate argument was advanced).” (Emphasis added) 27. So far as counts 1 to 3 are concerned, the judge held: “18. I am satisfied that convictions on these counts are admissible as important explanatory evidence. Without it, the jury would find it as least difficult to understand other evidence in the case, and its value for understanding the case as a whole is substantial: see section 102. The jury would be assessing the evidence in support of count 4 in a misleading vacuum if they were unaware of the proven violent and abusive background to the relationship, and the detriment to the defendant is balanced by the fact that the evidence underpinning those counts will not be before them. 19. I am also satisfied that the convictions are admissible under section 101(1) (d). The defence has misread the application in advancing their argument that these convictions did not demonstrate propensity: that is only one matter which can fall within section 101(1) (d): see section 103. 21. As before, I am satisfied that there is no basis for excluding the evidence of these convictions under section 101(3) or under section 78 PACE 1984 .” 28. Before us Ms Hobson challenged that ruling as wrong. She submitted that although relevant to the issues in the case, knowledge of the convictions would predetermine in the minds of the jury what took place and the fact of the appellant’s presence at the scene on 4 March. Allowing the convictions to go before the jury effectively closed off the defence of alibi and deprived the appellant of a fair opportunity to put his case. Ms Hobson submitted that although the appellant was able to maintain his alibi defence in evidence, (without contradiction from Mr Sheikh) she submitted that the judge did in fact prevent any cross-examination of TC to the effect that the offences in counts 5 and 6 did not occur and that the appellant was wrongly convicted of those offences because he was not present at her home on 4 March. 29. We consider that there can be little doubt that the convictions on counts 5 and 6 (and the evidence supporting them) were legally admissible under section 98(a) CJA (and we make no criticism of the judge’s ruling in this regard, or indeed, in relation to the admission of the other convictions). However, the quid pro quo for the prosecution being able to adduce the convictions of false imprisonment and assault on 4 March to support the prosecution case of rape on 4 March, was that the defence had an express statutory entitlement to seek to prove that those offences did not take place. The judge’s ruling in relation to counts 5 and 6 that “ the jury cannot be invited effectively to re-try these counts ” created an improper restriction on the appellant’s right to prove that he had not committed any offences on 4 March. As we have said, that was his express entitlement under section 74(3) PACE which provides: “In any proceedings where evidence is admissible of the fact that the accused has committed an offence, if the accused is proved to have been convicted of the offence … by or before any court in the United Kingdom … he shall be taken to have committed that offence unless the contrary is proved.” 30. The result of the judge’s failure to refer to section 74(3) PACE, and his ruling to which we have referred, is that the whole trial proceeded on a fundamental misunderstanding (as Mr Sheikh was eventually driven to concede) that it was impermissible in effect to retry counts 5 and 6. 31. As this court said in R v C [2010] EWCA Crim 2971 : “9. Section 74(3) is uncomplicated and it means exactly what it says: once it is proved (whether by agreement or otherwise) that the defendant was and remains convicted of a criminal offence and assuming that evidence of that fact is admissible, the prosecution is not required, merely because the defendant denies guilt, to prove that the defendant was guilty of the offence, or to assist him to prove that he was not guilty, or indeed to call witnesses for either purpose. The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from seeking to demonstrate that he did not in fact commit the offence and therefore, that the jury in the current trial should disregard the conviction. If so, it follows that he should be entitled to deploy all the ordinary processes of the court for this purpose, and in particular to adduce evidence that will enable him to prove, whether by cross-examination of prosecution witnesses or calling evidence of his own that he was not guilty and that the conviction was wrong. It also follows that if the defendant does adduce evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial. 10.The danger in this situation is satellite litigation, which for obvious reasons is undesirable. That danger acknowledged, the stark principle remains that any defendant is entitled to contest his guilt in accordance with the ordinary processes of the criminal justice system, and therefore to challenge or to seek to undermine the Crown's case against him or to advance evidence in support of his own case. That principle extends to evidential presumptions relating to his guilt of an earlier offence. To prevent him from doing so or deny him the opportunity of adducing admissible evidence that he did not commit the earlier offence would be likely to result in an unfair trial of the present offences.” 32. Here there was no danger of satellite litigation, and no reason why the quid pro quo to which we have referred, was not applicable. The convictions on counts 5 and 6 were intimately connected with the offence being tried. TC had to give evidence about the alleged rape on 4 March. Her credibility was in issue, and her account of what happened on 4 March was fundamentally challenged by the appellant who said he was not there. Once the convictions were admitted, the appellant was entitled to contest his guilt in relation to them. Though it is true that he gave evidence that he was not there and did contest his guilt in relation to all three offences on the 4 March, by preventing Ms Hobson from cross-examining TC about everything that occurred on 4 March, the judge denied him the opportunity of proving that he did not commit the count 5 and 6 offences. The appellant was prevented from deploying all the ordinary processes of the court for this purpose, and in particular, cross-examining TC to prove that he did not in fact commit those offences and that the jury in the second trial should disregard the convictions. In our judgment, the result is that there was an unfair trial of the rape offence, and on this ground alone, the conviction on count 4 is unsafe and must be quashed. (2) The conduct of the trial Judge 33. Ms Hobson also contended that the appellant was deprived of a fair trial at both trials, because of the hostility and bias displayed by the judge in favour of TC and to the appellant’s detriment. She submitted that this hostility increased during the appellant’s second trial to such an extent that there was a level of hostility towards her as counsel which she submitted could only be described as bullying. The judge inappropriately intervened during the appellant’s evidence, repeatedly telling him to speak up, asking questions which were more akin to cross-examination rather than clarification, telling him to remove his hands from his pockets and generally treating him in a different manner to TC. 34. Further the judge was rude to and critical of her as defence counsel. She submitted that he was unnecessarily scathing about her submissions in relation to the bad character application. He unfairly blamed her for not putting questions to TC about the WhatsApp messages which resulted in TC being recalled during the appellant’s case. He unfairly criticised her questioning of the alibi witness. She submitted that the combined effect of this behaviour was to diminish her and the appellant in the eyes of the jury and the appellant did not have a fair trial in consequence. 35. We were provided with the transcripts of the interventions particularly relied on by Ms Hobson as exemplifying the behaviour she complained about. We have also listened to the recordings (as far as we were able with the discs provided). 36. We take each of the examples relied on by Ms Hobson in turn, and reach conclusions about them where possible, having considered also the submissions made by Mr Sheikh in relation to each one. We then stand back and consider the interventions and the conduct as a whole. We do that to avoid a fragmented approach that might have the effect of diminishing any eloquence that the cumulative effect of the conduct might have had on the overall fairness of the trial. i) Intervention 1. This occurred during cross-examination of the Investigating Officer, and involved the judge expressing disbelief that it was being suggested that the WhatsApp messages on the appellant’s phone, including “ Hey mama, what’s up? Did you send it ” were sent by TC and not by the appellant. The judge was critical of Ms Hobson in front of the jury, saying “ You are seriously suggesting, looking through this series of messages and their terms, that she sent them? That should have been put to her. ” He repeated this several times. Ms Hobson said that she was driven to apologise. In fact, as Ms Hobson explained, and we have adverted to above, the prosecution only indicated an intention to rely on these messages on the morning of 15 May 2019 when the Investigating Officer was called – indeed they were only uploaded to the DCS that morning as the judge subsequently acknowledged in the course of legal argument without the jury present. By then TC had given evidence and been cross-examined. Mr Sheikh did not gainsay this. He could not explain why, in these circumstances, he did not come to Ms Hobson’s defence when she was wrongly criticised by the judge. During the subsequent legal argument in the absence of the jury, the judge made clear that, if necessary, TC would have to be “troubled” to return to court and that he (the judge) would not be happy about this. We consider that the judge’s intervention in front of the jury is likely to have created the impression in the minds of the jury that Ms Hobson was at fault, and moreover, it was her fault that TC had to be brought back to be questioned further. This criticism was not merited. We shall return below to the impact of the judge’s behaviour on defence counsel and the fairness of the trial. We are particularly troubled by the fact that when TC was recalled and interposed, her evidence was interposed during the defence case, and worse still, part way through the appellant’s own evidence, after examination in chief but before cross-examination. It was suggested by Mr Sheikh from memory (but as he indicated, without anything in writing to assist him with detailed particulars) that this was the only time that TC could be recalled. He could not explain why TC could not have been recalled after the Investigating Officer’s evidence or immediately before the appellant’s case (with a short adjournment if that was necessary). Put simply, when pressed Mr Sheikh was quite unable to satisfy us why interposing TC in this way was the only course available to the prosecution. We find it extraordinary that prosecution evidence from the victim herself was interposed in this way. ii) Intervention 2. This came at the start of the appellant’s examination in chief when the judge said “ Hands out of your pockets please .” The evidence proceeded for a short while and then when the appellant was asked about is previous convictions in Bermuda, the judge intervened and said “ Sorry, can you leave the bundle alone please? No one has asked you to look at it .” Although Ms Hobson submitted that the appellant did not have his hands in his pockets at the time, Mr Sheikh was clear that he did, and said “ Pardon? I have done man ”. Mr Sheikh accepted that the judge might have been short with the appellant, and might have raised his voice, but said he remained polite. Whatever the truth of the hands in the pocket, it seems to us that these admonitions (in a short, raised voice as Mr Sheikh accepted) were likely to contribute to the impression that the judge had a negative view of this appellant. iii) Intervention 3. This occurred during the appellant’s evidence in chief when he was asked about various girlfriends. He said it was exhausting because he “ had to keep up with all three ”. The following exchange then occurred, which speaks for itself: JUDGE JOHN: Do you think that is a funny comment? A. No [words to effect just explaining how it was exhausting] JUDGE JOHN: You did not have to at all, did you? [Crosstalk] JUDGE JOHN: Let us be adult about this, you chose to. A. Well, yes it was my choice, but that’s what happened, yeah. I’m sorry. JUDGE JOHN: All three of them being deceived by you. A. Not really deceived? MS HOBSON: Please could I raise a matter of law? JUDGE JOHN: There is no matter of law arising from that. MS HOBSON: Well could I ask, then, if Your Honour would please refrain, whilst the defendant is giving evidence, from making comments? JUDGE JOHN: I will intervene if I think it is appropriate, not otherwise. MS HOBSON: Well I am putting on record that I have asked Your Honour if Your Honour would refrain- JUDGE JOHN: Yes. MS HOBSON: -from making comments- JUDGE JOHN: Very well. MS HOBSON: -while he is giving his evidence. JUDGE JOHN: Yes. MS HOBSON: Thank you This intervention was not for the purpose of clarifying relevant evidence. It was in the nature of a reprimand and to express disapproval of the appellant’s behaviour. But the appellant was not on trial for the way he conducted his personal life, and the court was not judging his morality. iv) Intervention 4. This was an occasion when the judge told the appellant to speak up and a little later to “ enunciate more clearly ”. The appellant apologised. The judge continued: JUDGE JOHN: You know, it is not so much it makes my job difficult, but if my job is difficult it means I am inhibited when I sum the case up to the jury. It is a big room, you have heard other witnesses be told this A: Sorry JUDGE JOHN: please take it on board. A: Sorry There were other occasions when the judge told the appellant that he could not hear what was being said and referred to difficulties created by the appellant’s “ accent” . These are extracts six and seven. v) Intervention 5. This relates to Ms Hobson’s questioning of the alibi witness, Mr Dixon. Ms Hobson put to the witness that the police asked him about a particular date, a Saturday in March, and she identified the date of 4 March. The following exchange then occurred in front of the jury: JUDGE JOHN: That is a very leading question for an alibi witness. It is quite improper. MS HOBSON: Well I apologise- JUDGE JOHN: It completely devalues the evidence of an alibi witness if you put the date in his mouth. I am astonished that you should do it, someone of your experience. Never lead on a date with an alibi witness. Yes, very well, you have done it now. [Lengthy pause for just under a minute]. JUDGE JOHN: There are other ways of getting the witness to the point that you wish to, other than by putting the critical date into his mouth two years after the event. Now, do you have any questions for him? MS HOBSON: [Forgive me?], yes. Pause. Q. Mr Dixon, how many people worked at the barber shop? Mr Sheikh contended that although the date of the offence was not in issue, what was in issue was whether or not, on that date, the appellant was at TC’s address and committed the offence alleged or was at his place of work, as he claimed. The date was therefore very much in issue and should not have been led where alibi was the defence to the allegation. He submitted in writing that the judge was “entitled to and justified in making the intervention he did and it is wholly wrong to suggest that the intervention was in some way designed to intimidate and/or belittle defence counsel.” We reject those submissions. First, in our judgment the intervention was wholly unjustified. The witness would have been entitled to refresh his memory and Ms Hobson would have been entitled to lay the ground to enable to him to do so. That would have involved naming 4 March, and had this been done, it could not have been the subject of any challenge, or indeed, any criticism from the judge. In any event, in the course of the questioning, at some point the date (4 March) would have had to be identified for the witness. We can see nothing wrong in the questioning by Ms Hobson of the alibi witness, particularly given the evidence that he was expected to give: he could not be sure about any particular dates, but said the appellant worked every Saturday; he could not recall not seeing him on a Saturday; and if he had not come in on a Saturday he thought that would have been noticeable. Secondly, even if an intervention was justified, the manner in which the judge expressed himself to Ms Hobson and his admonition of her in front of the jury was unacceptable. It undermined defence counsel’s standing with the jury. Interruptions and admonishments by a judge are liable to distract counsel away from the task of effectively representing the interests of their client, and to preoccupy them with seeking to avoid any further intervention. Ms Hobson described the impact on her in defending her lay client, of this intervention. It had those effects. She was rendered speechless. She felt that she was undermined in the appellant’s eyes, and in the eyes of the jury. 37. In the light of these extracts, Ms Hobson, who relies on R v Hulusi and Purvis (1974) 58 Cr. App. R. 378 in support of this ground, submitted that the interventions diminished her in the eyes of the jury, affected her ability to conduct the trial, and affected the appellant when giving evidence to such an extent that the trial as a whole was unfair. 38. The overarching submission made by Mr Sheikh was that looked at as a whole, the trial was fair. Many of the exchanges took place away from the jury. In respect of the more robust exchanges, there was nothing scathing or scornful and nothing was done by the judge to intimidate or demean defence counsel. 39. As foreshadowed earlier, we must evaluate the effect of the conduct and interventions we have summarised above in the context of the trial as a whole. The role of the judge is to ensure a fair trial between prosecution and defence. He or she is the neutral umpire. The prosecution must prove its case, and it is of fundamental importance that the defendant in a criminal trial is given the opportunity to put forward his defence, however implausible it might be, without the defence case being undermined (whether overtly or by means of subtle comment and asides) by the judge. Interventions that tend to invite the jury to disbelieve the defence case or make it impossible for counsel to present the defence case properly, or which prevent the defendant from fully giving his side of the story are unlikely to be capable of being justified, and may lead to a conviction being quashed. The question is one of degree, and it is the overall fairness of a trial taken as a whole that is the touchstone. For a clear distillation and recent application of these well-established principles, see R v Thomas [2019] EWCA Crim 1958 and R v Mustafa Kemal Mustafa [2020] EWCA Crim 1723 at [7]. 40. This was a strong prosecution case. It was all the more important in those circumstances, for the judge to be scrupulous in the fair treatment of the defence, and in ensuring the appearance (at the very least) of his own neutrality. We regret to say that we have come to the conclusion that the judge failed in this regard. 41. The interruptions of the appellant, requiring him to enunciate more clearly, criticising his accent and challenging what he said about the three girlfriends, together with the astonishment he expressed at times in relation to the defence case, had the effect of inviting hostility and disbelief. Viewed alone, although inappropriate, these interventions might not have been regarded as unacceptable in themselves. 42. However, in addition, we consider that the criticism of Ms Hobson herself was at times unfair and unjustified, and on at least two occasions, the unjustified admonitions occurred in front of the jury. We accept Ms Hobson’s account of the impact of the judge’s comments on her ability to carry out her duties as counsel in properly representing the appellant. Whatever his intention, and whether or not he had an unconscious animus towards the appellant, what was inevitably conveyed to the jury was a lack of respect for and disapproval of the appellant. Moreover, the judge’s conduct must also have undermined defence counsel in the eyes of both the appellant and the jury. The interventions not only prevented Ms Hobson as the appellant's counsel from doing her duty properly in presenting his case, but also had the effect of preventing the appellant from doing himself justice before the jury. 43. We have concluded that taken together with the judge’s failure to apply section 74(3) PACE the appellant did not have a fair trial in this case. 44. Our conclusion is particularly regrettable because there will need to be a retrial in the interests of justice, and TC will have to give evidence about the events of 4 March 2017 for a third time. This however, cannot be avoided. It is through no fault of the appellant or Ms Hobson that this is required. 45. In light of our conclusion it is unnecessary to address ground three which relies on a failure by the judge to direct the jury to disregard any hostility he had displayed. The judge’s conduct could not have been cured by such a direction and this ground adds nothing in the circumstances. Ground four was not pursued by Ms Hobson. 46. It also follows from our conclusions that the sentence appeal falls away. Conclusion 47. The result is that the appeal is allowed and the conviction on count 4 is quashed. The interests of justice require that there be a re-trial and we have directed that a re-trial take place. The Presiders on the SE Circuit will assign the case to a different judge. Reporting restrictions apply until after the re-trial.

2021_04_22-5170.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2021/587/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2021/587

b4eaca586b2b27ad831935859b8138181e0b99075a92da53119ab40218221571

[2018] EWCA Crim 917

EWCA_Crim_917

2018-04-13

crown_court

CASE No: 201703691/C4 Neutral Citation Number: [2018] EWCA Crim 917 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 13 April 2018 B e f o r e : LORD JUSTICE GROSS MRS JUSTICE WHIPPLE DBE MRS JUSTICE MAY DBE - - - - - - - - - - - - - - R E G I N A v YEE FONG HELEN CHUNG - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Offi

CASE No: 201703691/C4 Neutral Citation Number: [2018] EWCA Crim 917 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 13 April 2018 B e f o r e : LORD JUSTICE GROSS MRS JUSTICE WHIPPLE DBE MRS JUSTICE MAY DBE - - - - - - - - - - - - - - R E G I N A v YEE FONG HELEN CHUNG - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, 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 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. MRS JUSTICE MAY: 1. This is a renewed application by Ms Chung for leave to appeal her conviction on three counts of fraud. Despite being represented at trial she has prepared this appeal herself. 2. Her convictions for fraud followed a trial before Mr Recorder Sallon QC and a jury at Southwark Crown Court in July 2017. The first offence concerned a false representation made on a housing benefit form to the effect that she lived in an address in the London Borough of Brent when in fact she had moved and was now living at an address in the London Borough of Barking and Dagenham. 3. The second offence was related to the first, in that she failed to disclose to the London Borough of Brent that she was in receipt of benefits at the same time from the London Borough of Barking and Dagenham. 4. The third offence of fraud related to an application made by Ms Chung to the London Borough of Brent for a Blue Badge enabling her to make use of disabled parking bays. In the application form submitted to Brent Council she stated that she had never held a Blue Badge before, when in fact she had already been granted one by the London Borough of Barking and Dagenham. 5. Ms Chung was represented by counsel at trial and gave evidence on her own behalf. On count 1 she denied filling out or signing the housing benefit form for the London Borough of Brent. On count 2 her defence was that she had informed Brent that she had moved and she denied receiving any money from them. 6. In relation to the Blue Badge offence she denied completing or signing the application form. In convicting her, the jury plainly disbelieved her account of events. 7. Her grounds of appeal against conviction are as follows. First, a failure to direct the jury as to the two elements of dishonesty deriving from the case of Ghosh . Second, a failure by the Crown to show that she had made any gain. Third, that she was entitled to housing benefit for the indictable period. Fourth, she was also entitled to a Blue Badge and to a Taxicard. Fifth and last, the judge had erred in discharging a juror in the middle of the trial. 8. In dismissing her application for leave the Single Judge dealt succinctly with each of these grounds, giving reasons as follows: "1. As the judge explained - dishonesty was not the issue in the case. The issue was as to whether you had made the applications and received any benefit as set out in the summing up at page 5F of the transcript... 2. Gain was not a requirement for the proof of guilty, merely the intent to make such again. 3. The fact of entitlement to housing benefit was not in dispute. What was proved was that you simultaneously obtained such benefit to in respect of two different homes. 4. It was accepted that you were entitled to one blue badge. You were not entitled to the second one. 5. It was accepted that you were entitled to a taxi card. Your case was that you had not applied the second card. The jury was entitled to reject that evidence. 6. The discharged juror. This was an unfortunate event of the kind which occasionally arises during trial. It was dealt with carefully and fully by the court after hearing from the juror and from both parties. The juror was discharged on your application. The judge carefully considered the appropriate considerations and authorities and was entitled to proceed as he did." 9. We respectfully agree with each one of these reasons given by the single judge for refusing leave. 10. In renewing her application for leave the applicant has sought to lodge further grounds. We have considered these further grounds which are out of time. There is no merit in any of them. They are essentially assertions of fact which could have been and no doubt were raised at trial for the jury's consideration. The application is 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

2018_04_13-4261.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/917/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/917

041b1ba2ccc391ae51a553d405f89c7a024c586f2398bf368f22c29c169c0b6d

[2017] EWCA 1071 (Crim)

EWCA_1071_(Crim)

2017-07-26

crown_court

Neutral Citation Number: [2017] EWCA 1071 (Crim) Case No: 201505661 B4 201505664 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM TRURO CROWN COURT HHJ COTTLE T20147149 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2017 Before : LADY JUSTICE HALLETT DBE Vice President of the Court of Appeal Criminal Division MR JUSTICE GREEN and HER HONOUR JUDGE TAYLOR (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - DANIEL JOHN

Neutral Citation Number: [2017] EWCA 1071 (Crim) Case No: 201505661 B4 201505664 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM TRURO CROWN COURT HHJ COTTLE T20147149 Royal Courts of Justice Strand, London, WC2A 2LL Date: 26/07/2017 Before : LADY JUSTICE HALLETT DBE Vice President of the Court of Appeal Criminal Division MR JUSTICE GREEN and HER HONOUR JUDGE TAYLOR (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : R Respondent - and - DANIEL JOHN PATRICK QUINN MICHELLE CASTERTON 1 st Appellant 2 nd Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr N D Lickley QC (instructed by Cox Burley Solicitors ) for the 1 st Appellant Mr S Laws QC (instructed by Howell Hylton Solicitors ) for the 2 nd Appellant Mr P Dunkels QC (instructed by CPS Appeals Unit ) for the Respondent Hearing dates: 27 June 2017 - - - - - - - - - - - - - - - - - - - - - Approved Judgment The Vice President : Background 1. On 16 November 2015 in the Truro Crown Court the applicants were convicted of murder (count 1). On the same date the trial judge HHJ Cottle sentenced them to imprisonment for life with a minimum term for Quinn of 24 years and a minimum term for Casterton of 22 years. No verdicts were taken on alternatives counts of causing or allowing the death of a vulnerable adult, contrary to section 5 of the Domestic Violence Crime and Victims Act 2004 (“DVCVA”). Their co-accused Aaron Mallen was convicted of murder and sentenced to imprisonment for life with a minimum term of 25 years. Aaron Mallen initially sought leave to appeal conviction but abandoned his application. Mallen now claims sole responsibility for the murder. Another co-accused Richard Rosevear was acquitted of murder by the jury on the direction of the judge and he was acquitted by the jury of causing or allowing the death of a vulnerable person. 2. Applications for leave to appeal against conviction were lodged by both applicants within the requisite 28 day period. Additional grounds were lodged on 17 March 2016 by Casterton and on 18 March 2016 by Quinn, following the Supreme Court judgment in R v Jogee and Ruddock [2016] UKSC 8 , [2016] 2 W.L.R. 681 (“ Jogee ”) handed down on 16 March 2016. These grounds were later amended and amplified at the Registrar’s invitation following the judgment of this court in R v Johnson and others [2016] EWCA Crim 1613 (“ Johnson and others ”). On 15 August 2016, an additional ground was lodged on behalf of Casterton which relies on fresh evidence from the co-accused, Mallen. On 8 December 2016 Quinn lodged an additional ground, also relying on the fresh evidence of Mallen. 3. The Registrar has referred their applications for leave to appeal against conviction and to rely on fresh evidence to the full court. Facts 4. Terry Oldham (the deceased) was a small frail man in his sixties. In 1987 he was convicted of two counts of indecent assault of a child; in 1998 he was convicted of detaining a child without authority and in 2008 he was made the subject of a Sexual Offences Prevention Order. 5. The applicants and co-accused lived with him at his address. Six people were crowded into a small two-bedroom terraced house. Mallen and his partner Casterton slept in the downstairs front room that had been the deceased’s bedroom. Quinn, a close friend of Mallen’s, Richard Rosevear and Stephen Goldsmith slept upstairs in the two bedrooms. The deceased slept in the living room at the back on the ground floor through which one had to go to reach the kitchen and the bathroom. Anti-social behaviour including loud music and drug taking (in which the deceased was not involved) took place at the address. 6. At 06.44 on 1 April 2014 Casterton called paramedics to the house. They found the deceased’s body lying on the floor of the living room. He was not wearing any trousers or underpants. Rigor mortis was well established. The room had dog faeces on the floor and there was an overpowering smell. The paramedic noted discoloration to the deceased’s genital area and requested police attendance. The applicants were both present when the emergency services arrived and provided witnesses statements on 1 April 2014. 7. A broken broom handle was found in the kitchen. The broom handle had what appeared to be faecal matter on it and heavy bloodstaining on the broken end. DNA analysis established that the blood came from the deceased. 8. A post mortem examination took place on 4 April 2014. The deceased had extensive bruising of various ages, defensive injuries, significant fresh injuries to his genitalia, fractures to his ribs and fingers. The fatal injuries had been caused by the forceful insertion of an item into the deceased’s anus, resulting in faecal material leaking into the abdominal cavity. This caused faecal peritonitis that in turn led to multiple organ failure. 9. On 6 April 2014, the applicants (and co-accused) were arrested and in interview all maintained that the deceased had been ‘fine’. It was suggested that the deceased had been walking his dog and sitting up the night before his death. Prosecution case 10. The deceased had been routinely assaulted, bullied and intimidated into handing over his property, in his own home. He had been considered ‘fair game’ because of his previous sexual offending. Mallen was the driving force. Mallen and Quinn, encouraged by Casterton, had assaulted the deceased. The prosecution could not identify who had inflicted the fatal wounds, but asserted the applicants had participated in the unlawful killing either as principals or secondary parties. Count 1 jointly indicted the applicants with murder; manslaughter was left as an alternative. Counts 2-5 indicted each defendant, in the further alternative, with causing or allowing the death of a vulnerable adult. Evidence of bullying 11. Evidence of bullying and abuse of the deceased came from various sources, including other residents of the address, people who visited the address, local shopkeepers and neighbours. The ill treatment led to his becoming uncommunicative and withdrawn and sporting obvious physical injuries. 12. Steven Goldsmith returned to live at the address about two weeks prior to the deceased’s death. He knew that Quinn, Casterton and Mallen hated and abused the deceased because of his convictions. He had seen Quinn, Casterton and Mallen with papers about the convictions. Quinn had encouraged him to look at papers and had read out parts of them. Mallen had been the leader in abusing the deceased, Quinn followed him and Casterton encouraged them. 13. He had seen Quinn call the deceased a ‘nonce’, spit in his face and strike him to the back of the head. If he tried to intervene, Mallen told him it was “their house now”. The deceased had been prevented from leaving the address and was fed beans on toast. Casterton had remarked that “he doesn’t even deserve that”. Casterton would goad Mallen and Quinn to take it to the “next level” saying “I’d give him a right kicking.” 14. Mallen habitually armed himself with weapons in the house, boasted that they had made the deceased vacate his bedroom and said that they had taken control of the deceased’s bank cards. The deceased was terrified of Quinn and Mallen and flinched when they went near him. They had discussed throwing the deceased down a mineshaft. 15. On 28 March 2014 Casterton sent text messages to her friend April Love stating; “hurry up and come here” and “pls April, kickin off with Terry”. That day Mallen assaulted the deceased so badly paramedics were called. The descriptions of the males present fitted Quinn and Mallen. Goldsmith confirmed the deceased was “black and blue” after the assault and there were knuckle imprints on his face, but the deceased claimed he had fallen over. 16. When April Love arrived, the applicants were present and the deceased had a gash to his head. In the presence of Quinn and Casterton, Mallen said he had hit the deceased because he was a paedophile and that they had seen paperwork to prove it. The deceased asked Mallen for permission to use the lavatory. Mallen told her that he had taken control of the deceased’s bank account. Timing and nature of death 17. April Love visited again on the evening of 30 March 2014 to collect money owed to her by Mallen. The applicants were not in but the deceased looked nervous and as if he had been crying. He had a black eye and would not let her in. Christopher Smith (April Love’s son) went with her when she returned later. He confirmed that the deceased had two black eyes, a cut to his head and seemed scared. Quinn stated that the deceased was in the back room, that they had made him eat “dog shit” and that they had found a police charge sheet in the deceased’s safe. 18. CCTV footage put the deceased in a supermarket on 30 March 2014 at 20.30 at a time when he was not suffering from faecal peritonitis. The latest the fatal injury could have been caused was between 05.00 and 08.00 on 31 March 2014. The likely bracket was between 23.00 on 30 March 2014 and 05.00 on the 31 March 2014. In the fatal assault, the deceased’s legs had been forcibly held apart (indicating more than one assailant was actively involved) so that the broken broom handle could be inserted into his anus. 19. In the early hours of 31 March. CCTV captured Mallen getting out of the passenger’s side of Casterton’s car adjacent to the cash machine at which a withdrawal was made. The deceased’s bank card was later found in Mallen’s jacket together with an ATM receipt for a cash withdrawal. Another bank card belonging to the deceased was found in Casterton’s car. 20. Christopher Maycock went to the address at 11.00 on 31 March to collect a loan instalment. The deceased had previously paid on time but had missed his last four payments. He was let into the property by Mallen. He saw the deceased lying on the floor in the dark in a bad state moaning in pain. Mallen said he had had a fall. He asked if help had been called and was assured the emergency services were on their way. 21. Callum Grigg visited on the afternoon of 31 March. The applicants, Mallen and others were present. They all consumed alcohol and cannabis. Mallen said the deceased’s room was his. Mallen told him that the deceased was a paedophile and encouraged him to hit the deceased. The deceased looked terrified and seriously ill; he had a bandage on his head. Mallen pointed to the deceased’s bandage and told him that he had elbowed the deceased in the head two days earlier causing the injury. Someone threw a wrench at the deceased which made contact. A wrench was later found by police in the house. 22. Elise Wilkes was another visitor during the afternoon of 31 March 2014, at about 16.30; she saw the deceased lying on a sofa clearly unwell. The room smelt. Mallen and the applicants were present. Casterton removed a bucket stating that it contained vomit. 23. The deceased must, therefore, have died a protracted and painful death over a period of about 24 to 36 hours, yet no medical assistance was sought prior to the telephone call on 1 April 2014. Lies, cover up and demeanour after the murder 24. The applicants told numerous lies in their witness statements on 1 April 2014 and later in their police interviews, in which they stated that the deceased had been well until he had been found that morning. 25. After the murder, the applicants made jokes at the deceased’s expense. Francesca Foster (an ex-partner of Mallen) was with a friend Kerry Hambly on 1 April 2014 when Casterton’s car pulled up. Mallen whispered to Kerry that the deceased had died. They went home with Quinn, Casterton and Mallen. The three were laughing at how they had fed the deceased dog food, made him take a cold bath, and given him methadone. Mallen re-enacted the position in which the body had been found whilst the others laughed. Kerry Hambly heard the applicants laugh about the injuries to the deceased’s genitals, urinating on him and making him eat dog faeces. She originally thought it had been an April Fool’s Day joke and later asked them to leave. 26. On 7 April 2014 Quinn and Mallen were covertly recorded in a police vehicle. There was a reference to “the nonce” being dead and laughter. Mallen mentioned the fact that, by then, the police had found only one part of the broken broom handle. Quinn immediately warned Mallen not to discuss it in the police car, obviously aware of its significance. This conversation led to the police locating the “other bit” of the broom handle. Defence case 27. The applicants did not give evidence but their case, as advanced, was that they had not been involved in any assault on the deceased. His injuries on 28 March 2014 were caused when he tripped and they did not know who was responsible for the fatal assault. On Mallen’s behalf, it was suggested to Goldsmith that he might have been responsible for the fatal assault on the deceased. A similar suggestion appeared in Casterton’s defence case statement. 28. Richard Rosevear (the acquitted defendant) admitted in evidence that he was aware of the deceased’s convictions. About two weeks before the deceased’s death, the others found paperwork about his past and began to call him a “nonce” and were nasty to him. Casterton had been ‘just as bad’ as Mallen and Quinn. They had been like ‘a pack of dogs’. He had not seen Quinn being aggressive to the deceased but had been told about an incident when he had spat at the deceased. Quinn had been loyal to Mallen and followed his lead. Whilst Rosevear was in prison Quinn and Mallen laughed at him and said he was in prison for what they had done. 29. The defence relied upon, inter alia, the previous convictions and pending prosecutions against various prosecution witnesses, including April Love and Goldsmith. Casterton relied upon her previous good character. Rulings 30. At the close of the prosecution case, the Judge ruled that there was a case to answer in respect of each applicant on the section 5 count of causing or allowing the death of a vulnerable adult (count 3 for Quinn, count 4 for Casterton) and rejected an application by Mallen that the proceedings should be stayed as an abuse of process. 31. Mallen’s counsel complained, boldly, that the provisions of section 6 of the DVCVA imported ‘a real unfairness’ to his trial. The presence of a section 5 offence on the indictment meant a submission of no case on the murder could not be made until the close of all the evidence. If Mallen failed to give evidence, the section provided for an “enhanced” adverse inference. In other words, by virtue of sub section 6 (2) a jury would be entitled to “draw such inferences as appear proper from the defendant’s failure to give evidence” on the charge of murder, even if there would otherwise be no case for him to answer on the murder. In the event, he did not give evidence. 32. The principal submission by counsel for the applicants Quinn and Casterton on the section 5 offence was that the very unusual nature of the killing meant it had not been foreseeable and thus had not “occurred in circumstances of the kind that the defendant foresaw, or ought to have foreseen” for the purposes of section 5. 33. The judge disagreed; he summarised the evidence of threats, bullying, verbal and physical abuse meted out to the deceased including the assault on 28 March 2014, which the applicants had helped cover up. The build-up of violence had been based on the applicants’ hatred of the deceased and his convictions. There was evidence of Quinn’s participation in a number of incidents. Casterton had been involved in the events leading up to the killing and had egged the others on to inflict greater violence. He was satisfied a jury could therefore conclude that the targeted attack of a paedophile, as occurred, was foreseeable and rejected the submissions. 34. At the close of all the evidence, the judge also rejected a submission of no case advanced on behalf of Casterton on the murder count, relying on the same ‘substantial’ body of evidence. Directions to the jury 35. The issues as left to the jury on the murder count were whether they were sure: Route 1 re murder (as a principal) The defendant in question had inflicted or taken some physical part in the infliction of the injury from which the deceased died with the requisite intention. If so the defendant was guilty of murder. If the defendant did not have the requisite intention did he/she foresee that some harm might be caused; if so the defendant was guilty of manslaughter. Route 2 re murder (as a secondary party) The defendant in question played some part in the incident that led to the fatal injury by intentionally encouraging, assisting or lending support to those physically involved; if so did the defendant foresee that the persons involved might have intended to kill or cause really serious harm; if so the defendant was guilty of murder. If the defendant realised some harm might result he/she would be guilty of manslaughter. Appeal 36. Three grounds were advanced by both Quinn and Casterton: (i) The judge’s directions on joint enterprise were fundamentally flawed in the light of the judgment in Jogee . (ii) The judge was wrong to reject the submission of no case on the section 5 offence of causing or allowing the death of a vulnerable adult. (iii) Fresh evidence from Mallen undermines the safety of the conviction. On behalf of Casterton two further grounds were advanced: (iv) The judge was wrong to reject the submission of no case on the murder count. (v) The judge made unfair and unduly prejudicial comments to the jury on the applicant’s failure to give evidence. The Jogee ground: exceptional leave 37. Counsel first addressed the question of exceptional leave. The case of Jogee was heard by the Supreme Court in October 2105 and judgement reserved. Although some trials in which the issue of joint enterprise was raised were adjourned until after the judgement was published, this trial went ahead in November 2015. The applicants sought leave to appeal in time on non Jogee grounds. The Registrar held back a number of applications for leave pending the judgment in Jogee , on the basis they may raise a similar issue as that raised in Jogee and their applications for leave were not therefore determined by the single judge. When the Jogee judgment became available the applicants applied to amend their grounds. The impact of the judgment in Jogee was considered by this court in Johnson and others . Counsel for the applicants, supported by Mr Dunkels QC for the prosecution, relied on paragraphs 24 to 28 and paragraph 84 of Johnson and others in support of the proposition that the applicants either do not require exceptional leave or, if they do, it should be granted. 38. They understood the court in Johnson and others to distinguish between applications for leave to appeal made in time on non Jogee grounds that have been determined before a Jogee ground is added and those that have not been determined before a Jogee ground is added; so that applicants in the former category require exceptional leave and those in the latter category do not. They gave as examples the applications of Terrelonge and Burton considered in Johnson and others at paragraphs 26 and 27 and paragraphs 73 to 84. 39. At paragraph 84, of the judgment, the court concluded that it would be ‘unjust’ to require the applicants Terrelonge and Burton to show more than the convictions were unsafe. We were invited to take a similar course to that adopted for Terrelonge and Burton and apply solely the test of safety of the conviction. 40. It was accepted that a distinction can be drawn between the applications of Quinn and Casterton on the one hand, and Terrelonge and Burton on the other, in that counsel for Quinn and Casterton did not raise the issue with the trial judge. At the time the judge summed the case up to the jury, all parties were aware of the possibility of a change in the law on joint enterprise in relation to secondary parties, but they did not consider it appropriate to ‘reserve the question of the correctness of the Court of Appeal decision in Jogee ’. Had they done so the judge would have given their submissions ‘short shrift’. Accordingly, they maintained it would be wrong to treat their lay clients differently from the way the court in Johnson and others treated the applications of Terrelonge and Burton. Jogee ground: the merits 41. Counsel then turned to the merits of the application. The written route to verdict provided the jury with an alternative second route to conviction which introduced foresight into the consideration for the mens rea for murder. This was a misdirection of law following Jogee . If, as Mallen has now confirmed, Mallen inflicted the fatal injuries, it is probable that the applicants were convicted as a secondary party and convicted via the second route containing the flawed direction. There was no evidence the applicants were directly involved in the murder and no forensic evidence to link them to it. Others in the house at the time of the murder were either not prosecuted (Goldsmith) or acquitted (Rosevear) Submission of no case to answer on the section 5 offence of causing or allowing the death of a vulnerable adult 42. Although this ground appeared in both the applications for leave to appeal, Mr Lickley QC for Quinn decided to abandon it during argument. Mr Laws QC for Casterton pursued it. Because the applicants appeared by video link and Mr Lickley was not in a position to obtain his lay client’s instructions on the point, we decided we should consider the ground in respect of both applicants. 43. The first hurdle that counsel had to surmount was that neither applicant was convicted of a section 5 offence and therefore a complaint based on its continued presence on the indictment was fraught with difficulty. Nevertheless, Mr Laws contended that its presence on the indictment meant that the trial on the count of murder proceeded in a significantly modified way and adversely to the applicant. 44. Section 35 (3) of the Criminal Justice and Public Order Act 1994 introduced the drawing of adverse inferences from a failure to give evidence at trial in these terms: “Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” Section 38 (3) of the same Act, where relevant, provides: “A person shall not …. have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 35(3) .” 45. In R v Cowan [1995] 3 WLR 818] 1996 1 Cr App R 1 the court, over which Lord Taylor CJ presided, was concerned with the proper interpretation and implementation of section 35 . Noting the provisions of section 38 (3), the court gave as one of the reasons for upholding the provisions of section 35 that the jury must be satisfied that the prosecution had established a case to answer before drawing any inferences from silence. 46. However, section 6 of the DVCVA provides, where relevant: “(1)Subsections (2) to (4) apply where a person (“the defendant”) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (“the section 5 offence”). (2)Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty— (a)of murder or manslaughter, or (b)of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter, even if there would otherwise be no case for him to answer in relation to that offence. (3)The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 5 offence is dismissed). (4)At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).” 47. Where a section 5 offence appears on the indictment, therefore, section 6(2) allows for inferences to be drawn in determining whether a defendant is guilty of murder, manslaughter, even if there would otherwise be no case to answer. By the judge finding a case to answer on the section 5 count of causing or allowing a death the applicants complain that they have been ‘deprived’ of the protection afforded by Cowan . If the judge had removed the count from the jury, he would have given the standard direction on the drawing of adverse inferences, as recommended by the Judicial College. This would have included the direction that the jury had to be sure the prosecution had established a case to answer (or a strong enough case to call for an answer) before they were entitled to draw an adverse inference. In fact, the judge directed the jury in these terms: “The first three defendants .. chose not to go into the witness box. This was a decision they were perfectly entitled to take. However, as you heard me say to each defendant in turn through his counsel, you the jury, may draw conclusions from that decision adverse to any one or all of them if you considered it fair and proper to do so. … A defendant has a right to remain silent and not to go into the witness box. The fact that he chooses to remain silent cannot, on its own, prove guilt. The burden of proving guilt of the defendant remains throughout upon the prosecution. You must not convict any of the three defendants wholly or mainly on the basis they did not give evidence. On the other hand, what are the consequences that do or may flow from the decision to remain silent? It means that there is no evidence before you capable of contradicting, undermining or explaining the evidence called by the prosecution. ……. You must only reach an adverse conclusion if you are sure the only sensible explanation for silence is because he or she has no answer to the prosecution case or none that would stand up to examination.” 48. In any event, the applicants suggest there was insufficient evidence that the applicants were or ought to have been aware that there was a significant risk of serious bodily harm. The evidence did not establish that the act that caused death (the insertion of a broom handle into the deceased’s anus) occurred “in circumstances of the kind” (for the purposes of s.5 (1) (d) (iii)) of the Act) that the applicant foresaw or ought to have foreseen. 49. Reliance was placed on R v Khan [2009] 4 ALL ER 544 in which the court observed in argument that “poisoning” would not be “circumstances of the kind” when the killing had involved very serious violence. The fatal assault or assaults left the deceased badly bruised with broken ribs, defensive injuries to his hands, substantial injuries to his groin and internal injuries, all of which were very different from the kind of likely assault about which the applicants may have been aware following the 28 March incident involving a single blow with the elbow. Fresh evidence from Mallen 50. Fresh evidence from the co-defendant Mallen has become available. We were invited to receive it under section 23 of the Criminal Appeal Act 1968 as credible evidence that affords a ground of appeal and to find that it renders the convictions unsafe. 51. In a statement provided to the applicants’ solicitors, Mallen stated he is solely responsible for the deceased’s death. He denied an intent to kill the deceased but accepted an intent to cause really serious bodily harm. He described his motivation for the assault as being the deceased’s convictions for sexual offending. 52. Although the applicants were in the house at the time of the murder, he claims the house was quiet. He alone had used a chair leg to strike the deceased in his genitals and stamped on him. He made the deceased stand, told him to remove his trousers and said “You are going to get what you gave those kids”. The deceased removed his trousers and Mallen snapped the broom handle in two over his leg. He pushed it into the deceased’s anus as far as he could, about 10 inches, and thrust it in and out 6 to 7 times. He then used the broken end and thrust it into the deceased’s anus as far as he could, about 15 inches. The deceased begged him to stop. Mallen says he told him: “if you wake my Mrs you’re going to get it worse” and “is that what those kids said, did they ask you to stop?”. He then punched the deceased to the face as he lay on the sofa. He returned to bed where, he insists, Casterton, his partner, was still asleep. 53. The next day Quinn and Casterton realised that the deceased was unwell and asked Mallen what was wrong with him to which he replied he did not know. That afternoon he encouraged others to assault the deceased. Nobody did but someone threw a spanner at him. He realised the deceased’s health was deteriorating and ‘took care’ of him. Nobody else knew what he had done. He did not summon medical help because he feared police involvement. When Casterton washed the deceased that evening, there was no bleeding from his anus. After he and Casterton returned from a visit to a public house, Casterton fed the deceased. On 1st April 2014 the deceased’s lifeless body was discovered. 54. He accepted that he assaulted the deceased, before the fatal attack, elbowing the deceased in the head and causing a cut on 28 March and that he had been assaulting the deceased “for a while...giving him the odd slap and calling him a ….paedophile” but insisted he “only really had a go at Terry when I was on my own with him”. 55. At the time of the trial, he did not believe the applicants would be convicted and did not, therefore, make any admissions earlier. However, he claimed he had told his trial solicitor he would plead guilty if the case against Quinn and Casterton was not pursued. 56. We turn to the additional grounds pursued by Casterton. The judge erred in refusing a submission of no case to answer on count 1 (murder). 57. On the facts, the ruling was wrong in law as it then stood. Post Jogee the ruling was wrong in law. The judge concluded the count could be left to the jury on the basis the applicant was “at the very least” a secondary party. He must have been focussing on the mens rea then required namely foresight and that, post Jogee , is not enough. 58. The prosecution accepted it had to prove the applicant was in the room when the fatal assault occurred and that Casterton had either participated in or encouraged what had taken place. There had been no direct evidence against her and the circumstantial evidence available had been insufficient to allow the case to go to the jury. 59. The murder occurred within a time frame of late Sunday night to Monday morning. The medical evidence left open the question of whether the injuries were inflicted at the same time. There was no evidence of direct involvement by the applicant for example no incriminating remarks made. The case against her was effectively put on the basis she had previously encouraged violence against the deceased, bore the deceased ill will, was present in the house at the time of the fatal assault, lied to cover up the fatal assault and must therefore have participated and or encouraged the principals. Yet other evidence suggested she was not a party to violence against the deceased, for example, her bringing a friend to the house and sending her text messages alerting her to the possibility of violence on 28 March. Improper and prejudicial judicial comment regarding the applicant’s failure to give evidence 60. Having given the direction on adverse inferences to be drawn from the failure to give evidence, to which we have referred the judge returned to the topic three times more during his summing up to direct the jury that although the defendants were not obliged to give evidence, they were entitled to ask why the defendants had not given evidence as potential witnesses to what happened on the fatal weekend. In the context of a sensitive and ‘finely balanced case’ his comments were said to be unduly prejudicial to the applicant. 61. The passages about which complaint is made appear at pages 20 and 21 of the summing up. At page 20 G the judge reminded the jury that: “Apart from the limited assistance provided by Rosevear, none of the other occupants of the house, with the exception of Steven Goldsmith, have come forward to help you with what happened during the course of rest of that weekend. Of course, as I have told you, they do not have to but the fact remains you are left to piece together from the evidence that is available what happened……. You may think it is unlikely to be the case that the defendants are unable to help you, as all of them were living in the house that weekend. They do not have to but you may think they could and chose not to and you have every right to ask why………… At page 21 F he continued: “All the defendants had been present in the house throughout the events covered by this case. Apart from Rosevear, none of them wished to share with you the experience of the months leading up to the weekend on which Terry died and, more importantly, the events of that weekend and the Monday. Of course, as I have said, they do not have to but, equally, you are entitled to ask ‘Why not?’.” Conclusions Jogee ground 62. First, we consider the question of leave. In Jogee , at paragraph 100, the Supreme Court stated: “where a conviction was arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to CA out of time. The court has power to grant such leave, and may do so if substantial injustice can be demonstrated…” 63. Adopting that approach, the court in Johnson and others distinguished between those appeals brought in time and those brought out of time. For appeals brought in time, the test for this court is solely one of safety (see paragraph 7). For appeals brought out of time exceptional leave is required (see paragraph 10) and an applicant must demonstrate that a substantial injustice would be done; a high threshold. Under the heading “Other cases” at paragraphs 24 to 28 the court in Johnson and others considered specifically appeals or applications for leave to appeal that were pending. The judgment refers to three types of case: (i) An application for leave made in time on non Jogee grounds and determined and then a Jogee ground added later, where exceptional leave is required (paragraph 25). (ii) An application for leave made in time on non Jogee grounds but not determined and a Jogee ground added later, as for example the appeals of Terrelonge and Burton (paragraphs 26 and 27). (iii) An in time appeal on Jogee grounds by one defendant and a co-defendant seeks leave to appeal out of time on similar grounds, where exceptional leave is required by the co-defendant but he is likely to meet the substantial injustice test (paragraph 28). 64. Thus, although the court identified three different categories of applicant, it made clear that applicants in categories (i) and (iii) both require exceptional leave. We understand the scope for confusion about the requirement for exceptional leave for those in category (ii). In paragraph 27 the court did not state in express terms that exceptional leave was required and later at paragraph 84 used the expression it would be ‘unjust’ to require the applicants to show more than the conviction was unsafe. However, paragraphs 26 and 27 should be read together and with paragraph 84. At paragraph 84, the court explained that it had reached its conclusion on the basis of safety of the conviction. It was the court’s view that “ although leave would have been required to argue the Jogee ground, it would in the circumstances of the case have been granted if the applicants had shown the conviction was unsafe”. This was because: “trial counsel had done what was open to them to reserve the correctness of the law at the trial. Thus, the court made clear that exceptional leave was required for a category (ii) applicant but the court would have granted leave in the exceptional circumstances of that particular case. Terrelonge and Burton had in effect lodged a Jogee ground of appeal in time. 65. The circumstances in which exceptional leave is required were considered more recently in R v Agera and others [2017] EWCA Crim 749 . The applicants in Agera had lodged non Jogee grounds of appeal in time that were refused by the single judge. Post the Jogee judgment but before the hearing, one of the applicants sought to add a ground based on the trial judge’s directions on joint enterprise. The court had no hesitation in concluding that exceptional leave was required. Although the court was not concerned with an application for leave to appeal that had not been determined, as we are, it roundly rejected the assertion based on the decision in Chapman [2013] EWCA Crim 1370 that amendment to an in time appeal should be allowed out of time on the basis of a change in law between the filing of a notice of appeal and the hearing. We respectfully endorse the general approach in Agera and for the reasons given by Sir Brian Leveson, President of the Queen’s Bench Division. 66. Accordingly, the principles are clear. Exceptional leave is required for out of time appeals or applications based on a change of law, even if the change of law ground is added to the original grounds of an in time appeal or application, and whether or not the application has been determined by a single judge. Although we sympathise with the argument advanced by Mr Laws that trial counsel, aware of the Jogee point, did not feel able to advance it before the trial judge before the law was changed, we see no basis in law or logic for distinguishing between applications for leave to appeal based on a change of law that have been determined by the single judge and those that have not. We are satisfied that the applicants require exceptional leave and must satisfy the substantial injustice test. 67. We now apply that test to the facts of this case. In the light of the judge’s directions, the jury’s findings indicate that they were sure, at the very least, of the following: (i) the applicants played some part in the incident that led to the fatal injury being inflicted by intentionally assisting encouraging or lending support to the person or persons who physically inflicted the fatal injury; and (ii) the applicants foresaw that the person or persons involved in inflicting that injury might intend to kill or cause really serious injury to the deceased. 68. As far as Quinn is concerned there was evidence of his having been a principal participating in the attack on the deceased with the broom. He had shown hostility towards the deceased because of his being a sex offender, spat in his face, called him a ‘nonce’ and hit him over the back of his head with his knuckles saying they had made him eat ‘dog shit’. Hostility of such a specific kind was reflected in the targeting of Mr Oldham’s genitalia and anus in the fatal assault. Quinn was undoubtedly in the house at the time of the fatal assault and the jury found that he was present at the fatal assault. It was a prolonged attack. The evidence suggested at least two people were involved in the fatal assault, with one forcing Mr Oldham’s legs apart so that the broom handle could be repeatedly inserted. The attack caused serious multiple injuries to Mr Oldham including extensive bruising around the whole pubic area and genitalia and four broken ribs, in addition to the internal injuries from the insertion of both parts of the broken broom handle in turn. Any one present and lending support to such an assault must have intended, at the very least, that those using the broom handle would cause the victim grievous bodily harm. 69. On the same day as Mr Oldham was found dead, Quinn laughed about how they had fed him dog food and dog faeces, had urinated on him, given him a cold bath and about the fact he was dead. The covert recording of Quinn and Mallen is also significant. Again, they were heard laughing at the fact that Mr Oldham was dead and express reference was made to the broom stick, in terms that suggest both knew of its significance in the death of Mr Oldham. Furthermore, Rosevear, gave evidence that when he was at Exeter prison in December 2014, Mallen and Quinn were laughing and said that he, Rosevear, was in prison for what they had done. 70. Turning to Casterton, similar considerations apply: the jury must have found that the applicant was present at the brutal and prolonged attack. She participated in and or encouraged the fatal assault foreseeing that the principal, if it was not her, would cause grievous bodily harm with intent. Casterton too had shown hostility towards Mr Oldham because of his being a sex offender, and that hostility was reflected in the targeting of his genitalia and anus. Casterton had previously encouraged the others to greater levels of violence. 71. We are satisfied that Jogee compliant directions in both cases would have made no difference to the jury’s verdicts. The crime in which Quinn and Casterton were involved was a crime of violence at the upper end of the spectrum described in paragraph 21 of Johnson and others. The substantial injustice test has not been met and we decline to give exceptional leave. For the avoidance of doubt, had we been prepared to give leave and consider solely the safety of the conviction, our conclusion would be the same. Submission of no case on the section 5 offence of causing or allowing the death of a vulnerable adult 72. We have no doubt the judge was obliged to leave the section 5 offence to the jury. First, it provided a proper alternative to the murder and manslaughter charges in the event that the jury was not satisfied there was sufficient evidence of participation in the fatal assault. Second, there was ample evidence to support the section 5 offence. This was a small house and Mr Oldham’s condition must have been obvious to all present. At the very least, the applicants ignored the clear risk to Mr Oldham of serious physical harm at the hands of Mallen, were aware of Mr Oldham’s condition after the fatal assault, and allowed him to die a slow and excruciatingly painful death. If Mallen was the perpetrator of the unlawful act, as he now admits, it occurred in circumstances that were properly left to the jury for them to determine if it was foreseeable. The judge would have been failing in his duty had he withdrawn the section 5 count on the basis of insufficiency of evidence. 73. Third, the judge stated in express terms that he was conscious of the possible impact upon the applicants of leaving the section 5 offence on the indictment and had he been persuaded that there was any unfairness to the defence, he would have removed the count from the jury. He was not so persuaded and we endorse his approach. Parliament enacted section 5 specifically to deal with this kind of situation where members of a household conspire to create a wall of silence to hamper a proper investigation into a death. Fourth, and finally on this topic, the judge’s directions on adverse inferences provided sufficient safeguards for the applicants and to address the principal concerns of the court in Cowan . Fresh evidence from Mallen. 74. In light of Mallen’s current account, and in particular his reference to what he told his trial lawyers, the court enquired of the parties whether any steps had been taken to ask him if he would be prepared to waive privilege. We understand that the appellants’ solicitors had not asked that question and were advised by their professional body it would be improper to do so because of a ‘potential conflict of interest’. We find that advice surprising. We do not see the conflict of interest in an applicant’s solicitor, an officer of the court, asking a witness if he would be prepared for enquiries to be made of their trial solicitors about his account, provided of course the solicitor warned the witness he was not obliged to waive privilege and could have independent legal advice if he chose. Without a waiver of privilege the court is unable to conduct as thorough an assessment of a witness’s current account as it would wish. In the future, if an applicant seeks to rely upon a witness’s fresh evidence in these circumstances and there is any doubt about the proper course to take, we recommend that the solicitors alert the Registrar and seek his advice. 75. We are left in the position, therefore, that the applicants seek to rely upon the evidence of a witness who has given previous accounts of the same incident and asserts he advised his trial solicitors he was guilty and prepared to plead guilty if the applicants were discharged. It would have been helpful for the court in assessing his credibility to know what he has said in the past about the incident, his role in it and the role of the applicants. We must proceed on the basis of proper inference. 76. We infer that the first time Mallen provided his new account was, at the earliest, in May 2016 when he gave it to Casterton’s solicitors for the purposes of her appeal and that until that time, his instructions to his solicitors and counsel were that he played no part in the murder. He has now abandoned his own attempt at an appeal. There is therefore a major hurdle in the path of the applicants, namely that their witness has nothing to lose by giving his present account and potentially stands to gain the acquittal of his very close friend and of his girlfriend. 77. There is therefore a major hurdle in the path of the applicants, namely that their witness has nothing to lose by giving his present account and potentially stands to gain the acquittal of his very close friend and of his girlfriend. 78. In R v Mackin [2007] EWCA Crim 1844 , at paragraph 33 the court declared: "'It is obvious…that in the ordinary course of events this court will be very careful before it will admit a confession of guilt by one of two people who have been convicted by a jury of a joint offence. It would be so easy for criminals to seek to share out the responsibility so as to get one of them off. On the other hand, there is nothing in the decided cases which in any way affects this court in receiving such evidence in a proper case…' 'As a general proposition if a friend or relative comes forward after a trial and conviction of the offence and claims to have committed the offence having stood by and allowed the trial to go ahead without imparting that information previously, the appellant in such a case would have a very high hurdle to surmount in persuading the Court that the new witness is giving evidence that is credible.'" 79. The applicants did not come close to surmounting that very high hurdle of persuading the court the witness’s evidence was credible. Putting to one side the fact we did not have the benefit of disclosure of his previous instructions, we did not find Mallen’s account on paper in any way convincing. Having heard from him de bene esse, we did not find him his account to us credible, save for where he described the brutality of the attack on Mr Oldham and his motivation. 80. Mallen has lied frequently and whenever it suited his purpose. He lied to the police and paramedics and others immediately after the discovery of Mr Oldham’s body. He lied in a witness statement taken by the police on 1 April 2014. He lied in his interviews under caution. Although he did not give evidence during the trial, his defence case was conducted on the basis that the prosecution witness, Goldsmith, had killed Mr Oldham and this allegation was put on his behalf to Goldsmith, a man he now accepts had nothing to do with the murder. We believe he also lied to us when he claimed he instructed his solicitor he was guilty and handed him handwritten notes to that effect, which his solicitor threw away without passing on to counsel. We have no doubt he lied about the timing of the visit with Casterton to the ATM machine as before the fatal assault, in an attempt to exculpate her, about Mr Oldham’s having stayed virtually silent during the excruciatingly painful attack and about his not discussing what he had done with the applicants. It was no coincidence, as he claimed, that they all told the same story. 81. We decline to receive the evidence. Submission of no case on the murder count. 82. The provisions of s.6 (4) of the DVCVA 2004 meant that the question of whether there was case for Casterton to answer on the count of murder could not be considered until the end of all the evidence. By that time there was ample evidence, as the judge observed, that “at the very least” the applicant was a secondary party; evidence that the applicant intentionally encouraged or assisted with the requisite intention and, with that guilty knowledge, lied to cover up the murder. This was strengthened by Casterton’s failure to give evidence. The judge rightly left the count of murder to the jury. Judge’s comments 83. The Judge gave the relevant directions as to the applicant’s failure to give evidence. The further references to the fact that the applicants had not offered any account of what had happened in the house in the days leading up to Mr Oldham’s death were reasonable comments to make. This was a case where the defendants were in the house at the time that Mr Oldham was assaulted and during the time he gradually succumbed to the painful effects of faecal peritonitis, yet each maintained in witness statements and interviews that he was in normal health throughout that time and until he was found dead, and none gave evidence to inform the jury as to what had been happening in the house and how Mr Oldham was. 84. In any event, in the context of a full and very fair summing up, the comments by the judge were not unduly prejudicial and did not make the conviction unsafe. 85. For all those reasons, we reject the applications for leave to appeal against conviction. 86. Finally, we should like to express our gratitude to all counsel for their very helpful and focussed submissions.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2017/1071/data.xml

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[2005] EWCA Crim 1980

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2005-07-21

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Case Nos: 200403277, 200406902,200405573,200302848 Neutral Citation Number: [2005] EWCA Crim 1980 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/07/2005 Before: LORD JUSTICE GAGE Mr JUSTICE GROSS and Mr JUSTICE McFARLANE - - - - - - - - - - - - - - - - - - - - - Between: R v Lorraine Harris Raymond Charles Rock Alan Barry Joseph Cherry Michael Ian Faulder - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Case Nos: 200403277, 200406902,200405573,200302848 Neutral Citation Number: [2005] EWCA Crim 1980 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Date: 21/07/2005 Before: LORD JUSTICE GAGE Mr JUSTICE GROSS and Mr JUSTICE McFARLANE - - - - - - - - - - - - - - - - - - - - - Between: R v Lorraine Harris Raymond Charles Rock Alan Barry Joseph Cherry Michael Ian Faulder - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Richard Horwell and Miss Zoe Johnson for the Crown Mr Michael Mansfield QC and Mr Peter Wilcock for Lorraine Harris and Alan Barry Joseph Cherry Mr Michael Mansfield QC and Mr James Gregory for Raymond Charles Rock Mr Michael Mansfield QC and Mr Robert Woodcock for Michael Ian Faulder Hearing dates: 16 June 2005 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Gage : 1. In these four appeals, which have been heard together, four carers, as they have been described, appeal against convictions for manslaughter, Lorraine Harris; murder, Raymond Charles Rock; manslaughter, Alan Barry Joseph Cherry; and s.20 inflicting grievous bodily harm, Michael Ian Faulder. The victims were Patrick McGuire, aged 4 months, in the case of Harris; Heidi Smith, aged 13 months, in the case of Rock; Sarah Eburne-Day, aged 21 months, in the case of Cherry; and N, aged 7 weeks, in the case of Faulder. Throughout this judgment we shall refer to the victims by their christian names and to the appellants by their surnames. Patrick was the son of Harris; Heidi was the daughter of Rock’s partner; Sarah was the daughter of Cherry’s partner; and N was Faulder’s son. At the time immediately before each of the victims became seriously ill each was in the sole care respectively of Harris, Rock, Cherry and Faulder. 2. All of the appellants were convicted following trials. On 7 September 2000 at Nottingham Crown Court Harris was convicted of manslaughter and sentenced to 3 years imprisonment. On 21 September 1999 at Chelmsford Crown Court Rock was convicted of murder and sentenced to imprisonment for life. On 9 October 1995 at Birmingham Crown Court Cherry was convicted of manslaughter and sentenced to 2 years imprisonment. On 28 April 1999 at Teesside Crown Court Faulder was convicted of s.20 inflicting grievous bodily harm and sentenced to 30 months imprisonment. 3. The common thread running through each of these four appeals is a submission that since these convictions medical research has developed to the extent that there is now “fresh evidence” which throws doubt on the safety of each conviction. 4. Following the judgment of this Court in R v Cannings [2004] 2Cr.App.R.7 the Law Officers set up an Interdepartmental Group to review convictions of defendants in alleged “battered babies” cases. As a result of that review letters were sent to Harris and Cherry advising that each might feel it appropriate for the safety of her or his conviction to be considered further by the Court of Appeal. Each lodged notices of appeal and sought extensions of time in which to apply for leave. Each has been granted an extension of time and leave to appeal. Rock had already lodged a notice of appeal. He appeals with the leave of the Court. In the case of Faulder his appeal comes to this Court by way of a reference from the Criminal Cases Review Commission. Mr Michael Mansfield QC is leading counsel for all four appellants. Mr Richard Horwell leads for the Crown in each appeal. 5. These appeals have involved the court receiving (by agreement of the parties) evidence from ten medical expert witnesses called on behalf of the appellants and eleven called on behalf the Crown. We also received the written evidence of four further witnesses. In general terms the issues between the two sets of medical expert witnesses are as follows. First, the evidence called on behalf of the appellants relied on recent research which it is said demonstrated that long held medical opinion of the conventional signs giving rise to inferences of unlawful assaults on infants and very young children is unreliable. The basis of this challenge was a hypothesis based on recent research. However there were also other associated medical issues. The Crown’s medical witnesses do not accept that the hypothesis is correct or that it is supported by the new research. 6. Secondly the Crown do not accept that the fresh evidence in relation to other specific issues in any way renders the convictions of these appellants unsafe. The trials Harris 7. Harris faced a single count of manslaughter. In summary the evidence was as follows. Patrick was born on 13 August 1998. He was the son of Lorraine Harris and Sean Maguire all of whom lived in the same house with two daughters of Harris from a previous relationship. The evidence showed that, although the pregnancy was not planned, both Harris and Maguire were happy about the impending birth. After his birth, Patrick gave every indication of being a thriving and much loved baby. Maguire described Harris as being as happy as he had ever known her. Harris received support from Maguire’s mother and her own mother. There were no financial difficulties and health professionals said that the family gave the impression of perfection. 8. On 4 December 1999 Harris took Patrick for his third immunisation. The rest of the day passed without any significant event. Maguire was on night shift and Harris remained in the house with Patrick. Shortly before 1.00 a.m. on 5 December 1999 Harris noticed that Patrick was having difficulty breathing and called Dr Barber, the general practitioner. Whether or not this was in evidence at the trial, it is agreed that in the telephone call Harris said to Dr Barber: “I woke up to give him his feed and he wasn’t breathing. Not until I picked him up and sort of shook him. He seems as right as rain now.” 9. Dr Barber stated that on arrival Harris appeared calm and controlled. Dr Barber had formed the opinion that Harris was an experienced and sensible mother. He examined Patrick. Patrick’s eyes were normal and he had all the appropriate reflexes. He recorded Patrick’s temperature as 38.2, mildly raised. There were no signs of abuse or bruising. Patrick’s chest was clear and although he was a little “snuffly” Dr Barber concluded that there was nothing wrong with him. He left the house at 1.30a.m. 10. At 2.34am Harris made a 999 call to the emergency services and reported that Patrick would not wake up. An ambulance arrived seven minutes later. The crew endeavoured to resuscitate Patrick. They recorded that Patrick did not have a pulse and was making no respiratory effort although he was still warm. Patrick and Harris were taken to Derby Children’s Hospital arriving at 3.15am Patrick was put on a life support machine. The evidence was that Harris was “plainly in considerable stress and crying.” Patrick was noted as having fixed and dilated pupils and retinal haemorrhages. 11. Patrick was seen by Dr Dodd a consultant paediatrician, who examined him at approximately 4.30am He described Patrick as having widely dilated pupils enabling him to make a clear examination of the retina. He found gross preretinal haemorrhages which were so extensive that he could not recall seeing any that were worse. There were no external injuries. He was so concerned about Patrick’s condition that he arranged for him to be transferred to the specialist unit at Nottingham. In Nottingham a blood sample test was taken. The test showed that there was marked hypofibronogenemia. Despite the best efforts of the medical team caring for him Patrick died on 6 December 1999. 12. In late March 2000 Harris was arrested and interviewed about these events. In the summing-up the judge described Harris’ answers at interview as entirely consistent with the evidence which she gave at her trial. 13. The prosecution called a number of expert medical witnesses both as to fact and also opinion evidence. Those witnesses were Dr Bouch, a Pathologist, who had conducted a post mortem on Patrick. He concluded that Patrick had died as a result of a shake which caused bleeding into the skull around the brain. He described what he meant by a “shake” as much more than rough handling. Professor Green, a paediatric pathologist, with a special interest in ophthalmic pathology gave evidence that there was extensive bleeding in the vitreous of the left eye and extensive haemorrhaging of the retina. The bleeding in the right eye was less extensive. His conclusion was that his findings were those typically seen when shaking or, shaking and an impact had occurred. A consultant haematologist, Dr Giangrande, who specialised in blood diseases, gave evidence to the effect that the low level of fibrinogen in the Patrick’s blood system, in his opinion, was the result of an injury sustained by Patrick and not a pre-existing condition. However he was unable to rule out the possibility that that condition was present before the brain injury was caused. Finally, the prosecution called Mr Punt, a consultant paediatric brain surgeon. His evidence was that the amount of blood over the surface of the brain shown on the scan and the description of the amount of blood over the surface of the brain at post mortem was not sufficient to cause Patrick’s death. In his opinion it was injury to the brain itself which caused death; and that the brain injury was caused either by shaking or an impact or a combination of both. In his opinion whatever caused the injury to the brain was likely to have been in consequence of an incident after Dr Barber had left the home at 1.30a.m. In his view it was extremely improbable that the injuries were the result of a bleeding disorder. 14. Harris, a woman of good character, gave evidence in her own defence. Her evidence was that on the evening of 4 December 1998 Patrick became “chesty and grunty”. Because he had difficulty in breathing she called out Dr Barber. After his visit she put Patrick in his cot. He seemed to have settled a bit. When she awoke approximately an hour later she checked him. His arms were on the top of the covers; he was a bit pale and cold. When she picked him up he was floppy. She said that she panicked and put him down in the cot. She telephoned her mother and then the ambulance. She vaguely remembered bouncing him on her knee whilst she was on the telephone. At interview she had said that she had Patrick on her knee when she telephoned the ambulance and that she remembered her knees “were going ten to the dozen.” In evidence she said that she found it difficult to remember the sequence of events because she had tried to put it out of her mind. She accepted that she had told the doctor on the telephone that Patrick had stopped breathing in order to make him hurry. She said she was unable to offer any explanation for his injuries. 15. On her behalf three expert medical witnesses gave evidence. They were Dr Batman, a consultant histopathologist; Dr Jones, a consultant paediatrician; and Dr Macdonald, a consultant neuropathologist. Dr Batman thought that there were three possible causes of Patrick’s death. They were (a) natural causes such as bleeding from a blood disorder; (b) shaking with or without impact; and (c) re-bleeding of an old blood clot. He regarded the latter as the least likely of three. In evidence, Dr Jones stated that his conclusion was that the findings were entirely consistent with a bleeding disorder. However he conceded that one would have expected more blood than was present if there was a blood disorder. He accepted that the findings were consistent with Patrick having been shaken and he agreed that he had never seen a child with fibrinogen deficiency which had died. Dr Macdonald concluded that Patrick’s injuries were not the result of a severe non-accidental injury although he conceded that the extent of the haemorrhages inside the vitreous jelly of his eye equated to a quite severe shaking. But the fact that there was no bleeding on the optic nerve of the right eye was a contra-indication. 16. In a summing-up, about which there is and can be no criticism, the judge described the issue for the jury as follows: “The prosecution assert that she killed Patrick by deliberately shaking him violently or by shaking him violently and then throwing him down in his cot so as to cause bleeding inside his skull, thus leading to his collapse and death. The defendant denies that she did any such thing. She cannot explain her son’s collapse and death, but maintains that she did nothing which might have brought about that death. If you are not sure that the defendant killed Patrick, then you find her not guilty” After deliberating for just short of three hours the jury returned a verdict of guilty of manslaughter. Rock 17. Rock faced an indictment charging him with the murder of Heidi Smith. Heidi Jane Smith was born on 10 May 1997 and was the daughter of Lisa Hudson and James Smith. Lisa Hudson’s relationship with James Smith did not last long and by March 1998 she was living at the home of Rock. Rock was aged 26 and had previously been married with two children of his own. His children lived with their mother. 18. The evidence was that Heidi was a happy, healthy baby and hardly ever cried. In general Rock was very good with and doted on Heidi. There was evidence that he was concerned about her well-being and showed no hostility towards her. However, Lisa Hudson said in evidence that Rock had a temper. She spoke of an incident about two weeks before Heidi’s death when Heidi was grizzly and would not settle. She said that on that occasion Rock held Heidi to his face and said “shut up” in what she thought was a nasty fashion. On another occasion Rock complained that “Its Heidi this and Heidi that”. 19. On 2 June 1998, Lisa’s mother, Thelma Hudson, was looking after Heidi. At 6.30pm Thelma took Heidi back to Rock’s home after he had returned from work. Lisa Hudson was still at work. Thelma Hudson placed Heidi in her cot at 6.35pm. She said that when she left Heidi was asleep and breathing normally. At 7.08pm Thelma Hudson telephoned Rock and spoke to him. From approximately 7.00pm Lisa Hudson could not get a response from the telephone at Rock’s home. A next door neighbour, Gail Banham, said that some time between 7.05pm and 7.10pm, from her kitchen, she could hear screaming coming from one of the homes at the back of her house. She said that the screaming sounded like a very sustained temper tantrum of a child aged between nine months to eighteen months. She also heard someone shouting at the child. It was a male and youngish. He was swearing and told the child to “fucking shut up”. The screaming did not stop. She went to the front of her house where she could hear nothing but then returned to her back kitchen. The screaming continued and she heard the same voice telling the child to shut up. The screaming continued but as she finished dishing up a meal it stopped and went completely silent. Her evidence was that this occurred at 7.20pm. In the unused material there were statements from police officers concerning an experiment conducted by them to see if shouting in one house could be heard in the other. The result of this experiment was inconclusive. 20. However, Rock, in evidence, agreed that he had told Heidi to shut up but it was in the context of a longer sentence in which he said “you heard your mum, you’ve got to shut up”. He said that after Thelma Hudson had telephoned him he checked that Heidi was asleep and went downstairs to watch a video. During this time he heard loud crying. He went upstairs and found Heidi sitting up in her cot, red-faced and very upset. He said that he picked her up by her armpits and placed her in the crook of his right arm with his left hand under her bottom. He then rocked her from side to side at the same time trying to wind up the mobile on the top of the wardrobe. Heidi slipped through his arms onto the floor. He said that he saw Heidi hit the floor; she did not bang her head but did not stop crying. He immediately picked her up. She was completely still and not breathing. He patted her on the back saying “come on Heidi sweetheart”. He then held her in front of him but did not violently shake her. He shook her lightly by placing her on the floor where she was having the occasional spasm. He tried to give her mouth to mouth resuscitation but on the fourth occasion she began to vomit. He took her to the bathroom, held her face down over the sink and banged her back to allow the sick to come out. His evidence was that she began vomiting again. Seeing this he ran downstairs with Heidi and dialled 999. His telephone call was timed at 7.27pm. The paramedics arrived at 7.37pm. They found Heidi lying on the floor in a dimly lit room. Rock told them that he had dropped Heidi onto her bottom whilst he had been trying to wind up a clockwork toy. He told them that Heidi had not hit her head on the floor as he had been able to catch and support her head before it hit the floor. He then picked her up and she had gone limp and stopped breathing. He told them that he had tried mouth-to-mouth resuscitation and Heidi had vomited. One of the paramedics saw signs of vomit around Heidi’s mouth. He said that on the way to the hospital in the ambulance Rock had asked questions such as “has she got brain damage?” “Has she got lung damage?” On arrival at the hospital Heidi was taken straight to the resuscitation room. She was subsequently transferred to the Intensive Treatment Unit as she was having spasmodic fits; both her eyes were rolling to the left; she was pale but breathing and unconscious. 21. At the hospital, Rock gave an account of events to both Lisa and Thelma Hudson and all of the medical staff. His explanation of the incident was much the same as that which he gave in evidence. He maintained that Heidi did not bang her head when she fell and he told no one that he had shaken her. To Lisa Hudson he said “I am so sorry, I dropped her on her bum”. And later in the hospital chapel, “I killed her, I killed her. Please God let her live, save her.” 22. The prosecution called a number of medical witnesses including expert witnesses. A consultant ophthalmic surgeon said that he examined Heidi’s eyes when she was comatose and on a ventilator. He found massive retinal haemorrhaging at all layers on both retinas. There was also tenting/pulling forward of the major retinal vessels or folds. He concluded that in the absence of any specific medical condition the haemorrhages and tenting were the result of severe acceleration and deceleration forces. He said that he had never seen such severe damage to a person’s retina. Dr Jaspan, a consultant neuroradiologist (one of the expert witnesses called by the Crown in these appeals) examined a CT scan taken at 10.25pm on 2 June 1997. He found a thin layer of blood lying along the falx and within the brain at the back of the head. In his opinion these findings were consistent with trauma. In his view the disrupted delicate blood vessels in the brain had been damaged and the damage was profound and irreversible. He concluded that the trauma was so severe as to render Heidi immediately unconscious and that the injuries were highly characteristic of violent shaking. In his opinion dropping a child on its bottom was inconsistent with Heidi’s injuries. 23. Mr Jonathan Punt, a consultant paediatric neurosurgeon, also examined the first CT scan of 2 June and agreed with Dr Jaspan’s conclusions. He concluded that the degree of violence required to cause the injuries to Heidi was “extreme; grossly in excess of any vigorous handling, even rough handling.” 24. Dr Cary, a pathologist, conducted the post mortem on the same day as the life support machine had been discontinued. He found a number of superficial bruises over Heidi’s body. In addition there was bruising within the scalp over the back of head and bleeding around the optic nerve. The brain was swollen and there was bleeding on the surface of the brain. There was no skull fracture. He said that in his opinion the head injuries in conjunction with the retinal detachment in both eyes were consistent with shaken baby syndrome (SBS). In his view the cause was shaking or shaking plus an impact which caused injuries to the brain. He said that the force required was “shaking as hard as you can”. Further, he concluded that the changes which had occurred to Heidi’s eyes meant that there must have been several shakes back and forth with acceleration and deceleration. 25. A professor of forensic pathology, Professor Michael Green, gave evidence that there were haemorrhages around both optic nerve roots and that the retina had started to pull away. There was a detachment between the sclera and the retina and extensive bleeding around the optic nerve. In his view the injuries were typical of a serious shaking plus impact. 26. Finally, Dr Christine Smith, a consultant neuropathologist, called by the prosecution, described the brain as swollen and said that she had found on the inner surface of the dura remnants of blood. There was also widespread damage to nerve cells. She concluded that the injuries to the brain were consistent with trauma which had caused the brain to move in relation to the skull. She said that the most likely cause of the haemorrhaging to the eyes was shaking. She said there was no evidence of natural diseases present which could have lead to Heidi’s death. 27. Rock gave evidence in his own defence. We have already referred to his version as to how he came to drop Heidi on the floor. He denied shaking Heidi but accepted that as a father he knew the consequences of shaking a baby could be fatal. He accepted in cross-examination that he had not told the doctors or the police that Heidi had become floppy after he had shaken her. He said that feelings of guilt were the reason for him not telling the police. He confessed that at the hospital it was obvious to him that Heidi was suffering from brain damage but he did not tell the doctors about shaking Heidi. 28. No expert witnesses were called on Rock’s behalf. 29. In his summing-up the judge told the jury that Rock admitted shaking Heidi. He said: “It is for you to say, but you may think that, in the end, the defendant was bound to admit that he had shaken Heidi, and shaken her before she became floppy, because the evidence that she was shaken is so strong, so overwhelming. How else were those injuries caused to Heidi, if it were not by the defendant shaking her, and shaking her with considerably excessive force? That is a question you are entitled to ask yourself, obviously. There is no question of accident here. It is not suggested that what the defendant did was done otherwise than deliberately.” 30. The judge went on to direct the jury that the difference between murder and manslaughter was one of intention. Further, he told them that there was a third possible verdict and that was not guilty of anything. He continued: “So, I must leave it open for you to say whether the defendant is not guilty of anything. I am allowed, however, to suggest to you that not guilty of anything is not a realistic verdict in this case. As I say, you decide this case. If you think that the defendant’s account that he did not shake Heidi violently so as to cause those injuries to Heidi from which she died, that his account is true or may be true, then he is entitled to be acquitted both of murder and manslaughter.” After deliberating for a period of forty minutes the jury returned a verdict of guilty of murder. Cherry 31. Cherry faced an indictment charging him with the manslaughter of his partner’s daughter Sarah. Sarah’s mother, Mrs Shirley Eburne-Day, and her children including Sarah and Cherry, at the time of the incident giving rise to the charge, were all living together at Mrs Eburne-Day’s home. Sarah was the youngest of Mrs Eburne-Day’s three children. Mrs Eburne-Day and Cherry had lived together for some months. The evidence suggested that he was a good step-father to the children. On Thursday, 3 February 1994, in the morning, Sarah was left in the sole care of Cherry. Earlier in the week she had developed a thumb infection for which a doctor had prescribed antibiotics. After taking some medicine on 2 February Sarah was sick so different antibiotics were prescribed. 32. On the morning of 3 February 1994, at about 8.30am, Mrs Eburne-Day left Sarah at home with Cherry whilst she drove her two older children and a neighbour’s daughter to school. The plan was that Cherry would take Sarah to Mrs Eburne-Day’s father’s home where, in the course of the morning, Cherry and Mrs Eburne-Day would meet before both went to Birmingham for Cherry to attend a job interview. 33. That morning Sarah was a little better than on the previous day and appeared to be behaving perfectly ordinarily. Mrs Eburne-Day said that she had no concerns about leaving her. She said that she and Cherry had discussed Sarah’s health and decided that she was fit enough to be left with her grandparents. In evidence, Cherry said that he disagreed. He said that Sarah was not very well on Thursday morning. She was not in a bright condition and wanted to sleep and be cuddled by her mother. He denied that he had any conversation with Mrs Eburne-Day about Sarah’s health that morning. 34. Lianne Osbourne, a next door neighbour, called that morning for a lift to school. Before leaving with Mrs Eburne-Day she said that she saw Cherry briefly. He was wearing dark trousers, a white striped shirt and a red brown paisley patterned tie. Apart from his jacket he appeared almost ready to go out. In evidence Cherry denied that when seen by Lianne Osbourne he had been fully dressed for work. 35. There was evidence that Cherry was next seen in the street in a distressed state seeking assistance from various neighbours. Sarah’s grandfather, Mr Eburne-Day, received a telephone call from Cherry at precisely 8.55am asking him to call an ambulance, which he did. Mrs Redding, a neighbour and trained nurse, saw Sarah just before the ambulance arrived. She said that Sarah appeared to be dead or on the verge of death. She applied resuscitation techniques until the ambulance arrived at approximately 9.20am. Sarah was taken first to George Eliot Hospital in Nuneaton but was later transferred to the Intensive Therapy Unit at Birmingham Children’s Hospital. In spite of all medical efforts Sarah died about 48 hours later. 36. On 4 February 1994 Cherry was arrested on suspicion of causing grievous bodily harm with intent. This was before Sarah had been pronounced dead. He was interviewed by police and explained that he had left Sarah standing on a small yellow chair whilst he went upstairs briefly to put on a shirt and tie. Apparently, it had been Sarah’s habit to stand on the yellow chair in order to look out of the window at the front of the house. He explained that when he returned he found Sarah lying on the floor motionless and making gurgling noises. He said that he picked her up and described her body feeling like a rag doll. She did not respond and therefore he telephoned her grandfather to ask him to telephone for an ambulance. He explained that she must have become suddenly ill and fallen from the chair. He denied shaking her or throwing her around but said that she had fallen out of her sister’s bed at the weekend. On 6 February 1994 he was charged with the murder of Sarah and after caution replied “I’m not guilty. I’ve committed no offence”. In the event, the Crown proceeded with a charge of manslaughter rather than murder. 37. At trial, giving evidence in his own defence, Cherry repeated what he had said at interview. He said that after going upstairs to finish off dressing for “only a few minutes” he returned to find Sarah “lying on the floor, obviously badly injured.” He said that when he picked Sarah up and tried to pat her back he removed “some yellow stuff from her mouth”. 38. At trial the prosecution called a number of medical witnesses. Doctor (now Professor) Whitwell conducted the post mortem upon Sarah. Her finding was that death had been caused by “cerebral swelling and subdural haematoma”. In addition, she found two bruises at the back of the head (3.5cms and 1.5cms in diameter and on opposite sides) and five small areas of bruising higher up. In her opinion the five smaller bruises were consistent with pressure from fingers. In cross-examination she did not accept that the injuries could have been caused by falling from the yellow chair. She said that the injuries were more consistent with Sarah’s head being forcibly put against something. In her opinion it was highly unlikely that Sarah could have injured herself by banging her head against the floor although that was not impossible. She said it was unlikely the injuries could have been caused by a single fall because there were two separate areas of impact and two separate bruises, although she could not exclude this absolutely. 39. A radiologist, Dr Chapman, stated that it was very rare for a child to have this kind of bleeding from a domestic fall. In his opinion a fall from the yellow chair had not caused Sarah’s injuries. Dr Akuba, a neurological registrar, in a witness statement, said that she had inserted a tube into Sarah’s skull as part of her treatment and recorded that “Cerebral spinal fluid emerged under moderate pressure. It was yellow and looked like old blood. Query, query”. 40. Dr Rylance, a consultant paediatrician, having seen Sarah at Birmingham Children’s Hospital, took the view that her injuries were non-accidental. He was asked about a previous statement which he had made and in which he stated that the injury giving rise to blood inside the skull occurred almost certainly more than 12 hours previously and probably more than 36 hours previously. He said in evidence that he had since changed his opinion and in fact it could have been 10½ or 11 hours previously. He said that Sarah’s vomiting the day before was more likely to have been caused by the medicine than a previous brain injury because when she stopped taking the medicine she stopped vomiting. 41. Finally, the prosecution called Mr Flint, a surgeon, who described the five small bruises on Sarah’s head which were, in his opinion, indicative of her having been held. The two bruises on the back of her head suggested at least two blows. In his opinion it was very unlikely that the bruises were caused by her slipping backwards from the chair and hitting her head on the floor. In his opinion a healthy child could not sustain such injuries revealed by the post mortem by falling the short distance from the chair onto the carpeted floor. 42. In addition to his own evidence, there was called on Cherry’s behalf a neurologist Dr West and a consultant pathologist, Dr Ackland. Dr West had viewed films taken by Dr Whitwell. He said that what he saw was consistent with a child having aspirated liquid which was a frequent complication of head injuries. Dr Ackland did not rule out the possibility of abuse causing the injuries but was of the opinion that an accidental fall from the chair was a significant possibility. In his opinion there was a small possibility that Sarah some earlier injury that was aggravated by the fall but he did not regard that as a high possibility. He said that the five marks on Sarah’s head may have been caused by a firm grip during the medical treatment. 43. In his summing-up the judge described the issue for the jury to decide in the following terms: “The cause of her death was a swelling of the brain caused by an impact of one sort or another. It is the prosecution case that the impact was in consequence of an unlawful blow delivered by this defendant. Your task will be to decide whether that case is proved or not.” After deliberating for just over two and a half hours the jury returned a unanimous verdict of guilty of manslaughter. Faulder 44. At trial Faulder faced an indictment containing 2 counts. They were count 1, a s.18 offence of causing grievous bodily harm with intent; and count 2 an alternative s.20 offence. He was convicted of the latter offence. The evidence showed that at 10.30pm on Friday 13 February 1998, N then aged seven weeks (but born two weeks premature) was admitted to the Dryburn Hospital with severe injuries. On the following day N was transferred to a specialist unit at the Newcastle General Hospital where his condition deteriorated over the following week. Although there was concern that he might not survive he recovered and was transferred back to Dryburn Hospital on 5 March 1998. On 16 March 1998 he was discharged from hospital. 45. The event which led to N’s admission to hospital occurred at the home occupied by Faulder and his partner. It was common ground that at the time Faulder was the sole carer of N. His case was that N’s injuries were caused entirely accidentally. He said that he had dropped N and that in falling N struck and injured his head. The case for the prosecution was that Faulder had caused the injuries by a deliberate act or actions. 46. The prosecution case was based on the assertion that the extensive brain injuries sustained by N and revealed on x-ray and brain scans could not have been occasioned in the manner described by Faulder. The prosecution relied on the evidence of three expert witnesses for the proposition that Faulder must have shaken N and thrown him onto the floor. 47. Dr Camille de San Lazaro at the time a consultant paediatrician at the Royal Victoria Infirmary gave evidence that the injuries sustained by N were consistent with shaking and were not consistent with Faulder’s account. She said that his version of the events could not account for the subdural haemorrhages. She further stated that in relation to Faulder’s account of N making a sudden arching movement which caused him to drop N that at that age the child would have had insufficient muscle tone to achieve the movement described by Faulder. Further Faulder’s description of N falling onto a pushchair and then a highchair before hitting the floor would have had the effect of breaking N’s fall rather than exacerbating it. 48. Dr Alexander, a consultant paediatrician at the Newcastle General Hospital, gave evidence that on examination of N on 14 February 1998 he found a triangular bruise on the top of N’s head and two bruises on the forehead over the right eye. He said that the child’s fontanelle was unusually tense, symptomatic of swelling of the brain due to brain damage. In his opinion the CT scan showed bilateral subdural haemorrhages. He conceded that the superficial marks on N’s face and head were consistent with Faulder’s account but asserted that this account did not provide an explanation for the bruise on the right side of the forehead or the severity of the brain injuries. In his opinion the brain injuries were such as were commonly caused by repeated shaking with considerable force, and the clinical findings were more consistent with non-accidental injury than with an accident. 49. Mr Gholkar, a consultant neuroradiologist, having examined the brain scans concluded that the evident changes in the appearance of the brain were due to severe brain damage unlikely to have been occasioned in the manner described by Faulder and were characteristic of shaking injuries. 50. There was no evidence of retinal haemorrhages and there was some dispute as to the extent to which retinal haemorrhages were to be found in babies with “shaking” injuries. Dr de San Lazaro stated that her study showed that 53% of children believed to have been shaken, had retinal haemorrhages. 51. Faulder gave evidence in his own defence. He said that he did not deliberately cause the injuries. He explained how he had dropped N by accident when attempting to place him into his pushchair. He said that he had been holding him along his arm with his hand supporting the baby’s head. The baby moved suddenly and fell on to the edge of the pushchair. This caused him to bounce off the pushchair and on to the concrete floor bouncing his head on the adjacent highchair as he fell. Faulder conceded that the baby had been crying for twenty minutes but said that he had not lost his temper. He maintained that he did not shake nor forcibly place N into his pushchair. His answers at interview were consistent with his evidence at trial. 52. Dr Rushton a paediatric pathologist gave evidence for Faulder. He put forward the possibility that N’s contact with the pushchair and highchair might have lead to the production of rotary forces that accelerated the head and increased the force of contact with the floor. He noted that the three external injuries (bruises) found on the baby’s head were consistent with Faulder’s explanation but were difficult to explain if the injuries were due to shaking or a single impact injury. He also referred to the lack of retinal haemorrhages saying that in his opinion the cause of retinal haemorrhages was not fully understood. In his view subdural haemorrhages could be caused by shaking or impact but they might also be consistent with injury caused in the manner described by Faulder. 53. The judge directed the jury in his summing-up that the first question for it to decide was: “Was this or may it have been accident or design? If you come to the conclusion that this is or may have been a tragic accident it follows that the defendant cannot be guilty of count 1 or count 2 and must be acquitted by you. That is the simple issue for you to decide.” 54. After deliberating for just less than two hours the jury returned a verdict of guilty of count 2. 55. On conviction Faulder applied for leave to appeal against conviction and sentence and for an extension of time. His applications were refused by the single judge. The triad and the unified hypothesis 56. At the heart of these appeals, as they were advanced in the notices of appeal and the appellants’ skeleton arguments, was a challenge to the accepted hypothesis concerning “shaken baby syndrome” (SBS); or, as we believe it should be more properly called, non-accidental head injury (NAHI). The accepted hypothesis depends on findings of a triad of intracranial injuries consisting of encephalopathy (defined as disease of the brain affecting the brain’s function); subdural haemorrhages (SDH); and retinal haemorrhages (RH). For many years the coincidence of these injuries in infants (babies aged between 1 month and 2 years) has been considered to be the hallmark of NAHI. Not all three of the triad of injuries are necessary for NAHI to be diagnosed, but most doctors who gave evidence to us in support of the triad stated that no diagnosis of pure SBS (as contrasted with impact injuries or impact and shaking) could be made without both encephalopathy and subdural haemmorhages. Professor Carol Jenny, a paediatrician and consultant neuro-trauma specialist called by the Crown, went further and said that she would be very cautious about diagnosing SBS in the absence of retinal haemmorhages. In addition, the Crown points to two further factors of circumstantial evidence, namely that the injuries are invariably inflicted by a sole carer in the absence of any witness; and that they are followed by an inadequate history, incompatible with the severity of the injuries. 57. Between 2000 and 2004 a team of distinguished doctors led by Dr Jennian Geddes, a neuropathologist with a speciality in work with children, produced three papers setting out the results of their research into the triad. In the third paper “Geddes III”, the team put forward a new hypothesis, “the unified hypothesis”, which challenged the supposed infallibility of the triad. It was called the unified hypothesis because it relied on the proposal that there was one unified cause of the three intracranial injuries constituting the triad; that cause was not necessarily trauma. It is important to note that the new hypothesis did not seek to show that the triad was inconsistent with NAHI. It did, however, seek to show that it was not diagnostic. 58. When Geddes III was published it was, and still is, very controversial. It is not overstating the position to say that this paper generated a fierce debate in the medical profession, both nationally and internationally. In the course of the hearing of these appeals we have heard evidence from a number of very distinguished medical experts with a range of different specialities most of whom had in witness statements expressed views on one side or other of the debate. However, early on in the hearing it became apparent that substantial parts of the basis of the unified hypothesis could no longer stand. Dr Geddes, at the beginning of her cross-examination, accepted that the unified hypothesis was never advanced with a view to being proved in court. She said that it was meant to stimulate debate. Further, she accepted that the hypothesis might not be quite correct; or as she put it: “I think we might not have the theory quite right. I think possibly the emphasis on hypoxia - no, I think possibly we are looking more at raised pressure being the critical event. ” And later in her evidence: “Q. Dr Geddes, cases up and down the country are taking place where Geddes III is cited by the defence time and time again as the reason why the established theory is wrong. A. That I am very sorry about. It is not fact; it is hypothesis but, as I have already said, so is the traditional explanation. … I would be very unhappy to think that cases were being thrown out on the basis that my theory was fact. We asked the editor if we could have “Hypothesis Paper” put at the top and he did not, but we do use the word “hypothesis” throughout.” 59. Despite these frank admissions the triad and Geddes III have been a focus of much of the medical issues in these appeals. We propose to set out the salient features of each in a little more detail. We do so not only as a backdrop to these appeals but in an effort to inform those involved in future trials as to the current accepted state of medical science, as we understand it from the evidence before us, on some of the very difficult issues which are raised in criminal and civil trials involving allegations of NAHI. The anatomy 60. In order to explain the two hypotheses it is necessary to set out some of the anatomy involved in terms which can be understood by laymen and which from a medical viewpoint may seem somewhat simplistic. At the outset, in order to assist the reader, we attach as annexes to this judgment a glossary of medical terms (appendix A), and diagrams of the head (appendix B). 61. The brain is encased in three membranes. The one immediately surrounding the brain is the pia mater. The next one is the arachnoid. Between the pia and the arachnoid is an area known as the subarachnoid space. The third membrane, which surrounds the brain and continues down the body surrounding and protecting the spinal cord, is the dura. Between the dura and the arachnoid is the subdural space. Between the dura and the arachnoid there are veins running between the two membranes which are called bridging veins. 62. The brain is divided into two halves or cerebral hemispheres. The two hemispheres are separated by the falx which itself is part of the dura. Below the cerebral hemispheres the brain is joined to the spinal cord at the craniocervical junction, which, as its name implies, is situated in the neck. The spinal cord extends down from the brain, through the foramen magnum and into the spine. The triad 63. As already stated when the three elements of the triad coincide for some years conventional medical opinion has been that this is diagnostic of NAHI. Typically the brain is found to be encephalopathic; bleeding is found in the subdural space between the dura and the arachnoid subdural haemmorhages; and there are retinal haemorrhages. There may also be other pathological signs such as subarachnoid bleeding and injuries at the cranio-cervical junction. Further, there may be injuries to nerve tissue (axonal injuries) and external signs of broken bones, bruising and other obvious injuries such as extradural oedema (bruising). Determining these findings requires medical experts from a number of different disciplines interpreting often very small signs within the complex structures of an infant’s brain and surrounding tissue. 64. The mechanism for these injuries is said to be the shaking of the infant, with or without impact on a solid surface, which moves the brain within the skull damaging the brain and shearing the bridging veins between the dura and the arachnoid. The shaking may also cause retinal haemorrhages. In the sense that the explanation for the triad is said to be caused by shaking and/or impact it also is a unified hypothesis, albeit that each element is said to be caused individually by trauma. 65. The triad of injuries becomes central to a diagnosis of NAHI when there are no other signs or symptoms of trauma such as bruises or fractures. The unified hypothesis (“Geddes III”) 66. Dr Geddes and her colleagues, following research into almost fifty paediatric cases without head injury, proposed that the same triad of injuries could be caused by severe hypoxia (lack of oxygen in the tissues) which in turn led to brain swelling. The hypothesis was that brain swelling combined with raised intracranial pressure (ICP) could cause both subdural haemorrhages and retinal haemmorhages. Thus, it was argued that any incidents of apnoea (cessation of breathing) could set in motion a cascade of events which could cause the same injuries as seen in the triad. It will be appreciated that there are many events which could accidentally cause an episode of apnoea. 67. In Geddes III the unfied hypothesis was summarised as follows: “Our observations in the present series indicate that, in the immature brain, hypoxia both alone and in combination with infection is sufficient to activate the pathophysiological cascade which culminates in altered vascular permeability and extravasation of blood within and under the dura. In the presence of brain swelling and raised intracranial pressure, vascular fragility and bleeding would be exacerbated by additional hemodynamic forces such as venous hypertension, and the effects of both sustained systemic arterial hypertension and episodic surges in blood pressure. ” Thus, it was suggested that all the injuries constituting the triad could be attributed to a cause other than NAHI. We understand that this paper has been much cited in both criminal and civil trials since its publication. 68. The criticism of Geddes III is that it is not hypoxia and/or brain swelling which causes subdural haemorrhages and retinal haemorrhages but trauma. As an example of why the hypothesis is not correct Dr Jaspan, giving evidence in the appeal of Rock, demonstrated that CT scans taken of Heidi’s brain showed that there was little or no brain swelling at a time when subdural haemorrhages and retinal haemorrhages were shown to be present. As a result of critical papers published in the medical journals, as we have already stated, Dr Geddes when cross-examined frankly admitted that the unified hypothesis could no longer credibly be put forward. In cross-examination she accepted that she could no longer support the hypothesis that brain swelling was the cause of subdural haemorrhages and retinal haemmorhages. She did, however, state that she believed that raised intracranial pressure (ICP) might prove to be an independent cause of both lesions. When asked by Mr Horwell if she had published a paper on this hypothesis she said that she had not and that her research was still incomplete. It was clear from subsequent questions in cross-examination that this work was still in its early stages and that many questions remain, as yet, unresolved. 69. In our judgment, it follows that the unified hypothesis can no longer be regarded as a credible or alternative cause of the triad of injuries. This conclusion, however, is not determinative of the four appeals before us. There are many other medical issues involved in cases of alleged NAHI. Further, there remains a body of medical opinion which does not accept that the triad is an infallible tool for diagnosis. This body of opinion, whilst recognising that the triad is consistent with NAHI, cautions against its use as a certain diagnosis in the absence of other evidence. These four appeals raise different medical issues and do not necessarily fail because the unified hypothesis has not been validated. But it does mean that the triad, itself a hypothesis, has not been undermined in the way envisaged by the authors of Geddes III. 70. Mr Horwell, in his final submissions invited the Court to find that the triad was proved as a fact and not just a hypothesis. On the evidence before us we do not think it possible for us to do so. Whilst a strong pointer to NAHI on its own we do not think it possible to find that it must automatically and necessarily lead to a diagnosis of NAHI. All the circumstances, including the clinical picture, must be taken into account. In any event, on general issues of this nature, where there is a genuine difference between two reputable medical opinions, in our judgment, the Court of Criminal Appeal will not usually be the appropriate forum for these issues to be resolved. The focus of this Court will be (as ours has been) to decide the safety of the conviction bearing in mind the test in fresh evidence appeals which we set out below. That is not to say that such differences cannot be resolved at trial. At trial, when such issues arise, it will be for the jury (in a criminal trial) and the judge (in a civil trial) to resolve them as issues of fact on all the available evidence in the case (see R v Kai-Whitewind [2005] EWCA 1092). 71. Before we leave Geddes III we must mention some evidence given by the first witness we heard, Dr Waney Squier, a consultant neuropathologist, which was the subject of some further investigation by the Crown’s witnesses and further oral evidence. Dr Squier produced a slide taken from the brain of a four week old baby which she said demonstrated blood oozing from the dura into the subdural space. In her opinion this showed that intradural haemorrhages could leak into the subdural space and could be mistaken for subdural haemorrhages caused by shearing of the bridging veins. In that respect it challenged the diagnostic value placed on subdural haemmorhages by the triad. Mr Horwell asked for the slide and other slides made in respect of the same brain to be released for examination by the Crown’s experts. We heard evidence in respect of this discrete issue on the last day of evidence. 72. In summary, two paediatric neuropathologists, Dr Rorke-Adams and Dr Harding, said that the slide did not show intradural bleeding but was an example of the process of organisation of an earlier subdural haemorrhage. 73. It is unnecessary for us to go into the detail of this dispute. It is sufficient to say that having heard both sides forcefully express their views we are unable to resolve this issue and find, as Mr Horwell invited us to, that Dr Squier’s evidence on it cannot be accepted. We content ourselves with the observation that even on the interpretation of objective evidence there can be two views expressed by highly experienced and distinguished medical experts. Geddes I and II 74. Although, for the reasons already explained, the unified hypothesis can no longer stand as a credible alternative to the triad, a number of issues of general importance in respect of the triad remain. So far we have made no mention of the first two papers produced by Dr Geddes and her co-authors, which we will refer to as Geddes I and Geddes II. These papers represent conclusions reached in respect of research into a cohort of infants all of whom died from inflicted head injuries. Using a technique pioneered by Dr Geddes, the authors sought to identify axonal damage (damage to the nerve tissues) in the brains of these infants. The technique involved detecting the presence of beta-amyloid precursor protein ( β -APP) (a protein that builds up where axons have been damaged). The research showed that widespread axonal damage, interpreted as vascular rather than traumatic, was present in 13 of the 37 cases. Conversely, widespread traumatic axonal damage was found in only 2 cases and in both cases there were other very clear signs of trauma (for example bilateral skull fractures). The authors concluded that their findings strongly suggested that severe traumatic axonal damage is a rarity in infant NAHI unless there is considerable impact, and that the diffuse brain damage which was responsible for loss of consciousness in the majority of cases was caused by starvation of oxygen (hypoxic) rather than direct trauma to the brain. 75. The principle conclusion of Geddes II was that shaking an infant might cause a stretching injury at the cranio-cervical junction to nerves which control the child’s cardio-respiratory system. In all the cases analysed the stretch injury itself was survivable, what was life-threatening was the consequent hypoxic injury and brain swelling that followed as a result of the damaged cardio-respiratory nerves failing to function. The minimum degree of shaking force required to produce such a stretch injury is unknown and a death may be caused in the manner suggested by much less force than hitherto supposed. Although the results of this research, as we understand it, are not challenged by those who criticise the unified hypothesis, Mr Horwell submitted that its effect was limited. For instance he submitted that it had no application to, and could not explain, cases involving subdural bleeding and/or retinal haemmorhages. Degree of force 76. This leads on to a very important issue which arises in these appeals and will no doubt arise in many cases where the triad of injuries are present. It is the question of how much force is necessary to cause those injuries. There is a measure of common ground between the doctors on this issue. Generally it is agreed that there is no scientific method of correlating the amount of force used and the severity of the damage caused. To state the obvious, it is not possible to carry out experiments on living children. Further, experience shows that the human frame reacts differently in different infants to the same degree of force. However the medical opinion on this issue appears to be divided into those who maintain that severe injuries can confidently be ascribed to a traumatic cause, for example (but not only) Dr Rorke-Adams, a very experienced paediatric neuropathologist, and those who maintain that very little force may cause very serious injuries, for example Dr John Plunkett, a distinguished anatomical, clinical and forensic pathologist. 77. It is quite impossible for this court to make any finding on this issue beyond referring to some general propositions with which both counsel agreed. First, common sense suggests that the more severe the injuries the more probable they will have been caused by greater force than mere “rough handling”. We note that the most recent Update from the Ophthalmology Child Abuse Working Party; Royal College of Ophthalmologists (2004) concludes: “ It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.” 78. Secondly, as Mr Peter Richards, a very experienced neurosurgeon with a speciality in paediatrics, pointed out, if rough handling of an infant or something less than rough handling, commonly caused the sort of injuries which resulted in death, the hospitals would be full of such cases. In our view this points to the fact that cases of serious injuries caused by very minor force such as might occur in normal handling or rough handling of an infant, are likely to be rare or even extremely rare. 79. But, thirdly, as Dr Plunkett demonstrated by his research and in particular by reference to an amateur video of a child falling from a 3 foot high railing, described as part of a play tree-house, which resulted in catastrophic injuries, there will be cases where a small degree of force or a minor fall will cause very severe injuries. We shall have more to say about Dr Plunkett’s research later in this judgment, but at this stage we repeat that the evidence suggests that cases where this occurs are likely to be very rare. 80. Fourthly, although the younger the infant or child, the more vulnerable it is likely to be, it is not possible to conclude that age is necessarily a factor in deciding whether injuries are caused by strong force or a minimal degree of force or impact. The balance of the evidence is that, although an infant’s skull is more pliable than that of an older child, the internal organs and vessels are as robust as those of an older child. The vulnerability of an infant arises from the fact that its head is generally larger in proportion to its body than in an older child and its neck muscles are weaker and not as well developed as in older children, hence the significance of injuries at the site of the craniocervical junction. Biomechanics 81. In simple terms “biomechanics” is the application of traditional engineering principles to living organisms. 82. Many of the experts who gave evidence before us made reference to research in the field of biomechanics. The following extracts from the evidence demonstrate how the ‘biomechanics’ argument was deployed by both sides. 83. Dr Squier referred to the “huge amount of evidence about the biomechanics” of shaking which had caused her to revise her views on the diagnosis of shaking. 84. Dr Geddes stated that belief that thin film subdural haemorrhages were caused by the rupture of bridging veins was “biomechanically exceptionally unlikely”. She relied upon biomechanical research to support the view that shaking on its own cannot cause subdural haemorrhages and retinal haemorrhages without also significant structural damage to the neck and probably also a degree of axonal injury. 85. Dr Plunkett stressed the importance of understanding the mechanics of injury. 86. Dr Adams, referring to biomechanical research by Ommaya, considered that shaking was an improbable direct cause of retinal haemorrhage. 87. Mr Richards warned that, however good the biomechanical calculations may be, they do not always appear to give an answer that is common sense. He went on to stress that limits of current knowledge and understanding: “Nobody really knows whether, when you shake a child, it is just back and forth or there is rotation as well. What does the head do? Does it decelerate against the back? Does it decelerate against the chin? When you put the child down, there must be an element of deceleration. It is a complex problem.” 88. Of course none of the witnesses who gave evidence in the appeal was themselves an expert in biomechanics. Such were the number of references to biomechanics during the early days of the hearing that it became inevitable that some direct expert evidence on the subject was required. To that end the appellants filed a report by Dr Thibault and the Crown filed a report by Dr Gina Bertocci (dealing specifically with the case of Cherry). Because of the logistics involved, not least the constraints of time, it was not possible for either of these witnesses to give oral evidence. Consequently we are left to evaluate this important area by comparing and contrasting the views expressed on paper by Dr Thibault and Dr Bertocci. 89. Dr Thibault is a biomechanical engineer whose work has a particular emphasis on “Paediatric Head Injury Mechanics”. Dr Thibault is not a doctor of medicine and holds a PhD in mechanical engineering. He has apparently performed experiments that have sought to mirror the age-dependant mechanical behaviour of the infant skull, sutures and brain. Part of the work in this field is to determine the amount of physical force that a living system can tolerate and thereby identify the “injury threshold” or “injury tolerance criteria”. When the relevant threshold or criteria is exceeded the system or tissue will fail; for example stress on a bone will cause the bone to fracture if the stress exceeds the injury threshold. 90. Dr Thibault explained that whereas there is a substantial body of research into the mechanics of adult head injury, until recently there has been relatively little similar work in relation to paediatric head injury. He reported: “It has been demonstrated experimentally and validated through real-world accident analysis that various intracranial pathologies result from excessive angular acceleration of the head. In general, angular acceleration of the head creates relative motion between the brain and the skull, causing potentially injurious strain within the intracranial neural and vascular tissues (bridging vessels, deep central white matter). The nature, distribution and severity of the resulting pathology depend not only on the angular acceleration magnitude, but also on its direction, onset rate and duration.” 91. Like Dr Plunkett, Dr Thibault (relying on the research of Prange and others) drew attention to the ability of the skull of an infant to react to force by deforming itself and thereby causing internal injury to the brain substance and/or cranial vascular system. 92. In general terms, Dr Thibault joined issue with the conventional view that short falls are a frequent occurrence for young children and serious or fatal injuries from such falls are rare. Recourse is also typically made to information about high speed traffic accidents or falls from two storey buildings. Dr Thibault considered such an approach to be simply “arbitrary, unscientific and meaningless” in that there is no attempt to evaluate the actual loads and forces at play in each individual case, which would need to include data regarding the child’s orientation at impact, kinematics (motion) of the body, impact surface and anatomical impact locations. Dr Thibault is clear that impacts arising from falls can result in serious and fatal brain injuries. 93. The appellants rely upon the report of Dr Thibault for the following submissions: a) Shaking only could not produce the documented pathologies seen in these children; b) If “violent shaking” of the sort required to produce the documented injuries had taken place one would have expected cervico-medullary injury, cervical spine and spinal cord injury. 94. The Crown’s expert, Dr Bertocci, is also a mechanical engineer by training and is Associate Professor of Biomechanics and Director of the Injury Risk Assessment and Prevention Laboratory in the University of Louisville, Kentucky, USA. Her primary area of research is injury biomechanics in cases of child abuse and paediatric falls. Dr Bertocci’s report is very largely focussed upon the Cherry case and is not intended to be a comprehensive analysis of the biomechanical factors in play in each of these cases. 95. One general observation that Dr Bertocci, however, made is based upon her research into falls either from ground level or from 9 inches above ground. Her conclusion in this regard is that the forces involved in such falls are well below the threshold said to be required to produce diffuse axonal injury in an infant, suggesting that there is a very low risk of DAI in such falls. 96. In this section of our judgment we have done no more than summarise this evidence. Where such evidence is called by one or other party or both in future litigation it will be for the jury (in a criminal trial) or the judge (in a civil trial) to evaluate it in the light of the cross-examination and all the other evidence. Retinal haemorrhages 97. Retinal haemorrhage is the third limb of the triad. It will be recalled that Professor Carol Jenny told us that in her view in a case of pure shaking extreme caution should be exercised before a diagnosis of NAHI is made in the absence of retinal haemmorhage. We see the force of this evidence. In cases of injuries alleged to have been caused by an impact or impacts, the evidence suggests that it is not a prerequisite for retinal haemorrhages to be found. Again, we understand the logic of this proposition. 98. It is agreed between the expert ophthalmologists and ophthalmic surgeons that a rapid rise in intracranial pressure can cause retinal haemorrhages although the amount and type of pressure required to cause such haemorrhages is a matter of debate. The appellants’ expert ophthalmic surgeon, Dr Gillian Adams, said that retinal haemorrhages could be caused by a spike or surge of venous pressure. Mr Peter Richards said that in his experience of carrying out brain surgery artificially induced very high venous pressure did not cause retinal haemorrhages. 99. Some of the ophthalmic experts stated that retinal haemorrhages caused by shaking or impact demonstrate entirely different characteristics from retinal haemorrhages arising from other causes. Others said that no distinction can be made between retinal haemorrhages arising from different causes. 100. Again, in the context of these appeals, we make no findings in respect of these differences of opinion. In future cases before a criminal or civil court, the type and extent of retinal haemorrhage and its place in the constellations of symptoms will be a matter for the court to evaluate in each individual case. We bear them in mind when reaching our conclusions in these four appeals. We also bear in mind Mr Horwell’s submission that the real question in these appeals is how much force is necessary to cause not just one element of the triad but all three. The Law 101. The principles on which this Court should act in appeals involving fresh evidence are not in dispute. They were clearly set out in R v Pendleton [2002] 1Cr App. R. 441 by Lord Bingham of Cornhill (see in particular paragraphs 18 and 19). They were repeated by Lord Brown of Heaton-under-Heywood in a recent case in the Privy Council: Dial and another v State of Trinidad and Tobago [2005] 1WLR 1660 . Lord Brown said (see paragraphs 31 and 32): “31 In the board’s view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view “by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict”: R v Pendleton [2002] 1 WLR 72, 83, para 19. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Staffords case [1974] AC 878 , 906, and affirmed by the House in R v Pendleton : “ While… the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rest with them and them alone for deciding the question [ whether or not the verdict is unsafe]” 32 That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England – see, for example, R v Hakala [2002] EWCA Crim 730 , R v Hanratty, decd [2002] 3 ALL ER 534 and R v Ishtiaq Ahmed [2002] EWCA Crim 2781 . It was neatly expressed by Judge LJ in R v Hakala , at para 11, thus: “However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe.” 102. Mr Mansfield QC also drew our attention to passages in the judgments of this court in R v Cannings [2004] 2Cr. App. R.7 and R v Kai-Whitewind [2005] EWCA 1092. In particular in opening he referred to paragraph 22 of Cannings : “These observations serve to highlight the second problem which can arise in this case, and case like Sally Clark and Trupti Patel. We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remain as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both hear and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge”. But as the court was careful to point out later in the judgment at paragraph 178 this does not mean that fanciful doubts are a basis for rejecting expert evidence. With the general observations, referred to above and the legal principles in mind, we turn to the individual appeals. Furthermore, the limits of Cannings and its proper use were carefully explored in Kai-Whitewind , at [73] – [92], in observations with which we wholeheartedly agree. H arris 103. Mr Mansfield QC submits that there is a body of fresh evidence which is sufficient to cause this court on a review to quash the conviction. Mr Horwell submits that the fresh evidence has not in any way undermined the safety of the conviction. 104. Before we outline and discuss the fresh evidence we must refer in a little more detail to the evidence given at trial. Although Harris said that Patrick had been showing signs of some infection before 4 December 1998, on that day he was seen by a health visitor, Margaret Savill, and a doctor, Dr Michael Tory, at Boulton Clinic in Alvaston both of whom pronounced him fit to be given his third immunisation against diphtheria, tetanus, whooping cough, polio and HIB. Statements of their evidence to that effect were read at trial. In his statement, Dr Tory said that a child would not be given this injection unless he was satisfied that it was not suffering from a raised temperature, vomiting or diarrhoea. A mild cold or snuffle would not have prevented the injection being given. 105. On arrival at Harris’ home at 2.41am the paramedic crew noted that Patrick was unconscious, cold, not moving, pulseless and not breathing. At 2.55am the crew diagnosed that he was suffering from cardio-respiratory arrest. Dr Adams, an ophthalmic surgeon called on behalf of Harris, interpreted diagrams of the eyes made by the crew as showing that the pupils were fixed and dilated. In any event this finding was made by Dr Bertenshaw who examined Patrick at 03.15am at the Derby Children’ Hospital. 106. After being transferred from Derby to the Queens Medical Centre in Nottingham a CT scan was carried out at 11.50am. The findings were recorded by the radiologist and his conclusion was: “Diffuse cerebral swelling and oedema secondary to hypoxia/ischaemia. Thin subdural haematoma in the para-falsine region. The appearances are suspicious of shaking or shaking - impact injury” 107. Following Patrick’s death a post-mortem was carried out by Dr Bouch with Dr McKeever, a paediatric pathologist, in attendance. The findings relevant to this appeal are set out in Dr Bouch’s witness statement of 22 March 1999. Paragraph 5 reads: “The post-mortem examination confirmed a markedly swollen and softened brain and softened spinal cord with small amounts of subdural haemorrhage around the tentorium cerebelli at the foramen magnum and in the subdural space along the length of the spinal cord. Detailed examination by Professor Lowe confirmed widespread hypoxic (anoxic or ischaemic) changes within the brain resulting in marked swelling, necrosis of the cerebellum, haemorrhage into the left lateral ventricle and subarachnoid haemorrhage over the surface of the spinal chord and medulla. Professor Green confirmed extensive haemorrhages through the retina and the vitreous of both eyes with some retinal detachment” Dr Bouch recorded the cause of death as cerebral hypoxia/ischaemia; intracranial haemorrhage; shaken baby syndrome. In his witness statement Dr Bouch said he had been advised that Patrick may have been shaken as part of an attempt to revive him. He said that he could not exclude such a shake as having caused the injuries but commented “accepted medical opinion is that the force required to produce injuries from shaking is greater than that resulting from rough handling of an infant”. As already noted, Dr Punt said that the blood on the surface of the brain was not sufficient to cause Patrick’s death. In his opinion it was the injury to the brain, caused by shaking, which caused his death. The new evidence on the appeal 108. In this appeal we have heard evidence from the following witnesses called on behalf of Harris: Dr Waney Squier, a consultant neuropathologist, with a speciality in examining children’s brains; Dr Jennian Geddes, although her evidence was primarily confined to general matters; Professor Philip Luthert, a consultant ophthalmic pathologist and neuropathologist; Dr Gillian Adams, a consultant ophthalmic surgeon; Professor James Morris, a consultant pathologist; Dr Robert Sunderland, a consultant paediatrician; and Dr Philip Anslow, a consultant neuroradiologist. 109. The Crown called the following witnesses: Dr Lucy Rorke-Adams, a consultant paediatric neuropathologist; Mr Peter Richards, a consultant neurosurgeon; Dr Richard Bonshek, a consultant ophthalmic pathologist; Mr R Gregson, a consultant ophthalmic surgeon; Dr William Lawler, a forensic pathologist; Dr Carole Jenny, a consultant paediatrician and consultant neuro trauma specialist; Professor Klein, a consultant physician; Dr Timothy Jaspan, a consultant radiologist; Dr Paul Giangrande, a consultant haematologist; and Dr Mark Peters, a consultant paediatric intensivist. We have also read statements submitted from the following experts on behalf of the Crown: Dr Harish Vyas, a consultant in paediatric intensive care and respiratory medicine; and Dr Angie Wade a senior lecturer in medical statistics. 110. All these witnesses are clearly very experienced doctors in their own field. We shall summarise the evidence which they gave according to their respective specialities and only so far as is necessary to explain the important issues in this appeal. The neuropathologists 111. The reports provided by Dr Waney Squier and Dr Rorke-Adams disclosed a head-on collision between these two experts on the pathological findings and on the cause of death. In our judgment they are the two of the most important witnesses in this appeal. Much of the debate has been focussed on the pathological findings and their interpretation. 112. Dr Waney Squier is a consultant and clinical lecturer at the Department of Neuropathology at the Radcliffe Infirmary, Oxford. Dr Rorke-Adams is the clinical professor of paediatrics at the University of Pennsylvania. She is clearly a very experienced and well respected member of her profession. 113. Dr Waney Squier started with the forensic disadvantage of having provided a report dated 10 February 2000 for Harris’s trial solicitors in which she concluded that Patrick’s injuries were non-accidental and consistent with shaking. Unsurprisingly, she was not called at trial to give evidence on Harris’ behalf. She explained that, influenced by the research carried out by Dr Geddes since the trial, she had re-examined her own work in the light of the Geddes research. As a result in this case she had changed her mind and now concluded that the brain findings were of severe swelling and hypoxic/ischaemic injury; and that there was no incontrovertible evidence of trauma. She relied upon the history given by Harris and the clinical evidence as support for her conclusions. 114. Dr Rorke-Adams, having examined all the pathological evidence, the history and the clinical history concluded that the injuries to the brain, the subdural haemorrhages and retinal haemorrhages, were all clear evidence of traumatic injuries caused by strong force. 115. In the course of their evidence each of these witnesses commented on brain slices and photographs taken at the post mortem. Their evidence in respect of the findings demonstrated by the photographs and slices was in sharp conflict in a number of instances. 116. Photographs, G-H 1, 2 and 3, were said by Dr Rorke-Adams to show clear evidence of brain injury caused by trauma. She said that there could be no other cause. Dr Squier was of the opinion that the injuries shown in the photographs 1 and 3 and damage to nerve tissue at the cervicocranial junction were probably not caused by trauma and were consistent with herniation of the brain at the foramen magnum. She said herniation was caused by the pressure of the swelling brain when it impacted with the narrowing channel of the foramen magnum. As to the blood shown in photograph 2 Dr Squier said this was intrafalcine bleeding (bruising) within the membrane, seen at post mortem which was an extremely common finding in babies who have suffered from failure from blood or oxygen supply. 117. There was no dispute that photographs G-H 4 and 5 showed subdural haemorrhages in the areas of the spinal cord. However, Dr Rorke-Adams gave as the explanation for these that the vertebral arteries must have been ruptured causing massive subarachnoid bleeding and subdural haemorrhages. She accepted that the post mortem revealed no soft tissue injuries to the neck but pointed out this explanation fitted with the combination of findings. 118. Dr Squier described the subdural haemorrhages of the spine as probably caused by blood seeping down from the haemorrhage at the craniocervical junction. She said it was a common finding. Further, she did not accept that such subdural haemorrhages as were found at post mortem were caused by trauma. She said that it was local tissue necrosis causing bleeding exacerbated by a clotting disorder (DIC). In addition she said that she had seen cases where bleeding had seeped from the dura into the subdural space. As an example of this she provided her findings in the case to which we have referred in paragraphs 71 to 73. 119. In our judgment there are difficulties with the evidence of both these doctors in respect of their findings. The problem so far as Dr Squier is concerned is three-fold. First her explanation of herniation as the cause of haemorrhages in the area of the foramen magnum is, on the evidence we have heard, to say the least controversial. Dr Rorke-Adams dismissed this explanation as impossible. Mr Peter Richards said that in his 20 years experience as a surgeon he had never seen a case of herniation of the brain causing haemorrhaging at this site. He described Dr Squier’s evidence on this point as astonishing. Secondly, Dr Squier can provide no explanation for the mechanism that triggered these injuries. All she can say is that the primary source of the injuries was some form of brain swelling, but she was unable to give any precise cause for the swelling. In her view the most likely explanation was sepsis or infection; and the least likely was trauma. Beyond that she frankly admitted she did not know. Thirdly, Dr Giangrande, whose evidence was not challenged, said that there was no question of DIC playing any part in any of these injuries. 120. So far as Dr Rorke-Adams is concerned, in our judgment, there are also difficulties in respect of her evidence. First, the injury to the brain which she described by reference to photographs G-H 1, 2 and 3 are not referred to in the post mortem report of Dr Bouch. Secondly, her explanation of a rupture of the vertebral artery may not be entirely consistent with there being no evidence of a soft tissue injury to the neck. But, as she pointed out, at post mortem the vertebral arteries were not dissected. Thirdly, subdural haemorrhages of the spine would appear to be very rare. Fourthly, the subdural haemorrhages described by her are neither thin-film nor situated in the classic position for SBS namely at the top of the head. 121. Before leaving the evidence of the two neuropathologists it is convenient to refer to the evidence given in this appeal by the neuroradiologists, Dr Anslow and Dr Jaspan. And we should also refer to the evidence of Mr Peter Richards. Dr Anslow and Dr Jaspan agreed that the CT scan taken at 11.50am on 5 December at the Queens Medical Centre showed a swollen brain. The sole issue between them was whether the scan showed subdural haemorrhages in the area of the posterior falx (photograph G-H 2). Dr Jaspan concluded that it was subdural; Dr Anslow that it was intradural. In the end this dispute was resolved by Dr Rorke-Adams stating that the photograph taken at post mortem, rather than the scan, showed interdural bleeding or interfalcine bleeding that is bleeding between the two dural layers in and either side of the falx. 122. Mr Richards, an obviously very experienced neurosurgeon, had no doubt that a finding that the triad of injuries was present was correct. He was equally not in doubt that the force used to cause these injuries must have been more than rough handling. In cross-examination he agreed that he was unable to say what was the minimum force which could give rise to similar injuries. The ophthalmic witnesses 123. The measure of agreement between the witnesses in this area of expertise was a little greater than that between Dr Squier and Dr Rorke-Adams. There was no dispute that the retinal haemorrhages were quite severe injuries and that they could have been caused by shaking. Dr Rorke-Adams had described the retinal haemorrhages as severe and towards the top end of the scale. This description was similar to descriptions given by other witnesses. There was also no dispute that on their own retinal haemorrhages findings were not diagnostic of SBS. Next, it was agreed that a sharp surge in ICP could cause retinal haemorrhages although the degree of raised ICP necessary to cause such injuries was not agreed. We have already referred to Mr Richards’ experience of carrying out brain surgery procedures designed to increase venous pressure substantially, but which had not caused retinal haemorrhages (see paragraph 99). 124. On the question of the force required to produce retinal haemorrhages by shaking we have referred to the 2004 paper produced by the working party of the Royal College of Ophthalmologists. No witness was able to provide a measure of the force required. Mr Mansfield QC asked each witness what was the minimum force required. For obvious reasons no witness was able to provide an answer to this question. 125. Dr Adams expressed the opinion that the fact that the ambulance crew noted Patrick’s pupils to be fixed and dilated at 2.41am on 5 December was a sign that the brain was swollen at that stage. She said fixed and dilated pupils were a clinical sign of brain swelling. Brain swelling caused stretching of the third nerve which in turn affected the pupils of the eyes. In her opinion the retinal haemorrhages were caused by raised intercranial pressure, a more probable cause than shaking. However, she said that in the absence of evidence of brain swelling the cause of retinal haemorrhages may well be shaking. On the question of the force necessary to cause retinal haemorrhages she said that the fact that the injuries were at the top end of the scale did not provide any information as to their aetiology and “You have to look at the whole picture.” 126. Dr Jaspan and Mr Richards did not accept that there could have been brain swelling at 2.41am. Dr Jaspan, in his report, said that if a CT scan had been carried out at the time when retinal haemorrhages was first seen at Derby Children’s Hospital little brain swelling would have been evident. In evidence, Dr Jaspan said one to two hours after an apnoeic incident one can start to see mild and subtle signs of swelling. The swelling may then progress swiftly in relatively few hours; or in other cases it could take twenty-four to forty-eight hours. Mr Richards said that ICP is normal for some hours after an apnoeic incident, possibly four to five hours before it starts to rise slowly. Mr Gregson also disagreed with Dr Adams on this point. He said that the more likely explanation was at that time, in a period of cardio-arrest, the part of the brain which controls the pupils had become hypoxic (Patrick was noted as pulseless). This would have caused the pupils to become fixed and dilated. This explanation was put to Dr Adams, she said her explanation was more probable and that the explanation given by Mr Gregson was one which only occurred when the infant was near death. 127. The impact of this issue is that, if Dr Adams may be correct, brain swelling may have taken place sooner than supposed by the Crown’s witnesses making it possible that there was a cause for the retinal haemorrhage findings other than shaking. 128. Professor Luthert described the critical issue of the retinal haemorrhage findings in this appeal as whether it was feasible that there had been a significant and rapid increase in intracranial pressure so as to cause them. When asked whether subdural haemorrhages and retinal haemorrhages were associated with cardiac arrest, he said it was not in the context of events in hospital but the possibility of low brainstem damage might be important and might well produce a pattern of cardio-respiratory arrest which is rather different from that seen in other contexts. Although he described the retinal haemorrhages findings in Patrick’s case as typical of those found in cases of alleged NAHI, Professor Luthert was one of those doctors who was concerned that the triad was a hypothesis and that the full aetiology of the injuries comprising the triad was not “necessarily known.” 129. Mr Gregson described the retinal haemorrhages findings as very severe and was of the opinion that they could only have been caused by a severe degree of trauma. Dr Bonshek agreed with this opinion. In his report he described the injuries as highly suggestive of non-accidental injury. Both Mr Gregson and Dr Bonshek agreed that the degree of injury was not necessarily commensurate with the degree of force used to create it. Evidence of a possible infection 130. One of the difficulties faced by Harris at trial and in this appeal is to suggest what was the cause of Patrick’s collapse, if it was not shaking. Of course, as Mr Mansfield QC properly pointed out, a defendant faced with an allegation of unlawfully shaking an infant so as to cause injury or death, does not have to provide evidence of, let alone prove, an alternative cause. Nevertheless in cases such as this both prosecution and defence will seek to prove respectively either that there was no alternative cause or that there was one. Not surprisingly we have heard a good deal of evidence on the issue of whether or not Patrick’s condition might have been caused by some form of infection. We have already noted Dr Squier’s opinion that the primary cause of brain swelling in this case was or may have been infection. To deal with this issue we heard evidence principally, but not exclusively, from Professor Morris and Dr Sunderland called on behalf of Harris; and Dr Carole Jenny, Professor Klein and Dr Mark Peters called on behalf of the Crown. 131. We shall deal with this issue comparatively shortly for the reason that in his final submissions Mr Mansfield QC accepted that every possible infection suggested by Professor Morris and Dr Sunderland as a possible cause of Patrick’s collapse was effectively disproved by the evidence called on behalf of the Crown. 132. Apart from the fact that there is some evidence that Patrick had, at worst, an upper respiratory chest infection, probably a cold, for a day or two before 4 December 1998 there was no evidence at all to suggest that he had any other infection, let alone one which might have been sufficiently severe as to cause his death. In the end Professor Morris was driven to suggest that there was a possibility that the ambulance crew arrived at the precise moment when Patrick was suffering an unexplained episode from which he would not have recovered. Professor Morris suggested that it was the resuscitative procedures which had kept him alive thereby giving his brain time to swell. We regard this suggestion as speculative and fanciful. 133. Dr Sunderland suggested that the history given by Harris of Patrick grunting and having difficulty breathing might have been bronchilitis caused by respiratory syncital virus (RSV). In our judgment this suggestion was effectively demolished by the evidence of Dr Mark Peters. 134. There is however one matter which cannot be disposed of so summarily. Professor Morris advanced the theory that although Patrick’s death could not be categorised as a SIDS (sudden infant death syndrome), it could be akin to SUDI: that is a sudden unexplained death from a natural cause or natural disease. His report prepared for this appeal sets out statistics relating to SIDS and SUDIs. These statistics have been comprehensively criticised in a statement made by Dr Angie Wade. Further, she points out that Professor Morris is a pathologist not a statistician. 135. In our judgment, leaving aside Professor Morris’ statistics, the general point being made by him is the obvious point that the science relating to infant deaths remains incomplete. As Mr Richards said when asked a question in the context of the amount of force necessary to cause injuries, he agreed that the assessment of injuries is open to a great deal of further experimentation and information. He assented to the proposition “We don’t know all we should”. Similarly, Professor Luthert in his evidence said: “My reason for making that statement is simply that there are many cases where questions are raised as to how the child died and, because there is a big question mark over the circumstances, it is rather tempting to assume that ways of causing death in this fashion that we do know about are the only reasonable explanations. But in fact I think we have had examples of this – I have heard already. There are areas of ignorance. It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case.” As noted by the Court in Cannings and Kai-Whitewind these observations apply generally to infant deaths. Professor Whitwell 136. We have left Professor Whitwell’s evidence until last when dealing with the evidence in this appeal. She was one of the team of doctors who co-authored Geddes III with Dr Geddes. In our judgment her view must necessarily be considered in the light of Dr Geddes’ concessions in respect of Geddes III. 137. In this case having examined all the material, Professor Whitwell produced a report in which she referred to the fact that the major pathology was of hypoxic-ischaemic trauma damage which she said might be secondary to trauma or other cause of cardio-respiratory arrest. She went on to raise the question of the degree of force necessary to produce localised neck injuries. Her opinion expressed in the final paragraph of her report was that the injuries to the brain may have arisen in the background of a “shaking” incident but there was a possibility of an underlying natural cause of the collapse. She said the neuropathological findings may be open to several interpretations. 138. In evidence she gave some support to Dr Squier’s opinion that bleeding and injuries to the nerve roots could have been caused by herniation. But she agreed in cross-examination that the most significant factor in her opinion was a stretching injury to the nerve roots. The submissions 139. Mr Horwell submitted that the new evidence did not undermine the conviction. He asked the Court to accept that the triad had survived intact. He pointed to the fact that at 1.00am on 5 December 1998 Dr Barber examined Patrick and found him to be well. At 2.30am Patrick was found to be suffering cardio-respiratory arrest. Mr Horwell submitted that the only credible explanation for this sudden collapse was shaking by Harris. The triad of injuries was established and there was no credible alternative cause of these injuries. In addition, Dr Rorke-Adams’ evidence of injuries to the brain should be accepted. He submitted that her evidence together with the evidence of the doctors dealing with the ocular injuries demonstrated that unlawful force had been used. He argued that Harris was asking the court to accept that the cause of death was a series of coincidences involving two unlikely syndromes. He invited the Court to find that all suggested causes of Patrick’s collapse and death other than the triad had been disproved. The conviction was therefore safe. 140. Mr Mansfield QC submitted that there were disagreements between the experts as to the cause of death. He rightly pointed out that it was not for Harris to prove an alternative cause of Patrick’s death. He submitted that this Court could not decide matters which a jury should decide such as the differences of opinion expressed by Dr Squier and Dr Rorke-Adams. Finally, he submitted that in a case such as this, where the clinical evidence and the history given by the mother, ran completely contrary to a finding of unlawful force, the Court was entitled to accept that this was one of those cases where the explanation for Patrick’s injuries and his death was just not known; and/or that the amount of force used by her was no more than any mother might use to revive her baby and therefore not unlawful. Conclusion in this appeal 141. In considering all the evidence in this appeal we have kept well in mind that our task is to decide whether the conviction is safe. We also bear in mind Lord Bingham’s test in Pendleton in a case of any difficulty (which in our view this is) of “asking whether the evidence, if given at the trial might reasonably have affected the decision of the trial jury to convict.” This approach, in our judgment, merits careful consideration in this appeal. 142. We have already stated that so far as the evidence relating to an alternative cause of death based on a possible infection is concerned, in our judgment, this evidence does not form any basis for holding that the conviction is unsafe. 143. So far as the other issues are concerned, the evidence at trial and the evidence adduced by the Crown in this appeal, provide a strong case against Harris. Mr Horwell’s submission that the triad is established and that any attempt to undermine it is based on speculation is a powerful one. Nevertheless strong as is the case against Harris we have concerns about the safety of the conviction. 144. First, in order to dismiss the appeal, we would have to accede to Mr Horwell’s submission that we should reject Dr Squier’s evidence in its entirety. If Dr Squier may be right, such evidence of subdural bleeding as she accepts was present was small; untypical of the usual thin-film subdural haemorrhages found in triad cases; in the sense that it was not found at the top of the head and probably not caused by trauma. Secondly, if Dr Squier is, or may be, right there is no pathological evidence of trauma. At one stage Mr Horwell in cross-examination, suggested to Dr Squier that she had lost objectivity in her evidence in this appeal. This was a bold assertion and one which we find difficult to accept. It was put at the end of her evidence when Dr Squier was describing subdural haemorrhages in another case which she said represented bleeding seeping from the dura into the subdural space (see paragraph 71 to 73 above). As we have said already we find it impossible to conclude that on this issue Dr Squier’s evidence is plainly wrong and that Dr Rorke-Adams must be correct. 145. The importance of Dr Squier’s evidence is that it throws doubt on the significance of such subdural haemorrhages as there are; and it throws doubt on the evidence of injuries to the brain described by Dr Rorke-Adams. We are far from saying that we accept Dr Squier’s evidence in preference to that of Dr Rorke-Adams. Indeed, in view of the weight of evidence disputing her opinions we have reservations about whether Dr Squier can be right. But equally, in all the circumstances of this case, the differences between them are ones which the jury would have had to have assessed in the light of all the evidence in the case. 146. Secondly, although the evidence of the findings of retinal haemorrhages is powerful supporting evidence of shaking, on its own it is not diagnostic of shaking. If the subdural haemorrhages are undermined, the retinal haemorrhages findings will not fill the gap although we recognise that both can be considered together. There is also the issue of whether Dr Adams may be correct in her view that fixed and dilated pupils seen by the ambulance crew was a sign of brain swelling at that time. 147. Thirdly, although as we have already stated the amount of force required to cause the triad of injuries will in most case be more than just rough handling, the evidence suggests that there will be rare cases when injuries will not correspond to the amount of force used. It is at least possible that in such rare cases (maybe very rare cases) very little force will cause catastrophic injuries. 148. In this connection the evidence shows that in recent years the medical profession has become more aware of the degree of force necessary to cause injuries by the growing science of biomechanics. This knowledge, and to an extent Geddes I and II, in our judgment, have had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries. In this case Dr Bouch rejected as an explanation for the injuries he found, shaking by Harris to revive Patrick. Today he might have taken a less firm stance. This knowledge might also have acted as a counter-balance to the evidence given at trial by Professor Green on the amount of force necessary to cause the retinal haemorrhages. 149. The above factors, which have all arisen out of post-trial material have to be assessed against the background of the clinical evidence which in our judgment is significant and important. As Dr Anslow said in his report of 3 June 2005: “The clinical history is perhaps the most important clinical tool available to the clinician and to reject the carer’s version of events in favour of another requires the highest possible level of medical evidence. After all, the Doctor is effectively accusing the carer of lying.” Dr Anslow is not a clinician but in our judgment his words of caution are apt in cases of this sort. 150. At the outset of this judgment we have set out the clinical history. In summary, Harris was described as a careful and caring mother. She called out Dr Barber late at night because of her concerns for Patrick. Dr Barber described her as being calm and controlled at that time. The prosecution’s case at trial was that in the interval between Dr Barber leaving the house and 2.30am when Harris telephoned the emergency services she must have violently and unlawfully shaken Patrick. In our judgment this history combined with the absence of findings of bruises to any part of the head, face or body; and the absence of fractures or any other sign apart from the triad of injuries, does not fit easily with the Crown’s case of an unlawful assault based on the triad of injuries, itself a hypothesis. 151. The Crown relies upon the fact that Patrick was in the sole care of Harris throughout the evening of 4/5 December. It is also correct that Harris admitted shaking Patrick in an effort to revive him; and bouncing him on her knee when she was telephoning the emergency services. But, those actions are not suggestive of unlawful force being used by her although it is possible that a jury might now find them to be sufficient to cause the injuries seen by Dr Bouch albeit not unlawful. 152. As we have said the Crown’s evidence and arguments are powerful. We are conscious that the witnesses called on behalf of Harris have not identified to our satisfaction a specific alternative cause of Patrick’s injuries. But, in this appeal the triad stands alone and in our judgment the clinical evidence points away from NAHI. Here the triad itself may be uncertain for the reasons already expressed. In any event, on our view of the evidence in these appeals, the mere presence of the triad on its own cannot automatically or necessarily lead to a diagnosis of NAHI. 153. The central issue at trial was whether Harris caused the death of her son, Patrick by the use of unlawful force. We ask ourselves whether the fresh evidence, which we have heard as to the cause of death and the amount force necessary to cause the triad, might reasonably have affected the jury’s decision to convict. For all the reasons referred to we have concluded that it might. Accordingly the conviction is unsafe and this appeal must be allowed. The conviction will be quashed. Rock The focus of the appeal 154. The history of this matter has already been set out; we turn directly to the appeal. Certain matters are common ground. First, there is no dispute that Rock did shake Heidi; there is likewise no dispute (given the full thickness bruise to the back of the head) that she suffered an impact. Secondly, there is no realistic suggestion that disease or infection could possibly have played a role in Heidi’s death. The thrust of the appeal was instead that the conviction was unsafe in the light of research subsequent to the trial, calling into question the minimum degree of force necessary to cause the pathology in this case. Rock, it was submitted, was not safely convicted of any offence; at the very least, his conviction of murder was unsafe and a conviction of manslaughter should be substituted. 155. For its part, the Crown vigorously resisted the notion that there was any real alternative to unlawful killing. Here, as elsewhere, it was to be borne in mind that the minimum degree of force in question was the degree of force necessary to cause all the injuries suffered; Geddes I and II did not address the minimum degree of force necessary to tear bridging veins and cause retinal haemorrhages; the “unified hypothesis” (i.e., Geddes III) which might have done so, has of course gone. The surrounding circumstances and the injuries suffered amply supported the safety of the conviction. While conceding in terms that if there had been the “triad” and no more, “that was unlikely ever in itself to be sufficient” to support a charge of murder (as distinct from manslaughter), here it was contended that there were additional features which justified the jury’s verdict – bearing in mind that the intention to cause grievous bodily harm could be both rapidly formed and almost instantly regretted. The new evidence on the appeal 156. In the view which we take of this appeal, it is unnecessary to review the new evidence at length; it suffices to summarise the position reached on the totality of the new material. 157. As to radiology, save for one area (to be mentioned shortly) there was no or no real dispute between Dr Anslow (called by Rock) and Dr Jaspan (called by the Crown). The first CT scan, taken on the 2 June 1998 at about 10.21 pm, some 2 ½ hours after Heidi’s admission into hospital, showed a minimally swollen brain but the presence of subdural blood. On the 4 June, some 39 hours later, the second CT scan revealed a very different picture. This showed, apart from cerebellar tonsillar herniation and established hypoxic ischaemic brain damage, a grossly swollen brain but the same small amount of subdural bleeding – notwithstanding a “huge” (Dr Jaspan’s word) increase in pressure. Dr Anslow accepted that subdural bleeding at a time when there was no evidence of raised intra-cranial pressure (“ICP”), was a “very strong indicator” of trauma. On the assumption that Geddes III did not apply, he could think of no cause other than trauma to account for the subdural bleeding. 158. The only area of dispute between Dr Anslow and Dr Jaspan was whether a lesion in the corpus callosum revealed by MRI scans was caused by trauma; Dr Jaspan was firmly of the opinion that it was; Dr Anslow said that it might be an artefact. As we have already indicated such disputes between reputable experts potentially give rise to difficult issues on an appeal of this nature. In the event, notwithstanding the powerful nature of Dr Jaspan’s evidence in this regard, it is unnecessary for us to resolve this dispute. We proceed on the assumption that Dr Anslow might be correct. 159. In cross-examination, Mr. Mansfield QC put to Dr Jaspan one of the “scenarios” developed by Dr Geddes (see below), involving a departure from the evidence given by Rock at trial. This set of facts assumed that Heidi had struck her head when falling and was subsequently the subject of two well-intentioned shakes by Rock. Asked whether this was a possible scenario capable of explaining the injuries sustained by Heidi, Dr Jaspan’s initial (and firm) answer was “no”. He based this answer on his views as to the cause of the corpus callosum lesion. If wrong about that, he accepted that the scenario “might just be feasible”. Immediately thereafter, Dr Jaspan was re-examined by Mr Horwell as follows: “Q. If you leave the corpus callosum out of the equation, when you say it just might be feasible, what do you mean? A. Because in medicine there is never a hundred per cent certainty. So, if I was asked is there a hundred per cent certainty that it could happen, I would have to be honest and say no, there must be almost the freak situation where that could happen. Q. What are the chances from your clinical experience? A. By inference, 99 per cent unlikely.” In his final submissions, Mr Mansfield QC sought to suggest that these answers disclosed a major concession on Dr Jaspan’s part. Having seen and heard Dr Jaspan give evidence and having reviewed the transcript of his answers, we respectfully disagree. The essence of Dr Jaspan’s views remained plain and unaltered, albeit couched in rather more moderate and less graphic language than apparently deployed at trial. 160. Turning to the neuropathologists, in her report dated 14 April 1999, prepared for the trial (but which remained understandably unused by the defence), Dr Geddes said this: “I believe that both the intracranial and the intraocular bleeding are likely to have been the result of vigorous to-and-fro movements of the brain inside the skull, of the type that occurs in a shaking injury.” Subsequently, Dr Geddes has (as is well-known) revised her thinking. That said, in her evidence at trial, Dr Geddes accepted the presence of subdural haemorrhages but was unable to provide an explanation for them. She remained of the view that for violent shaking to have produced the subdural and retinal haemorrhages here, she would have expected some form of widespread diffuse axonal injury and damage to the muscles in the neck and spinal column. She accepted, however, in answer to questions from the Court, that, on any view, Heidi must have had some insult to the brain, not explained by Rock’s account of events. She could not rule out impact plus shaking. 161. In her report of 24 May 2005, Dr Geddes posited three “scenarios” (to which reference has already been made) which might have caused the pathological findings in this case. She could not be certain which of the three actually happened. The first scenario involved a low-level fall in which Heidi, among other things , knocked the back of her head, resulting in hyperflexion of the neck which damaged her brain stem. The second, also involved a fall, followed by a resuscitative (i.e., well-intentioned) shake by Rock, causing damage to her brain stem. In both these scenarios, damage to the brain stem resulted in Heidi’s breathing stopping, her brain swelling rapidly and consequential subdural and retinal bleeding. The third scenario involved an assault on Heidi. We are bound to observe that the suggested sequence of the first two scenarios is troubling, given the apparent conflict with the radiology evidence (see above). Moreover, Dr Geddes was closely cross-examined as to the factual basis for the first scenario, involving a departure from Rock’s own account of events – in which he was adamant that Heidi had not struck her head. Pressed on this point, Dr Geddes said that she was duty bound to point out that there was impact (given the bruise at the back of Heidi’s head); she thought that Rock must have been wrong in his account but had not given the matter attention when writing her 1999 report; she was (notwithstanding the factual evidence) prepared to speculate to this degree in now giving her evidence to the Court. 162. Dr Rorke-Adams and Dr Geddes disagreed as to (i) the extent of subarachnoid bleeding in this case; and (ii) the cause of a “hole” or “tear” in the corpus callosum (in a location different from that which formed the subject of the disagreement between the radiologists, already referred to). Once again, it is not necessary to resolve this dispute and, we proceed on the assumption that Dr Geddes might be correct. For our part, we find the agreement between Dr Rorke-Adams and Dr Geddes that there were here subdural haemorrhages considerably more significant than the areas in which they disagreed. As Dr Rorke-Adams put it: “Subdural haemorrhage is essentially always traumatic in origin except under very unusual circumstances….” In itself, of course, that answer cannot resolve the source of the trauma nor, insofar as it was inflicted by another, the intention with which it was inflicted. 163. On the appeals, evidence was given by Dr Plunkett, who has undertaken research into “low-level” infant falls – i.e., falls of less than 10’. The conclusions which Dr Plunkett drew from his study were that (i) low-level falls were capable of causing serious injury or death; but (ii) that there was no inevitability about it; as he expressed it: “…I do not know either an upper limit or a lower limit of impact velocity below which there is no injury and above which there is always injury.” Dr Plunkett’s evidence related to the cases of Rock, Cherry and Faulder. We shall have more to say of his evidence, in particular with regard to the Cherry case. 164. For the moment, we confine ourselves to Dr Plunkett’s evidence with regard to the appeal of Rock. Here, basing himself on the bruise on the back of Heidi’s scalp, Dr Plunkett expressed the opinion that her death was the result of an impact injury; this was an instance of a “low-velocity impact event with a bad outcome”. Plainly therefore, Dr Plunkett’s evidence entailed a departure from the evidence, as given by Rock; on no view, could a fall onto her bottom (as described by Rock) have explained this fatality. In Dr Plunkett’s view, Heidi’s head must have struck something, a matter unexplained on Rock’s account. 165. We come next to the evidence of the ophthalmic experts, Professor Luthert and Dr Adams, called by Rock and Dr Gregson, called by the Crown. It is convenient to take Dr Gregson’s evidence first. He put the matter starkly; the significance of the eye injuries was crucial to this case. The retinal injuries were at the very top of the range or not far from it. There were in addition para-macular retinal folds, a type of detached retina. In his evidence-in-chief, Dr Gregson explained this matter as follows: “Q. The retina is completely detached from the eye? A. The retina is folded up very much like a rug would be if you pushed it together. It is not detached in the same way as boxers get retinal detachments, but the fact that it is folded means it is not in the place that it should be.” A little earlier, Dr Gregson had observed that in children of Heidi’s age, he knew of no other cause for para-macular folds other than trauma; this was so, regardless of when the para-macular folds had first appeared. Moreover, the presence of para-macular folds was indicative of severe injury – “a lot of trauma” was required. His reason for this view was as follows: “…the retina wants to stay attached; it does not want to fold. It requires an effort to detach it.” 166. Turning to Professor Luthert, we begin with his written material. In his report of 14 April 1999, he was of the opinion that, absent any alternative explanation, severe trauma, such as shaking combined with impact, was the most likely explanation for the pathological findings in Heidi’s eyes. In his letter dated 12 January 2005, he maintained the view that such trauma (i.e., shaking, impact or both) was the most likely cause of Heidi’s death and the condition of her brain and eyes. He added this: “I do not believe that the presence of retinal haemorrhages necessarily implies a specific level of force although I think the level of force is likely to be more than would be seen in even rough normal play.” 167. In his oral evidence, Professor Luthert stated that it was difficult in an individual case to extrapolate from the severity of a retinal haemorrhage to any assumed degree of applied force. By contrast, in the generality of cases, it was to be expected that there would be a (broad) correlation between the degree of trauma and the seriousness of the injury suffered. That said, there was “not necessarily a tight correspondence between level of trauma and severity of outcome”. 168. Initially in his evidence, Professor Luthert said that it was difficult to “exclude with total confidence” the possibility that the fall described by Rock had caused the retinal injuries. Pressed, unsurprisingly, on this point, he ultimately accepted that a fall onto her bottom would not be expected to cause injuries of this nature. Although he said that he had seen “more severe” retinal injuries, he further accepted that these were “highly significant”, a description which he later amplified as meaning “extremely significant and abnormal pathology”. While he did not view the presence of para-macular folds as diagnostic of shaking, he agreed that they could not “in their entirety” have been artefactual – a necessary concession, as they had been noted during Heidi’s lifetime. He agreed in cross-examination that the “most likely explanation” for Heidi’s retinal injuries was shaking. In re-examination, Professor Luthert said that a version of the facts, in effect based on Dr Geddes’ first two scenarios, was not fanciful. 169. Returning to his written report of the 2 June 2005, Professor Luthert explained that since the original trial and following publications by Dr Geddes and Dr Plunkett, he had reconsidered the minimum degree of force required to generate the “triad”. He went on to say this: “The minimum level of force required to produce this syndrome can not be defined, but the recent Royal College of Ophthalmologists Working Party concluded ‘ It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.’ In my opinion, it is now not possible to exclude the possibility that a well-intentioned but ill-advised shake might cause the pattern of pathology seen in Heidi. The same Working Party commented ‘It seems clear that minor falls can, only exceptionally, give rise to subdural and retinal bleeding. In these cases, it may well be that the biomechanics of the impact induce the rotational forces necessary to produce the picture considered typical of SBS.’ So it is difficult to exclude with total confidence the possibility that the fall caused the injuries seen. Finally, it is also feasible that Heidi was assaulted.” In answer to questions from the Court as to this passage, Professor Luthert asserted that he had relied on Geddes I and II but not Geddes III. Professor Luthert said that he had been a member of the Working Party and agreed with its conclusions. While he was (in effect) contemplating the infliction of some force going beyond rough play, by itself that did not determine the intention of the person inflicting the force. 170. In a nutshell, the evidence given by Dr Adams was to the following effect: i) The fall as described by Rock was not the cause of Heidi’s retinal haemorrhages; ii) The injuries to Heidi’s eyes were at the very top end of the scale; iii) The cause of those injuries was shaking or shaking and an impact; iv) Simply by looking at the retinal haemorrhages, it could not be said “definitively” what level of force had been applied. 171. For completeness, we note that in her reports Dr Adams had raised the question of whether a lumbar puncture might have been the cause of the retinal damage. Suffice to say that no evidence emerged to support this line of inquiry and Mr. Richards gave cogent evidence, which we accept, as to its irrelevance; we say no more of this point. Conclusions 172. At the outset, we should underline that this is not a case where the expert medical evidence and the presence of the “triad” stand alone. We accept of course that Rock was a man of good character and that in general, he had been very good with Heidi. But there was also evidence of some hostility towards her, prior to the events of the 2 June 1998. Perhaps more tellingly, there was the evidence from the neighbour, Ms Banham, that, on the night, she heard Heidi screaming for a significant period of time and Rock shouting at her to “fucking shut up”; then it all went quiet. For completeness, we do not think that the reliability of Ms Banham’s evidence is called into question by the mere fact of there being some unused and untested material from police officers, apparently saying that they could not hear shouting between the two houses. 173. Against that background, we come to the evidence in this case of the presence of the “triad”; namely, encephalopathy, subdural haemorrhages and retinal haemorrhages. There is, moreover, the bruise found at the back of Heidi’s head. 174. How were these injuries caused? Having regard to the evidence we have summarised, it is plain that Rock’s explanation – a fall in which Heidi did not strike her head – cannot account for them. We are, moreover, unable to accept that Rock’s version of events was innocently mistaken, along the lines that he had simply not seen her strike her head. As set out above, he was adamant that he had prevented her hitting her head. We naturally have regard to the burden of proof resting on the Crown throughout. That burden may however be satisfied by reliance on such inferences which it is proper to draw from Heidi’s injuries, taken together with Ms. Banham’s evidence and the absence of an explanation from Rock, with whom Heidi was alone at the relevant time. 175. We turn then to the inferences which it is proper to draw. We do so with great caution, mindful both of the gravity of the matter and that (as already underlined) the mere presence of the “triad” does not automatically or necessarily lead to a diagnosis of NAHI and/or a conclusion of unlawful killing. All the facts of the individual case must be taken into account. 176. Given the assumptions that we have thought it right to make with regard to the disputes between Dr Anslow and Dr Jaspan and between Dr Geddes and Dr Rorke-Adams, encephalopathy does not take the matter further – save for the fact of its presence. The position is, however, very different with regard to subdural haemorrhages and retinal haemorrhages. 177. As has been seen, the presence of subdural haemorrhages was common ground between the relevant experts. It was also indisputable that the subdural haemorrhages preceded the development of brain swelling and that there was no evidence of any increase in subdural bleeding notwithstanding the rise in intracranial pressure following the swelling of the brain. Pausing there, these features would themselves have gone a very long way to undermine the credibility of Geddes III, had that hypothesis not in any event been withdrawn in the manner already described. Matters do not end there. Without Geddes III, Geddes I and II cannot suggest a mechanism to explain the subdural haemorrhages; strikingly, as we have seen, Dr Geddes in her evidence could not explain them. There is accordingly no realistic challenge here to the “traditional” mechanism of the tearing of bridging veins. If so, it necessarily follows that Heidi was subject to a degree of force sufficient to tear those veins. 178. We return to the retinal injuries. On the totality of the evidence, we are sure that these were at the top end of the scale (Dr Gregson and Dr Adams) and we are not deterred from that conclusion by anything said by Professor Luthert, if indeed he ultimately disagreed. We cannot necessarily infer from the severity of those injuries, including the presence of the para-macular folds, that any precise or specific degree of force was used; we are acutely conscious both of “thin skull” cases on the one hand and of “lucky” victims on the other. We have, however, no realistic doubt that the force used must have been – as even Professor Luthert was minded to agree – in excess of anything generated by a reasonable person in the course of rough play. We further have no real doubt that the cause of those injuries was shaking or shaking plus an impact; if anything, we favour the latter given the presence of the bruise at the back of the head. In all the circumstances, we regard as fanciful the notion that Heidi’s retinal injuries can be explained by a fall in which she struck her head and was then the subject of a well-intentioned resuscitative shake (Geddes, first and second scenarios). 179. We have not overlooked the evidence of Dr Plunkett but we are unable to regard it as of assistance in this case. First, there is no proper factual foundation for Dr Plunkett’s evidence; his opinion rests on a version of events relying on Rock’s account of an accidental fall but departing from it so as to account for Heidi striking her head when falling. Secondly, Dr Plunkett’s suggestion that the bruise at the back of Heidi’s head caused her death, lacks credibility. Quite apart from more general considerations as to the relevance of Dr Plunkett’s study to cases such as these (see below, when dealing with Cherry), his thesis here does not begin to address the subdural haemorrhages and retinal injuries. 180. We are accordingly left with a powerful Crown case for unlawful killing, based on the surrounding circumstances (Rock’s shouting on the night), and the nature and severity of Heidi’s injuries (the subdural haemorrhages and retinal damage). All that there is to set against that case is the suggestion of accident, based on a manifestly flawed account from Rock, the one person who could have explained what happened, supplemented by a variety of speculative suggestions from the experts – necessarily lacking a sound factual base. We remind ourselves that our task is not to retry Rock; our inquiry is as to the safety of his conviction. On all the evidence, we are amply satisfied as to the safety of his conviction for unlawful killing. 181. For completeness, we are not deterred from that conclusion by the following matters: i) On behalf of Rock, some play was made with the moderation in language employed by Crown experts between the trial and the appeal; in this regard, as we have seen, considerable emphasis was placed on the alleged “concession” made by Dr Jaspan, an emphasis we have already indicated we regard as misplaced. We think that the submission as to moderation of language is correct as far as it goes; but we do not think it goes very far. Doubtless, as expert thinking has evolved, so, rightly, the language has moderated and become less graphic or emotive. Those are welcome developments. But when the totality of the evidence is considered, there is nothing in any of this to suggest that the safety of Rock’s conviction is undermined. ii) Dr Geddes, as we have seen, was puzzled as to the absence of other injuries, if indeed Heidi had been the subject of violent shaking. We have given this matter anxious consideration but ultimately regard it as decisively outweighed by the overwhelming evidence pointing to a degree of force (or violence) at least going beyond even rough play. There is, as has frequently been urged on us, no precise correlation between force inflicted and the gravity of the injuries suffered. iii) As seen in the passages set out earlier, the Judge summed up in robust terms. On the evidence before him, no proper criticism could be made of those passages. Given the totality of the evidence now before the Court, even though an alteration in expression might have been warranted, we do not think that any change to the substance of the summing-up would have been such so as to undermine the safety of a conviction for unlawful killing on this ground. 182. What remains is whether Rock’s conviction for murder as distinct from manslaughter is safe. In R v Stacey [2001] EWCA Crim 2031 , a “shaking” case, the Court said this: “ 48. Other grounds of appeal having been examined, and in the end abandoned, that leaves only the question of whether the jury was entitled to find that she intended to do really serious harm. We are troubled about that. One brief period of violent shaking by a frustrated mother and child-minder was all that was required to explain this death. Apart from the bruises to the neck, no other injuries were found. As the judge said, an intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter. 49. Even allowing for the jury’s obvious advantage in seeing the appellant give evidence, we have been unable to discern anything which, in our judgment, would have made it safe for the jury to convict this appellant of the more serious charge. In our judgment, the less serious charge was the only safe verdict. If the jury had had the additional benefit of hearing the fresh medical evidence we have heard, they might well have come to the same conclusion.” 183. Stacey was of course a case on its own facts but the reasoning of the Court has, with respect, an undoubted resonance. As already foreshadowed, the Crown’s stance, very fairly, was to accept that a verdict of murder was unlikely ever to be justified on the basis of the “triad” standing alone; it follows that the verdict of murder could be justified here, only, if at all, on the basis of (i) the bruise at the back of the head and (ii) Ms. Banham’s evidence. 184. Elaboration is unnecessary. Those two additional features go in this case to underpin the safety of the conviction as to unlawful killing; but they do not assist on the question of murder or manslaughter. Necessarily therefore the conviction of murder cannot be sustained. We are fortified in reaching this conclusion by a consideration of the additional medical evidence we have heard. A brief period of violence (going beyond even rough play) was all that was required to cause Heidi’s fatal injuries; such violence undoubtedly furnishes the mental element necessary for a conviction of manslaughter; but it does not necessarily demonstrate an intention to cause grievous bodily harm, the relevant intention if the conviction of murder was to be upheld. 185. Accordingly, we set aside Rock’s conviction for murder and substitute a conviction for manslaughter. To this extent only, this appeal is allowed. We shall hear submissions on sentence for the offence of manslaughter. Cherry 186. We again do not repeat the facts of this matter, which have already been set out. It will be recollected that on Cherry’s account, he left the child alone for a matter of minutes downstairs while he went upstairs; when he returned minutes later, she was, as the Judge put it in the summing-up, in a “poor state” on the floor. Essentially the decision for the jury was whether they could be sure that Sarah’s death was caused by an unlawful act on the part of Cherry (a formulation to which we shall return, later) or whether her death was or might have been attributable to an accidental fall from a chair some 6-8 inches high (“the chair”). 187. On this appeal, Mr Mansfield QC’s submissions proceeded as follows: i) The Crown’s position had shifted between trial and appeal; at trial, this was a case of impact; now it was a case of both shaking and impact; but that was not how the matter had been placed before the jury. ii) There was new evidence to the effect that death or serious injury from low level falls could not be ruled out. In addition, there was a possibility that Sarah had aspirated vomit. Death could have resulted from a combination of the two. In any event, if this was a case of both shaking and impact, the innocent combination of an accidental fall followed by a resuscitative shake could not be ruled out. iii) Great care had to be taken in approaching the bruising on Sarah’s head and body, both in the light of the new evidence and the course which the trial had taken. iv) In all the circumstances, the conviction was unsafe. 188. The Crown resists the appeal and contends that nothing has emerged to undermine the safety of the conviction. In a nutshell, the evidence as to low-level falls is inapplicable to a fall of the nature postulated here. Upon analysis, there was no evidence capable of suggesting that aspiration of vomit was a relevant consideration. As to the new evidence, it had all to be taken into account; Cherry could not pick and choose; the introduction of a shaking component did nothing to undermine the safety of the conviction. Evidence of Sarah’s other injuries, properly and fairly considered, lent support to the Crown’s case and suggested that the notion of an accidental fall was fanciful. The new evidence on the appeal 189. We begin with the pathologists. As already observed, Professor Whitwell conducted the post-mortem and was a prosecution witness at the trial; on the appeal, she now gave evidence for Cherry. 190. In her witness statement for the trial, Professor Whitwell attributed Sarah’s injuries and brain damage, taken in conjunction with the scalp bruising (already described), to “direct blunt trauma”. She went on to say this: “The degree of trauma necessary to produce such damage is considerable and the findings are not consistent with a simple fall onto a carpeted surface. They are consistent with the head being forcibly propelled against a hard surface or a blunt object contacting the head. Apart from the brain injuries there are a number of bruises on the body. The sighting of a number of these is highly suggestive of non-accidental injury rather than being caused accidentally – in particular the bruises to the buttock, face, thigh and arm. ” 191. Her report of 2 June 2005, prepared for the appeal, evidences her revised views. She said that the possibility of Sarah suffering a fatal injury as a result of falling from the chair had to be considered afresh in the light of Dr Plunkett’s research. The “primary brain pathology” was due to lack of oxygen; this hypoxic-ischaemic injury could have been caused as a result of primary injury to the brain, causing Sarah to stop breathing and/or as a result of “vomiting with inhalation of vomit into the lungs”. She would “still to some extent be unhappy as regards the scalp bruises arising in a fall but it has to be a considered possibility that Sarah’s head impacted against some other surface as well as the ground”. 192. In her oral evidence at the appeal, she explained that her change of view was based on Dr Plunkett’s work and her own experience. She had not found diffuse axonal injury; such trauma as she found was associated with impact. The need to explain Sarah’s scalp bruising (in two separate locations) led to Professor Whitwell contemplating that Sarah might have struck her head both on the window and then on the ground in the course of her fall; indeed, she later underlined that two impacts were needed to explain this bruising. 193. Professor Whitwell agreed that at post-mortem, there was no evidence of vomit or aspiration. She agreed that Sarah had up to a maximum of 22 bruises; she was “concerned” about that number of bruises. They were probably “more than” fair wear and tear for a 21 month old. In the absence of proper explanation, they were highly suggestive of abuse. There had been no developments in science between the trial and the appeal to alter her view as to the relevance of the two sites of scalp bruising. Her view at the trial (and she was the person who had conducted the post-mortem) was that those two areas of bruising had been caused at about the same time. She had herself identified traumatic injury to the brain. She accepted that the subdural bleeding occurred because of the tearing of bridging veins. 194. Dr Rorke-Adams was firmly of the view that Sarah’s injuries were inconsistent with a fall from the chair; she placed emphasis on the multiple areas of injury and the extent of those injuries. Sarah’s injuries were caused by “trauma”; the “pattern of injury” was characteristic of both shaking and impact; it was a combination of both. Although the degree of injury could not be correlated with the degree of force, considering the injuries as a whole, they must have been caused by “strong force”. 195. Pausing here, it will be apparent that there was agreement between Professor Whitwell and Dr Rorke-Adams: (i) that there had been traumatic injury to the brain; (ii) that there were subdural haemorrhages; (iii) that those haemorrhages had been caused by the tearing of bridging veins. There was some dispute between these two witnesses as to whether further injury to the brain, which it is unnecessary to detail, was also attributable to trauma or was artefactual in origin. Impressed as we were by Dr Rorke-Adams’ evidence in this regard (the coincidence relied upon by Professor Whitwell seemed unlikely), this is another of those areas where we do not think it would be right simply to discount a reputable expert’s contrary views. We therefore proceed with this appeal on the assumption (in favour of Cherry) that the brain damage suffered by Sarah did not extend beyond the areas of agreement between Professor Whitwell and Dr Rorke-Adams, summarised above. 196. We move next to the evidence of Dr Plunkett, which it is helpful to consider here in a little greater detail than in the preceding appeal of Rock. Dr Plunkett said that there was nothing inevitable about a serious injury resulting from a fall from the chair but “the potential for serious injury or even death exists”. The floor surface did not matter; it was immaterial whether it was carpet over concrete or just concrete. 197. Questioned as to his research, Dr Plunkett explained that he had worked from a database for head and neck injuries involving playground equipment, recorded by the United States Consumer Product Safety Commission (“CPSC”). Over 11 ½ years, he had identified 18 fatalities from head and neck injuries involving falls. None of the children (or infants) in his study had formal retinal examinations. These cases included falls from swings, which, he agreed were complex or complicated falls. He further agreed that none of these cases were similar to a shaken baby case. The distance of a fall is said to be measured with reference to the closest part of the body to the ground at the beginning of a fall. 198. Case no. 5 in Dr Plunkett’s study was said to be closest to a fall from a 6-8 inch chair; this was suggested on the basis that the child in question had suffered the equivalent of a 12 inch fall. Dr Plunkett’s paper described this fall as follows: “ A 23 month-old was playing on a plastic gym set in the garage at her home…She had climbed the attached ladder to the top rail above the platform and was straddling the rail, with her feet 0.70 metres (28 inches) above the floor. She lost her balance and fell headfirst onto a 1-cm (3/8 inch) thick piece of plush carpet remnant covering the concrete floor. She struck the carpet first with her outstretched hands, then with the right front side of her forehead, followed by her right shoulder. Her grandmother had been watching …. And videotaped the fall. She cried after the fall but was alert and talking…However, approximately 5 minutes later she vomited and became stuporous…. A CT scan indicated a large right-sided subdural haematoma…. The haematoma was immediately evacuated. She remained comatose postoperatively, developed cerebral oedema with herniation, and was removed from life support 36 hours after the fall…..” Dr Plunkett suggested that, as her head had been some 42 inches above the ground when the fall began and as her body length was some 30 inches, it was equivalent to her falling from a chair 12 inches high. We confess some difficulty with this reasoning but we nonetheless continue with our consideration of Dr Plunkett’s evidence. We do acknowledge that we felt, as indeed Dr Anslow later expressed it, “shocked” that a fall, as captured on the video (which was shown to the Court), could have resulted in a fatality; this, indeed, may be the strength of Dr Plunkett’s evidence, so far as it goes. Nonetheless, it is pertinent to record the following: (i) It transpired, as explained by Dr Plunkett in his oral evidence following the playing of the video, that the rail from which the child fell was in fact 39 inches above the floor, not 28 inches; (ii) she fell a sufficient distance for her to rotate and so as to fall onto her head with some 2/3 of her body weight contributing to the impact; (iii) there was a lucid interval after the fall (unlike the cases before us); (iv) the haematoma was large and lop-sided (again unlike the thin film haematomas encountered in cases such as the present); Dr Plunkett agreed that the mass effect of this haematoma caused the child’s death. Notwithstanding all these factors, Dr Plunkett continued to maintain that the Case 5 fall was “exactly comparable” to a 12 inch fall. The velocity was relevant and what was not known was the “minimal impact velocity” required to cause these types of injuries. 199. Closely cross-examined, Dr Plunkett agreed this: “Q. …your paper does not establish the proposition that any impact, no matter how minor, can lead to fatal consequences, does it? A. That is correct.” After some questioning from the Court, Dr Plunkett acknowledged the common sense proposition that the lesser the distance of the fall, the less likely it was to cause an injury to a vulnerable part of the body. In any event though for a time it seemed that Dr Plunkett was resistant to the suggestion, the distance of a fall is a necessarily relevant consideration. Dr Plunkett’s own formula for impact velocity was as follows: Velocity (V) squared = 2 x Acceleration (A) x Distance (D). From this it must follow that, all other things being equal, a reduction in D will result in a reduced V. 200. Reverting to the individual case of Cherry, Dr Plunkett asserted that the bruising on Sarah’s body amounted to “normal wear and tear”. We observe at once that this answer was manifestly unconvincing. 201. Standing back from Dr Plunkett’s evidence, we do not say that his work does not have utility. As recorded, we were ourselves very surprised by the outcome in case no. 5, as shown on the video. However, we think that it is important to look closely at both the limits of his study and its relevance to any individual case; the true comparability of the falls he studied to the cases before the Court merits careful scrutiny. We return to this theme when indicating our conclusions on the Cherry appeal. 202. Mr Richards gave evidence for the Crown in this case as well. In his opinion, Sarah died as a result of a severe inflicted non-accidental head injury. His oral evidence included the following passage: “Q. You have used the word ‘severe’. Degree of force required in this particular case? A. Far in excess of anything we see in normal life with children of this age. Children are toddling around at this age. They fall over all the time. It they suffered severe head injury from little falls, the casualty departments would be inundated with them, the intensive cares would be full of them, my operating theatres would be operating or dealing with them on a daily basis. I have not seen a child of this age suffer a severe head injury in my 24-year neurosurgical career from a minor injury as described or….as considered. This very short 6-inch fall.” Other than being prepared to accept never to say never, try as Mr Mansfield QC might, Mr Richards did not shift in substance from this answer. 203. We turn next to the issue of aspiration of vomit. Given that, for very good reason to which we shall come, it played an ever diminishing role on the appeal, we shall take it very shortly indeed. 204. Mr Wrightson, a neurosurgeon, whose evidence on behalf of Cherry we heard by way of video-link from New Zealand, said this, in his report for the appeal: “…there is no doubt that Sarah vomited and aspirated material into her lungs. The vomiting was described by Mr. Cherry and was confirmed by those who arrived to help. A chest X-ray later in the day of injury showed ‘widespread airspace shadowing throughout both lungs’. The hypoxia which this would have caused is likely to have resulted in or at least contributed to the gross cerebral swelling that was present. ” In his oral evidence, Mr Wrightson said, early on, that this was “the key to the whole situation”. There was no reason for Cherry to have invented the evidence he gave. As to aspiration, the ambulance personnel described a “bubbly” chest. At the hospital, copious bloodstained fluid came out from the lungs; the chest x-ray and the findings on post-mortem were likewise said to support these conclusions. 205. Under cross-examination, Mr Wrightson agreed that there was no sign of vomit at the scene; that the neighbours who attended (one of whom was a nurse) did not suggest that Sarah had vomited; that one of the paramedics had said that he did not see any signs of vomiting; that, at the post-mortem, no sign of aspiration pneumonia was found. 206. Dr Peters, a consultant paediatric intensivist, was called by the Crown. His impressively clear evidence may be summarised as follows: i) Neurogenic pulmonary oedema (“NPO”) was a condition involving fluid in the lungs as a result of something catastrophic happening to the brain. It is characteristically immediate. The description given by the para-medics was “almost a text-book” description of NPO: “A combination of the noisy chest, with obvious fluid, with pink frothy secretions coming out of the mouth and the child making respiratory effort to overcome this fluid in the chest are all typical. It could read like a text-book description.” ii) At no stage was there any evidence of aspirated vomit. The most relevant evidence was that of Sarah’s appearance at intubation. Had aspiration been a major cause of respiratory failure then, typically, when the tube was placed into the lungs there would be a “welling up” from the chest of whatever was aspirated. No suggestion of aspirated vomit was made by the intensive care staff; to the contrary the fluid seen remained pink and frothy and became more blood-stained as time passed. This was a typical pattern of NPO. Had the fluid been erythromycin (a very common child’s antibiotic which Sarah had been given), Dr Peters would have expected the paediatric staff to recognise the difference between it and blood-staining. iii) To cause respiratory distress suddenly, massive aspiration was necessary. If so, however, it would have been apparent on intubation and subsequent care. Conversely, unless it was massive, it would not be a “credible cause” of this respiratory distress of this severity. 207. The ophthalmic evidence can be disposed of summarily. Dr Gregson, called by the Crown, fairly conceded that the retinal haemorrhages in this case were superficial only and were not typical of those discussed in the other appeals before the Court. They were not typical of shaking. In the circumstances, we do not think that the Crown case derives any support from the retinal haemorrhages. Conversely, however, we were not in any way persuaded that the absence of “typical” retinal haemorrhages somehow assisted Cherry’s case on the appeal. 208. For our part, this being a case where impact as well as shaking is alleged we regard the absence of “typical” retinal haemorrhages as neutral. We say no more of this point. In the event, it is unnecessary to consider the otherwise interesting (sub-) issue as to when the retinal haemorrhages in truth first appeared. 209. Finally in this case we have considered detailed written reports from two experts in biomechanics: Dr Thibault and Dr Bertocci for Cherry and for the Crown respectively. Dr Thibault, whose approach to ‘injury thresholds’ we have described earlier, considered that the forces applied to the head in a 3 foot impact fall onto carpet represented approximately 50,000 radians per second squared, whereas the injury threshold associated with subdural haemorrhage and diffuse axonal haemorrhage were between 8,000 and 12,000 radians per second squared. A 3 foot fall therefore, in Dr Thibault’s view, is well within the physical context in which subdural bleeding and DAI may occur. Dr Thibault identified the primary point of impact to be the occipital region. The cause of subdural bleeding is accepted to be rupture of bridging veins, but such a rupture could occur, in Dr Thibault’s opinion, as a result of the substantial internal rotational forces that arise when a child falls and impacts her head. He concluded that whilst deliberate inflicted injury cannot be ruled out, the injuries were entirely consistent with the mechanics of the speculated accidental fall. 210. Dr Bertocci explained that her habitual starting point when asked to determine whether a given account fits the resulting injuries is to begin with an assessment of any bruising found on the child: ‘bruising represents points of force application and a roadmap to the child’s exposure’ to force. Dr Thibault considered that the two apparently separate sites of impact could be explained by a fall inducing a well-distributed contact load across the occipital region resulting in dynamic in-bending of the skull and contusion to the outer left and right margins of the total contact area. The presence of bruising on two opposite sides of the head indicated to Dr Bertocci two very different lines of force applied from differing directions, and is not consistent with a fall from a chair. Further, Dr Bertocci observed that the size of the scalp bruises at 2.5cm and 3.5cm are much larger than bruises found in children injured through accidents. Finally, Dr Bertocci summarised published research and her own unit’s experiments with an automotive “12 month old” crash test dummy. Her conclusion, which is again in total contrast to that of Dr Thibault, was that a 12 month old falling from a 9 inch vertical position impacting their head on a padded carpet surface would produce head accelerations that are well below published biomechanical injury thresholds. She concluded that Sarah’s injuries are not attributable to a fall from a 9 inch chair. Conclusions 211. As is apparent, encephalopathy and subdural haemorrhages are present in this case. With regard to the latter, there is no dispute here that they were caused by the tearing of bridging veins. Two elements of the “triad” are thus present. For reasons already set out, although there were retinal haemorrhages (the third element of the triad), these are neutral and do not advance the argument of either party on the appeal. 212. Next it is convenient to mention the issue of aspiration of vomit, essentially to dispose of it. We found Dr Peters’ analysis of the evidence on this issue compelling. Mr Wrightson’s views to the contrary do not survive this analysis. We accept Dr Peters’ evidence and dismiss aspiration of vomit as a credible cause or contributory cause of Sarah’s death. 213. We turn to the topic of low-level falls. We have already indicated our general views with regard to Dr Plunkett’s evidence. Having given the matter anxious consideration, we are not persuaded that the postulated fall from the 6-8 inch chair was a credible cause or contributory cause of Sarah’s death. Our reasons are these: i) On any realistic view, the fall here (if fall there was or might have been) was of a very different type and nature from those forming the subject of Dr Plunkett’s study. The factual differences between any fall here and Dr Plunkett’s Case 5 (said to be the closest comparable) are marked indeed, not least with regard to the nature of the subdural bleeding found. ii) Even if the reservations in i) above are put to one side, notwithstanding the extent of Dr Plunkett’s research, there is no example of a 6-8 inch fall, from a static object, causing death or serious injury to a 21 month old child. As he himself agreed in cross-examination (see above), it does not follow from Dr. Plunkett’s study that any impact, no matter how minor, can lead to fatal consequences. iii) Even if (contrary to the above) it was thought that Dr Plunkett’s study did mean that a fall from the chair here was capable of furnishing a realistically possible innocent explanation for Sarah’s death, it remains necessary to address the two separate sites of scalp bruising. Professor Whitwell conducted the post-mortem; as she agreed in her oral evidence, her impression (at least at the time of the trial) was that the two separate areas of scalp bruising had been caused at about the same time. Inevitably and as Professor Whitwell further agreed, no scientific developments since the trial could alter the relevance of these two separate sites of bruising. Accordingly, for the fall to be capable of providing an innocent explanation of these injuries, it was necessary to postulate two impacts (window and floor) in the course of the same fall. As it seems to us, this is pure speculation and stretches credibility altogether too far. iv) We have set out earlier Mr Richards’ observations (i) that if such falls did generate severe injuries, casualty departments and the like would be inundated; but (ii) that in more than 20 years of practice he had never encountered a severe head injury in a child of this age arising from a 6 inch fall. Some caution is necessary in approaching these observations; first, there is no claim that serious injury is the inevitable result of falls of this nature; secondly, “never” is an unfortunate word. Nonetheless, when this evidence based on practical experience is considered cumulatively with reasons i) – iii) above, it furnishes powerful support for the conclusion that the notion of an accidental fall in this case, causing or contributing to Sarah’s death, is simply fanciful. v) We are not swayed from our view by the evidence of biomechanics summarised earlier. This is a complex, developing and (as yet) necessarily uncertain area of scince, as illustrated by the stark divergence of opinion between Dr Bertocci and Dr Thibault. Be that as it may, Dr Thibault’s views are altogether too difficult to reconcile with evidence of primary fact in this case, for the conviction to be regarded as unsafe by reason of the biomechanical evidence. 214. Pulling the threads together, this is a case of a sudden collapse of a 21 month old child. Cherry was alone at home with her. His factual account cannot explain her injuries and death. Upon analysis, the possible explanations advanced on his behalf on the appeal do not carry credibility. The case cannot be one of SIDS, given, as is undisputed, her traumatically caused subdural haemorrhaging. As it seems to us, in the light of those subdural haemorrhages and the separate sites of scalp bruising, the inference can properly be made that her injuries and death were attributable to a combination of shaking and impact. On any realistic view (and in this case we are of course only concerned with a count of manslaughter), the force involved must have been such that the risk of some harm to Sarah would have been foreseeable to all sober and reasonable people. In the circumstances, unless there is anything in the argument as to the shift in the Crown’s case between trial and appeal rendering the conviction unsafe (see below), we are amply satisfied of the safety of Cherry’s conviction for manslaughter. 215. We are fortified in this conclusion by the evidence as to up to 22 bruises on Sarah’s body. As Professor Whitwell was driven to agree, these were highly suggestive of abuse, in the absence of proper explanation of which there was and has been none. In approaching this evidence, we have thought it right to proceed with caution; as the summing-up suggests, at the trial, Cherry was treated as a good stepfather and there had been no suggestion of any improper behaviour towards Sarah or any of the other children. But on the state of the evidence at the trial, there may have been no need for the Crown to explore this wider area. Cherry, having introduced new lines of inquiry on the appeal, cannot, we think, complain at all the evidence being revisited. While even then we would have hesitated long and hard before treating this question of bruising as determinative of the appeal, in this appeal we see no unfairness in taking it into account as an additional reason pointing towards the safety of the conviction. 216. Finally, we turn to Mr Mansfield’s submission that the conviction was unsafe because of the shift in the Crown’s position between trial and appeal; at trial, this had been a case of impact; now it was one of both shaking and impact. Cherry did not have a fair opportunity to deal with the “new” case; nor did the jury consider it. With respect, we cannot agree. 217. First, as a matter of principle and as already foreshadowed in dealing with the evidence of bruising to Sarah’s body, once an appellant has introduced new evidence on the appeal, he can hardly complain if such evidence is answered or rebutted by the Crown. Unavoidably, in such a process, the nature of the case may take on a different hue and there may be some change in the manner in which the Crown puts its case. But it cannot be, that on this ground alone, a conviction must be regarded as unsafe; fresh evidence, once admitted, may serve to confirm, not only to undermine, the safety of a conviction. Accordingly, if on all the evidence before this Court, the only reasonable conclusion is that, considered in the round, the conviction is safe, the Court should give effect to that conclusion: R v Hanratty (Dec’d) [2002] 2 Cr. App. R. 30 , at [101] – [104]. 218. Secondly, however, this principle is qualified by consideration of fact and degree. In an individual case where an issue of this kind arises, it may be that the Crown’s change of position between trial and appeal is such that the conviction cannot be considered safe. Whether it does or not will necessarily depend on the facts of the particular case. Here, we see nothing in the development of the Crown’s case on the appeal that renders Cherry’s conviction unsafe. The essential question for the jury was whether Sarah’s death was accidental or the result of some unlawful act on the part of Cherry. That was the fundamental divide; in this case, given the nature of Cherry’s evidence, the mechanism was necessarily of secondary importance. It is true that the mechanism favoured by the Crown at trial was one of impact. It is further true that on appeal the Crown’s case as to mechanism has evolved to one of a combination of shaking and impact. That evolution, however, cannot have caused Cherry any prejudice. Moreover, any suggestion here that a well-intentioned shake was capable of giving rise to a possible defence depended on the credibility of the explanations we have already dismissed, namely those relating to the low-level fall and/or the aspiration of vomit. 219. In all the circumstances, we are fully satisfied as to the safety of the conviction. This appeal must be dismissed. Faulder Appeal 220. Faulder’s Notice of Appeal relies upon two post-trial developments. Firstly the publication of Geddes I and II which, it is said, provides a basis for questioning the explanations previously advanced for N’s injuries, and, secondly, a judgment given by Mr Justice Eady in a libel case, Reed and Lillee v Newcastle City Council [2002] EWHC 1600 (QBD) in which Dr San Lazaro, a key prosecution expert witness in the Faulder case, had been severely criticised. In addition the Notice of Appeal relies upon a new explanation, the MORO reflex, which might explain N’s sudden movement and subsequent fall from Faulder’s outstretched arm. Finally, the Notice relies upon fresh expert evidence from Professor Whitwell, which calls into question the Crown’s view at trial that this was primarily a shaking injury, her opinion being that there was evidence of a number impacts (which might fit Faulder’s account) and that the primary cause of collapse was likely to be cessation of breathing and consequent brain damage, rather than primary brain damage due to direct trauma. 221. The ‘Statement of Reasons’ supporting the Criminal Cases Review Commission decision in Faulder’s case refers to the trial evidence given by Dr San Lazaro and Dr Alexander to the effect that N’s primary injury was as a result of direct impact between the brain and the skull, which would require massive and violent force comparable to a child being hit by a car travelling at 40 mph. As the Commission’s statement observes, “within this paradigm, Mr Faulder’s explanation is inadequate.” The Commission refers to Geddes I and II and postulates that Faulder’s explanation becomes more plausible if the cause of N’s collapse is cessation of breathing. The Commission concludes that: a) had the jury been aware of the new evidence they might not have been certain that Faulder’s account was untrue; and b) the medical evidence now available provides a possible alternative explanation for N’s injuries and challenges the prosecution case that the injuries must have been caused by shaking. The Injuries 222. In Faulder’s case the injuries and symptoms relating to N that require consideration are: Bruises i) Area of erythema (ill defined flushing of the skin) that was ‘grazed/bruised’ located directly on top of the head; ii) A triangular fresh bruise 2cm by 2cm above the forehead; iii) A 2cm linear bruise on the left side of the head above the ear; iv) A small deep blue bruise over the right forehead; v) A second small deep blue bruise over the right forehead but more centrally sited; vi) Marked swelling over the top of the occipital bone in the midline. Subdural haemorrhage vii) Thin fresh subdural haemorrhage along the falx with a thin layer of subdural blood over the surface of the brain (seen on the first CT scan at 7.44 am on the morning after admission, it remained largely unchanged in subsequent scans); Brain swelling and HII viii) In the first scan (12 hours after the 999 call) there is no significant brain swelling or injury. Subsequent scans over the following three days show developing brain swelling and hypoxic-ischaemic injury in both cerebral hemispheres. 223. It is of note that in Faulder’s case there is no evidence of retinal haemorrhaging or primary brain injury. 224. In the course of Faulder’s appeal we have considered evidence from the following experts on behalf of the appellant: Professor Whitwell, Dr Plunkett and Dr Sunderland. In response the Crown have particularly relied upon evidence from Dr Jaspan, Mr Richards, Professor Jenny, Dr Lawler and Dr Rorke-Adams. Appellant’s Experts 225. For the appellant Professor Whitwell, relying upon the Geddes I and II research, considered that the hypoxic-ischaemic injury to the brain could arise as a result of oxygen starvation caused by a sudden bending and stretching of the nerve tracts in the cranio-cervical region. As N survived, there was obviously no opportunity to use the β APP test for axonal damage to confirm this opinion. In N’s case the damage may have been ischaemic and localised, but the mechanism was the same as in the case of hypoxia. The Professor, who is a pathologist, rightly conceded that in this case, which did not result in death, her expertise did not permit her to comment upon the interpretation of the radiological evidence. 226. Professor Whitwell considered that the findings were all consistent with some form of impact. The injuries to the head indicated a number of impacts, the multiplicity of which gave rise to concern, but in cross examination she also questioned whether all of the external injuries were clearly present at the time of admission, or, in relation to two, arose as a result of therapeutic intervention. She advised that the forces required to produce subdural haemorrhages in a child of this young age are unknown. 227. Dr John Plunkett’s evidence was based upon his own research into young children and low level falls. He drew attention to the fact that the skull of a 7 week old infant differs fundamentally from that of an older infant or adult. A scalp impact to a 7 week old would cause the skull to bend inwards or deform, with a consequent deformation or movement within the brain itself. This movement, Dr Plunkett advised, could cause subdural haemorrhages and functional brain damage, for example breathing difficulties. Both Dr Plunkett and Professor Whitwell accepted that the subdural haemorrhages were assumed to have been caused by tearing of bridging veins. The minimal impact velocity needed to cause these injuries is not known, but as N did not have any skull fracture or brain contusion, Dr Plunkett postulated that the impact velocity was extremely low. In this manner, Dr Plunkett considered that all of N’s injuries could be explained by the account of the fall given by Faulder. Dr Plunkett did not however accept that N had as many as 6 external head injuries believing that there were only three. In particular Dr Plunkett considered that marked swelling seen on the scans was a manifestation of the triangular shaped bruise seen earlier over the top of the occipital bone which, he explained, had migrated to the back of the head by reason of gravity. This explanation and the further explanation proffered by Professor Whitwell that the two forehead bruises were caused during treatment, were rejected by each of the relevant experts for the Crown. In so far as may be necessary we were not persuaded by Dr Plunkett or Professor Whitwell on these issues and, having seen the relevant photographs, scans and medical notes, have no difficulty in finding that there were indeed six separate sites of external head injury as listed above at paragraph 219. 228. Dr Sunderland’s written report to the CCRC introduced the “MORO Reflex” (a recognised automatic response seen in babies under 8 weeks old) as an explanation for N arching his back or throwing his arms out. It was therefore surprising that it was only after a substantial number of questions in cross examination that Dr Sunderland responded to junior counsel for the Crown by saying “I am allowing you to develop your proposition. At some point I must help you. I do not think the MORO reflex is relevant to Faulder. But I am cutting in, you develop your proposition.” We found Dr Sunderland’s contribution in this regard fell short of that which is required by the court from an expert witness. 229. Dr Sunderland, having had Faulder’s detailed account put to him, stated that a baby of N’s age could have behaved in the manner described. 230. Dr Thibault, an expert in biomechanics who was, as we have said, not available to give oral evidence, produced an analysis of the evidence which concluded that Faulder’s account accorded with a biomechanical analysis of the injuries. Dr Thibault’s opinion is however upon the basis that there were only two impacts: one being the linear bruise above the left ear (number (iii) in our list) and the other which caused both of the marks above the right eye (numbers (iv) and (v)). Dr Thibault discounted the swelling on the back of the head (number (vi)) which is only visible on the scan on the basis that if this had been traumatic one would have expected the treating clinicians to have noted it and, further, there is no note of any surface marking at the same location indicating an impact. The report does not consider the area of erythema located directly on top of the head ((i)) or the triangular fresh bruise 2cm by 2cm above the forehead ((ii)), these marks are shown in the photographs, however the photographs were not made available to Dr Thibault. 231. Dr Thibault considered that the linear bruise was consistent with contact with part of the high chair, whereas the two marks on the forehead were consistent with impact on a flat surface, for example the floor. The fall as described by Faulder would, according to Dr Thibault, have been sufficient in magnitude to deform the skull and cause shifting and deformation of the underlying bridging veins and neural tissue thereby producing acute SDH. He also postulated the temporary deformation causing a temporary herniation at the cranio-cervical junction leading to consequent interference with the respiratory system and thereby hypoxic-ischaemic injury. Crown’s Experts 232. For the prosecution Dr Jaspan described the existence of the subdural haemorrhages and the development of what became extensive hypoxic-ischaemic injury in both cerebral hemispheres. He considered that the most substantial impact was that which caused swelling to the right parietal region, with the other bruises resulting from injuries of lesser magnitude. Dr Jaspan, in a balanced report, drew attention to the fact that only four of the eight elements that would normally constitute a diagnostic ‘full house’ for inflicted injury were present in this case, namely: unexplained encephalopathy, scalp bruising, subdural haemorrhages and secondary hypoxic-ischaemic injury. He therefore considered that accidental trauma could not be entirely excluded, but some form of inflicted injury was the most likely cause. 233. Mr Richards, who in his written evidence questioned whether a 7 week old baby would have come to fall in the manner described by Faulder, in oral evidence came to accept that N may have fallen from Faulder’s arm in an ordinary ‘gravity roll’, which did not depend upon any overt momentum from the child himself other than throwing his arms up because he felt unstable. If such a fall took place, Mr Richards would have anticipated a hairline skull fracture or a fractured clavicle. On the other hand, such a fall was unlikely to cause such severe brain substance injury and subdural haemorrhages. He concluded that it was highly likely that N suffered inflicted NAHI. 234. Professor Jenny clearly identified the six external head injuries found on N. Her evidence on this point, which we accept, was confirmed by Dr Lawlor. Professor Jenny’s opinion was that N had sustained multiple blunt injuries to the head which were not accounted for by the history of a fall given by his father. Professor Jenny disagreed with the prosecution experts at trial, who had concentrated upon shaking rather than some form of impact causing the injuries. 235. When considering the triad as a diagnostic tool Professor Jenny regarded the presence of characteristic retinal haemorrhaging as being particularly important in identifying shaking as the mechanism of trauma. She explained that “you really have difficulty diagnosing Shaken Baby Syndrome, as opposed to abusive head trauma, if you do not have those retinal haemorrhages, because they seem to be very characteristic of that particular biomechanical event”. 236. Dr Rorke-Adams’ conclusion was to the same effect, namely that N was subjected to blunt force trauma to the head. She too expressly disagreed with the crown’s experts at trial. Dr Rorke-Adams considered that there was discordance between Faulder’s account and the severity of the injuries to N. 237. Dr Rorke-Adams, relying firstly upon her interpretation of the CT scans and secondly upon the fact that N experienced a left-sided paralysis after the incident, considered that the primary injury was to the right side of the brain, and therefore was focussed on a particular location rather than being diffuse and evenly distributed throughout the brain. Dr Rorke-Adams was the only witness to put forward this interpretation of the evidence. As a pathologist Dr Rorke-Adams was at a similar disadvantage to Professor Whitwell in this case. Equally, Dr Rorke-Adams is not a radiologist. Dr Jaspan in a very thorough report on the series of scans does not identify any particular difference in presentation between the two sides of the brain. We are therefore cautious about placing undue weight about Dr Rorke-Adams’s conclusion that there was a focal (as opposed to a diffuse) brain injury. 238. Dr Rorke-Adams conclusion in favour of a focal injury to one part of the brain is the main reason for her dismissing Professor Whitwell’s proposition that the brain injury may be secondary to a stretching injury at the cranio-cervical junction. Given our caution about Dr Rorke-Adams’ view on this point, it follows that we do not feel able to dismiss Professor Whitwell’s opinion on that basis as being untenable. 239. The prosecution expert on biomechanics, Dr Bertocci, due to the short notice available to her, did not make observations about this case. Changes in the Crown’s Case 240. The appellant asserts that the Crown’s case against him at trial has now been changed in three significant respects relating to (1) his account of the fall, (2) whether there was a primary injury to the brain itself and (3) whether the injury was caused by shaking or impact. (1) The appellant’s account of the fall 241. The appellant has consistently given an account of N’s fall from his outstretched arm to the effect that N’s head was cupped in his hand and N’s body ran along his forearm. At some stage N arched his back, slipped off the arm and fell, catching his back on a push-chair and his head on the bar of a high-chair before hitting the floor headfirst. At trial, Dr San Lazaro did not accept that a 7 week old child could make sufficient jerking, arching or rolling movement to propel itself from a carer’s arm. That was also the position of a number of the Crown’s experts on paper at the start of this appeal. During oral evidence, as we have already noted, Mr Richards came to accept that N may have fallen in the manner described by Faulder simply as a result of a gravity roll from his insecure position lying along Faulder’s arm. It follows that the prosecution expert testimony is no longer entirely at odds with Faulder’s account on this point. (2) Causation of brain injury 242. At trial, Dr Alexander considered that the fall described by Faulder bore no relationship to the severity of the brain injury. His opinion was that the subdural haemorrhages and brain injury were the result of shaking and were the sort of injuries seen “in older children who have been hit by a car at 40 mph, spun round and eventually hit the floor”. He described the mechanism for the brain injury by imagining that the brain was similar in substance to porridge, with the shaking causing the brain to accelerate and decelerate many times causing a spinning effect which was “just like putting a food mixer inside the brain.” He further postulated that the trauma to the brain may have interfered with breathing, thereby causing further brain damage. Dr San Lazaro, at trial, explained that only “very severe forces” or “severe massive deceleration forces” would account for the brain injuries which were caused by “violent shaking and slamming down”. In the CCRC report for this appeal, Dr Lazaro and Dr Alexander are quoted as stating in letters written to the CCRC in 2001 that N’s injuries included “brain contusions”. 243. At trial, Dr Gholkal, a consultant radiologist, did not positively identify any primary brain injury. 244. Before us, with the exception of Dr Rorke-Adams, whose opinion relating to a localised focal brain injury we have already described, none of the Crown’s experts suggested that there was evidence of direct trauma to the brain. Dr Jaspan identifies secondary hypoxic-ischaemic injury and asserts that there is no evidence of primary brain injury or brain contusions. 245. N survived these events and thus the only direct evidence of the condition of his brain is radiological. Given the careful and clear evidence of the prosecution radiologist, Dr Jaspan, on this point we consider that the opinion of both Dr San Lazaro and Dr Alexander that there was primary brain injury is not tenable. Shaking or Impact 246. At trial both Dr Alexander and Dr San Lazaro advised that these injuries were caused by very severe shaking. We have already observed that a number of the Crown’s experts on appeal have expressly disagreed with this conclusion. They regard this as a case of N being the victim of a number of blunt impact blows to the head. 247. This significant change in the case being put against Faulder is of consequence in at least two respects. Firstly, he has never been required to consider, and neither was the jury required to consider, the allegation that he hit N at least 5 or 6 times around the head. Secondly, the degree and type of force now relied upon must differ from the “hit by a car at 40 mph” description put forward at trial. 248. Whilst we note that the judge in describing the central issue in the case to the jury focused upon the defendant’s intention (“did the defendant deliberately injure the child?”) rather than upon any particular mechanism for injury. The expert evidence presented to the jury was that the severity of primary brain injury could not be explained by Faulder’s account. Before us the position is different in that the injury to the brain substance is broadly accepted to be secondary hypoxic-ischaemic injury. The primary injuries being the external bruising and swelling, the subdural haemorrhages and unexplained encephalopathy (brain failure). Whilst Faulder’s account is not accepted by the Crown, it is nevertheless an account of a series of impacts and is therefore significantly closer to the case now put by the Crown than was the position at the trial. 249. An essential question raised in Faulder’s appeal is therefore what effect, if any, this change of mechanism and force has upon the central issue of the defendant’s intention. 250. In summary the prosecution’s position at the conclusion of the appeal differed from the Crown case at trial in the following material respects: a) Faulder’s account of N falling from his outstretched arm is now accepted as a possible event; b) The brain injury is now seen to be a secondary hypoxic-ischaemia rather than as a result of primary intra-cranial trauma; c) The mechanism for injury is now stated to be a number of blunt force impacts to the head, rather than the massive violent shaking mechanism put forward at trial. Dr San Lazaro 251. The Amended Grounds of Appeal rely in part upon the fact that Dr San Lazaro’s credibility and impartiality have subsequently been seriously challenged in the case of Lilley and Reed v Newcastle City Council (above). It is indeed the case that Mr Justice Eady considered Dr San Lazaro’s role in a substantial child sexual abuse investigation and, having heard her give evidence, found that, in order to meet what she perceived to be the needs of the children she examined, she was prepared to throw “objectivity and scientific rigour to the winds in a highly emotional misrepresentation of the facts”. She was, according to Eady J’s findings, “unbalanced, obsessive and lacking in judgment”. 252. In the event this point was not raised in the appellant’s Skeleton Argument filed at the start of the appeal hearing and did not feature in the written closing submissions. Mr Mansfield QC told us that he was effectively not relying upon this ground in support of Faulder’s appeal. We consider that this was a realistic concession. There is no challenge to the primary evidence of fact given by Dr San Lazaro. If Dr San Lazaro had remained the leading Crown expert in the case, there might well have been some concern arising from Eady J’s findings, however the wealth of medical evidence that has now been acquired indicates that even were her evidence to be totally ignored there is a substantial body of expert opinion that supports the Crown’s case as it is now cast. Overview of Faulder’s case 253. We now seek to draw together the various central issues in Faulder’s appeal. Before doing so, it is helpful to highlight the fact that there are now no less than five different explanations for N’s injuries that have been put forward by experts either at trial or on appeal, they are: a) Shaking and slamming down involving very severe force (Dr San Lazaro and Dr Alexander at trial); b) Non-specific inflicted head injury (Dr Jaspan and Mr Richards) involving secondary, but not primary, brain injury (Dr Jaspan); c) Multiple (at least six) blows to the head (Professor Jenny and Dr Rorke-Adams) causing primary localised brain injury (Dr Rorke-Adams); d) A bending and stretching injury to the respiratory nerves in the cranio-cervical junction causing a secondary brain damage. On the basis that the minimum degree of force required to cause subdural haemorrhages is unknown, all the symptoms could have been caused in the fall described by Faulder (Professor Whitwell); e) A blow to the skull during the fall from Faulder’s arm, causing the baby’s skull temporarily to deform and directly injure the underlying brain substance, which may then hinder respiration and cause secondary brain damage (Dr Plunkett). 254. On the evidence that is now before the court, there is unanimity that what occurred was primarily an impact injury. The central questions remaining are: i) What is the minimum degree of force required to cause these injuries? and ii) Might the injuries have been incurred by a fall as described by Faulder? 255. For the reasons that we have already given, we conclude that there were six separate sites of injury found on N’s head when he was examined at hospital. This is an important finding as whilst three or possibly four impacts could conceivable fit with Mr Faulder’s account, it is not possible to stretch the sequence of events he describes to explain all six injuries. 256. Coming to a conclusion about the external head injuries is, however, a very much more straightforward task compared to consideration of the internal injuries. Having heard all of the evidence we are not in a position to reject Professor Whitwell’s opinion that the key event was a nerve injury at the cranio-cervical junction. That opinion is based on the Geddes I and II research, which has been largely accepted by the scientific community. If that opinion is correct, then the severity of the brain injury does not arise from the degree of force used, but from the extent to which the brain is starved of oxygen and/or blood. Questions of degree of force, on the Whitwell basis, are confined to the minimum force needed (a) to cause the cranio cervical junction nerve damage and (b) the subdural haemorrhage. 257. We have already expressed our overall conclusions upon the necessary degree of force in triad cases by stating four general propositions (paragraphs 72 – 80). Applying those propositions to Faulder’s case we are therefore mindful that there will be rare cases where comparatively minor falls may generate serious injuries and that an infant may be particularly vulnerable to injury at the site of the craniocervical junction as postulated by Professor Whitwell in this case. 258. In not rejecting Professor Whitwell’s opinion, we have particularly borne in mind Dr Jaspan’s cautious analysis (“an unequivocal stance cannot be taken”). Dr Jaspan considered that only four of a possible eight signs for NAHI were present. We would add that of those four, only two are direct evidence of a primary event involving force (scalp bruising and subdural haemmorhage) whereas the other two are, or could be, secondary consequences of the primary event (unexplained encephalopathy and secondary hypoixic-ischaemic injury). 259. There are no retinal haemorrhages in this case. On Professor Jenny’s evidence, that would be a cause for concern were the Crown’s case to have remained one of pure shaking, but is a lesser matter of note in the context of an impact injury. 260. We have already considered Dr Plunkett’s evidence in relation to the appeals of Rock and Cherry (in particular we summarise our view at paragraph 201). It is, as we have said, important to look closely at the relevance of Dr Plunkett’s research to each individual case. In relation to Faulder’s appeal we are troubled by Dr Plunkett declining to accept that N had more than three sites of injury. Our approach has been to evaluate each case by considering all of the symptoms as a whole, as well as individually. Dr Plunkett’s inability to include and account for the six sites of injury must devalue, but not eliminate, the importance of his evidence in this particular case. 261. The jury were directed to treat Faulder as a man of good character and that is a factor that we too bear in mind. We also have particular regard to the fact that, unlike the Crown case, his account of the key event has been consistent throughout. 262. If the number of external marks of impact had been four or less we would have little hesitation in holding that there is sufficient within the evidence of Professor Whitwell, when set against the conflicting and contradictory evidence that has, when looked at as a whole, been presented by the Crown, to render this conviction unsafe. 263. We have approached each of these cases by attempting to look at the evidence as a whole. Do the two or three external marks that fall outside Mr Faulder’s account tip the balance in favour of dismissing the appeal? 264. In considering this question we are conscious of the fact that this was not a matter that the jury were ever asked to contemplate in this case. In the same regard we consider it is relevant to question how fair it is for the Crown to change its case so radically from “very severe shaking” to “at least six blows to the head” in an attempt to uphold the conviction. 265. In conclusion we are struck in this appeal by the very radical change in the Crown case; the jury considered one case, shaking, yet that case is now rejected and we have been asked to consider a totally different allegation of multiple blows to the head. During the summing up at trial the jury were told that Dr San Lazaro was “very, very experienced” and “specialises in child protection and abuse” cases. They were also reminded that Dr San Lazaro had said “I am as certain as you can be in medicine” in her opinion that this was a shaking injury. This “certain” opinion from the Crown’s principal witness is now rejected by Crown experts who are equally firm in their own opinion. We have to consider the evidence in its totality, both at trial and before us. There are, as we have observed, now five different explanations put forward by experts for N’s injuries. 266. In relation to Cherry’s appeal we have stressed that the mere fact that there has been some change in the manner in which the Crown puts its case will not automatically lead to a conclusion that the conviction is unsafe. It will be a matter of fact and degree to be considered in each individual case. In contrast to Cherry’s case, the turnaround in the Crown’s case in Faulder could hardly be more substantial. This factor, coupled with the introduction of potentially credible alternative explanations presented by the defence experts, drives us to the conclusion that, despite the number of bruises found, this conviction must now be considered unsafe. We therefore allow the appeal and quash the conviction. Final Comments 267. In earlier sections of this judgment we have made comments on the triad of injuries, the “unified hypothesis” – Geddes I, II, III, and some general issues. We do not think it possible or desirable to add anything further to those observations. In our judgment, these appeals demonstrate that cases of alleged NAHI are fact-specific and will be determined on their individual facts. 268. We have been asked by Mr Horwell to give some guidance in respect of expert witnesses in cases such as these. In his final submissions Mr Horwell submitted that these appeals demonstrated that there had been a significant failure within the criminal justice system to control and manage expert evidence. He argued that there must be a change in approach and invited the court to consider giving guidance. 269. Whether or not there has been a failure by the criminal justice system to control and manage expert evidence we are reluctant to give any new guidance on expert evidence arising from the facts of these cases. It may, however, be helpful to re-iterate current guidance. 270. As to expert evidence generally, the evidential rules as to admissibility are clear (see for example R v Bonython [1984] 38 SASR 45 and R v Clarke (RL) [1995] 2 Cr. App. R. 425 (facial mapping)). We see no reason for special rules where medical experts are involved. There is no single test which can provide a threshold for admissibility in all cases. As Clarke demonstrates developments in scientific thinking and techniques should not be kept from the Court. Further, in our judgment, developments in scientific thinking should not be kept from the Court, simply because they remain at the stage of a hypothesis. Obviously, it is of the first importance that the true status of the expert’s evidence is frankly indicated to the court. 271. It may be helpful for judges, practitioners and experts to be reminded of the obligations of an expert witness summarised by Cresswell J in the Ikerian Reefer [1993] 2 Lloyds Rep. 68 at p 81. Cresswell J pointed out amongst other factors the following, which we summarise as follows: (1) Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. (2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate. (3) An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions. (4) An expert should make it clear when a particular question or issue falls outside his expertise. (5) If an expert’s opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one. (6) If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court. 272. Wall J, as he then was, sitting in the Family Division also gave helpful guidance for experts giving evidence involving children (see Re AB (Child Abuse: Expert Witnesses) 1995 1 FLR 181 ). Wall J pointed out that there will be cases in which there is a genuine disagreement on a scientific or medical issue, or where it is necessary for a party to advance a particular hypothesis to explain a given set of facts. He added (see page 192): “Where that occurs, the jury will have to resolve the issue which is raised. Two points must be made. In my view, the expert who advances such a hypothesis owes a very heavy duty to explain to the court that what he is advancing is a hypothesis, that it is controversial (if it is) and placed before the court all material which contradicts the hypothesis. Secondly, he must make all his material available to the other experts in the case. It is the common experience of the courts that the better the experts the more limited their areas of disagreement, and in the forensic context of a contested case relating to children, the objective of the lawyers and the experts should always be to limit the ambit of disagreement on medical issues to the minimum.” We have substituted the word jury for judge in the above passage. 273. In our judgment the guidance given by both Cresswell J and Wall J are very relevant to criminal proceedings and should be kept well in mind by both prosecution and defence. The new Criminal Procedure Rules provide wide powers of case management to the Court. Rule 24 and Paragraph 15 of the Plea and Case Management form make provision for experts to consult together and, if possible, agree points of agreement or disagreement with a summary of reasons. In cases involving allegations of child abuse the judge should be prepared to give directions in respect of expert evidence taking into account the guidance to which we have just referred. If this guidance is borne in mind and the directions made are clear and adhered to, it ought to be possible to narrow the areas of dispute before trial and limit the volume of expert evidence which the jury will have to consider. 274. We see nothing new in the above observations. 275. Lastly, we wish to express our gratitude to all counsel, solicitors and the many expert witnesses for the prodigious amount of work and time which they have given to these appeals. Cases of this sort raise difficult and complex medical issues. The Court is very dependent upon the skill of the advocates and the ability of the witnesses to elucidate the evidence and inform the court on the issues involved. We have received enormous assistance from all concerned and pay tribute to their efforts.

2005_07_21-562.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/1980/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/1980

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[2006] EWCA Crim 2028

EWCA_Crim_2028

2006-07-27

crown_court

No: 200505743 B3 Neutral Citation Number: [2006] EWCA Crim 2028 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27th July 2006 B E F O R E: LORD JUSTICE HUGHES MR JUSTICE TUGENDHAT RECORDER OF LEEDS (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- ALBERT EDWARD PITTARD - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 02

No: 200505743 B3 Neutral Citation Number: [2006] EWCA Crim 2028 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Thursday, 27th July 2006 B E F O R E: LORD JUSTICE HUGHES MR JUSTICE TUGENDHAT RECORDER OF LEEDS (Sitting as a judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A -v- ALBERT EDWARD PITTARD - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR G W JONES appeared on behalf of the APPELLANT MISS S SMITH appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE HUGHES: This is an appeal against a conviction for an offence of assault occasioning actual bodily harm on a police officer. The complaints are put as cumulative complaints arising from the manner in which the trial judge intervened in cross-examination and eventually summed up the case. 2. The starting point is that it was common ground that sometime around 9 o'clock in the evening of 17th March 2005, there was a heated argument in Shipley Walk in Liverpool between, on the one hand, this appellant and, on the other, an ex-girlfriend of his who lived in that street. Someone heard it and somebody called the police. The policeman who was sent out was Constable Blackmore, who arrived alone in his vehicle. His evidence was that, as he walked towards the house from his car, he saw the man who turned out to be the appellant run off but then return. Someone called out words to the effect that that was him. The policeman said that he turned towards the returning appellant and, according to the policeman, the appellant ran at him, shouting "Come on then, hit me", and then rugby tackled the officer to the ground and punched him twice in the head. The constable said that he banged his head on the concrete and was somewhat injured but managed to get out his canister of CS gas, which he used. The appellant continued, according to the policeman, to punch the officer several times more and also tried to kick him. 3. At some stage the officer managed to send a call for assistance. It may be that a single press of a button would do that, but in any event other officers arrived quite soon. 4. The appellant's account was that he had indeed had a heated argument with the lady. According to him, it was he who had telephoned the police. He said that it was not true that he had run off and then returned; rather, he said, he was waiting outside peaceably for the policeman to arrive. According to him, he saw the policeman walking towards him. He moved in his direction in order to speak to him, perfectly peacefully, but the policeman pulled out his baton and CS canister, backed away and sprayed the appellant in the face. The appellant agreed that the policeman went to the ground. His contention was that that appeared to have been because the policeman had lost his footing. There had been, he said, no rugby tackle. He did accept that he had ended up on top of the policeman. He said that he did not know how he had come to be there. He denied punching the policeman. He said that he was upset once he was sprayed with the gas, but was otherwise not angry and perfectly peaceful. That clear issue was duly joined in the evidence of Police Constable Blackmore. 5. The first supporting officer on the scene was Constable Lynch. He arrived with a female officer, who seems to have taken no part beyond keeping other people from coming near, but he was joined a little afterwards by another officer, called Parry. PC Lynch said that when he arrived the appellant and PC Blackmore were both on the floor apparently struggling. That, it seems, was consistent with either the constable's account or the appellant's account. PC Lynch said that he took hold of the appellant and, with the help of PC Parry, who arrived soon afterwards, handcuffed him. PC Lynch's evidence was that the appellant reacted aggressively to their restraint. It was the appellant's assertion that PC Lynch had handcuffed him, whether deliberately or otherwise but probably deliberately, in a manner which was unnecessarily painful. Moreover, it was his assertion that PC Lynch and PC Parry had thereafter assaulted him, the appellant, by punching and kicking him in the back and face. 6. Counsel, when presented with those instructions, began to put them to PC Lynch, starting with the handcuffing. The judge interrupted the cross-examination to inquire what the relevance was. That is the first complaint in time which the appellant now makes. What was concerning the judge no doubt was that PC Lynch had given no evidence at all about what had happened between PC Blackmore and the appellant or how they came to be together on the ground at the time that he arrived. The judge asked the question in these terms: "Mr Jones, are the jury really concerned about the manner in which the handcuffs were applied?" There was a further exchange. Counsel for the appellant pointed out that the jury had had adduced by the Crown evidence that the defendant's reaction to PC Lynch had been volatile and had been to struggle violently. The judge then said that he did not know what the purpose had been of that either, and he turned to counsel for the Crown and asked what the purpose had been. Counsel for the Crown then said that the evidence of the appellant's reaction subsequently to PCs Lynch and Parry was relied upon as demonstrating that he was in an aggressive mood and thus that he had been aggressive to Mr Blackmore before PCs Lynch and Parry had arrived. 7. We agree that once the Crown put it that way, the questions about the handcuffing and the events between the appellant and PCs Lynch and Parry were relevant, and it seems that the judge accepted that also because, having received that explanation from counsel for the Crown and counsel for the appellant's explanation as to how that made the point relevant, the cross-examination thereafter proceeded and counsel was able to put the appellant's instructions. The judge did interject again at the point where it was suggested that one of the officers had reacted to the presence of the appellant's mother, who was perhaps making a protest or a complaint of some kind, by calling her a slag, by asking what on earth that had got to do with the charge. 8. It seems to us that at that point the judge was betraying impatience, and he certainly told counsel for the appellant, Mr Jones, to "get on with it", and a little later made an aside to the jury that the case would go into a second day. Mr Jones responded, if we may say so commendably tactfully but nonetheless effectively, by saying that he hoped that his honour would have some patience with him when he did, and thereafter he continued to put the remainder of the appellant's instructions. 9. The interchange and the display of impatience are regrettable. The judge's enquiry as to relevance is understandable, but we suspect that, if he were to see a transcript of the exchange, he would prefer to have expressed himself differently. It was the fact that the credibility of the second officer, PC Lynch, who was at this point being cross-examined, was of relatively small significance. The only evidence which he had given which went to any matter in issue was the appellant's behaviour some time after the incident with PC Blackmore which formed the subject of the charge. 10. When in due course the judge came to sum this aspect of the case up, he had to deal with this additional factor. The appellant having elected to advance the assertion that he had been ill-treated by the two subsequently arriving police officers, he had, perhaps realistically, put his own bad character in issue before the jury in evidence-in-chief. We say "realistically" because it may very well have been that if he had not an application may have been made by the Crown under section 101(1)(g) of the Criminal Justice Act 2003 . It followed that the judge had to give the jury a direction as to the relevance of the appellant's bad character. It is the fact that the appellant's convictions, although not very recent, were for offences of dishonesty, but also for assault occasioning actual bodily harm and, on a separate occasion, for assault on a police officer. As the decision of this court in Highton & ors [2005] EWCA Crim 1985 makes clear, once evidence of bad character is admissible through one of the new statutory gateways, then, whatever the occasion of the opening of the gateway, the evidence becomes material and relevant for any purpose to which it is relevant. The appellant certainly took the risk by the manner in which he chose to give instructions for the conduct of his defence that his previous offences were left to the jury on the basis that they established a propensity to violence. The judge, favourably to the defendant in this respect, and as it seems to us sensibly, decided to limit the relevance of the bad character evidence to the truthfulness of the appellant. He said this: "Ladies and gentlemen, moving on, another issue of law concerns the defendant's previous convictions. This has been given in evidence because he, you may think, gratuitously and unnecessarily, attacked the character of prosecution witnesses, Constables Parry and Lynch ... Where such an attack is made on the character of a prosecution witness you may think that it is only right in those circumstances you should know something about the person making the attack." We need not read the remainder of the direction, which was to limit the use to which the bad character evidence could be put to truthfulness or credibility. It contained an impeccable direction not to jump to the conclusion that he was guilty because he had previous convictions. We do not read it because no complaint is made about it; the complaint is made about the reference to gratuitous and unnecessary attack on the police officers. 11. At much the same point in the summing-up the judge directed the jury that it was trying the appellant on the charge of the assault on PC Blackmore and was not trying PCs Lynch and Parry on a charge of a suggested subsequent assault by them upon the appellant. The remedy for the latter if it had happened, the judge pointed out, lay elsewhere. He said this: "The reason that you have heard it [this evidence] ... was two-fold. First of all, it might be relevant to the credibility of Constables Lynch and Parry. But since they do not pretend to have seen the matter that you are trying, the alleged assault on Constable Blackmore, they do not pretend to have seen that. They gave no evidence, and never have alleged that they saw what happened in relation to that assault. Their credibility is not really a factor for you to consider. Secondly, I suppose their evidence could be relevant. The arrest could be relevant insofar as they say that Mr Pittard was struggling violently. Even on his version of events he had quite unnecessarily, quite unlawfully been himself the subject of an assault by Blackmore in that he sprayed CS gas into his face, having the very nasty effect that that has. You may think that a man like Mr Pittard, had he been subjected to that sort of unnecessary, unlawful attack by a police officer would not be in the best of humours and he would be struggling and shouting, and what have you. So I would ignore entirely what happened after the arrival of Constables Parry and Lynch, save to the effect that they arrested the defendant and took him to the police station." 12. The complaint which is made is that, in directing the jury in that manner, the judge was withdrawing from the jury the relevance of the evidence of the after occurring events and what has been referred to by Mr Jones as the animus of those two police officers. 13. It seems to us that what the judge was doing was advising the jury, contrary to the Crown's contention, not to treat any evidence of PC Lynch or PC Parry about the appellant's struggling upon arrest as any indication of earlier aggression by him at the time when they had not been there and only the appellant and PC Blackmore had. By the time of the arrest, as the judge pointed out, on any view the appellant had been sprayed in the face with CS gas, and if he behaved aggressively that could easily be the result of that, however it had come about. 14. It may very well be that the appellant feels strongly about what he says was the manner in which he was handled by PC Lynch and his colleague, but this was not a case, as some are, where what was asserted was a combination of police officers to give a false account of an incident in which some of them had assaulted the defendant. There was no suggestion that PC Blackmore had invented his account of the incident to which he was a party in order some way to back up PC Lynch or PC Parry. If that had been the case, the approach might well have been different, but it was not. Unless that was being suggested, the appellant's allegations against PCs Lynch and Parry were of the most marginal relevance, and we are unable to see what it had to do with whether PC Blackmore had been assaulted or not whether PC Lynch or Parry did or did not have an animus against the appellant. It perhaps too often happens that it is supposed by defendants that any complaint about one police officer will automatically help in his dispute with a different one about a different occasion; sometimes it does and sometimes it does not, but it does not necessarily follow. On the facts of this case, it seems to us that the judge was entitled to direct the jury in the manner in which he did. 15. The reference to the gratuitous and unnecessary attack on PC Lynch and PC Parry has therefore to be seen in the light of that direction which followed immediately after it. Once again, we suspect that if the judge were to see a transcript he would prefer not to have used the word "gratuitous", but we do not believe that the directions, taken as a whole, could have rendered unsafe the jury's approach to the real question in the case, which was whether the appellant had run at and rugby tackled the first policeman to arrive, or whether, on the other hand, the policeman had been aggressive towards him, had his baton and CS gas canister out, used the latter when the appellant was acting entirely peacefully and then somehow or other had fallen over. 16. The appellant also complains that, in asking the jury whether that latter sequence of events as asserted by the appellant was likely, the judge asked them whether, having seen what appeared to be a not very experienced but a fit and well set up young police officer, he was likely to have been frightened by a man just walking towards him to the extent that he had done what was alleged. It is suggested that the terms in which the judge did that were such as to belittle the defence. In relation to that complaint, we do not see any ground for it. The judge was properly formulating one of the questions, indeed the central question, which the jury had to confront. 17. There is next a complaint about the judge's summary in the course of the summing-up of the appellant's interview. Quite apart from any inherent improbability in the appellant's account, the evidence from his interviews given that night was that, although he had immediately said that he had been sprayed with CS gas before he reached the policeman, and also that the policeman had had his baton out and was gesturing with it from the outset, he had said frankly that he was in a temper that night as a result of the row with his former girlfriend and that he had adopted an aggressive stance towards the police officer. He had said "I might have got a bit aggressive with him". He went so far in his interview to say this. When asked how the officer got his injuries, he had answered that night: "I'm not too sure ... I remember approaching the officer who was walking down the walk. I wasn't backin' down to no-one. I didn't see him as an officer, don't get me wrong. I didn't see him as anything. By that stage I'd crossed over, I'd lost me temper. This girl had pushed all the right buttons and I'd lost me temper, yer know what I mean". There were a number of other similar remarks in the course of his interview. 18. The learned judge did not remind the jury of the passage which we have just quoted, perhaps the one most damaging to the appellant, but he did remind them that the appellant had said in interview that he admitted that he had taken an aggressive stance only because he pulled out a cosh. It may be that the judge could have added that the appellant had made it clear in interview that the policeman had had the cosh out from the outset, but, in reminding the jury as he did that what the appellant had said in interview was that he had taken an aggressive stance "only because he pulled out a cosh", it does not seem to us that the summary of the interviews can properly be stigmatised as unfair. 19. In the end, this was a case in which the jury saw the two principal witnesses, the police officer and the appellant, and also saw PCs Lynch and Parry. It heard the evidence of the appellant. The appellant called evidence of a forensic medical examiner as to injuries which he had undoubtedly had and which he attributed to mishandling by the later arriving police officers. 20. At a late stage in their retirement, the jury sent a note to the judge. The question which they asked, or to be more accurate at least one of them asked, was: "If we believe there was provocation but also that the defendant then assaulted the police, can we still give a guilty verdict?". The judge took the proper course. He provided the note to counsel and invited comments. On behalf of the appellant, Mr Jones submitted that the judge, whilst of course he must tell the jury that provocation was no defence, should also incorporate a further direction designed to remind them that they needed to be sure that they were able to accept PC Blackmore's evidence of the assault. The judge elected not to do that. He simply responded to the jury's question: "... provocation is not a defence to a charge of assault occasioning actual bodily harm" and asked them to retire and continue their deliberations. 21. It does not seem to us that the judge can properly be criticised for not at that point embarking on any kind of enquiry or direction aimed at provoking an enquiry into which part, if any, of PC Blackmore's evidence the jury entertained any doubt about; indeed, it seems to us that it would have been rather unwise for him to have embarked on any such enquiry. 22. Lastly, there were in this case some agreed facts reduced to writing in the approved manner as admissions. One of them was that the log in the police control room recorded a telephone call at 21:08 and 18 seconds from a mobile telephone number, which number was recorded and of which the last three digits were 175. It was a call from a man and the caller, who did not identify himself, said only that he was outside the house near where the incident had taken place and the connection was then broken. When he gave evidence, the appellant gave evidence that he had called the police. It was not something that he had ever said in his interview that night that he had done, but it was something that he said in his evidence to the jury. He asserted that he had made the call on a mobile telephone which he no longer had, and he said that, although he could not remember its number, the last three digits of the number were 175. 23. As Mr Jones realistically recognises, the question which arose in relation to that assertion was whether it was truthful or whether the appellant was taking advantage of the police log to assert that he had made the call, borrowing the number from the log. The complaint is that the judge declined to allow the written admission to be placed before the jury. Instead, what he did was to read it out in the course of his summing-up. 24. It seems to us that ordinarily, provided at least that the admissions which have been agreed between the parties are relevant to an issue before the jury and do not contain any material which they ought not to have, written admissions should be provided to the jury. The question, however, is whether the omission to provide the written document in this case affords any grounds for anxiety about the safety of the conviction. 25. First, as we have said, the judge read it out, but, secondly and more fundamentally, the relevant telephone call as logged by the control room was received there 41 seconds after the control room had been told by the officers on the scene that the appellant had been handcuffed and had previously been CS sprayed. It follows that this call could not have been the call that the appellant said that he had made; nor could the appellant have made this call because by then he was handcuffed and under arrest. The only remaining question about the evidence relating to the call is that the log is in these terms: "further call received". That might conceivably permit the enquiry whether there had been an earlier call from that telephone, but if there had been it would have been logged and there was no such log. 26. It follows that there is, as it seems to us, nothing in the complaint about the manner in which the admission was dealt with. 27. Mr Jones, who has put the appellant's case entirely realistically and skilfully, asks us to stand back from the various individual complaints and to ask whether overall the manner betrayed by the judge, and particularly a number of rather impatient interjections and the terms of the summing-up, taken together, were such as to step too much into the arena to the extent that the conviction is not safe. 28. We have undertaken that exercise because, as we have indicated, there are a number of respects in which we suspect the judge, were he to see a transcript, would regret the terms in which he expressed himself, but we are satisfied that this conviction is safe. The issue before the jury was very clearly put; they had quite contrary accounts of the two principal witnesses; they did see PCs Lynch and Parry and saw them cross-examined; they did hear the evidence of the forensic medical examiner as to the appellant's injuries; and they were told very clearly by the judge at a number of points that the facts were for them, and with more emphasis than mere formality required. 29. In those circumstances, despite Mr Jones' persuasive submissions, this appeal must be dismissed.

2006_07_27-889.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2028/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2028

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[2006] EWCA Crim 2312

EWCA_Crim_2312

2006-10-12

supreme_court

Case No: 2005/04469/C1 Neutral Citation Number: [2006] EWCA Crim 2312 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ISLEWORTH CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Thursday 12 th October 2006 Before : LORD JUSTICE RICHARDS MR JUSTICE SIMON and MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Paul Matthew Stubbs Appellant - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed

Case No: 2005/04469/C1 Neutral Citation Number: [2006] EWCA Crim 2312 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM ISLEWORTH CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Thursday 12 th October 2006 Before : LORD JUSTICE RICHARDS MR JUSTICE SIMON and MR JUSTICE WILKIE - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Paul Matthew Stubbs Appellant - - - - - - - - - - - - - - - - - - - - - (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) - - - - - - - - - - - - - - - - - - - - - Ian Winter and Selva Ramasamy (instructed by Cartwright King ) for the Appellant Robert Rhodes QC and Ben Compton (instructed by the Crown Prosecution Service ) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Richards : 1. On 27 July 2006 we dismissed the appellant’s appeal against conviction, stating that we would give our reasons in writing at a later date. These are the reasons for our decision. 2. The appellant’s conviction was for an offence of conspiracy to defraud. The conviction took place on 25 July 2005 after a trial before His Honour Judge Lowen and a jury at Isleworth Crown Court. A sentence of 5 years’ imprisonment was subsequently imposed. A co-accused by the name of Charanjit Purba was acquitted on the judge’s direction and was discharged. Overview 3. The Crown’s case was that the appellant had been involved in fraudulent money transfers from the HSBC Bank totalling about £11.8 million pounds. The ultimate beneficiary was a Spanish registered company which traded as Vasat Importacion SL. The fraudulent transactions were carried out using an online banking system called ‘Hexagon’ which had been set up by HSBC for corporate clients. 4. Bank accounts of five HSBC corporate clients were targeted between 23 July and 27 July 2002. Four of the attacks failed but the fifth, against the account of AT&T Wireless, was successful. On 25 July three money transfers, each of about £1.9 million, were made from the AT&T account to an account held with Barclays Bank in Leicester in the name of Advanced New Technologies Corporation Ltd. That money was then converted into euros before being transferred to a Vasat account in Madrid. On 26 July a further transfer of about £6.1 million was made from the AT&T account to Vasat directly. None of the money removed from the AT&T account was recovered. 5. Upon investigation it became clear that someone had altered the secure password for AT&T and that the new password had then been used to gain access to AT&T’s account and to carry out the fraudulent transfers. The Crown alleged that the appellant, in his role as password reset clerk at HSBC, had altered the password and that, by the use of the new password provided by him, a third party had accessed the AT&T account and transferred the money. The Hexagon system 6. Evidence concerning the operation of the Hexagon system was given in part through admissions and in part by the testimony of Mr Richard Roddy, an employee of HSBC. Objection was taken at the trial to the admissibility of important parts of Mr Roddy’s evidence. We will come back to the nature of that objection, which forms the central issue in this appeal. 7. The system was designed to give customers remote access to their accounts either by way of a read-only inquiry or so as to effect transfers to other bank accounts. An ‘installation key’ (in effect, a password) determined which of those functions were available. In order to use the system following installation a customer required, in addition to the installation key, three codes: (i) a customer delegate identification, which was a word of up to four characters; (ii) a customer delegate password, which was a six digit number; and (iii) a session password, which was a number that changed each time the user successfully logged on to the system: the user had to note the next session password before logging out of the system. The term ‘delegate’ referred to an authorised user of the system. 8. Hexagon staff consisted primarily of customer service representatives (CSRs), who took telephone calls from customers, answered general questions concerning accounts and offered advice on the use of the system. Technical issues were referred to a technical team. Each CSR had his own computer terminal and telephone, with his own user identification and password. In addition, to log on to what was called the ‘staff Hexagon application’ so as to make changes to the customer’s details, a CSR required a separate staff delegate identification and staff password. Every time a user logged on, a new session number was allocated by the system. Records of all activity were held on a central database. 9. There was, in addition, a small password reset team consisting of two clerks, of whom the appellant was one. The team had responsibility for resetting customer passwords through the staff Hexagon application, having specific rights of access for that purpose to the relevant password reset screens. A reset might happen, for example, where a customer had lost or forgotten his password. 10. The team was permitted to reset a customer’s password only after receiving and verifying a signed written request from one of the customer’s authorised signatories. When verification checks had been completed by the clerk, he would enter the customer’s account (using his staff delegate identification, staff password and staff session password) and make the necessary changes so that a new customer password could be issued. The changes were only effective, however, once they had been authorised by the team leader or deputy team leader, to whom a password reset coversheet would be submitted for that purpose. Once the changes were effective, the customer would be notified of the new password and the new session password. The fraud 11. The Crown’s case against the appellant related to a number of actions that were carried out while he was on duty as a password reset clerk just after 17.00 hours on 24 July 2002. 12. Between 16.50.33 and 17.00.13, the system was accessed under the staff delegate identification PWRD and six legitimate password resets were carried out. It was not in dispute that PWRD was the appellant’s delegate identification or that he had carried out those resets. He had initialled the password reset sheets ‘PS’. 13. From 17.00.54 attempts were made, again under the delegate identification PWRD, to reset the passwords of five corporate clients. The companies all began with the letter ‘A’ and included AT&T. The attempts involved a number of errors and were unsuccessful in relation to three of the companies, but the customer delegate passwords for AT&T and Alsthom Power were successfully reset. The activity in relation to Alsthom Power, which was the last of these five attempts, was timed at 17.07.21. The relevant activity ceased no later than 17.07.53. 14. Between 17.08.03 and 17.10.07 further activity was carried out under the delegate identification PWRD, consisting of one password reset (for Bay Bournemouth Hotels) and one check following on from a customer query about a password. The Crown accepted that this was legitimate activity and the appellant accepted that it was carried out by him. 15. The Crown’s case was that the activity carried out between 17.00.54 and 17.07.53 under the delegate identification PWRD, in common with the activity either side of that seven minute period under the same identification, was all carried out by the appellant. 16. At 17.20.25 the delegate identification PWRD signed out of the system. 17. The appellant signed the attendance record as finishing work for the day at 17.20 and apparently left the building. 18. At 17.27, however, the bank’s ‘NEDAP’ electronic security system recorded him as re-entering the building. (This system only recorded entry to the building and not exits from it.) 19. At 17.28.25 a person using the staff delegate identification TIFI logged on to the system and authorised the last three password resets made by PWRD, comprising the AT&T reset and the two last resets which were accepted by the Crown as legitimate. TIFI then logged out at 17.29.35. 20. The TIFI identification was that of Timothy Fisher, the deputy team leader of the Operational Department. On 24 July 2002 he was deputising for the operations team leader and had authority to authorise passwords although he did not routinely do so. He gave evidence that at the end of the working day the appellant asked him to authorise some amendments to customer passwords. The appellant did not have any paperwork in support of the amendment requests but confirmed that the amendments had been carried out using the staff Hexagon application. The appellant asked him to authorise the last three password changes that appeared on the authorising screen. Mr Fisher recalled that two of the customers were AT&T and Bay Bournemouth. He logged onto the system and authorised the changes. 21. On the subject of authorisations there was also evidence that Cheryl Moncur, the duty team leader, had dome some password reset authorisations for the appellant just before 17.00 hours. He then asked for help to be arranged for call-backs to customers in respect of the new passwords. She referred him to Dina Mistry, a CSR, who collected a number of his reset sheets and took them back to her desk. Ms Mistry noticed that a number of signature checks had not been done and therefore returned the sheets to the appellant, informing him that she was not prepared to carry out the call backs without signature checks. He did not appear to be very pleased. It took about 15 to 20 minutes from the time she first collected the sheets to the time she returned them. The evidence of Ms Moncur and Ms Mistry was also relevant to the presence of the appellant around the area of his workstation during this period, though it did not exclude the possibility of a short absence from his workstation. 22. There was evidence that at about 18.20 on the same day someone telephoned HSBC to ask for the installation key which would enable a user to obtain remote access to the Hexagon system. The call was answered, however, by a cleaner. 23. On the following two days, 25 and 26 July, AT&T’s account was accessed on a number of occasions using the new password that had been set the previous afternoon, and the various transfers to which we have referred were made. Although Alsthom’s account was also accessed on one occasion, a further attempt to access it was unsuccessful. It is unnecessary to recite the details of the activity relating to the two accounts. The Crown accepted that none of the activity occurred within HSBC itself or was connected to the appellant, but contended that the activity could not have occurred had the appellant not made it possible by changing the passwords. To enable remote access to the Hexagon system, someone must have provided the fraudster with the installation key; but again it was accepted by the Crown that this person could not have been the appellant. 24. It was alleged that the appellant’s co-accused Mr Purba, who worked for AT&T, had been a party to the conspiracy by assisting the fraudsters to prevent the transfers from coming to light within AT&T. As stated, Mr Purba was acquitted upon the direction of the trial judge. There was no evidence that the appellant had ever met or had any links with Mr Purba, or that the appellant had any connection with any of the money that was obtained or with any of the persons who may have received it or with any other person who may have been involved in the fraud, or that he had received any benefit from the fraud. 25. The case against him depended on proof that he had altered the password for AT&T, from which it could be inferred that he had done so in furtherance of a conspiracy to defraud. Internal investigations 26. By 30 July 2002 senior staff had been informed that AT&T had exceeded its overdraft limit as a result of money being paid out without its knowledge or consent, and an internal investigation was begun, headed by Mr Roddy. It became clear that four companies in addition to AT&T had been targeted although no money had left their accounts, and that unauthorised amendments had been made to customer passwords. 27. On 31 July 2002 the appellant attended a routine internal interview with Mrs King, the frontline service manager. He said that he could not recall resetting the AT&T password on 24 July 2002 and that he always left at 17.00. When shown the evidence from the electronic security system that he had returned at 17.27, he said that he had returned to collect his umbrella or something from his drawer. He was clear that neither Mr Fisher nor Ushi Praji, another member of operations, had authorised password changes for him. 28. On 5 August 2002 there was a further interview with Mrs King, this time in the presence of Mr Bolwell from the internal investigations department. On this occasion the appellant said that he could recall resetting the AT&T password and seeing a faxed instruction signed by one of the AT&T signatories. He confirmed that he always locked his workstation when leaving it unattended, although he occasionally allowed other members of staff to use it. He reiterated that he had returned to collect his umbrella at 17.27 and that it had been raining. When shown a still photograph from a CCTV camera outside an office a few minutes away which revealed that it was bright and sunny at the relevant time, he said that it could have been raining when he came to work the next day. He was suspended from duty on full pay. 29. At a third internal interview on 13 August 2002 the applicant was questioned by Mr Bolwell and another. He said that he had given a number of faxed instructions to Ms Moncur for authorisation. He denied talking to Mr Fisher on 24 July 2002. He did not like Mr Fisher and had only spoken to him on two or three occasions. He then accepted that he may have dealt with Mr Fisher, but said he must have had faxed instructions and that Mr Fisher was lying if he said otherwise. 30. Mrs King also interviewed Mr Fisher on two occasions on 5 August 2002. On the first occasion she noted that he recalled that two other employees had asked him to reset passwords but he could not recall authorising the resetting of the AT&T password at 17.29 on 24 July 2002. He named a number of employees who were in the vicinity at the relevant time. He said that resets could be explained by his having left his computer terminal unattended or allowing someone else to use it. In his second interview he said he now recalled the appellant giving him a number of passwords to authorise and he thought they included AT&T. He thought he had initialled the header to confirm authorisation. His explanation for his failure to mention all this in the first interview was that he had been on holiday and was interviewed on return with no advance indication of the subject matter. Since then he had thought of nothing else all day. Arrest and police interviews 31. Police arrested the appellant at his home on 15 August 2002. In his initial police interview he accepted that it was probably he, using the identification PWRD, who had changed the password of AT&T, but said that he had done this on the strength of supporting documentation. Initially he said that Ms Moncur had carried out the authorisations, but he then accepted that it might have been Mr Fisher. 32. In a second interview on 10 March 2003 he said that someone else must have been using his delegate identification. He reiterated that he had returned to the building on 24 July to collect his umbrella. He was unsure whether he had asked Mr Fisher to make the reset changes, but said that if he did it must have been when he re-started work at 17.27. The trial 33. At trial, objection was taken to the admissibility of important parts of Mr Roddy’s evidence on the basis that he lacked the expertise and independence to give the requisite expert opinion on the matters in question. Following a voir dire the judge ruled Mr Roddy’s evidence to be admissible and declined to exclude it under s.78 of the Police and Criminal Evidence Act 1984 or article 6 of the European Convention on Human Rights. That ruling is the subject of the first ground of appeal and is considered below. 34. Following the judge’s ruling, Mr Roddy gave evidence before the jury, covering inter alia the activity summarised above. 35. In relation to the operation of the Hexagon system, the Crown also adduced unchallenged evidence from Mr Alan Danbury, a computer expert who had been responsible for introducing the system into the United Kingdom in the early 1990s and who had managed the support team until his retirement in 2004. His evidence was that once a user was logged onto the system, the session remained live until that user logged off. Communication between the workstation and the mainframe was encrypted and the encryption code changed with each session. In addition, the session password changed after each log-off and the subsequent session password was known only to the delegate in question. The session data was a random number and could not be predicted; and to his knowledge the encryption code had never been broken in the 20 plus years it had been used. Targeting and hijacking a specific live staff session would in practical terms be impossible, because there were too many variables which could not be predicted and would need to be perfectly duplicated. 36. Other evidence for the Crown included that of Mr Fisher, Ms Moncur and Ms Martyn, together with the contents of the various interviews of the appellant. Reliance was placed on admissions made and lies allegedly told in those interviews. 37. It is also relevant to note that among a long list of formal admissions was a series of admissions relating to a previous fraud involving misuse of the Hexagon system. In early 2002 Mr Gurpreet Kareer, who worked as a CSR at the Hexagon call centre in Leicester, changed the passwords for four corporate clients of HSBC without the knowledge of the bank or the customers. He made those password changes on colleagues’ computers when they were left unattended, and the changes were left ‘pending authorisation’. An untraceable mobile telephone was then used to increase transaction limits and upload payments from those accounts. The total targeted was just under £5 million, though the sum actually obtained was only £64,000. In relation to those matters, Mr Kareer was suspended from his job in February 2002, pleaded guilty in January 2004 to conspiracy to defraud, and was later sentenced. He was at liberty between the date of his suspension and the date of his sentence. Moreover during that period, in August 2002, Mr Kareer requested another CSR with whom he had become friendly, Mr Ashish Patel, to provide him with the installation key and other information about the Hexagon system. Mr Patel, however, reported those matters to the police. There was no evidence of any connection between the appellant and either Mr Kareer or Mr Patel. 38. At the close of the prosecution case there was a defence submission that the evidence was such that it would not be safe for the matter to be left to the jury. The judge rejected that submission. That ruling is also the subject of a ground of appeal. 39. The appellant is a young man (now aged 25) of previous good character. He did not give evidence at the trial; and the judge gave a direction to the jury, about which no complaint is made, that it would be open to them to draw an adverse inference from his failure to give evidence. It is relevant to note, however, that there was some evidence that the appellant was of low intellect and vulnerable. There were concerns within HSBC that he might be dyslexic, and he had failed internal accreditation tests for employment as a CSR. Rather than dismiss him after he failed re-takes of the tests, the bank employed him in the lesser position of password reset clerk, a position for which he had asked to be considered. The grounds of appeal 40. There are four grounds of appeal, which may be summarised as follows: i) the judge erred in holding that the evidence of Mr Roddy concerning the activity carried out on the Hexagon system was admissible as expert evidence; ii) the judge wrongly failed to withdraw the case from the jury at the close of the prosecution case; iii) the judge erred in his directions to the jury in relation to the evidence of Mr Roddy, in that he wrongly passed the decision as to the admissibility of Mr Roddy as an expert witness from himself to the jury; and iv) there is a real and lurking doubt as to the safety of the conviction. The admissibility of Mr Roddy’s evidence 41. The objection taken at trial to the admissibility of Mr Roddy’s evidence related to only a part, though a vital part, of that evidence. It was accepted that he could give evidence about the set-up within HSBC and the manner in which the Hexagon system was designed to operate. It was contended, however, that his detailed account of the actual activity within the system at the material times (the input and resetting of passwords, etc.) amounted to inadmissible opinion evidence. The topic required expert evidence and Mr Roddy lacked the necessary expertise: he had neither qualifications nor experience in relation to the technical aspects of the functioning of computers. It was further submitted that Mr Roddy lacked the necessary independence to be an expert witness, in particular because of the commercially catastrophic effect of one of HSBC’s employees conceding on oath that the system suffered weaknesses or was open to attack in various ways. It was argued that the court should not allow the opinion evidence of such a person in respect of the operation and reliability of a computer system that he was in effect paid to defend. 42. The objection advanced had further detailed facets to it, extending for example to what Mr Roddy said about the proper functioning of the computer system and of the NEDAP security system at the material times. In the light of the way in which the case was presented on appeal, however, we think it sufficient to concentrate on the central points to which we have already referred. In any event we are satisfied that any additional matters could not assist the appellant if he did not succeed on the central points. 43. The evidence about Mr Roddy’s qualifications and experience was as follows. He had completed an A level and a City & Guilds qualification in computing and had then gone to Stafford University to study computer science. After two years, he went to work for HSBC and did not complete his degree. By the time of the trial he had been at HSBC for seven years, involved in the technical support for various e-banking products, starting with Hexagon and then managing and training the technical support teams. In particular, he had been a member of the technical team trained on the Hexagon system. He had become manager of the technical support team and then the helpdesk manager dealing with customer account issues. He had overall responsibility for both the technical staff and customer service representatives for the HSBC e-banking system. Although the evidence given on the voir dire was not in precisely the same terms as that subsequently given before the jury, the nature and limitations of Mr Roddy’s relevant knowledge were summarised in this way in the judge’s summing up (tr.12A-B): “… he conceded that he is not an IT specialist in any wider sense. He is not a programmer or a computer designer. And while technical problems would be solved by others, this is what he said really about his expertise, he said: ‘I’m good on how the system worked in practice’.” 44. The judge also heard on the voir dire from an acknowledged computer expert called by the defence, Mr Michael Turner, who said inter alia that he was unable to provide a report because of a lack of information: the appellant’s workstation had not been retained or imaged; there was no computer running the 2002 version of the Hexagon system which could be analysed; he had been provided with no information as to how the HSBC computers operated or produced the audit logs relied on by Mr Roddy; and he did not have the underlying data from which he could safely reach any conclusion. 45. In his ruling the judge pointed to the existence of a presumption as to the integrity of the computer system, in the absence of any evidence to raise the issue of reliability. He said that Mr Turner had assisted the court in appreciating what areas of evidence could not be addressed by Mr Roddy. He said that the test he was applying was that in R v Bonython [1984] SASR 45 . On the first basis of objection, Mr Roddy’s expertise, he stated: “I am satisfied that the operation of the Hexagon computer system is appropriate for expert testimony and could not be understood without it. And having heard Mr Roddy cross-examined on the voir dire, I am also satisfied that Richard Roddy has clearly demonstrated sufficient knowledge of the subject to render his opinion of value in resolving issues of fact which a jury in this case would have to decide. Whether a jury in the light of questioning of Mr Roddy would feel able to accept any opinion he may express will, of course, be a matter for the jury ….” 46. As to the objection relating to independence, the judge ruled that that was a matter going to weight and that the jury would be well able to discern the presence or lack of the qualities of impartiality, objectivity and integrity to which the defence had referred. 47. In challenging the judge’s ruling, Mr Winter took us to the activity reports in relation to which Mr Roddy expressed the opinions to which objection is primarily taken. The judge heard evidence on the voir dire to the effect that the activity reports presented in a readable format the data that had been taken from the central computer in electronic form by the IT support teams. Mr Winter accepted before us that he could not have argued that the material was not a proper representation of the primary data, even though there were some points on continuity. His criticisms were directed not to the activity reports themselves but to the evidence that Mr Roddy gave in relation to them. 48. Of particular importance was Mr Roddy’s evidence that the activity reports all related to the same session, which had the reference number ‘CC000051’ and had been registered to the staff delegate identification PWRD on the morning of 24 July 2002. A session number would be allocated upon a user’s log-on at a particular terminal. If all the transactions took place within one continuous session and there were legitimate transactions admittedly carried out by the appellant during that session just before and just after the illegitimate transactions, the prosecution could argue with force that the illegitimate transactions must have been carried out from the same terminal; and this also provided strong support for the argument that they must have been carried out by the appellant. 49. Mr Winter submitted that Mr Roddy did not have the expertise to give such evidence that the activity reports all related to a single session. The fact that they had the same number did not mean that it was a single session. There was evidence from the admitted expert, Mr Danbury, that concurrent log-ons (so as to target and hijack a live session) were not possible; but that left open the possibility of non-concurrent log-ons to the system under the same session number. This was something that Mr Roddy had not investigated and did not have the technical qualifications to investigate or to answer questions about. 50. Among the various points made by Mr Winter were these: i) The activity reports themselves do not show when log-ons and log-offs occurred. For example, they do not show the undoubted log-off by the appellant at about 17.20. This leaves open the possibility that he had previously logged off at about 17.00, just before the illegitimate activity. ii) There was no evidence about the appellant’s log-on in the morning. Further, although Mr Roddy said that the computer timed out if the session was idle for a period, the evidence was not clear as to how long it needed before a timed log-off occurred. One would have expected a timed log-off when the appellant left the appellant at lunchtime, but there was nothing to show whether there had been a log-off followed by a fresh log-on by the appellant after lunch. In short, there was simply no evidence about when or how the appellant’s CC000051 session was created. iii) Mr Roddy gave evidence that, once a session ended, the next session would not be given the same number again: the number reverted to a pool of numbers available to be allocated by the computer to new sessions. He said in cross-examination that there was a 1 in 100,000 chance of it being reallocated to a different session on the same day. Yet there was evidence of three instances the previous day in which session numbers had been reallocated to other sessions after discontinuance of the session to which they were originally allocated. Mr Roddy was unable to say how this could have happened. iv) There were other pointers to the illegitimate activity having been carried out by someone other than the appellant. The illegitimate activity involved a random attack on five companies beginning with the letter ‘A’, whereas the appellant would have known or could have discovered the primary delegate identification for all the companies and would not have needed to do things in this way. Moreover, on two occasions in the course of the illegitimate activity the user deployed a shortcut that was never used by the appellant in the course of his legitimate transactions. The vulnerability of the system to attack by members of staff was illustrated by the fraud perpetrated by Mr Kareer earlier the same year, involving as it did the use of other people’s terminals in their absence. 51. For all those reasons, submitted Mr Winter, Mr Roddy did not have a proper basis for saying that there was one continuous session and did not have the expertise to answer the questions raised by the defence on this issue. He was not qualified to give the evidence he did about the nature of the activity shown by the activity reports. His evidence should have been confined to telling the jury how the system was ordinarily designed to operate. A properly qualified expert should have been called to show how it did in fact operate and to say whether what was shown by the activity reports did form part of a single session. The defence were at the additional disadvantage that, because the data had not been properly secured, it was not possible for the defence expert to reach any conclusion on the subject. 52. A further strand of Mr Winter’s submissions concerned Mr Roddy’s independence. The implications for the bank if an operation moving £16 billion per day was vulnerable to fraud placed Mr Roddy, as an employee of the bank, under great pressure. He conceded that he might have been subject to a subliminal lack of objectivity in his task. He ought not to have been placed in this position. Expertise and independence go hand in hand. In this case Mr Roddy had neither quality, which created a truly dangerous situation. Without this part of his evidence, there would have been no case against the appellant. 53. In granting leave to appeal, the Full Court said that it had some concerns as to whether Mr Roddy’s evidence could truly be described as expert evidence. Having had the benefit of full argument, however, we are satisfied that the judge was entitled to rule as he did. 54. The judge said that he was applying the test in Bonython . There is no suggestion that he was wrong to apply that test. In Bonython it was said that there are two questions for the judge to decide: (1) whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible; and (2) whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court. 55. It is not in dispute that the judge was right to give an affirmative answer to the first question, holding that the operation of the Hexagon system was a subject appropriate for expert testimony. In our judgment he was also right to give an affirmative answer to the second question, holding that Mr Roddy had acquired sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court concerning the operation of the Hexagon system. This was an assessment properly made after hearing Mr Roddy’s evidence on the voir dire . The extent of Mr Roddy’s experience of the Hexagon system, as summarised above, enabled him to give valuable assistance on the interpretation of the data taken from the central computer and set out in the activity reports. It was accepted that he was not an IT specialist in any wider sense and that his technical knowledge of the system was limited. But this did not preclude his being regarded as an expert to the extent indicated by the judge. 56. There was no attempt to hide or downplay the limitations in the evidence that Mr Roddy was able to give. They were explored in depth in cross-examination, and both Mr Roddy and the Crown made important concessions. For example, as appears from the summing up, in the light of the evidence about the reallocation of session numbers, Mr Roddy “conceded that he could not say that the logon reference numbers served to identify a single session, on a single and particular workstation, by a single particular operator, because it clearly does happen that session reference numbers were being reallocated” (tr. 20A-B). Such matters were placed clearly before the jury. They were relevant to the question whether they should accept and place weight on Mr Roddy’s evidence, but they did not mean that it was wrong to treat Mr Roddy as an expert witness in the first place. 57. Likewise the judge was in our view right to hold that Mr Roddy’s position within HSBC, coupled with the importance of the case to HSBC, went only to the weight of his evidence and did not render such evidence inadmissible. 58. It was held in R v Gokal (judgment of the Court of Appeal, Criminal Division, 11 March 1999), in relation to the evidence of a prosecution investigator who was accepted at trial to be an expert, that the extent of his independence could go only to weight, not to admissibility. Mr Winter submitted that the position in the present case was materially different, in that Mr Roddy represented the victim of the fraud and there was also an issue concerning his expertise. He submitted that given the centrality of Mr Roddy’s evidence on the question whether the illegitimate activity had been carried out as part of the same session as the legitimate activity, it was important that any expert witness should observe the requirements laid down in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68, for example that the evidence should be seen to be the independent product of an expert uninfluenced by the exigencies of litigation. 59. We take the view that the differences between this case and Gokal are not material. Expertise and independence are separate issues, and we have dealt already with the question of Mr Roddy’s expertise. As to independence, we do not accept that his employment with HSBC and the importance of the case to HSBC disqualified him from giving expert evidence. Although he made a very fair concession about the risk of subliminal lack of objectivity, our attention has not been drawn to any feature of his evidence that could support a case of conscious bias or lack of objectivity. In any event it was a matter for the jury to determine whether there was any conscious or unconscious bias or lack of objectivity that might render his evidence unreliable. This was, as the judge said, a matter going to weight rather than admissibility. The circumstances did not warrant a refusal by the judge to admit the relevant parts of Mr Roddy’s evidence at all. 60. Accordingly we reject the first and main ground of appeal. The submission of no case to answer 61. One of the written grounds of appeal is that Mr Roddy’s evidence was unreliable and unsafe and that the judge should therefore have withdrawn the case from the jury at the close of the prosecution case. Mr Winter did not press that ground in his oral submissions. In our judgment it is unsustainable. Once Mr Roddy’s evidence was held to be admissible, the evaluation of that evidence was, as we have said, a matter for the jury. Notwithstanding the limitations in Mr Roddy’s expertise and knowledge, as explored in cross-examination, his evidence was capable of providing a proper framework for the other evidence led by the Crown; and the evidence as a whole plainly provided a case to answer. 62. As to the strength of the prosecution case, the submissions made by Mr Rhodes QC on behalf of the Crown were in our view compelling. They are relevant both here and in relation to the final ground of appeal, concerning the ultimate question of safety of the conviction. 63. Mr Rhodes invited the court to stand back and take a bird’s eye view of the facts. The appellant accepts that he reset passwords just before and just after the illegitimate activity and that he left work soon afterwards. His re-entry to work was recorded at 17.27. In interview he admitted that he did not know that it was recorded and he gave a story which hardened into an account of returning to get his umbrella. He said that the pavement was wet, but this must have been a lie: there was CCTV evidence that the conditions were dry. The relevance of the return to work was to be found in Mr Fisher’s evidence that at the end of the working day the appellant asked him to authorise three password resets, which he did without seeing the paperwork because he knew the appellant to be a password reset clerk and assumed that he would have carried out the necessary checks. The jury must have accepted Mr Fisher’s evidence although its veracity and reliability were challenged by the defence. So the appellant avoided his team leader, Ms Moncur, and went to Mr Fisher, ‘the weak link’. If the appellant simply came back for his umbrella, why did he ask for the authorisations? If, on the other hand, the request for authorisation came from someone other than the appellant, why did that person include one legitimate transaction (Bay Bournemouth) as well as the two illegitimate transactions? The appellant’s responses to such questions in interview were ‘all over the place’. Mr Rhodes also drew attention to the fact that faxes and cover sheets were found for the legitimate transactions before and after the illegitimate activity. The appellant suggested in interview that a fax had been received from AT&T, but none was found and there was unchallenged evidence that none was sent. 64. When assessing the appellant’s performance in interview, account must be taken of his low intellect, as Mr Winter stressed, and of his case throughout that he had no clear recollection of the day in question. But in our view that does not negative the force of the points made by Mr Rhodes by reference to those interviews. 65. Mr Rhodes submitted that it strained credulity even more to suggest, as the appellant had done, that someone must have taken advantage of his temporary absence from his desk (when he went off to do some photocopying) to carry out the illegitimate transactions. The fraud previously perpetrated by Mr Kareer was drawn to the attention of the jury, but Mr Kareer had logged on at other people’s terminals when they were away for a day’s training or for lunch. By contrast, it is unlikely that someone would use another person’s terminal during a short absence for photocopying when the period of that absence could not be known. 66. In the circumstances we have no doubt that the judge was right not to withdraw the case from the jury. The judge’s directions to the jury 67. In his summing up, the judge told the jury that there was a direction he needed to give them in relation to Mr Roddy “because he has been treated as an expert witness”. He explained the basis on which Mr Roddy fell within the category of expert witness, namely “because of his long experience in the specific work of providing to the HSBC Bank, who employed him, technical support”. He described the nature of Mr Roddy’s experience, reminding the jury that Mr Roddy had conceded that he was not an IT specialist in any wider sense but had said that he was good on how the Hexagon system worked in practice. The judge went on: “And it is, of course, for you to judge, having seen him, having heard him you will form an opinion as to the knowledge that Richard Roddy really has and how true it is that he says he knows the Hexagon system. It is a matter for you to judge the extent to which you feel able to accept him as a witness of expertise, but because he is an expert witness I need to give you a particular direction ….” 68. He then gave a direction in conventional terms as to the approach the jury should adopt towards expert evidence, stating inter alia that it was for the jury to decide whether to accept the opinions expressed by an expert witness. He referred next to the issue of Mr Roddy’s independence and in particular to the defence suggestion that because Mr Roddy was employed by HSBC he might be mindful of the bank’s need to represent to the world at large the integrity of the Hexagon system, and that his evidence or aspects of it might be skewed to achieve that end rather than be truly reliable. The judge also mentioned Mr Roddy’s acceptance of the risk of a subliminal lack of objectivity. He concluded: “Well, bear Mr Winter’s suggestions as to that in mind and give those the weight you think they deserve.” 69. It is contended in the grounds of appeal that the judge erred by directing the jury that they should satisfy themselves that Mr Roddy was an expert before relying upon him. This is said to have amounted to passing the decision as to admissibility from himself to the jury. In the development of the written argument, it is said that the directions fell between two stools. The judge did not direct the jury that he had ruled that Mr Roddy was an expert and that the only question was whether they found him sufficiently reliable to accept his evidence. Nor did he direct them that they could not accept any of his evidence unless they were sure that he was an expert. He directed them to consider how much of an expert he was and how much he could assist them. 70. In our judgment there was no misdirection by the judge. In particular, his statement that it was for the jury to judge the extent to which they felt able to accept Mr Roddy as a witness of expertise must be read in the light of the relevant directions as a whole. In those directions the judge made perfectly clear that Mr Roddy was an expert witness and why he had been treated as an expert witness. But he also made clear, as he was bound to do, that it was for the jury to decide whether to accept the expert evidence given by Mr Roddy and what weight to place on it. He did not pass to the jury his function of deciding whether and to what extent Mr Roddy was an expert witness. Nor did he fall between two stools. His approach might even be said to have been favourable to the defence, but in any event it involved no legal error. The safety of the conviction 71. Mr Winter put his personal weight behind a submission that, even leaving aside the criticisms of Mr Roddy’s evidence, the court should feel a lurking doubt about the safety of the appellant’s conviction. Mr Winter pointed to the underlying concerns arising out of the activities of Mr Kareer and the various matters in which the appellant himself could have had no involvement (including the obtaining of the installation key from someone within HSBC to enable remote access on the days following the password resets). He also pointed to the appellant’s youth and vulnerability and described him as ‘the perfect fall guy’ for someone else’s fraud. It was well known within HSBC that computers held audit trails and that protocols must be followed. If the appellant was guilty, he must have been prepared to engage in activity under his own identity in circumstances where he would have known that the records would reveal he had done so; and, without the supporting documentation, he risked a refusal of authorisation and immediate exposure. The audit trail was much more consistent with the rushed and error-strewn activity of someone using the appellant’s unattended workstation. Such a person would have had no concern for the audit trail it would leave and indeed might have wanted suspicion to rest upon one of the more inadequate members of HSBC’s staff. 72. It is of course true that there are points of this kind to be made in the appellant’s favour. But in our view such points were very much for the jury to evaluate, and no doubt they were put to the jury with the same skill and vigour as Mr Winter displayed in his submissions before us. On the other hand, there were many compelling points to be made against the appellant, as appears from the Mr Rhodes’s ‘bird’s eye view’ summarised above. This was a classic jury case. In our judgment there was a solid evidential basis for the jury’s decision to convict. We reject the contention that there is a lurking doubt justifying interference by this court. Conclusion 73. It was for the reasons elaborated in this judgment that we were of the clear view, at the conclusion of the hearing of the appeal, that the appeal should be dismissed.

2006_10_12-933.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2006/2312/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2006/2312

5bcd08e61692b1cb411475d12a02e357f5f8dd31164a4bd9cedebae5d2ce83cc

[2012] EWCA Crim 2564

EWCA_Crim_2564

2012-11-29

crown_court

Neutral Citation Number: [2012] EWCA Crim 2564 Case No: 2011 04741 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HHJ STEWART QC T20107516 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/11/2012 Before : LORD JUSTICE AIKENS MR JUSTICE ANDREW SMITH<BR> and HIS HONOUR JUDGE ROOK QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mohammed Haness Shabir Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2012] EWCA Crim 2564 Case No: 2011 04741 B4 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM BRADFORD CROWN COURT HHJ STEWART QC T20107516 Royal Courts of Justice Strand, London, WC2A 2LL Date: 29/11/2012 Before : LORD JUSTICE AIKENS MR JUSTICE ANDREW SMITH<BR> and HIS HONOUR JUDGE ROOK QC - - - - - - - - - - - - - - - - - - - - - Between : Regina Respondent - and - Mohammed Haness Shabir Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Stephen Wood (instructed by CPS Special Crime Division ) for the Respondent Mr Rodney Jameson QC (instructed by Shaikh Ayub ) for the Appellant Hearing date : 16/10/2012 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : I. Synopsis 1. The principle issue on this appeal against conviction, which we heard on 16 October 2012, concerns the admission of hearsay evidence when a witness asserts that he will not give oral evidence at the trial "through fear". It therefore involves both Chapter 2 of Part 11 of the Criminal Justice Act 2003 ("the CJA") and Article 6 of the European Convention of Human Rights (" ECHR"). The relationship between the CJA and a defendant's Article 6 rights have been extensively examined by this court and the Supreme Court in R v Horncastle [2009] 2 AC 373 . and were again considered by this court in R v Ibrahim <I> [2012] 2 Cr App R 32 </I> and, even more recently, in R v Riat, Doran, Wilson, Clare and Bennett. <I> [2012] EWCA Crim 1509 . </I> At the conclusion of oral argument on 16 October we announced that the appeal against conviction on counts 1, 2 and 3 would be allowed, for reasons that we would hand down later. These are our reasons to which all members of the court have contributed. 2. The appeal arises from the conviction on 3 August 2011 of Mohammed Hanees Shabir, now 28, of four offences, following a trial before HHJ Stewart QC and a jury in the Crown Court at Bradford. That trial took place after one before HHJ Goss QC in February 2011 had been abandoned. On 3 August 2011 the appellant was convicted of attempted murder (count 3), possessing a firearm with intent to cause fear of violence (count 1), having a firearm with intent to commit an indictable offence (count 2) and assault occasioning actual bodily harm (count 5). For those offences he was sentenced to a total of 20 years imprisonment. 20 years imprisonment for attempted murder; 5 years concurrent for each of the firearm offences and 6 months concurrent for the assault charge. 144 days spent on remand was to count towards sentence under <I>section 240 </I>of the CJA. Counts 1,2 and 3 arise out of a shooting incident in Bradford on 24 September 2010. Count 5 arises out of an incident the following day. 3. The appellant was acquitted of two other charges, one of possessing a firearm and one of attempted kidnap. Those allegations arose out of the second incident. 4. There were two co-accused, Mohammed Aqib and Mohammed Asim Khan. They were both convicted of assault occasioning actual bodily harm and acquitted of attempted kidnap. Those offences also concerned the second incient. Aqib was sentenced to 2 years imprisonment less time spent on remand. Khan was sentenced to 2 ½ years imprisonment less time spent on remand. II. The facts giving rise to the charges. 5. The sequence of events began on 24 September 2010. The appellant and two friends were at some car-hire premises in Nelson Street, Bradford. Quasir Rafique ("Rafique"), then aged 24, who was later to be the victim of the attempted murder, arrived with a friend at the same premises. There was a confrontation between the appellant and Rafique. The incident, which was not particularly serious, was recorded on CCTV. Witnesses present were unanimous in blaming the appellant for starting the altercation. They said that the appellant threatened Rafique and that the appellant said that he knew where Rafique lived and that he was going to come and "get" him. 6. Later that evening Rafique drove to Summerville Road in Bradford, which is a meeting place for young Asian men. There he met a number of friends. At about 9.25 pm, a gunman appeared and chased Rafique, saying he was going to kill him. Rafique ran to a Lexus car, where the witness Wasim Riaz was in the driver's seat. Rafique jumped into the car. As the Lexus set off the gunman fired a shot which penetrated the nearside front door of the car, but struck a brace in the door and lodged there. The forensic evidence established that it was a 9 mm calibre bullet. As already noted, these events gave rise to counts 1,2 and 3. Counsel for the appellant accepted at the trial that there was ample evidence from which a jury could conclude that the gunman intended to kill. 7. In the early hours of the following morning Rafique gave a statement to the police concerning the events of the previous day. He said that he had recognised the gunman immediately as being the appellant. Rafique also said that he had known the appellant for years, that the appellant had forced him to steal from the Tesco's store where Rafique had worked at the time and that the appellant had also made Rafique engage in drug dealing. Rafique said that the appellant had began to threaten to shoot him and his family because he refused to continue to do the appellant's bidding in relation to drugs. This culminated in the incident in Summerville Road. 8. After Rafique made this statement, he went home. Later that morning, ie on 25 September 2010, Rafique was asked by his father to take his car to be washed at a car-wash called Dr Sponge, which is in Whetley Lane, Bradford. There Rafique was assaulted and received a bloody nose. He said the assault was carried out by the appellant and the two co-accused, who had all arrived in a Golf car, driven by Mohammed Asim Khan. Rafique said that the appellant hit him with the butt of a pistol held in the appellant's hand. Rafique went home and immediately complained of an assault by the appellant and the two co-accused. These events gave rise to count 5 (and the two counts of which the appellant was acquitted). Rafique made a second statement shortly after this incident. He described the events as summarised above and he referred to the appellant as "Hanees Shabir, the same guy who shot at me last night". 9. The appellant was arrested soon afterwards, whilst driving the Golf car. An unfired 9 mm short calibre cartridge, capable of being fired was recovered from the Golf. However, the forensic scientists could not say whether the cartridge fired into the Lexus and that recovered from the Golf had been loaded into the same magazine or chambered in the same firearm. There was no DNA or fingerprint evidence on the cartridge recovered from the Golf. The appellant's clothing was examined and some blood was found on it. Samples were tested and each matched the DNA profile of Rafique. 10. The appellant gave a "no comment" interview. 11. Subsequently there was a VIPER identification procedure on 27 October 2010 and the appellant's image was one of those displayed. At that Rafique identified the appellant as the man who attacked him with a gun and fired a shot at the Lexus in Summerville Road on 24 September 2010. Rafique said that he recognised "Number 6 as Hanees Shabir". It appears from the written submissions of Mr Jameson QC in opposition to the application to adduce Rafique's statements under section 116 of the CJA that the two men knew each other. However, that was not an agreed fact at the second trial. 12. There were four other eyewitnesses to the shooting in Summerville Road. They were the driver of the Lexus, Wasim Riaz; Sohail Mohammed, who had been in the Lexus but was left behind at the scene because the Lexus drove off before he could get back into it; Tauseef Mahmood, who was a passenger in the Lexus as it drove off and, lastly, a man who was known only as "Witness E". Wasim Riaz and Witness E said in their statements that they did not recognise the gunman. Sohail Mohammed and Tauseef Mahmood made statements in which they said that they had seen the gunmen before, that he was a well-known local drug dealer and that his name was "Hanney" or "Hanny". 13. At the VIPER identification procedure in which the appellant participated, none of these four eye witnesses identified him. In evidence at the trial both Sohail Mohammed and Tauseef Mahmood gave evidence that a man they called "Hanny", who they said was the gunman, was not on the ID parade. The witness E did not give evidence. As he was not identified, his statement could not be admitted under the "hearsay" provisions of Chapter 2 of Part 11 of the CJA 2003. See <I>section 116(1)(b), R v Mayers [2009] 1 Cr App R 30 </I>and <I>R v Riat [2012] EWCA Crim 1509 </I>at [13]. III. The History of the proceedings up to the second trial: (A) Rafique's statements 14. As already noted, Rafique gave statements very shortly after each of the two incidents. In the first, which was given in the early hours of 25 September 2010 immediately after the Sommerville Road incident, he identified the appellant as the gunman. He described the appellant as an Asian male, very thin, aged 26 years, about 5feet 10 inches tall, having short black hair with short back and sides and being unshaven with a rash on his neck and by his ears. Rafique said also that the appellant was wearing black training shoes, black plain tracksuit bottoms, a plain black hooded top with a hood and black leather gloves. Rafique ended his first statement as follows: "I am willing to go to court and give evidence about this incident. I am frightened about what he might to do to me and rang ( sic ) family but now enough is enough". 15. The second statement was given on 25 September 2010, after the car-wash incident. In that statement Rafique said (on page 2): "I said in my last statement how I know Hanees and I know him as Hanny". In fact Rafique had not said in his first statement that he knew the appellant as "Hanny". In the first statement Rafique always referred to the appellant as "Hanees" or "Hanees Shabir". Rafique said in his second statement that "Hanny" had two gloves on, which were the same as the previous night, being "black leather, light fitting, like a golfer's glove". (B) The First Trial before HHJ Goss QC 16. At the first trial before HHJ Goss QC, Rafique, who was by then a serving prisoner, attended to give evidence on 24 February 2011. It became clear that Rafique was equivocating in his answers to questions from counsel for the prosecution, Mr Wood. Mr Wood then (in the presence of the jury) put Rafique's two statements to him and asked him if he remembered making them and Rafique replied "No, I can't remember". Mr Wood then, in the absence of the jury, applied to the judge that he be allowed to treat the witness as "hostile". Both Mr Jameson QC, counsel for the appellant, and counsel for the co-accused Khan, pointed out to the judge that the consequence of permitting that course would be that the jury would be asked to consider these serious charges on the basis of hearsay evidence (in the two statements) They would become evidence under <I>section 119 </I>of the CJA. that had just been disavowed by the maker. Judge Goss ruled that Rafique should be treated as a hostile witness, so that he could be cross-examined by the prosecution on the two statements that he had given. 17. Rafique then continued his evidence. He said, in relation to the drug selling some years ago, that although he had thought that he was selling drugs for the appellant, in fact it was not him; it was someone else. Rafique also said that "at the time I got shot I thought it was Hanees, but it was not Hanees Shabir". He said that he had thought about that in prison and concluded it was "not Hanees". Mr Wood specifically asked Rafique if, at the time, he had been threatened by the appellant or whether he was now frightened of the appellant or his friends. Rafique answered "no" to those questions. However, Rafique then said, more than once, that he did not wish to carry on giving evidence. At the end of the morning the court adjourned and Mr Wood indicated that he had "some misgivings as to what is said to be the mental health of this witness". Arrangements were made for Rafique to continue his evidence the following day by television link. 18. Rafique did so the following day. Mr Wood put to Rafique portions of his statements about the two incidents. Rafique confirmed that he had made the statements and, for the most part, he confirmed that in doing so he was telling the truth. However, he denied that it was the appellant who had been the gunman in the Summerville Road incident, saying that he had previously thought the gunman was "Hanees" but, in fact, it was not him. However, Rafique did accept that the description that he had given in his first statement was that of "Hanees". Transcript of 25 Feb 2011 lines 17-18. Rafique also accepted that in his second statement he had identified the appellant as being in the Golf at the car-wash incident. He also said "I thought it was Hanees, but it wasn't Hanees". Rafique accepted that he had identified the appellant at the VIPER identification procedure, but he said that he did so because the person "looked like him". He denied that he picked out that person because it was the person that had shot at him in Sommerville Road or who had attacked him at the Dr Sponge car-wash. 19. At the end of the examination in chief it became known that Rafique's mental illness had previously been diagnosed as paranoid schizophrenia. The judge took the decision to stop the trial in order that there could be further investigation of Rafique's mental state. It transpired that Rafique had been first treated for psychotic experiences on 2 March 2009 when he had been admitted to hospital under section 2 of the Mental Health Act 1983. Rafique had been released subsequently and, to some extent, treated in the community. 20. There is one further matter to note about the first trial, which concerns Witness "E". He had given a statement to the police on 3 November 2010. There are now two versions of the statement; one is the original and is "unredacted" and the other is "redacted". We set out below various matters as related in the "redacted" version. This describes how E saw events in Summerville Road in the evening of 24 September. He said he saw a man, described as Asian with "moderate skin colour", about 18 to 23 and of skinny build, wearing a baseball type cap with the peak, apparently made of leather, standing in the middle of the road and acting aggressively. E said that this man took out an object, which E later identified as a gun, from the boot of a car, then approached another car and fired a shot. E then called 999. E said that he had never before seen this man nor any other of the men involved in the incident and he had not seen them since. 21. It appears that the prosecution had not intended to call E as a witness, but appreciated that his statement might give assistance to the defence or undermine the prosecution case, so that there was a statutory obligation to give disclosure of it. During the first trial there was an ex parte hearing before HHJ Goss QC, in which the prosecution sought permission to serve on the defence a "redacted" version of the statement, in which the witness would be referred to only as "E" and various portions of the "unredacted" version would be removed. We were informed by Mr Wood that, at this application, Judge Goss had the unredacted version of E's statement before him and that he heard evidence from a policeman on oath. He also told us that Judge Goss did not hear any submissions from defence counsel before or after the ex parte hearing, but that the judge knew that the defence opposed the grant of any order to redact the statement or make the witness anonymous. Judge Goss gave permission for the redacted version of the statement, by a witness called only "E", to be disclosed to the defence. 22. We have not seen any transcript of the ex parte hearing before Judge Goss or of his ruling, so we do not know the precise basis on which the order was sought or made. If the position was, at the time of the application, that the prosecution did not intend to call E as a witness, then it is difficult to see how the order could have been made pursuant to section 86(2)(a)(i) of the Coroners and Justice Act 2009 ("CAJA 2009"), which gives the court power to withhold the name of a "witness" if the three conditions set out in section 88 of the CAJA 2009 are fulfilled. There are two difficulties (at least) in this having been an order under section 86(2)(a)(i) of the CAJA 2009. First, a "witness" is defined in section 97(1) as "any person called, or proposed to be called, to give evidence at the trial or hearing in question" in any criminal proceedings. E was not in that position at the time the application was made. Secondly, if the prosecution had decided, at the time of the application, not to call E as a witness, then Condition C (set out in section 88(5) of the CAJA) could not have been satisfied either. That "Condition" is that "the importance of the witness's testimony is such that, in the interests of justice the witness ought to testify…". We assume, therefore, that this order was made following an application that the prosecution could be relieved from the obligation of giving full disclosure of E's unredacted statement, on grounds of Public Interest Immunity (C) After the first trial. 23. Dr Kumal Kala, consultant psychiatrist, who had reported on Rafique's mental state in December 2010, was asked after the first trial to prepare a further report on, amongst other things, Rafique's mental state on 24 and 25 September 2010 and his current mental state. Dr Kala interviewed Rafique for 2 hours in HMP Doncaster on 23 March 2011. In his report dated 28 March 2011, Dr Kala concluded that Rafique's mental state in September 2010 was "marked with mental illness" but at that time he was taking illicit drugs and appeared to have been intoxicated with alcohol and "substances". Dr Kala commented that "illicit drug use can often result in precipitating relapses of psychotic illnesses such as schizophrenia and schizoaffective disorder." However, Dr Kala concluded that it was difficult for him to comment much more on Rafique's mental state as at 24/25 September 2010, because of Rafique's reluctance to disclose more details about his circumstances at the time. 24. Dr Kala summarised Rafique's current mental state as follows: "[it] remains marked with persecutory and paranoid delusions, occasional grandiose delusions, occasional irritability, psychomotor agitation during periods of elation or retardation during depressive illness….he displays reasonable insight into his current mental state, his diagnosis and the need for treatment". Report para 5.13. IV. The second trial: (A) the application to admit Rafique's statements under s.116 CJA 25. The second trial, before HHJ Stewart, started on 18 July 2011. Rafique was due to give evidence that day. In the judge's ruling on the admission of Rafique's statements as hearsay evidence, given on 21 July 2011, he says that Rafique had that day refused to get into the prison van to bring him from Wolds prison, where he was awaiting trial or sentence. However, two police officers DC O'Keefe and DC Oxley visited Rafique "in the cell" Ruling transcript page 9 line 36. It is not clear whether this “cell” was at Wolds prison or at Bradford Crown Court. on 18 July 2011 and spoke to him. They took down a statement from Rafique which was read to him and he signed it. In that statement Rafique said that the statements he had given to the police at the time of the incidents of 24 and 25 September were "true and factual". 26. Rafique's statement of 18 July 2011 continued: "I am providing this statement to say that I cannot go into court to give my evidence. The reason for this is that I am terrified of going into court. There are three people on trial who could go to prison as a result of my evidence. They are Mohammed Asim Khan who I know as "Beasty", his brother Mohammed Aquib and Mohammed Hanees Shabihir. I am very frightened of these people. I am in fear of what they will do to me when I get out of prison and return to the area where I live. They also know my family and I am scared of what they will do to my family. When I say I am scared it is because I believe physical violence will be used against me or my family. I am currently serving a prison sentence and have been at that prison for about two months. While there several people have approached me and called me a grass. Several times I have been threatened with violence while there. Before I moved to my present prison I was at Doncaster. While at Doncaster I was assaulted on three occasions. While being assaulted I was again called a grass. On each of those occasions I informed the staff at Doncaster prison. I do not wish to say anything else about this case". 27. In the light of this statement, the prosecution made an application to adduce Rafique's two statements (of 25 September 2010) as evidence, without calling Rafique as a witness, pursuant to section 116(1) and 116(2)(e) of the CJA. These, together with section 116(3) and (4) provide: "116 Cases where a witness is unavailable (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, (b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— ……………. (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (3) For the purposes of subsection (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard – (a) to the statement's contents, (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), (c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and (d) any other relevant circumstances. " 28. The defence opposed the application, so the judge decided that there must be a voir dire to hear evidence before he determined it. In order that the court could have an up to date opinion on Rafique's mental state, he was interviewed by Dr Andrew Cobb, a police surgeon and psychiatrist, for 26 minutes in the Bradford Crown Court cells on 19 July 2011, with a detention officer "in close proximity". Dr Cobb prepared a short manuscript statement after this interview and he gave evidence on the voir dire. The statement records that Rafique said that he did not want to give evidence because there were people who wanted to hurt him, whilst at the same time denying that "any defendant" would want to harm him and volunteering that "they have got the wrong people". Dr Cobb's conclusion in his statement was that Rafique was "to a degree" paranoid, depressed and fearful, "that fear being a reasonable response to proven events which represent ongoing threats to his safety. The paranoia and depression does not in itself ( sic ) make him unable to undergo ordinary court processes". (B). The voir dire 29. The two officers who took the witness statement from Rafique gave evidence in the voir dire. DC O'Keefe's evidence was that he and DC Oxley visited Rafique in "the cells". DC O'Keefe said that he told Rafique that "he had come to see him to ascertain his state of mind as to giving evidence. How he felt about going into court". DC O'Keefe said that he told Rafique that he was interested in taking a statement and that Rafique agreed to provide one. DC O'Keefe is recorded by the judge as giving evidence that he told Rafique that "his original statement may be read out". The judge's recital of DC O'Keefe's evidence in chief then continues: Page 10 of the transcript of the ruling on the application. "I [ie. DC O'Keefe] asked for a statement about whether he wanted to make a statement as to why he did not wish to give evidence. He gave reasons why not, he did not wish to give evidence and what his fears were. I asked him whether his witness statement was true. He said it was true. He said he was frightened to give evidence…..I showed him the witness statement I took from him. He wanted me to read it. He signed it. He said he was happy with it. I never said his witness statement would be read. I was with him for 25, about 20 to 25 minutes". The judge also recorded that DC O'Keefe stated that he did not note down the questions put to Rafique or his answers, but the statement was prepared after Rafique had answered all questions, so that they knew what he wanted to say. 30. We were informed by Mr Wood that DC O'Keefe "asked for a statement about whether [Rafique] wanted to make a statement as to why he did not wish to give evidence" as a result of what DC O'Keefe had been told by the prison authorities about Rafique's attitude. We were given no further details. DC O'Keefe was cross-examined by Mr Jameson QC, counsel for the appellant. Mr O'Keefe said that he informed Rafique that "his statement may be read". Mr O'Keefe also said that he was as sure as he could be that it was the appellant and his co-accused of whom Rafique was frightened. 31. Dr Cobb's evidence was, effectively, the substance of the short report that he had prepared after the interview on 19 July 2011. He said that Rafique had the ability to instruct lawyers, to understand the court process and to make balanced judgments. Dr Cobb also said that Rafique told him that he had asked the police what would happen to him if he did not testify and that he [Rafique] was considering the consequences. Dr Cobb said that in his examination of Rafique he did not see anything which would enable him to conclude that he was not a reliable source of information. 32. Rafique himself did not give any direct evidence on the voir dire. 33. In argument, Mr Jameson QC, on behalf of the defendant, advanced seven reasons why Rafique was not capable of being demonstrably a reliable witness and/or that his evidence could not be properly tested or assessed. (C) The judge's ruling on the admission of Rafique's statements under s.116 CJA 34. In giving his ruling, Judge Stewart first described the history of the proceedings, including the first trial before Judge Goss. The judge said that his reading of the transcripts of Rafique's evidence before Judge Goss was that "he was terrified of giving evidence, which in particular implicated [the appellant] in the events of 24 th and 25 th September. I can best describe my impression of [Rafique] as a rabbit in headlights". Transcript page 5 lines 12-15. This was, the judge said, exemplified by Rafique's attempts to deflect questions by giving answers like "I can't remember". Judge Stewart noted that Rafique had first told the police that he had been shot by Haness Shabir but that, after the "car-wash" incident, the police log indicated that Rafique told the police that he had been attacked "by the same man who shot him in Summerville Road". The judge continued: "[Rafique] identified that person as Asim, otherwise known as Beastie, a close friend of Shabir…". The judge said that if that was a change (which would be a matter for evidence), then "it was explicable by Rafique suddenly realising the impact of what he had said". Transcript page 17 lines 12-14. The judge then referred to the report of Dr Kala in which he had recorded that Rafique had said he was reluctant to disclose details relating to the appellant (and the other co-accuseds) because he was fearful of reprisals by them. 35. The judge next set out extracts of Rafique's statement of 19 July 2011, recounted the evidence of DC O'Keefe and DC Oxley in the voir dire and referred to the evidence of Dr Cobb, all of which we have already referred to above. The judge concluded Transcript page 13 lines 20-22. that the effect of Dr Cobb's evidence and of Dr Kala's report was that "…Qaiser Rafique is perfectly capable of being a reliable source of information". Later in his ruling, the judge held that Rafique was capable of being a reliable witness Transcript page 16 lines4-5. . 36. The judge then examined the arguments advanced by Mr Jameson in opposition to the admission of Rafique's two statements. In relation to the other four eye witnesses, the judge surmised that their failure to identify the appellant at the VIPER procedure "could be explicable by fear, just as is Qaiser Rafique's reluctance to give evidence in this case". Transcript page 16 lines 10-11. He said that their witness statements "describe [the appellant] in detail, both as to name and as to what he was wearing at the time". In dealing with Mr Jameson's submission that Rafique's evidence could not be properly tested or assessed, the judge said that this could be dealt with by directions to the jury. His ruling continued: "However, the problems which the defence of [the appellant] encounter are, if the witness is in fear, which I find he is, due to [the appellant's] behaviour, and are therefore to a large extent self-inflicted. The interests of justice which I am obliged to consider apply equally to the prosecution as to the defence". Transcript page 17 line 21 to page 18 line 2. 37. The judge said that, in accordance with Judicial College guidelines, he would not tell the jury that the reason that the statements were read was because the witness Rafique was "in fear". Transcript page 18 lines 3-5. (D) Ruling on the disclosure of the identity of the witness E. 38. On 26 July 2011, Mr Jameson applied to the judge for an order that the identity of the witness E be disclosed to the defence. Judge Stewart read a copy of the redacted version of the statement of Witness E. There is nothing in the transcript of this application to suggest that Judge Stewart had read or had seen the unredacted version. He described Judge Gross's order as a "provisional ruling" and he invited Mr Jameson to make submissions as to why it should not be made a "final" ruling. The judge said that he was reluctant to order that E's identity be disclosed because, first, an order (for withholding the identity) had already been made, and, secondly, because an order to disclose E's identity might result in him being "very fearful". He also said that Judge Goss "obviously had a very good basis" for making his ruling on anonymity and that he was not, at present, prepared to overrule it. The judge accepted that, if the witness remained anonymous, then his statement could not be read to the jury, even though, on the face of it, it might assist the appellant. 39. At the end of submissions in open court the judge ruled that he had "made [his position] abundantly clear" and he was not prepared to reverse Judge Goss's anonymity/Public Interest Immunity ruling "for the moment". The judge said that he would give the prosecution a short adjournment to consider the position in the light of his ruling. (E). Ruling on application to treat the witnesses Sohail Mohammed and Tauseef Mahmood as "hostile". 40. On 27 July 2011 Judge Stewart ruled on the prosecution's application to treat the witnesses Sohail Mohammed ("Sohail") and Tauseef Mahmood ("Tauseef") as "hostile". In relation to Sohail Mohammed, the judge compared what the witness had said in his statement to the police and what he said in his oral evidence in chief. In his statement to the police, Sohail had said that he had seen a man he knew as "Hanny" chasing Rafique down Summerville Road with what looked like a 9mm handgun in his hand. In his oral evidence he said that he had heard the name "Hanny" from others and he did not identify the gunman as "Hanny" or the appellant. The judge said he concluded that this witness "had a hostile animus towards the Crown", in particular in relation to identifying the gunman. 41. The judge made the same comparison between the statement to the police of Tauseef Mahmood and his oral evidence at the trial. In his witness statement he had identified the gunman as someone he knew as "Hanny". In his oral evidence he said that he did not recognise the gunman and so contradicted his witness statement in stark terms. 42. The judge ruled that, in relation to each of the two witnesses, the prosecution could cross examine on those parts of the witness statement which related to the identity of the gunman, whom the witnesses had described and referred to as "Hanny", which was a name that had been given to them by Rafique. The consequence of this ruling was that if the witnesses admitted making their written statements then those statements would become evidence of the facts stated therein even if they did not admit their truth in oral evidence: see section 119 of the CJA. If they did admit the truth of parts of their written statements that were put to them then that would be part of their oral evidence given in the trial. In the event, both Sohail and Tauseef said in their oral evidence that they did not recognise the gunman and gave a description that was different from that given in their statements. (F). The agreed facts concerning Rafique 43. Various facts about Rafique, in particular concerning his mental health history and his criminal record, were agreed and placed before the jury. Rafique's record included offences of assault on a constable and racially aggravated harassment as well as being in possession with heroin with intent to supply and concerned in the supply of both heroin and cocaine. The facts referred to the fact that Rafique had been first diagnosed with paranoid schizophrenia in November 2010 and that a Mental Health Act assessment on 5 October 2010 had indicated that there was a concern for the safety of others because Rafique had "many convictions for violence and presented as an extremely volatile and aggressive young man". Prison medical notes of 14 January 2011 were to the same effect and indicated that he may need to be considered for a "hospital transfer". The agreed facts also referred to Dr Kala's report and the fact that Dr Cobb had interviewed Rafique on 19 July 2011, although details of the interview were not given. The agreed facts also stated that Rafique had started work at Tesco's on 11 March 2006 as a customer assistant in the checkout department and that he had been summarily dismissed on 11 November 2006 for colluding with others to obtain stock without making payment. (G) The summing up 44. We need only deal with those parts of the summing up which concern Rafique's evidence, because that is the only aspect of the judge's summing up which is the subject of criticism by the appellant. The judge warned the jury of the potential risks of relying on a statement of a witness "who you are not able to assess", particularly someone with both a criminal record and mental health issues, which were relevant to his credibility as a witness. Transcript page 10 lines 1-4. The judge identified for the jury evidence which was "capable of confirming the accuracy of what [Rafique] said about each incident". Transcript page 11 lines 17-21. The judge identified five topics which he said were capable of confirming the accuracy of Rafique's statement as to the shooting incident. He referred to the incident at the car-hire premises before the shooting in Summerville Road; the provenance of the bullet found in the Lexus's door and the fact that a live cartridge was found in the Golf which the appellant was driving when arrested; the fact that gloves were found in the glove compartment that were similar to those described by Rafique as being worn by the appellant at the shooting and the car-wash incidents and that Sohail and Tauseef had also said that similar gloves were worn by the gunman. 45. The summing up then continued: Transcript page 13 lines 9-14. "…the witness statements of Sohail and Tauseef, both of which indentify Shabhir as the gunman wearing gloves, is capable, if you accept that it is this Shabhir they were describing, as being corroborative of [Rafique's] identification of Shabhir. Fauseef said to the police when he was taken through his statement that it was 100 per cent true". 46. The judge then identified supporting evidence concerning Rafique's account of the car-wash incident. 47. Next the judge gave a Turnbull direction on identification evidence and said that there were three identification witnesses, the first of which was Rafique. The judge reminded the jury that his evidence had not been tested, that he was mentally unwell and that he had a record. Transcript page 18 lines 18 to page 19 line 6. The judge said that Sohail "identified the gunman in his witness statement but not in his evidence or at the identification parade". With regard to the witness statement of Sohail, the judge said "..what Sohail said…about Shabhir or the person he described as "Hanny" was that " …he saw a male he knows as "Hanny" chasing Rafique" and "Hanny" had a 9 mm gun in his hand. The judge explained that Sohail had said in his witness statement that he believed that the nickname "Hanny" was short for his real name which he thought was "Hanees". Transcript page 20 lines 7-8. The judge then referred to Tauseef's evidence of identification of "Hanny". In doing so the judge referred to Tauseef's "description of the identity in [his] witness statement" as being "…I recognised the male with the gun, I know him as "Hanny"…". Transcript page 21 line 22 – page 22 line 2. 48. The following morning Mr Jameson requested the judge to correct what he had said about the evidence of Sohail and Tauseef as being potential corroboration for the identification of the appellant by Rafique. Mr Jameson pointed out that, whether or not the name "Hanny" had been given to those witnesses by Rafique, "there is no evidence that "Hanny" is the defendant, Mohammed Hanees Shabhir". Transcript page 27 lines 45-46. The judge told the jury that they could not be sure that "…the Hanny which Sohail and Tauseef were referring to was Shabhir, as opposed to [Ansar Hanif Mahmood], the man he had referred to earlier". 49. In this second part of the judge's summing up, he referred to the defences' argument that the jury should not believe Rafique's statements because his unreliability was demonstrated by his violence and dishonesty and his medical history. The judge said that "…at the end of the day…this case is about the two witness statements made by [Rafique] and whether or not he was telling the truth in those witness statements". Transcript page 35 lines 16-19. 50. All these remarks were, the judge said, part of his directions on the law. The judge then said he would review the evidence for the jury. When the judge summarised the evidence of Sohail he reminded the jury of Mr Jameson's comment to them that Sohail did not mention the name "Shabhir" in his witness statement, only "Hanny". The judge continued, by reference to the comments of Mr Jameson: '…"Could this be that [Sohail] was referring, when talking about "Hanny" to someone other than the [appellant], Shabhir? Particularly in the light of the fact that he said at the identification parade, Ansar "wasn't there" which we know in fact is true…'. 51. Mr Jameson reminded the judge that what Sohail had actually said was that "the gunman" was not at the identification parade and he had not referred to Ansar. The judge corrected that mistake. V. The Grounds of Appeal 52. There are four grounds of appeal. First, it is said that the statement of Rafique should not have been admitted as hearsay evidence under the provisions of section 116(2)(e) of the CJA. In relation to this ground, it was submitted by Mr Jameson that the evidence of Rafique on the identity of the gunman was central to the case against the appellant; without it there would have been no case to answer. In this regard Mr Jameson submitted that the judge had erred in concluding that the statements of Rafique on the identity of the gunman were capable of being reliable and had also erred in his conclusion that, pursuant to section 116(4), it was in the interest of justice to permit the statements of Rafique to be given in evidence. 53. In support of his submission that the statements of Rafique were not shown to be potentially safely reliable and/or that it was not in the interests of justice to permit them to be admitted as hearsay evidence, Mr Jameson emphasised a number of matters. First, he noted inconsistencies in Rafique's history of who had involved him in drugs. Rafique had said in his first statement to the police that the appellant's motive for shooting him had been Rafique's refusal to carry on dealing in drugs in the way he had been forced to do by the appellant since Rafique had worked at Tesco's in 2006. However, when Rafique had been interviewed on 12 November 2009 in relation to alleged drug dealing from a car, he had identified a different person, Ansar Hanif Mahmood, as being in the same car, although he also said that he was not working for Mahmood. Rafique had also referred to Ansar Hanif Mahmood in a second interview on 23 November 2009, in which Rafique also linked Ansar to the time that Rafique had worked at Tescos. Rafique said that, in 2009, he still owed Ansar £1000 for drugs, a point referred to in a statement made by Saqya Parveen on 16 February 2011 (for the first trial). 54. Mr Jameson relied, secondly, on the fact that the police log for 12.33 on 25 September 2010 recorded Rafique as saying that it was Asim (known as "Beastie") who had assaulted him in the car-wash incident and that this was "the same male" that had shot at him the previous day in Summerville Road. Mr Jameson relied, thirdly, on the facts of Rafique's previous convictions as a drug dealer, his mental condition and that he had lied about being beaten up by the police when arrested in 2009 and being sexually assaulted in the Mental Hospital by staff. 55. Fourthly, Mr Jameson questioned the circumstances in which the statement had been taken from Rafique on 18 July 2011 in which he said that he was terrified to go into court to give evidence. He submitted that, effectively, the police officers had indicated to Rafique that there was a possibility that his statements might be read in court and that they wished to take a statement from him as to why he did not wish to give evidence. Mr Jameson highlighted the fact that in his statement of 18 July 2011, Rafique said that he was very frightened of the appellant and the co-accuseds, whereas Dr Cobb indicated, in his statement following the 26 minute interview with Rafique on 19 July 2011, that Rafique had denied that "any defendant would wish to harm him". Mr Jameson also noted that there had been no report of Rafique having been assaulted in Doncaster prison and there was no evidence to corroborate his allegation to that effect. There had been no investigation as to whether Rafique could have given evidence using "special measures". 56. Overall, Mr Jameson submitted that the facts relating to Rafique and his statements were most unusual and that, taking into account all the factors, the judge should have concluded that it was not in the interests of justice to admit the statements. 57. The second ground of appeal advanced is that the judge should not have permitted the prosecution to treat the witnesses Sohail Mohammed and Tauseef Mahmood as hostile. Mr Jameson relied upon the fact that, at the time the judge made his ruling, he appeared to have misunderstood the contents of the statements of each, because he believed that each had identified the appellant as the gunman. In fact they had not. The effect of permitting the witnesses to be treated as hostile, together with the judge's misunderstanding of their statements (which continued through until the summing up) misled the jury into thinking that the witnesses were afraid of the appellant and permitted their statements to be given an unjustified significance. 58. The third ground of appeal concerns the refusal of the judge to order the prosecution to identify the witness E. As a result, Mr Jameson submitted, the appellant could not know whether he and the witness knew one another. If they were known to each other, then the fact that E did not identify the appellant on the VIPER identification process would have been very helpful to the appellant. Moreover, the procedure surrounding the judge's decision not to order the identification of the witness E was flawed. The judge had not seen the unredacted version of E's statement to the police. He should have made an independent assessment of the position himself, not simply have asked whether there were any changed circumstances which entitled him to "review" the original decision made by Judge Goss. 59. The fourth ground of appeal is that the judge failed, in his summing up, to identify and enumerate in one place the weaknesses in the hearsay evidence of Rafique and the potential disadvantages to the appellant of the inability to test the statements of Rafique. Thus there was a failure to apply a central part of what the judge himself had regarded as the "counter-balancing" measures that would be put in operation upon admitting Rafique's statements as hearsay evidence. 60. In opposing the first ground of appeal, Mr Wood for the Crown accepted that the case against the appellant turned on the evidence of identification of him as the gunman and that Rafique's evidence on this topic was "central". He accepted also that before section 116(2)(e) could be invoked, the prosecution had to satisfy the judge to the criminal standard that the witness was afraid and that there was a causative link between his fear and his unwillingness to give evidence at all. Mr Wood submitted that this was amply demonstrated in this case and that it could not be said that the judge's conclusions in this regard were unreasonable. He further submitted that the judge properly directed himself on the question of whether the evidence of Rafique was capable of being reliable and that the judge took account of all relevant matters when considering whether it was in the interests of justice to permit the statements to be adduced as hearsay evidence. Mr Wood noted that the jury acquitted the appellant of two offences said to have been committed at the car-wash incident, thus demonstrating that the jury must have understood the limitations of the hearsay evidence of Rafique. 61. On ground three, Mr Wood submitted that those parts of the statement of E that were "unhelpful" to the prosecution were set out in agreed facts and put before the jury. Therefore there was no prejudice to the defence in not knowing of the identity of the witness E. 62. On ground four, Mr Wood accepted that the summing up might have been better organised so far as the issues concerning the hearsay statements of Rafique were concerned. However, he submitted that, overall, the judge gave adequate directions on (a) the approach that the jury should adopt to these hearsay statements, (b) the problems and limitations of the statements and the maker of them, and (c) the inconsistencies in them and with other evidence. He submitted that the judge adequately corrected and dealt with the issue of the references by the witnesses Sohail and Tauseef to "Hanny" and whether that could be the appellant. 63. We did not call on Mr Wood for argument on ground two. VI. Ground One: the admission of the hearsay statements of Rafique: (A) the legal principles. 64. As a result of the decision of this court and the Supreme Court in R v Horncastle, <I> [2010] 2 AC 373 </I> and the decisions of this court in R v Ibrahim <I> [2012] 2 Cr App R 32 </I> and R v Riat, <I> [2012] EWCA Crim 1509 . </I> the framework to be considered to decide whether hearsay evidence should be admitted pursuant to the statutory framework set out in Chapter 2 of Part 11 of the CJA 2003 is clear. When it is sought to admit the hearsay statement because it is said that the witness will not give oral evidence at the trial "through fear", so admission through the "gateway" of section 116(2)(e) is sought, the framework is, broadly, as follows: (1) The "default" position is that hearsay evidence is not admissible. (2) It is a pre-condition to the admission of a hearsay statement that the witness concerned is identified: section 116(1)(b) of the CJA. (3) The necessity to resort to second-hand evidence must be clearly demonstrated. The more central the evidence that is sought to be admitted as hearsay evidence is to the case, the greater the scrutiny that has to be undertaken to see whether or not it should be admitted as hearsay. (4) Although "fear" is to be widely construed in accordance with section 116(3) and, specifically, the fear of a witness does not have to be attributed to the defendant, a court has to be satisfied, to the criminal standard, that the proposed witness will not give evidence (either at all or in connection with the subject matter of the relevant statement) "through fear". Thus a causative link between the fear and the failure or refusal to give evidence must be proved. (5) How it is proved that a witness will not give evidence "through fear" depends upon the background together with the history and circumstances of the particular case. Every effort must be made to get the witness to court to test the issue of his "fear". The witness alleging "fear" may be cross-examined by the defence (if needs be in a voir dire ) , if necessary using "special measures" to assist the witness. That procedure may be possible but, in certain cases, Eg domestic violence cases: see <I>R v Riat </I>at [54(ii)]. In those and perhaps other cases the court may be ill-advised to seek to test the basis of fear by calling the witness to give evidence on the issue. may not be appropriate. (6) If testing by the defence is properly refused (after consideration) then "it is incumbent on the judge to take responsibility rigorously to test the evidence of fear and to investigate all the possibilities of the witness giving oral evidence in the proceedings". See <I>Riat </I>at [54(ii)]. The manner in which that should be done will depend on the circumstances of the case and upon the witness and will necessarily involve discussions with counsel as to approach and questions to be asked. For example, if a court cannot hear from a witness a tape recording or video of an interview on the question of his "fear" should, if possible, be made available. Cf. <I>R v H, W and M [2001] Crim LR 815, </I>a decision under the 1988 Act. In <I>Davies [2006] EWCA Crim 2643 </I>it was said that this decision had been superseded by <I>s.116 </I>of the CJA, but <I>Davies </I>itself must be read in the light of the SC’s decision in <I>Horncastle </I>followed by this court’s decision in <I>Riat. </I> The critical thing is that "every effort is made to get the witness to court" See <I>Riat </I>at [54(ii)] . This issue is also linked to (7) and (8) below. 65. We continue with the framework. (7) In relation to the "gateway" of section 116(2)(e), leave to admit the statement will only be given if the conditions for passing through a specific "secondary gateway" are satisfied. They are set out in section 116(4). Overall a court will only admit a statement under section 116(2)(e) if it considers that it is "in the interests of justice" to do so. In that respect, the court has to have specific regard to the matters set out in section 116(4)(a) to (c). (8) When a court considers section 116(4)(c), the court should take all possible steps to enable a fearful witness to give evidence notwithstanding his apprehension. "A degree of (properly supported) fortitude can legitimately be expected in the fight against crime". <I>R v Riat </I>at [16]. A court must therefore have regard to whether (in an appropriate case), a witness would give evidence if a direction for "special measures" were to be made under section 19 of the Youth and Criminal Justice Act 1999. (9) In this regard it is particularly important that, before the court has ruled on the application to admit under section 116(2)(e), no indication, let alone assurance, is given to a potential witness that his evidence will or may be read if he says he is afraid, because that can only give rise to an expectation that this will, indeed, happen. If it does then the statement will have been admitted on an improper basis; the impact of the evidence will be diminished and that may have further consequences, eg. an application to the judge under section 125 at the end of the prosecution case to stop the case. See <I>Horncastle </I>in this court, particularly at [87], reproduced as an annexe to the judgment in <I>Riat.</I> (10) When a judge considers the "interests of justice" under section 116(4), although he is not obliged to consider all the factors set out in section 114(2)(a) to (i) of the CJA, those factors may be a convenient checklist for him to consider. (11) Once the judge has concluded that the specific gateways in section 116(4) have been satisfied, the court must consider the vital linked questions of (a) the apparent reliability of the evidence sought to be adduced as hearsay and (b) the practicality of the jury testing and assessing its reliability. See <I>Riat </I>at [17]. In this regard section 124 (which permits a wide range of material going to credibility of the witness to be adduced as evidence) is vital. (12) In many cases a judge will not be able to make a decision as to whether to admit an item of hearsay evidence unless he has considered not only the importance of that evidence and its apparent strengths and weaknesses, but also what material is available to help test and assess it, in particular what evidence could be admitted as to the credibility of the witness and the hearsay evidence under section 124. The judge is entitled to expect that "very full" enquires as to witness credibility will have been made if it is the prosecution that wishes to put in the hearsay evidence and if it is the defence, they too must undertake proper checks. See <I>Riat </I>at [18] . (B) Application of the legal principles to this case 66. The evidence of Rafique as to the identity of the gunman in the Summerville Road incident was central to the prosecution case on counts 1 and 2 and was of importance in relation to the identity of the attackers at the car-wash incident. With regard to the Summerville Road shooting, Rafique was the only witness unequivocally to identify the appellant as the gunman. Sohail, in his witness statement, identified the gunman as "Hanney", which he said he understood was short for the man's real name of Hanees. In his statement Sohail did not identify "Hanney" or Hanees as being the appellant. At the VIPER parade he said that "the gunman" was not on the parade. Summing up transcript page 85 lines 14-15. Tauseef also referred to "Hanny" in his witness statement and did not relate him to the appellant. He did not identify the appellant at the VIPER procedure, saying that he was "100% sure none of the faces" he saw was that of the gunman. Summing up transcript page 72 line 13. The witness E had not identified the gunman at the VIPER parade; nor did the driver of the Lexus, Wasim Riaz. When Judge Stewart stated, in his ruling on the admission of Rafique's statements as hearsay evidence, that "three of the four witnesses identify in their witness statements the shooter as Shabir", Ruling transcript page 2 lines 13-15. a person whom each recognised, with respect he erred. 67. We were informed that the issue of whether Rafique would not give evidence "through fear" was very much a live issue before the judge. However, although the judge reached a very firm conclusion that Rafique was "terrified of giving evidence" and that this fear was caused by the appellant and his associates, we have, with respect, concerns about the process leading to this conclusion. First, it is clear from the judge's record of the events "in the cell" before Rafique gave his statement of 18 July 2011 that DC O'Keefe told Rafique that he had come to see him to ascertain his state of mind as to giving evidence and that his original statement "may be read out". This was a clear "indication" to Rafique that he may not have to give oral evidence. This court specifically warned against that being done in Horncastle at [87]. Such an indication generally undermines an argument that the refusal to give evidence is "through fear" rather than because of what the witness has been told. It would, therefore, undermine the basis for admitting hearsay evidence under section 116(2)(e). Secondly, there is no evidence that any further attempt was made to get Rafique into court to give evidence on a voir dire on the issue of giving evidence, either in person or by a video link, even though it is clear from Dr Cobb's statement of 19 July that Rafique was present at Bradford Crown Court that day. Thirdly, there is no evidence that there was any attempt to try and persuade Rafique to give his substantive evidence using "special measures". There is no reference to that either in his statement of 18 July 2011 nor in the evidence of DC O'Keefe and DC Oxley nor in that of Dr Cobb on the voir dire. There is no suggestion in the judge's ruling that he enquired about this issue. Fourthly, although Rafique states in his 18 July 2011 statement that he is afraid of the appellant and the two co-accuseds, Dr Cobb records in his statement of 19 July 2011 that Rafique "denied that any defendant would wish to harm him". This was not appear to have been investigated. Fifthly, there appears to have been no attempt to verify Rafique's allegation that he had been physically attacked three times in Doncaster prison, with the implication that these attacks were connected with his impending evidence at the second trial. No reports from prison officers or a doctor were apparently obtained. Indeed, DC O'Keefe's evidence on the voir dire was that there was no record at the prison of any complaints. Transcript page 10 line 12. Dr Cobb said that if he were to be persuaded that Rafique had not been assaulted he would have to "reassess", which we take to mean reassess his view on whether Rafique was a reliable source of information. As Rafique did not give evidence on the voir dire, he could not be questioned on this issue. 68. Effectively, therefore, the decision that Rafique would not give evidence "through fear" was itself taken largely on hearsay evidence. It was done so on the basis of the judge's reading of the transcripts of the first trial (in which on the first day of his evidence Rafique had denied he was frightened by the appellant and on second day of his evidence, Rafique had denied he was frightened of the gunman after the shooting incident), Rafique's statement of 18 July 2011, the police officers' account of Rafique's attitude to giving evidence and Dr Cobb's account of what Rafique told him. This was all in circumstances where Rafique was known to suffer from paranoid schizophrenia and had a record of lying. Whilst we accept that there was much evidence that Rafique was "afraid" of the appellant and co-accuseds, his fear may well have been the result of his own paranoia. If necessary we would have concluded, reluctantly, that, in all the circumstances, the judge did not discharge his responsibility "rigorously to test the evidence of fear and to investigate all possibilities of the witness giving oral evidence in the proceedings". <I>R v Riat [2012] EWCA Crim 1509 </I>at [54 (ii)], discussing the case of <I>Wilson, </I>one of those appealed. 69. However, we have also concluded, again with reluctance, that the judge erred in his consideration of whether Rafique's two statements should be admitted "in the interest of justice", in accordance with section 116(4). First, and most importantly, the judge appeared to believe that Rafique's evidence on identification of the gunman was only one of three positive identifications, whereas, in fact, Rafique's identification of the appellant was the only full one. This meant that it was crucial for the judge to test rigorously whether his statements, particularly on this issue, were shown to be potentially safely reliable. <I>R v Riat </I>at [33]. We have considerable doubts that they were. 70. Secondly, Rafique had a history of mental illness, having been diagnosed with paranoid schizophrenia in 2010. Dr Cobb considered he was still paranoid and apparently delusional. He also had previous convictions and he was a drug user. Those facts throw doubt on whether the statements were potentially safely reliable, although we accept that they are by no means conclusive in any particular case. In <I>Horncastle </I>in the CACD, at [43], the court said drug users “might be thought to belong to a category of the potentially very unreliable [witness]”. Fourthly, Rafique had given accounts of events in 2009 when he was arrested which were contrary to police statements of events. He had at that time identified Ansar Hanif Mahmood, not the appellant, as the person who had driven him into drug dealing. Fifthly, his identification in his first statement of the appellant as the gunman was contrary to the note in the police log (at about 12.30 on 25 September) that Rafique had said that Asim was present at the car-wash incident and that he was the same person who had shot at him in Summerville Road. Lastly, Rafique was still giving contradictory accounts of whether he stood by his original witness statements. He had said in his statement to DC O'Keefe that they were true, but he had told Dr Cobb that "they've got the wrong people". 71. We accept that there was evidence that was capable of supporting of Rafique's identification of the appellant at the Summerville Road incident: the incident at the car rental (on CCTV and witnesses) earlier on 24 September 2010 and the evidence of hostility and threats to Rafique by the appellant on that occasion; and the car-wash incident itself. The ammunition in the Golf was of limited assistance as there was no DNA, fingerprint or other connection between the unfired cartridge recovered and the appellant. 72. Overall, in our judgment, it cannot be shown that the untested hearsay evidence of Rafique on the central issue of the identify of the appellant as the gunman in the Summerville Road incident was potentially safely reliable. Moreover, as this court pointed out in Riat At [18]. a judge will often not be able to make the decision as to whether the hearsay evidence be admitted unless he first considers not only its strengths and weaknesses but, in addition, what material is available to help test and assess it. Of course, evidence on the credibility of Rafique and his evidence could be admitted under section 124, but that pre-supposes that it would be right to admit the hearsay evidence in the first place. There were very few other countervailing measures that could be taken to safeguard the interests of the accused. The judge could, and did, give directions to the jury about the dangers of relying on untested evidence and he could, and he did give directions on the strength and weaknesses of that evidence. But again that pre-supposes that it was correct to admit the evidence in the first place. There were no other countervailing measures that could be taken in this case by which Rafique's untested hearsay evidence on the identification of the appellant could, effectively, be assessed. 73. Accordingly, our conclusion at the end of the hearing on 16 October 2012 was that, with respect, the judge erred in ruling that the two statements of Rafique could be admitted pursuant to section 116(2)(e). In summary, we were not satisfied that the proper procedure had been followed; or that it had been proved to the criminal standard that Rafique would not give evidence (at all) "through fear", or that it was in "the interests of justice" to admit the evidence in the circumstances of this case. Whether the result is put in terms of a breach of Article 6(1) or 6(3)(d) of the ECHR, <I>Art 6(1) </I>guarantees the right of everyone to a “fair and public hearing”. <I>Article 6(3)(d) </I> guarantees the right of a person charged with a criminal offence to “examine or have examined witnesses against him…”. It is the latter provision that has given rise to the debates in <I>Horncastle </I>and subsequently in the ECtHR Grand Chamber in <I>Al-Khawaja and Tahery v the UK [2011] ECHR 2127 , </I>considered in <I>R v Ibrahim [2012] 2 Cr App $ 32.</I> or simply in terms of section 2(1)(a) of the Criminal Appeal Act 1968, either way the convictions on counts 1,2 and 3 were unsafe. Therefore we allowed the appeal on ground one. VII. Other grounds of appeal. 74. We do not need to go into detail on the other grounds. However, we will record, without giving further reasons, that we would have dismissed the appeal on grounds two and four. 75. We did have some concerns regarding ground three. However, as we did not have full argument on this ground because the unredacted statement of E was not available to us at the time of the appeal hearing , we prefer to make no further comments about the issues raised on this ground. VIII. Disposal 76. For the reasons given above, we allowed the appeal on ground one. We therefore quashed the convictions on counts 1, 2 and 3. We granted an application for a retrial of the appellant on those counts. We also ordered that there be reporting restrictions in the meantime.

2012_11_29-3081.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2012/2564/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2012/2564

44f5e02e11de60f3f074777bcfa46ad585881ee90a1b938157eebadbc82403b4

[2022] EWCA Crim 925

EWCA_Crim_925

2022-07-05

crown_court

Neutral Citation Number: [2022] EWCA Crim 925 Case No: 202102775 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIED Mr Recorder Coupland T20167046 Royal Courts of Justice Strand, London, WC2A 2LL Date: 5 July 2022 Before : LADY JUSTICE THIRLWALL MR JUSTICE GRIFFITHS and MR JUSTICE SWEETING - - - - - - - - - - - - - - - - - - - - - Between : AHC Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2022] EWCA Crim 925 Case No: 202102775 B2 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT SHEFFIED Mr Recorder Coupland T20167046 Royal Courts of Justice Strand, London, WC2A 2LL Date: 5 July 2022 Before : LADY JUSTICE THIRLWALL MR JUSTICE GRIFFITHS and MR JUSTICE SWEETING - - - - - - - - - - - - - - - - - - - - - Between : AHC Appellant - and - Regina Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M D Barlow instructed on behalf of the Appellant N Rasiah instructed on behalf of the Respondent Hearing dates : 12.04.2022 - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely by circulation to the parties’ representatives by email, release to the National Archives. The date and time for hand-down is deemed to be 11:00am on 5 July 2022. Lady Justice Thirlwall : The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act . 1. On 31 st October 2016 at the Crown Court at Sheffield, the appellant, now 78 (DOB 24 March 1944), was convicted after a trial of 16 sexual offences on a 19 count indictment. The offences were a mixture of specific, sample and multi incident counts. He was acquitted of counts 7, 8 and 12. Until these convictions he was a man of good character. 2. The appellant was sentenced to 12 years imprisonment in total. Ancillary orders and a victim impact surcharge were imposed. 3. This is his appeal against conviction which he brings with the leave of the full court who granted an extension of time of 1735 days. The Evidence 4. There were three complainants: C1, the appellant’s daughter, C3 and C2, step granddaughters. C1 was the victim of counts 1-6 and 9-11. The offences occurred during the mid-1980s. In her evidence (contained in an ABE interview upon which she was cross examined) she said that when she was between 12 and 15 years old her father would “play fight” with her. Her father would pinch her nipples. He did so repeatedly. Initially she thought it was part of play fighting but as she got older, she realised it was not. At the age of 15 she snapped and told him to stop, which he did. This conduct was the basis of counts 1-3 which were sample counts of indecent assault contrary to Section 14 of the Sexual Offences Act 1956 . 5. Counts 4-6 inclusive (also offences of indecent assault under the 1956 Act ) took place when C1 was between 13 and 15 years old. Counts 4 and 6 were sample counts. Count 5 was a multiple count. The appellant would regularly touch her vagina, over her clothing whilst watching television with him on the sofa. She would fall asleep and would be woken by him stroking her legs. She said he never touched her skin. 6. C1 was also the complainant on counts 7 and 8, both offences of indecency with a child of which the appellant was acquitted. She said that she had heard but not seen the appellant masturbating in the doorway of her bedroom when she was in bed at night. 7. Counts 9-11 were all offences of indecent assault, counts 9 and 11 were sample counts, count 10 was a multiple count. It was C1’s evidence that when she was 14-15 years old her father would pull the waistband of her knickers away from her body and drop £1 coins into them. He then waited and watched while she fumbled about to retrieve the money. 8. The victim of counts 13 to 19 inclusive was the appellant’s granddaughter, C3 who was assaulted by him between 2010 and 2012 when she was aged between 13 and 15. Her evidence in chief was contained in an ABE interview upon which she was cross examined. 9. Counts 13 and 17 were sample counts, Counts 14,18 and 19 were multiple incident counts and Counts 15 and 16 were specific counts. It was C3’s evidence that the appellant would collect her and her brother every fortnight and take them swimming either in Barnsley or Doncaster. On the way home he would park in a layby off Ridgeway Road in Rotherham, pull her trousers down to her mid-thigh and put his fingers into her vagina. During these events her brother was asleep in the back of the car. These facts formed counts 13 and 14. In cross examination she accepted that when she had watched her ABE interview through again, she had said that the appellant had not put his fingers into her vagina, they were on the outside. In evidence to the jury she confirmed that she had said that, and that as she now remembered it the appellant did not put his fingers inside her vagina. 10. On other occasions the appellant would expose his penis and try to get her to touch it by sliding his hand over hers. On one occasion her hand made contact with his penis (counts 15 and 16). On a different occasion he took photographs of her vagina with his mobile phone (count 17). 11. There were occasions when C3 and her family went to their grandparents’ home for Sunday lunch. After lunch C3 would lie on her grandfather’s lap in the living room. He would place a pillow over her vaginal area and play with her vagina. This was under her clothing, but he did not place his fingers inside her vagina. This took place on 2 or 3 occasions when she was aged 13 or 14. Those were the facts of counts 18 and 19. 12. The prosecution called C3’s boyfriend who gave evidence that some months before C1 had spoken to S1, C3 had confided in him that her father had touched her when she was a child. There were inconsistencies between the witness’s account of the disclosure and that of C3 which were explored in detail before the jury. 13. Matters had come to light during the preparations for the funeral of C1’s mother, the appellant’s wife. She had been talking to S1 and had broken down. She told him that their father had abused her as a child. He was not surprised by this and encouraged her to go to the police, which she did the next day. S1 asked his daughters whether their grandfather had done anything to them. As a result, they too went to the police. 14. S1 gave evidence about two events, one in Corfu and one in Norfolk decades later. He told the jury that while on a family holiday in Corfu in 1985 he shared a room with C1. One night he saw his father, the appellant, come into the room, remove his underwear, and get into bed with C1. He pushed himself against her and rubbed himself against her body. Although there was a thin sheet on the bed, he could see what his father was doing. 20 years later, the family were on holiday on a boat on the Norfolk Broads. S1 was there with his children as were his parents. He heard his father get up. When his father did not return to his berth S1 got up to see what was happening. He went into the children’s bedroom and saw the appellant putting [S1’s son] back into bed. His father said that his son had fallen out of bed. As S1 left the room he found a video camera on the floor. He challenged his father who denied any wrongdoing. He viewed video film on the camera and saw a short clip of his father sitting on S1’s son’s bed dressed in shorts and a T shirt. His shorts were pulled down, he had his hand in his groin and was masturbating in the direction of C2. 15. It was the appellant’s case that S1 and C1 had fabricated the allegations against him because they were annoyed to have been left out of their mother’s will. He said that he and his wife originally had wills which divided their estate between their four children. He then suggested to his wife that the survivor of the two of them should decide what to do with their money. His wife had agreed to that, he said. He said this was before she was diagnosed with cancer in 2009. This was the reason false allegations were made by S1 and C1 who had then persuaded C3 to make false allegations against him. It does not seem to have been suggested that C2 was fabricating her allegation, which in the event resulted in an acquittal. 16. C1 and C3 were comprehensively and robustly cross examined about fabricating the allegations (and the appellant’s denials were put to them). C1 said she did not know what was in her mother’s will. She denied seeking to influence either of her nieces to make complaints against her father. She accepted that she and he had fallen out shortly before her mother had been diagnosed with cancer. He had given her mother an ultimatum, she said. Either she would side with her daughter or her husband. She had chosen her daughter. From then on, although they did not separate, her parents lived separate lives, with the appellant spending more and more of his time in their home in Spain. 17. C1 dealt very firmly with the cross examination. She said she had not mentioned what had happened with her father because of concern for her mother. She was asked why, once her mother had chosen her over her father, she did not tell her then about the abuse. “I could have told her then, what? when she’s been going through cancer an everything, you think I’m gonna tell her, Oh by the way, my father used to sexually abuse me” As to the allegation that she had caused her nieces to make false allegations against her father she said, “what, and drag my nieces into it as well….It’s a load of rubbish. I was devastated that it had happened to C3. I felt like I had let it happen, because I never said anything.” 18. C3 denied fabrication and made it clear that she had not wanted to go to the police. What she had said in the ABE interview (subject to the change she had made about the touching being outside and not inside her vagina) was all true. 19. The appellant denied all the allegations. He was asked about the incident on the Norfolk broads. He recalled an incident when the boat had been bumped and S1’s son had fallen off his berth. He pointed out that S1 said nothing about what he now said had happened. The appellant denied having made a video recording in the bedroom that evening. He denied S1’s allegation about the Corfu holiday. 20. He called a number of character witnesses who spoke in glowing terms of his qualities. 21. The recorder discussed his directions of law with counsel. There was no disagreement about the final version. The prosecution did not seek to rely on the cross admissibility of the evidence of one complainant in support of the evidence of another. The recorder was not asked to give any directions beyond those he proposed, which included a standard direction on separate consideration of counts. THE APPEAL 22. The full court granted leave to appeal on two grounds: firstly, that the recorder’s direction to the jury on separate consideration of the counts on the indictment was defective in the light of the way the case was presented to the jury and the number of complainants. Secondly, that evidence of bad character was led before the jury and no direction was given to the jury as to how to approach it. 23. There was no application to renew the application for leave to appeal on Grounds 3 and 4, both of which were unarguable. Ground 1 24. Mr Barlow argues that since the prosecution did not seek to rely on cross admissibility it was incumbent upon the recorder to direct the jury that they were not permitted to rely on evidence from one complainant about one set of offences in support of the evidence of another complainant about different offences. It was not sufficient to give the standard direction to consider the evidence on each count separately. He relies on the decision of this court in R v Adams [2019] EWCA Crim 1363. 25. It is useful to consider the case of Adams along with the case of R v H [2011] EWCA Crim 2344 to which the court in Adams referred. In H the defendant was convicted of sexual offences against three boys at different times. The prosecution did not seek a direction on cross admissibility. On appeal the court considered it was sufficient that the trial judge had given a more or less standard direction on separate consideration of the counts. A similar direction had been given in Adams, a case in which there were two complainants, one male, one female, both of whom had played in a brass band of which the defendant was the leader. The trial took place many decades after the offences took place. The defendant was convicted of sexual offences against both of them. In Adams this court did not think that the standard direction was sufficient where the crown had not sought a direction as to cross admissibility. At [20] Leggatt LJ giving the judgment of the court said in respect of the decision in R v H “We are bound to say that we have difficulty in understanding why [the standard direction] was thought adequate in circumstances where it did not appear that any ruling had been given that evidence was cross-admissible. But we agree with the observation at paragraph 31 of the judgment in that case that: “Everything depends on the directions and facts of a particular case, and the danger that the jury might seek to use the evidence of one complainant as evidence of his guilt on counts concerned only with another complainant”.” At [21] the court considered that “had the prosecution sought to argue that evidence of each complainant was admissible in relation to the allegations made by the other because it reduced the likelihood of innocent explanation, we anticipate that the evidence might properly have been admitted on that basis. “ The court continued “But no such ruling was sought or given and, unless the procedure for admitting evidence of bad character is to be treated as a complete dead letter, that meant that the evidence was inadmissible, and the appellant was entitled to have the cases decided on the basis that evidence on each count was inadmissible in relation to other counts. That in turn made it necessary for the judge so to direct the jury.” The court considered in that case that the failure to give such a direction made the appellant’s convictions unsafe. 26. Mr Barlow submits that this case is on all fours with Adams . It follows, he submits, that in the absence of a direction beyond the standard, the convictions must be quashed. 27. There are some similarities between this case and Adams and between this case and H . This case is not on all fours with either. Our task is to consider the facts and circumstances of this case, including the conduct of the defence and the recorder’s directions in order to decide whether the convictions are unsafe. 28. Where the prosecution seek to rely on cross admissibility the judge is required to give a direction to assist the jury on their approach. Where there is no reliance on cross admissibility there is no automatic requirement for a direction in addition to the standard direction on separate consideration. The court in R v H concluded on the facts of that case that the standard direction was sufficient, accompanied as it was by a separate summing up of the evidence in respect of each complainant. 29. The direction in this case was short: “You must consider the case against and for the defendant on each count separately. Whilst your verdicts may be the same – either guilty or not guilty – the evidence on each count is different and your verdicts may be different depending on how you view the evidence.” This was followed by a succinct explanation of the different types of count and then an explanation of the offences themselves and the status of evidence of complaints. All of this was clear, as was the explanation of the way in which matters relating to sexual misconduct may come to light, and how complainants behave. 30. The recorder’s summary of the evidence was relatively lengthy, he explained, because the trial had been rather disrupted, and he considered it important that all the issues were set out for them. He told the jury that he would deal with the witnesses in indictment order rather than the order in which they were called to assist them going through the indictment. “I’m going to start with C1 who, of course, deals with Counts 1 to 11”. There then followed a comprehensive and balanced account of the evidence of C1, including all the cross examination and how she had dealt with the allegations of fabrication. The recorder adopted the same approach to C2, reminding the jury that the relevant count was count 12 and of the fact that “if you’re not sure that what she found on her was semen the following morning, then that count has to be a verdict of not guilty”. The judge also reminded the jury of the cross examination about the way in which she had come to make her complaint, again in detail, so that it was clear to the jury that there was an issue about the circumstances in which the allegations were made. 31. When turning to C3 the recorder said “the next witness in relation to your indictment was C3 and as you know her counts are Counts 13 to 19. He then rehearsed her evidence in detail, including the circumstances in which she had come to make her complaint to the police. The summary of the evidence of the three complainants occupies over 14 pages of the transcript. 32. Next the recorder set out the evidence of S1 in respect of Corfu and Norfolk and of the circumstances in which C1 had confided in him at the time of their mother’s funeral. He had told her that he had known what she was going to say because of what he had seen all those years earlier. He had then told his daughters what C1 had said and asked them whether the appellant had touched them. C3 said “why do you think I hate him so much” and then told him what she was later to tell the jury. C2 said nothing had happened to her but after a while recounted the incident which formed count 12 on the indictment. The recorder reminded the jury of what was obviously very robust cross examination of S1, not least the fact that he had said nothing after either of the incidents and allowed his own daughters to see the appellant over many years. He was also tested rigorously in respect of how C1 and his daughters had come to make their complaint to the police. He denied putting his daughters up to what to say. 33. The recorder’s summary of the defence was detailed and balanced. In addition to his denials, it included all the appellant had said about the allegations being fabricated and the suggested reasons for this, along with the assertion that C1’s evidence in the interview and in court as all an act. As for C3 he could not explain why she had said what she had said and suggested that her father was behind it. None of what she said was true. It was all made up. His son’s evidence was all a lie. 34. The recorder then reminded the jury in detail of the live and read good character evidence from friends, relatives, all of whom knew the appellant well, some for many decades. He then summarised the positions of prosecution and defence including, again, the allegations of fabrication. Finally, he checked with counsel that there was nothing of importance he had failed to mention. There was nothing. 35. Having reviewed the transcripts of all the evidence and of the summing up we are satisfied that the jury would have understood clearly what evidence was relevant to which offence and there was no need for any additional direction of the type contended for by Mr Barlow. We are fortified in that conclusion by the acquittals. Count 12 was the only offence in respect of C2. The jury did not seek to rely on evidence from other complainants in that regard. The acquittals in respect of two counts where C1 was the complainant are further support for our conclusion. We reject this ground of appeal. Ground 2 36. The evidence referred to in the second ground was the evidence from S1 about Corfu and the Norfolk Broads and evidence from C1 about her father coming into (and then leaving) her house late at night when she was in her late 20s. This last incident was of peripheral, if any, relevance to any issue in the case and Mr Barlow did not seek to develop arguments about it in his oral submissions. We say no more about it. 37. Mr Barlow does not complain that the evidence was inadmissible. His complaint is that there was no direction to the jury to assist them in how to approach it. He submits, and we accept, that the evidence about Corfu and Norfolk was evidence of bad character. We reject the prosecution submission that this evidence came within section 98 of the Criminal Justice Act 2003 . It was not to do with the facts of the offences on the indictment. 38. There was no discussion about how the evidence was to be treated and whether any direction was needed. It appeared to this court that the appeal on this ground must involve a direct attack on the conduct of defence counsel who had not objected to the evidence being adduced, had agreed the directions and not made any submissions about the summing up being defective. In answer to a question to that effect Mr Barlow said that he did not wish to be unkind. The letter to trial counsel, sent under the McCook procedure suggested that there was no criticism of her conduct, the target of the criticism being the trial judge. In the event, counsel had left the Bar and sent no substantive response. 39. It is important to record that the evidence from S1 was before the jury by agreement or at any rate without objection. We can understand why defence counsel took that course; it was the appellant’s case that S1 and C1 had put their heads together because of being left out of their mother’s will (something they both denied). S1’s account of the event in Corfu was not supported by C1, who could not remember it. S1’s account of the Norfolk event led to the very effective cross examination of him about why he had not acted at the time of the event, given what he supposedly knew from 1985 and given that his own daughter was the apparent target of the appellant’s behaviour. It was also plain that S1 was very much involved in ensuring the complainants went to the police. All of this was helpful to the appellant’s case and defence counsel effectively exploited the weaknesses in his evidence and his inconsistencies. A decision having been taken not to object to that evidence it is not open to fresh counsel to seek to impugn that decision. In fairness to Mr Barlow, he did not seek to go behind that decision or to argue that counsel had been incompetent in her conduct of the case. His submission was that the recorder failed to direct the jury about how to use the evidence of the Norfolk and Corfu incidents. He submitted that the recorder should have given a bad character direction “with all the protections that affords” but Mr Barlow was somewhat reticent about precisely what the recorder should have said. He submitted that the evidence was capable of establishing propensity. It follows, in our view, that the recorder should have directed the jury that if they were sure of the evidence, they could use it in support of the evidence of the complainants. He should also have directed them that they should not convict on the basis of the bad character evidence alone. He did neither. 40. The question for us is whether that omission renders the convictions unsafe either on its own or taken in combination with the direction on separate consideration. We are satisfied that it does not. The evidence from C1 and C3 was strong on all the counts of which the appellant was convicted. Strikingly the jury did not use the evidence of the Norfolk incident to bolster the account of C2 on count 12, of which the appellant was acquitted. Nor did they use the evidence of the Corfu incident to bolster the evidence of C1 on counts 8 and 9. They convicted on the evidence of the complainants. It follows that we reject ground 2. 41. The appeal is dismissed.

2022_07_05-5369.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2022/925/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2022/925

322e01e5cddf8d25e7352f7fd3b2c716e052c2e995c12515ad86515c595d8815

[2018] EWCA Crim 1215

EWCA_Crim_1215

2018-05-18

crown_court

No: 201605303/C4 Neutral Citation Number: [2018] EWCA Crim 1215 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 18 May 2018 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE DINGEMANS HIS HONOUR JUDGE TOPOLSKI QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v GARY THURLWELL - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

No: 201605303/C4 Neutral Citation Number: [2018] EWCA Crim 1215 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 18 May 2018 B e f o r e : LORD JUSTICE McCOMBE MR JUSTICE DINGEMANS HIS HONOUR JUDGE TOPOLSKI QC (Sitting as a Judge of the CACD) - - - - - - - - - - - - - - R E G I N A v GARY THURLWELL - - - - - - - - - - - - - - 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) - - - - - - - - - - - - - - Non-Counsel Application - - - - - - - - - - - - - - J U D G M E N T This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. 1. MR JUSTICE DINGEMANS: The applicant seeks permission to appeal against his conviction and sentence and the applications have been referred to the full court for consideration as to whether there should be a summary determination pursuant to section 20 of the Criminal Appeal Act 1968 . 2. Section 20 of the Criminal Appeal Act 1968 , as amended by the Criminal Justice Act 1988 , provides: "If it appears to the registrar that a notice of appeal or application for leave to appeal does not show any substantial ground of appeal, he may refer the appeal or application for leave to the Court for summary determination; and where the case is so referred the Court may, if they consider that the appeal or application for leave is frivolous or vexatious, and can be determined without adjourning it for a full hearing, dismiss the appeal or application for leave summarily, without calling on anyone to attend the hearing or to appear for the Crown thereon." The proceedings below 3. On 28 October 2016 in the Crown Court at Leeds the applicant pleaded guilty to being in charge of a dog which was dangerously out of control on an agreed facts basis. The applicant was sentenced to six months' imprisonment suspended for 24 months, with residence and curfew requirements. A victim surcharge order was imposed. The dog was ordered to be destroyed. 4. The applicant had originally been charged together with persons known as Caple and Oxtoby, the owners of the dog. It appears that Oxtoby is related to the applicant and Caple was her partner. Proceedings against them were terminated when no evidence was offered against them and not guilty pleas were entered. They remained at the hearing however to make representations to the effect that the dog should not be destroyed. The dog was ordered to be destroyed. 5. The circumstances giving rise to the applicant's plea of guilty are as follows. On 13 January 2016 at about 12.05, PC Dryden and PCSO Lewis were summoned by PCSO Noonen and attended the applicant's home address at 26 The Green, Acomb, York to apprehend a man known as Clark, who appears also to have been related to the applicant. PC Dryden attempted to gain access to the property, but the applicant refused entry. He relented and allowed the officers into the house. They went into a living area and the applicant opened another door allowing the dog into the living area. The dog was a Staffordshire Bull Terrier cross-breed called Diamond. The applicant was looking after the dog for Oxtoby and Caple who apparently lacked accommodation suitable to house a dog. The dog was subject to a previous control order at York Magistrates' Court imposed in April 2015 after the dog had bit another dog. 6. The defendant kicked the dog and said words to the effect: "It's not my fault if the dog bites you." He then kicked the dog again. The dog leapt up and attempted to bite PCSO Lewis. PC Dryden told the applicant to get the dog under control but did not do so. PC Dryden hit the dog with his asp. The dog leapt up and bit PC Dryden, latching on his left forearm, sinking his teeth into his skin and biting him. Oxtoby and Caple turned up at the property and the dog was secured. The applicant was arrested. The applicant said, he was not aware the dog was there and the dog had come straight through and attacked the police officers. He denied goading the dog, saying he told the officers to be careful in case the dog bit them. 7. There was an agreed basis of plea which provided that the applicant had before the attack on the police officers shouted and kicked the dog in an attempt to stop it going to the police officers and not in an attempt to goad the dog. The applicant had not responded to a request to control the dog, but he did not goad or encourage the attack. It was agreed that this was a Category 2B offence for the purposes of the relevant guideline, which provides for a sentencing range from a medium level community order to one year's custody. Aggravating features were that there were two separate attacks by the dog in the course of the living room incident. The applicant had previous convictions for dishonesty and some very old (19 years before) convictions for wounding and assault. 8. It was agreed that section 4(1)(a) of the Dangerous Dogs Act provided for the dog to be destroyed by saying that the court may order the destruction of the dog and shall do so in the case of an offence under section 1 or an aggravated offence under section 3(1), although the relevant sections went on to provide that the court was not required to order the destruction of the dog if the court was satisfied that "the dog would not constitute a danger to public safety". The judge noted that the dog had a previous control order, had attacked two police officers when attempts were being made to stop it and that another police officer was warned by Mr Caple when he turned up that the dog would be aggressive as it did not like hi-vis clothing. A vet was brought to sedate the dog. The judge was satisfied that the dog constituted a danger to public safety. 9. At this hearing the applicant, who is not in custody, did not attend and there has been no representation on his behalf. The grounds of appeal 10. The grounds of appeal against conviction and sentence were very difficult to follow. So far as the grounds of appeal against conviction are concerned, they appear to be that the proceedings were an abuse of process as the police were at the premises unlawfully. The way in which the police were said to be unlawfully there was not explained at all in the grounds of appeal. So far as the issue of abuse of process was concerned it was possible to have a fair trial in this case but one was not required because the applicant pleaded guilty. There was no misuse of court proceedings. So far as the police's presence at the premises is concerned, it was common ground that the applicant had permitted the police to enter the premises. In the material submitted to us it was suggested that this was under duress and reference was made to police powers to enter which could have been used and it was suggested that the applicant was given little option but to agree. However, it is common ground that he agreed. A failure to record that in accordance with relevant Codes of Practice (which is another complaint) might raise other issues but it does not remove the fact that consent was given. This is not an arguable ground of appeal. It should not have been advanced and it was frivolous. 11. So far as the appeal against sentence was concerned, the main complaint appeared to relate to the order for the destruction of the dog. One ground, which only appeared in a witness statement and not in the grounds of appeal, was that the order for destruction should have been stayed pending an appeal against conviction. However the ground of appeal against conviction was not arguable, in part because the applicant pleaded guilty and he did not apply to vacate his plea. Other complaints were that there were no behavioural assessments of the dog. This was a complaint mainly directed at former legal representatives and a waiver of privilege was requested and completed but for understandable reasons the matter was not pursued by the Registrar. This was because in circumstances where the dog has now been destroyed, the fact that some legal advisors might have obtained such a behavioural assessment cannot form a ground of appeal against sentence. 12. There was another complaint that the solicitors for Oxtoby and Caple should have made a plea of no case to answer and reference was made to the well-known case of Galbraith . There are a number of problems with this suggested ground of appeal. First, the applicant is not representing Oxtoby or Caple. Secondly, a submission of no case to answer could only have been made at trial. Thirdly, it appears that the legal representative for Oxtoby and Caple were in correspondence with the CPS and pointed out weaknesses in the case against them and persuaded the CPS to drop the case against them. 13. Finally, a submission that there was no evidence against Oxtoby and Caple would have depended on showing that they had delegated responsibility for the control to someone responsible such as the applicant. That raised issues of fact, making a summary determination unsuitable. None of these matters was addressed in the grounds of appeal. 14. Finally, an application was made to call witnesses, even though there had been a guilty plea on an agreed basis at trial. The basis on which the court should have admitted this fresh evidence was not identified. The witness evidence appears to contradict part of the basis of plea and contains statements expressing unhappiness at the fate of the dog. That may all be understandable, but did not make it admissible before us. 15. We were unable to discern any grounds of appeal against sentence and returning to section 20 of the Criminal Appeal Act 1968 , we have determined that the application for permission to appeal was frivolous and can be determined without adjourning it for a full hearing and we dismiss the appeal without calling on anyone to attend the hearing or for the Crown to appear. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk

2018_05_18-4307.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1215/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1215

13032b4b7419ea7c4164d1966f32bc0dff781ea559a1c58d318b1c3e5e18a83b

[2018] EWCA Crim 2743

EWCA_Crim_2743

2018-12-10

crown_court

Neutral Citation Number: [2018] EWCA Crim 2743 Case No: 2018/01659/C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM OXFORD CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/12/2018 Before : LADY JUSTICE MACUR MR JUSTICE JULIAN KNOWLES AND HIS HONOUR JUDGE WALL QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : EMMA-JANE KURTZ Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Neutral Citation Number: [2018] EWCA Crim 2743 Case No: 2018/01659/C3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM OXFORD CROWN COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 10/12/2018 Before : LADY JUSTICE MACUR MR JUSTICE JULIAN KNOWLES AND HIS HONOUR JUDGE WALL QC (SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - - Between : EMMA-JANE KURTZ Appellant - and - THE QUEEN Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Clare Wade QC and Susan Wright (instructed by the Registrar of Criminal Appeals ) for the Appellant Oliver Saxby QC (instructed by CPS ) for the Respondent Hearing date: 9 October 2018 - - - - - - - - - - - - - - - - - - - - - Approved Judgment The Right Honourable Lady Justice Macur: Introduction 1. The Registrar of Criminal Appeals has referred this application for permission to appeal against conviction and sentence to the Full Court. The application concerns the scope of the offence created by s 44(2) read, in this case, with s 44(1) (b) of the Mental Capacity Act 2005 (‘ MCA 2005 ) of which the Appellant was convicted. This provision has not previously been considered by the Court of Appeal. We grant permission. 2. Section 44(1) (2) provides: “ 44 Ill-treatment or neglect (1) Subsection (2) applies if a person (‘D’ ) - (a) has the care of a person (‘P’) who lacks, or whom D reasonably believes to lack, capacity, (b) is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or (c) is a deputy appointed by the court for P. (2) D is guilty of an offence if he ill-treats or wilfully neglects P.” 3. Section 2 of the MCA 2005 defines lack of capacity and contains other relevant provisions: “ 2 People who lack capacity (1) For the purposes of this Act , a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to – (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. (5) … (6) ...” 4. The essential question at the heart of this appeal is whether, on a prosecution for the offence contrary to s 44(2) read with s 44(1) (b), the prosecution must prove that the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant reasonably believed that s/he lacked capacity. We shall refer to this as ‘the lack of capacity requirement’. 5. In this judgment henceforth, for brevity, we shall refer to ‘the offence contrary to s 44(1) (a)’, ‘the offence contrary to s 44(1) (b)’, etc, albeit that, strictly, the offence is created by s 44(2) in relation to each of the persons identified in the three subparagraphs of s 44(1) . The factual background 6. On 27 March 2018 Emma-Jane Kurtz (‘the Appellant’) was convicted of an offence of wilfully neglecting her mother, Cecily Kurtz (‘Cecily’) in respect of whom she was the donee of an enduring power of attorney (‘EPA’), contrary to s 44(1) (b) of the MCA 2005. On 27 April 2018 she was sentenced to 30 months’ imprisonment. 7. This is a distressing case. In summary, the prosecution’s case was that Cecily was elderly and suffered from serious mental illness and that her daughter (who lived with her and her father) had wilfully neglected her over a long period of time, in particular, by failing to arrange for proper medical treatment. As a consequence, Cecily lived in squalor and her health deteriorated until she died. The prosecution said that if she had received medical treatment then she would have recovered and survived, just as she had done in the past. 8. On 2 July 2014 paramedics attended the home which the Appellant shared with her mother and father in Didcot, Oxfordshire. Her mother was pronounced dead at the scene. She was 79 at the time of her death. Her body was in a seated position on a sofa in the living room which had an indent in it suggestive of her having sat there in the same position for some considerable time. She was sitting in her own urine and faeces, and had urine burns and sores on her buttocks and legs. She was malnourished (weighing only about six stone) and was covered in dirt. Her hair was matted and her nails were unkempt, suggesting that they had received no attention for over a year. When the paramedics tried to lift her body from her seat, her clothes fell apart. She had not changed her clothing for many, many months. 9. The house itself was in a state of squalor. There was water running down some of the walls, a stair was missing from the staircase, and it smelt of mould and damp. 10. The Appellant had made no attempt to seek medical treatment for her mother. She had approached Dr Corps on 1 July 2014, the day before her mother’s death, and told him that her mother needed to be accommodated elsewhere to enable some maintenance work to be done to the house. She dialled 999 to call for an ambulance on the day of her mother’s death, and again was keen to tell the operator about the house and that it was in a very bad state. 11. The Appellant told the paramedics who attended at the house that her mother had not wanted help, had been unable to stand for some time, and had been refusing food. She had been sitting in the same position for a number of days. Thereafter, she made no comment in interview but presented the police with a prepared statement. 12. Dr Croker, a consultant geriatrician, concluded that Cecily had not been looking after herself for months or possibly years before her death. In his opinion, she was obviously in need of hospital treatment. She would have been unable to stand, move or take herself to the lavatory. The cause of death was a deep vein thrombosis which was the result of a prolonged period of inactivity. He was clear that she would likely have benefited from being admitted to hospital some time before her death. 13. Cecily had a history of mental illness including bipolar disorder, depression and obsessive-compulsive disorder. She also had a history of failing to co-operate with medical professionals when they tried to help her. She had refused to see her GP or to have a Mental Health Act 1983 assessment in 2004, and thereafter had had nothing to do with doctors. There was evidence that in the past when Cecily had availed herself of medical assistance it had temporarily alleviated her mental health conditions. There was also evidence that Cecily could be difficult with anyone within the family who tried to persuade her to seek medical attention. 14. As is obvious from this summary, life for this family was unusual and difficult. They did not socialise with other people. The Appellant’s father and mother did not have a happy relationship, and over the years her father moved to the upstairs of the house and effectively lived a separate life from her mother. 15. The Appellant was a 41-year-old solicitor of good character. The senior partner at the law firm at which she worked described her as having particular empathy for the elderly while at work. She specialised in issues relating to mental capacity and dealt with other people’s powers of attorney. She was, however, mildly autistic herself and had few friends. Professor Coyd and Dr Bagshaw, who gave evidence for the defence at trial, described her as having paranoid traits and being unusually keen to avoid conflict situations. 16. In 2006 Cecily granted an EPA to the Appellant pursuant to the Enduring Powers of Attorney Act 1985 (‘EPA Act 1985 ’). This EPA (which remained in force following repeal of the EPA Act 1985, pursuant to Sch 4 of the MCA 2005 ) was never revoked or replaced with a Lasting Power of Attorney (‘LPA’), a new form of power of attorney created by the MCA 2005 , nor was any application made to register it with the Public Guardian. The indictment 17. Originally the indictment contained a count against the Appellant and her father of wilfully neglecting someone for whom they were caring and who lacked, or whom they reasonably believed to lack, capacity contrary to s 44(1) (a) of the MCA 2005 . However, before the trial began, the prosecution decided that it was not in the public interest to prosecute the Appellant’s father because of his own ill-health. Having made that decision, the prosecution then amended the charge against the Appellant from the offence under s 44(1) (a) to one under s 44(1) (b) of the MCA 2005 . This was not opposed by the defendant’s legal representatives. 18. Mr Saxby QC, who appeared before us for the Crown and who appeared at the trial, submitted that the amendment, which substituted a charge pursuant to section 44(1) (b), obviated the need for the prosecution to prove the lack of capacity requirement in relation to the Appellant’s mother, or that the Appellant had the care of her mother. He submitted that it was thought that this made the prosecution’s task simpler before the jury. 19. We can imagine cases in which the requirement to prove lack of capacity, or the defendant’s reasonable belief in lack of capacity, would be hard to establish. We can also envisage cases where it might be difficult to show that the defendant was in a caring a role. This case was unlikely to have been one of them. The state of Cecily Kurtz in the months leading up to her death, and the conditions in which she spent the last weeks and months of her life, might well have been sufficient, without more, for the jury to have been satisfied that she lacked capacity. Also, given that the Appellant was a solicitor specializing in mental capacity matters, and given that she lived with her elderly and infirm parents, the prosecution would have had little difficulty in showing that she had the care of her mother for the purposes of s 44(1) (a). We consider that had the prosecution proceeded on the indictment as originally drafted then the complications of this case might never have arisen. The decision below 20. Following the amendment of the indictment, the trial judge was asked to rule in advance of the trial whether the prosecution had to prove the lack of capacity requirement in relation to Cecily. He ruled that they did not, in the following terms: “Parliament has made the position on capacity clear in relation to subsections (1)(a) and (1) (c) and could easily have done so, if that was their intention, in relation to (1)(b). For example, subsection (1) of Section 44 could have been drafted to give effect to the submissions of Miss Wade [counsel for the Appellant] in the following way. Where a person (P) lacks capacity and (a) D knows or reasonably believes P lacks capacity, (b) D is the donee of an LPA or registered EPA created by P or (c) is a deputy appointed by the court for P, then the effect could easily have been achieved. That is not what Parliament has said. There is no need on the face of the legislation for either a lack of capacity to be known or believed by D, nor that there has been a finding elsewhere on the balance of probability that incapacity exists. This may sit uncomfortably with the purposes set out at the beginning of the Act , but it is clear to me that the meaning, the interpretation I have given to the words of the statute, which are simple and straightforward, is that Parliament did not intend there needs to be a lack of capacity or a reasonable belief in the lack of capacity in relation to an offence under subsection 1(b).” 21. The questions for the jury in the judge’s route to verdict were as follows: “6. In order to reach your verdict you must answer the following questions: (a) Are we sure that CK required medical help (either physical or mental) or care for her personal needs to protect her health ? If yes go to question b); if no then the verdict is not guilty. (b) Are we sure that [the Appellant] appreciated that she needed such help? If yes, go to question d); if no go to question c). (c) Are we sure that [the Appellant] metaphorically ‘closed the door’ on CK such that she did not care (was indifferent/could not face helping her) whether she required medical help/care for her welfare ? If yes, the verdict is guilty and you do not need to consider (d) and e) below; if no then the verdict is not guilty. (d) Are we sure that [the Appellant] failed to seek to obtain the help/care that was required in a) above? If yes, go to question e) if no, then the verdict is not guilty. (e) Are we sure that it was unreasonable for [the Appellant] not to seek to obtain that help/care in the circumstances that were known to her (or that c has applied) ? If yes, the verdict is guilty; if no, the verdict is not guilty. (It is not reasonable if someone is indifferent or does not care whether or not to seek help.)” 22. Consistently with his earlier ruling, the judge did not give the jury any direction relating to Cecily’s capacity when summing up. The jury convicted the Appellant. The submissions on the application 23. The submission by Ms Wade QC on behalf of the Appellant was that the existence of the EPA was not sufficient of itself to render the Appellant guilty of the offence contrary to s 44(1) (b) of the MCA 2005 even if she had wilfully neglected her mother. She took two points: a. Firstly, she argued that, as most of the powers conferred by an EPA cannot be exercised until the document is registered under Sch 4 to the MCA 2005 , s 44(1) (b) should be read as if it applied only to registered EPAs. She submitted that if the Appellant were to incur criminal liability ‘in virtue of the unregistered EPA simpliciter then that is too remote a basis for the imposition of criminal liability in relation to the matters alleged.’ This EPA had never been registered and so the Appellant could not be guilty of the offence. This was Ground 1. b. Second, she submitted that the MCA 2005 , in accordance with the Act ’s long title that it is ‘to make new provision relating to persons who lack capacity’ should not be read in a way which would mean that anyone who is the donee of a power of attorney, and who wilfully neglects the donor, is guilty of the offence where the donor still had capacity at the time of neglect. The mere fact that someone (the donor) grants to another (the donee) an EPA does not mean that donor lacks capacity. Indeed, an EPA can only have legal effect if it is created by someone who at the time of making it was capacitous. Therefore, she submitted that in order to reflect the mischief which s 44 was designed tackle, s 44(1) (b) should be read as if it required the prosecution to prove the lack of capacity requirement in relation to the donor of the EPA. Because the judge held that this did not have to be proved, and directed the jury accordingly, Ms Wade submitted that the Appellant’s conviction is unsafe. This was Ground 2. 24. Other grounds of appeal were advanced in writing but rightly not pursued in oral submission. We say no more about them. 25. On behalf of the Respondent, Mr Saxby’s submission was that the Appellant was the donee of her mother’s EPA. He argued that fact alone triggered a duty on her not to illtreat or wilfully neglect her mother. Registration was not necessary. She had breached that duty by not seeking medical help for her mother when it was obviously needed. Therefore, she had wilfully neglected her mother and was guilty of the offence contrary to s 44(1) (b) of the MCA 2005 . We were urged to read the section literally and not to imply into it - as Mr Saxby would have it - further requirements. He said that the meaning of the section was clear on its face, and that was the answer to both parts of Ms Wade’s case. 26. Unfortunately, at the conclusion of the hearing we were not satisfied that we had been provided with sufficiently detailed written submissions or relevant contextual and background material on the MCA 2005 in general, and s 44 in particular. Accordingly, we requested and received further written submissions from both sides, and a quantity of supporting material, which we have taken into account. 27. For the reasons given hereafter we reject Ground 1. In relation to Ground 2, we have decided that s 44(1) (b) of the MCA 2005 must be construed to require the prosecution to prove the lack of capacity requirement as an element of the offence. It is not sufficient for the prosecution merely to prove that the defendant was the donee of an LPA or EPA, and that the defendant ill-treated or wilfully neglected the donor. That means the judge misdirected the jury in a material way and we are satisfied that the Appellant’s conviction is therefore unsafe. Discussion 28. We have every sympathy for the trial judge. He was faced with the task of interpreting this statutory provision in the absence of Court of Appeal authority and against the background of criticism by this Court of the drafting of s 44 in connection with appeals against conviction for the offence contrary to s 44(1) (a) of the MCA 2005 . 29. In R v Hopkins; R v Priest [2011] EWCA Crim 1513 , two people who worked at a care home for persons with dementia and other care needs were prosecuted for the offence contrary to s 44(1) (a). They challenged s 44 on the grounds that it lacked sufficient legal certainty and so was incompatible with Article 7 of the European Convention on Human Rights, which requires that no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and that no one should be punished for any act which was not clearly and ascertainably punishable when the act was done: R v Rimmington and R v Goldstein [2006] 1 AC 459 , [33]. 30. In R v Hopkins; R v Priest , supra, Pitchford LJ observed: “34. The question emerges: in respect of what matter does a person need to lack capacity for the purpose of section 44(1)(a) which creates the criminal offence charged in the present case? The appellant sought to argue before the judge that section 44(1) (a) is so vague that no prosecution could succeed. As we have seen, “capacity”, as treated by the 2005 Act [in s 2(1) ] , is not an absolute condition. Whether a person has capacity must be ascertained in the context of the matter under consideration in respect of which a decision must be made. A person may have capacity to decide what to eat but no capacity to decide whether to accept medication or to employ a particular carer or to sell a car or a house. Section 44 does not specify in respect of what matter the incapacity of the person must be proved. Section 44 requires proof either that the person lacks capacity in respect of a matter which is unidentified or that the defendant reasonably believed that the person lacked capacity in respect of a matter which is unidentified. On first reading, therefore, an offence charged under section 44(1) (a) is incapable of proof.” 31. At [36] Pitchford LJ said that this left the question: To what aspect of the resident’s capacity (or lack thereof) should the jury be directed to judge the resident's capacity? During inspections by the care home’s regulator in August and September 2008 assessments were made by social workers against the criteria whether the resident was capable of making a decision about his or her long-term care in the care home or any other establishment. The judge held that it was for the jury to decide whether this evidence was sufficient to establish the lack of capacity required by s 44(1) (a) as interpreted against the test set out in s 2(1) of the Mental Capacity Act 2005 . 32. The Court agreed with the judge that provided s 44 satisfied the requirement of certainty, there was evidence upon which the jury could conclude that each patient lacked the capacity to make a decision about his or her place of residence. However, the Court went on to observe that that did not provide an answer to the preceding objection in principle, namely that Parliament had not identified the matter in respect of which a judgment of capacity must be made. The Court could make suggestions as to what Parliament had in mind, for example, capacity to make a decision as to (a) residence; (b) personal hygiene and care; (c) personal finances, and (d) the identity of personal carers. The question was whether any of them necessarily must be implied, or is capable and should be implied, into the wording of s 44(1) (a). The Court then held at [40]: “40. Unconstrained by authority, this court would be minded to accept the submission made on behalf of the appellants that section 44(1) (a) , read together with section 2(1) of the Mental Capacity Act 2005 , is so vague that it fails the test of sufficient certainty at common law and under Article 7.1, ECHR. However this court has made a decision upon section 44 of the Act which binds this court. 41. In R v Clare Dunn [2010] EWCA Crim 2395 , this court (Lord Judge CJ, Mr Justice Calvert-Smith and Mr Justice Griffith Williams) considered a submission made on behalf of the appellant that directions given to the jury by the Recorder were insufficiently explicit in their assistance to the jury upon the meaning of ‘a person without capacity’. The appellant had been convicted upon four counts alleging ill treatment, contrary to section 44 (1) (a) and (2) of the Act .” 33. Pitchford LJ then having made reference to the facts of Dunn , supra, and the fact that the Court in that case had concluded that the ‘matter’ in respect of which the relevant complainants had lacked capacity was the ability to make decisions concerning his/her care, went on to observe that the Court was bound by the earlier decision, and for that reason, it concluded that the ground of appeal as to uncertainty was not made out. 34. At [45] - [47] the Court went on to consider the question of the burden and standard of proof in relation to capacity, and s 2(4) of the MCA 2005 . At [45]-[46] the Court observed: “45. Further submissions were made on behalf of the appellants as to the interaction between section 44 and section 2(4) of the Act . It was argued that section 2(4) should be construed as inapplicable to proof of the criminal offence. Unless expressly stated to the contrary, it is a principle of criminal law in England and Wales that a burden of proof placed on the prosecution must be established to the criminal standard, namely so that the jury is sure of guilt. Section 2(4) provides that in ‘proceedings’ under the Act or any other enactment, any question whether the person lacks capacity within the meaning of the Act must be decided on the balance of probability. 46. There are, it is observed, many and various ‘proceedings’ in which the existence of capacity will require precision, not least in proceedings in the Court of Protection. The word ‘proceedings’ is however apt to describe both civil and criminal proceedings. We cannot assume that Parliament intended section 2(4) to apply to all proceedings except those contemplated by section 44 . Had the intention been to exclude section 44 from the operation of section 2 (4) , then we can see no reason why that could not have been achieved explicitly.” 35. Hence, at [47] the Court said that in order to prove the offence contrary to s 44(1) (a) the prosecution must prove (a) to the criminal standard that the defendant ill-treated or wilfully neglected a person in his care, and (b) that on a balance of probabilities that person was a person who at the material time lacked capacity (or who the defendant reasonably believed lacked capacity). This Appeal Ground 1 36. Ground 1 raises a question of statutory construction. Ms Wade’s submission is to the effect that the offence contrary to s 44(1) (b) can only be committed by the donee of an LPA which has been registered with the Public Guardian pursuant to paras 4 and 13 of Sch 4 to the MCA 2005 . We have no hesitation in rejecting that submission, for the following reasons. 37. First, it is contrary to the words of s 44(1) (b), which impose no such requirement. It simply refers without qualification to the ‘donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4)’. Paragraph 2(1) of Sch 4 provides an express definition of an EPA within the meaning of Sch 4, and that definition does not include a requirement for registration: “2(1) Subject to sub-paragraphs (5) and (6) and paragraph 20, a power of attorney is an enduring power within the meaning of this Schedule if the instrument which creates the power— (a) is in the prescribed form, (b) was executed in the prescribed manner by the donor and the attorney, and (c) incorporated at the time of execution by the donor the prescribed explanatory information.” 38. Nor is there any basis for ‘reading in’ the words which would be necessary for Ms Wade to be correct, and good reason why they ought not to be. Under paras 4 and 13 of Sch 4, only the donee of an EPA can register it. If the s 44(1) (b) offence required the EPA to be registered, then the donee could avoid liability for the offence, no matter much they ill-treated a non-capacitous donor, by not registering the EPA. This would hardly further the principal aim of the MCA 2005 to provide protection for those who are vulnerable through a lack of capacity. 39. This ground of appeal fails. Ground 2 40. The issue we must decide in relation to this ground of appeal is also one of pure statutory construction. We formulate the question as follows: a. Is P, in the context of s 44(1) (b), to be taken as someone who lacks capacity, or whom D reasonably believes lacks capacity, as per the definition of who P is in s 44(1)(a) and must be in s 44(1) (c)? (‘The narrow construction’); or b. Is P to be taken to be a person who has simply donated an EPA or LPA, and who might have capacity, and thus is a person with characteristics different to the P referred to and defined in s 44(1) (a) and must be in s 44(1) (c)? (‘The broader construction’) 41. With respect to the judge below, who favoured the broader construction, we have concluded that the narrow construction is the correct interpretation, and thus that the offence created by s 44(1) (b) can only be committed by the defendant donee of an EPA or LPA created by a person, P, who at the relevant time lacks capacity, or whom the defendant reasonably believes lacks capacity. In other words, the prosecution must prove the capacity requirement. 42. The broader context demonstrates that the genesis of s 44 lay in earlier statutory provisions criminalizing the neglect and ill-treatment of those suffering from mental disorder and the perceived need to extend the reach of those provisions, but only in relation to incapacitated persons (a broader category of vulnerable person than merely the mentally disordered). There is no suggestion in any of the material we have seen that there was any perceived need to extend them to the ill-treatment or neglect of those with capacity. 43. The MCA 2005 followed on from work done by the Law Commission, including its 1995 report, Mental Incapacity, (LAW COM No 231) . Earlier, in its 1993 Consultation Paper Mentally Incapacitated Adults and Decision Making: A New Jurisdiction (Consultation Paper No 128) the Commission provisionally proposed that the offence in s 127(2) of the Mental Health Act 1983 should be extended to protect all incapacitated persons from ill-treatment or wilful neglect by their carers. Section 127(2) made it an offence to ‘to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being ... in his custody or care (whether by virtue of any legal or moral obligation or otherwise)’. The Commission said that whilst there might be grounds for reviewing the exact formulation of the offence, pending such review, it would see value in a very modest extension of the offence to include all incapacitated persons. 44. In Mental Incapacity , supra, the Commission said at [4.38]: "In Consultation Paper No 128 we provisionally proposed that the existing offence of ill-treating a "mentally disordered patient" should be extended to protect anyone without capacity. Many respondents supported the creation of a new offence, and also expressed concern about the efficacy of the criminal justice system in protecting people with mental disabilities. The points they raised about the attitude of the police and prosecuting authorities, and about the inflexibility of procedural rules which mean that witnesses with disabilities do not get the help they deserve, are outside the scope of this project. We do, however, see a need for a specific offence of ill-treatment, independent of the existing offence in the Mental Health Act. The new offence should address the fact that the draft Bill creates a number of ways in which a person can acquire powers over another person who lacks some decision-making capacity. It is right that a person with such powers should be subject to criminal sanction for illtreating or wilfully neglecting the other person concerned." 45. The Commission therefore recommended that it should be an offence for anyone to illtreat or wilfully neglect a person in relation to whom he or she has powers by virtue of the new legislation. The proposed offence was set out in the draft Bill annexed to the Consultation Paper at clause 32(2), which was entitled ‘Ill-treatment of mentally disabled persons and persons unable to communicate’. It was aimed at carers making informal financial decisions, donees of Continuing Powers of Attorney (‘CPAs’) (which became LPAs under the legislation as eventually enacted) and persons appointed as managers (who became deputies under the legislation). The Commission did not include donees of EPAs in clause 322. 46. In 1997 the Lord Chancellor issued a Consultation Paper, Who Decides ? Making Decisions on Behalf of Mentally Incapacitated Adults (Cm 3803), and this was followed in 1999 by a Government policy statement, Making Decisions (Cm 4465). In that document the Government rejected the Law Commission’s suggestion that there should be a new offence (at [1.36] – [1.37]): “A New Offence to III Treat or Wilfully Neglect a Person Without Capacity 1.36. The Law Commission recommended that it should be an offence for a person to ill-treat or wilfully neglect a person in relation to whom he or she has responsibility under the new legislation. This would relate to people appointed as managers by the court; donees of CPAs; and those having care of, or in lawful control of, the property of the person without capacity. 1.37. Many respondents were keen to support sanctions for ill treatment and supported the idea of a new offence. The Government recognises that ill treatment of a person without capacity is a very serious matter. However, while the Government has not ruled out the need for such legislation, it is not persuaded that the creation of a new offence would be the best way of tackling abuse.” 47. A draft Mental Incapacity Bill was published in June 2003 which was scrutinised by the Joint Committee on the Draft Mental Incapacity Bill. The Joint Committee’s First Report on the Bill was published on 17 November 2003 and helpfully summarized the background to the Bill as follows: “1. The Draft Mental Incapacity Bill and accompanying Commentary and Explanatory Notes were presented to Parliament on 27 June 2003 by Lord Filkin, the Parliamentary UnderSecretary of State for the newly-created Department for Constitutional Affairs. Consultation 2. The draft Bill is the result of a very lengthy and detailed process of consultation. As long ago as 1989, the then Lord Chancellor, Lord MacKay of Clashfern, invited the Law Commission of England and Wales to carry out a comprehensive investigation of all areas of the law affecting decisions on the personal, financial and medical affairs of those who lack capacity. This was in response to concerns raised by professional bodies and voluntary organisations dealing with mental disability 3. Following five years of consultation and deliberation, the Law Commission produced its final report and recommendations for Law Reform in March 1995. The Commission recommended that "there should be a single comprehensive piece of legislation to make new provision for people who lack mental capacity". … 7. In response to the Law Commission Report, the (then) Lord Chancellor's Department published a Green Paper ‘ Who Decides’ in December 1997 and, after a further consultation, a policy statement entitled 'Making Decisions' in October 1999. This set out the Government's commitment to bring forward new legislation ‘when Parliamentary time allows’ … 8. Following the publication of the Green Paper, the (then) Lord Chancellor's Department established the Mental Incapacity Consultative Forum. This was designed to work with stakeholder organisations, to develop solutions to problems which exist under the current law and to explore proposals for new legislation. The Department also produced a series of six booklets giving guidance on the existing law respectively for legal practitioners, social care professionals, health care professionals, family and friends, people wishing to prepare for possible future incapacity and those with learning difficulties. Meetings and consultation seminars with those representative groups, organised by the Department, to discuss the scope for law reform eventually led to publication of the draft Bill.” 48. Following Parliamentary scrutiny of the draft Bill, the Mental Capacity Bill was published on 18 June 2004. In clause 42 the Bill contained the new offence which the Law Commission had first suggested in 1995. This clause provided: “ 42 Ill-treatment or neglect (1) A person is guilty of an offence if he— (a) has the care of a person who lacks or whom he reasonably believes to lack capacity, or is the donee of a lasting power of attorney or a deputy appointed for a person by the court, and (b) ill-treats or wilfully neglects the person concerned. (2) A person guilty of an offence under this section is liable – (a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.” 49. It is to be noted that the clause originally only covered the donees of LPAs. It was amended to include donees of EPAs following the Committee Stage (see Standing Committee A, 4 November 2004, col 384). 50. The intended scope of this clause vis-à-vis the person subject to neglect or ill-treatment was summarized in the House of Common Library’s Research Paper 04/73, The Mental Capacity Bill , (p57): “Ill-treatment or neglect The Bill would create a new criminal offence of ill-treatment or neglect of a person who lacks capacity by an attorney or deputy, or someone who has care of the person who lacks capacity (Clause 42). The maximum sentence on conviction on indictment would be 5 years imprisonment or a fine or both (revised from a maximum 2 year sentence in the draft bill). This underlines the intended seriousness of the offence and puts the penalty in line with the maximum penalty for such offences as inflicting grievous bodily harm and assault occasioning actual bodily harm. The Government rejected the Joint Committee’s recommendation that the statutory authorities should be given additional powers of investigation and intervention in cases of alleged physical, sexual or financial abuse of people lacking the capacity to protect themselves from the risk of abuse: ‘The Committee recommended that the draft Bill should go further in the protection it offers against abuse and exploitation of those lacking capacity. However, the Government is already taking action to protect vulnerable adults against abuse. In particular, the ‘No Secrets’ guidance requires Councils to liaise with other public authorities and other agencies in their area and to produce written and agreed, local procedures for handling incidents of abuse concerning vulnerable adults. It is right that this extends beyond adults who lack capacity to all vulnerable adults. The new Public Guardian under the Bill would have a role working with Councils and other agencies.”’ 51. The Joint Committee commented as follows on clause 31 of the draft Bill, the predecessor to clause 42, which showed that its view was the clause applied only to those who lacked capacity: “271. Clause 31 of the draft Bill proposes the creation of a new criminal offence where an attorney or deputy or someone who has care of an incapacitated person ill-treats or wilfully neglects that person. While this additional protection is to be welcomed, the Master of the Court of Protection has pointed out that it appears to relate solely to physical ill-treatment and does not cover financial abuse.” 52. In our judgment, all of this material shows that the discussion and debate which took place in relation to what became s 44 was only ever in the context of criminalizing the wilful neglect or ill-treatment of those who lacked capacity. It was not suggested at any time that the offence should extend to those with capacity. 53. There are a number of reasons why we consider that the narrow interpretation of s 44(1) (b) rather than the broader one is the correct approach. 54. Firstly, we note that s 44 as enacted is structured differently from clause 42, which was subjected to number of amendments during the Committee stages of the Bill’s passage through Parliament. It seems to us that the natural and ordinary meaning of the words used by Parliament in s 44 supports the view that P, as referred to in s 44(1) (b), is a person who lacks capacity, or whom the defendant reasonably believes lacks capacity. P is defined as such a person in s 44(1) (a), and if Parliament intended that P, as referred to in s 44(1) (b) was to have different characteristics and be any donee of an EPA or LPA – whether lacking capacity or not – then that would have been made clear. We consider it unlikely that Parliament intended P in s 44(1) (a) to have different characteristics to P as referred to in s 44(1) (b) when at no stage during any of the work which led to s 44 was it ever suggested that a criminal offence should be created to protect capacitous donors of EPAs or LPAs. 55. We respectfully agree with what the Court said in Clare Dunn , supra, [3], having set out s 44(1) (a) and (b): “On the face of it that is clear and simple language. Its purpose is to provide for the protection of those who are mentally disadvantaged from any form of ill-treatment.” 56. Similarly, at [19], the Court said: “But we pause to remember the purpose of section 44 and the creation of the offence; and bear in mind that everyone, who for whatever reason but in particular the natural consequences of age, has ceased to be able to live an independent life and is a vulnerable individual living in a residential home, is entitled to be protected from ill-treatment if he or she lacks ‘capacity’ as defined in the Act .” 57. Both of these passages provide support for our conclusion that the narrow construction is the correct one. 58. Second, to interpret s 44(1) (b) as applying to all donees, including those having capacity, would produce an anomalous result, and so offend against the principle that the legislature intends that the court, when considering which of the opposing constructions of an enactment corresponds to its legal meaning, should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result : Stock v Frank Jones (Tipton) Ltd [1978] ICR 347 , per Lord Simon of Glaisdale; Canterbury City Council v Colley [1993] AC 401 , 406. Section 44(1) (a) applies in relation to carers of persons who lack capacity or whom the defendant reasonably believes lack capacity. Section 44(1) (c) imposes criminal liability on deputies. But the Court of Protection may only appoint a deputy to make decisions as to a person’s personal welfare and/or property and affairs if he/she lacks capacity in relation to the same: s 16(2) , MCA 2005 . Hence, the broader construction produces the result, which seems to us to be anomalous, that although s 44(1) (a) and 44(1)(c) only apply in relation to persons who lack capacity, or whom the defendant reasonably believes lacks capacity, s 44(1) (b) applies in relation to a much wider class of persons many of whom are of sound mind. We can think of no sensible justification for such a result, and Mr Saxby was not able to suggest one. 59. Third, an EPA may be exercised by the donee, subject to restrictions, despite the donor possessing mental capacity but is confined to property and financial affairs: see EPA 1985, s 3 ; MCA 2005 , Sch 4, para 3. Hence the Appellant, as the donee of her mother’s EPA, did not have any authority in respect of her personal welfare. 60. An LPA, on the other hand, is potentially broader in scope. It can confer on the donee authority to make decisions about the donor’s property and affairs, and also about specified matters concerning the donor’s personal welfare, property and affairs (MCA 2015, s 9(1)). However, where an LPA authorises the donee to make decisions about the donor’s personal welfare, that authority does not extend to making such decisions in circumstances other than those where the donor lacks, or the donee reasonably believes that the donor lacks, capacity: MCA 2015, s 11(7)). 61. We recognise that possibly there might be circumstances when a donee of an EPA with authority for property and affairs could wilfully neglect a donor who has the relevant mental capacity regarding his/her property and affairs, but with physically restricted access to funds, for whatever reason. However, we find it difficult to contemplate how a capacitous donor of an EPA could be wilfully neglected in terms of their personal welfare, if that donor refuses medical treatment and why the donee of an EPA, restricted as it is to property and financial affairs, should be made criminally liable in those circumstances. We do not believe that this result, which would be a consequence of the broader interpretation, could represent the will of Parliament, which was careful to preserve the autonomy of the individual by the principles expressed in s 1 of the MCA 2005 . 62. Under the rule in Pepper v Hart [1993] AC 593 reference is permissible to Parliamentary material as an aid to statutory construction where (a) legislation is ambiguous or obscure or leads to absurdity; (b) the material relied upon consists of one or more statements by a minister or other promoter of the relevant Bill together if necessary with such other Parliamentary material as necessary to understand such statements and their effect and (c) the statements relied upon are clear. 63. For the reasons above we have assumed that condition (a) is satisfied, and we consider there is material satisfying conditions (b) and (c) which supports our conclusion that the narrow interpretation of s 44(1) (b) is the correct one. 64. During the Second Reading of the Mental Capacity Bill in the House of Commons, the Parliamentary Under-Secretary of State for Constitutional Affairs said: “The Bill also protects and supports people who lack mental capacity. Sadly, as we know, there are occasions when people without mental capacity are abused by those whom they trust … Accordingly, we have introduced in the Bill a new criminal offence of ill treatment or neglect, with a maximum sentence of five years. We cannot tolerate abuse of vulnerable people.” ( Hansard, HC, Vol 425, col 26, 11 October 2004) 65. Subsequently, when the Bill was in Standing Committee A, he said: “First, I fully understand the principles that underlie all the amendments. It is of course right that we better protect those who lack capacity and better deter we have not talked as much about that people who would take advantage of those who lack capacity. It is a tribute to much of what we have been saying that we have talked about that positive duty but it is now right that we think a bit about those with ulterior motives. Offences aimed at tackling abuse of vulnerable adults require the offender to do a positive action. The clause, however, creates a new offence of ill treatment or wilful neglect of the person lacking capacity, which I hope shows that we in government take abuse of vulnerable adults very seriously. … That is why this offence is aimed at capturing those individuals who are in a position of trust, care and power over people who are then ill-treated or wilfully neglected. That could be a donee of a lasting power of attorney, a deputy appointed by the court or a person who has the care of someone who lacks capacity, such as a member of staff in a hospital or care home or a family member.” (Standing Committee A, 4 November 2004, cols 382 – 383) 66. In our judgment, these Ministerial statements satisfy the Pepper v Hart, supra, criteria and provide firm support for the construction we have given to s 44(1) (b). They confirm our view that s 44(1) (b) should be read to include the requirement that the donor lacked mental capacity, or was reasonably believed by the donee to do so, in relation to the matter in question. 67. There are two final matters from which we have drawn support for the conclusion that we have reached. 68. First, the s 44 offence can be committed by wilful neglect, that is, by omission. Generally speaking, English law does not impose criminal liability for omissions absent some special circumstance, such as a special relationship between the defendant and the person harmed. (see generally, Blackstone’s Criminal Practice 2019 , [A1.17] et seq). The assumption of care for another may be a special circumstance where the law imposes criminal liability for omissions. For example, the Domestic Violence, Crime and Victims Act 2004 , creates an offence of causing death or serious harm to a child or vulnerable adult inter alia through omission, in relation to a defendant who was a member of the same household and who had frequent contact with them. The Criminal Justice and Courts Act 2015 , ss 20 and 21, creates offences that can be committed by care workers. 69. In our judgment, whilst it would have been open to Parliament to have made it an offence for the donee of an EPA or LPA to wilfully neglect or ill-treat a donor who is capacitous, this would potentially have represented a significant policy departure from the criminal law’s traditional approach. We would have anticipated that, had it intended this result, Parliament would have made it clear through unambiguous language. 70. Finally, s 42 of the MCA 2005 requires the Lord Chancellor to issue a Code of Conduct for the guidance of the people listed in s 42(1) (eg, persons acting in connection with the care or treatment of another person). Section 42(5) provides that “If it appears to a court or tribunal conducting any criminal or civil proceedings that – (a) a provision of a code, or (b) a failure to comply with a code, is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.” 71. The view we have reached is consistent with the Code of Practice, which in two places indicates that the s 44 offence only applies in relation to those who lack capacity (or whom the defendant reasonable believes lacks capacity). First, at [14.23] it states: “ The Act introduces two new criminal offences: ill treatment and wilful neglect of a person who lacks capacity to make relevant decisions ( section 44 ). The offences may apply to: • anyone caring for a person who lacks capacity – this includes family carers, healthcare and social care staff in hospital or care homes and those providing care in a person’s home • an attorney appointed under an LPA or an EPA, or • a deputy appointed for the person by the court.” 72. Second, the table at p286 states: “ Section 44 of the Act introduces a new offence of ill treatment of a person who lacks capacity by someone who is caring for them, or acting as a deputy or attorney for them. That person can be guilty of ill treatment if they have deliberately ill-treated a person who lacks capacity, or been reckless as to whether they were ill-treating the person or not. It does not matter whether the behaviour was likely to cause, or actually caused, harm or damage to the victim’s health.” 73. Both of these passages support the view we have reached. Conclusion 74. Despite our comments in [19] above as to the evidence which suggests that, at a minimum, the Appellant should reasonably have believed her mother to lack mental capacity in matters of personal welfare, the judge’s failure to direct the jury in this regard is fatal to the safety of the conviction and the appeal must be allowed. Accordingly, we need say nothing about the application in respect of sentence.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/2743/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/2743

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[2004] EWCA Crim 7

EWCA_Crim_7

2004-01-21

supreme_court

Case No: 2002/04091/D1 Neutral Citation Number: [2004] EWCA Crim 07 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WINCHESTER CROWN COURT His Honour Judge Robert Pryor QC Royal Courts of Justice Strand, London, WC2A 2LL Date: Wednesday 21 st January 2004 Before : LORD JUSTICE RIX MR JUSTICE McCOMBE and THE HON RECORDER OF MIDDLESBROUGH (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN

Case No: 2002/04091/D1 Neutral Citation Number: [2004] EWCA Crim 07 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM WINCHESTER CROWN COURT His Honour Judge Robert Pryor QC Royal Courts of Justice Strand, London, WC2A 2LL Date: Wednesday 21 st January 2004 Before : LORD JUSTICE RIX MR JUSTICE McCOMBE and THE HON RECORDER OF MIDDLESBROUGH (sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN Respondent - and - Christopher John MINTERN Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Keith Hadrill for the Appellant Mr Stephen Parish for the Crown Hearing dates : 5 th December 2003 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Lord Justice Rix: 1. On 19 June 2002 in the Crown Court at Winchester before HH Judge Robert Pryor QC and a jury the appellant, Christopher John Mintern, was convicted on two counts of conspiracy and a further count of attempting to damage property being reckless as to whether life would be endangered. On 12 July 2000 he was sentenced to a total of ten years imprisonment. The three counts were count 3, conspiracy to commit burglary, for which he was sentenced to six years, count 4, conspiracy to commit arson, for which he was given a consecutive sentence of 4 years, and count 5, attempting to damage property, for which he was given a concurrent sentence of four years. Mintern appealed against conviction with the leave of the single judge. On 5 December 2003 we heard his appeal and dismissed it, but reserved our reasons which are now contained in this judgment. 2. Mintern was indicted with ten other co-defendants on an indictment which had originally contained 17 counts. By the time the indictment reached the jury the counts had been reduced to seven and had been re-numbered. Counts 3, 4 and 5 had originally been numbered 4, 5 and 7. 3. Count 3 alleged that in the fifteen or so months between 13 January 2000 and 25 April 2001 Mintern and five co-accused had conspired together and with other persons unknown to enter buildings as a trespasser with intent to steal. The five co-accused were Danny Stevens, Joseph Smith, Paula Hinckley, David Clothier and Richard King. Stevens was found not guilty by the direction of the judge following a submission of no case to answer at half-time. Hinckley, who was Mintern’s girl-friend, was acquitted. Smith, as well as Mintern, was convicted. King pleaded guilty to a further conspiracy on count 8 and no evidence was offered against him on count 4. Clothier was also acquitted, the Crown offering no evidence against him but accepting a plea to offences of going equipped. 4. Count 4 alleged that in the same fifteen month period Mintern had conspired with Stevens, Smith and Hinckley and with other persons unknown to destroy or damage by fire motor vehicles belonging to others. Stevens and Hinckley were both found not guilty by the direction of the judge following a submission of no case to answer. Count 5 related to a substantive offence arising out of a police car chase on 10 October 2000. 5. Stevens was a major criminal who had already received a life sentence at an earlier trial. He was also indicted at this trial, in addition to counts 3 and 4 (the 2000 conspiracies) on which he was acquitted, on two further conspiracies to burgle and steal, one relating to dates in 1999 (the 1999 conspiracy) and one relating to later dates in 2001 (the 2001 conspiracy). To these he pleaded guilty by a change of plea at trial, and was sentenced to a total of 8½ years imprisonment. The trial was opened by the Crown on the basis that Stevens was a key player who lived on a caravan site which provided the metaphoric and geographic hub of the offences. The prosecution case 6. We can take the relevant factual background to this appeal in large part from the advice and perfected grounds drawn up by Mr Keith Hadrill, who appeared for Mintern at trial and again on this appeal. 7. The two conspiracy counts alleged against Mintern were based around "ram-raid" burglaries which involved the use of stolen vehicles, often of the Range Rover 4x4 type, to ram the windows of commercial premises and to dislodge and make off with automatic telling machines (ATMs). The stolen ATM would then be moved to another location, either using the same 4x4 or another stolen vehicle, and the ATM would be cut open to get at the cash inside. The stolen vehicles would then often be set on fire and burned out, sometimes leaving the ATM inside or nearby. This was done to destroy evidence and founded the arson conspiracy. These operations occurred in Hampshire, Surrey and Berkshire. 8. Count 5 related to a specific incident on 10 October 2000 when the police chased a stolen Mercedes estate containing three people wearing balaclavas. During the chase, the police car was rammed by the Mercedes operating in reverse in an attempt to disable the pursuing vehicle. Items such as sledgehammers, bolt croppers and a disc cutter were thrown out of the back of the Mercedes for the same purpose. The Mercedes was pursued down a track in Bracknell Forest and crashed. Its occupants fled. Mintern was found by a dog-tracker close by the abandoned Mercedes and there was a balaclava lying on the ground near where he was arrested. He was wearing mesh-type gardening gloves. 9. The particulars of the counts 3 and 4 conspiracies given on the indictment merely alleged that the co-accused "between the 13 th day of January 2000 and the 25 th day of April 2001 conspired together and with other persons unknown" respectively to burgle and to damage or destroy by fire vehicles belonging to others. However, at the outset of the trial the prosecution placed before the jury a schedule (the "original schedule") which itemised the events which were said to form the particulars of the conspiracy counts. Items 5/25 on that schedule related to the two counts which made up the 2000 conspiracies. There were 21 such items the earliest of which was dated to 13 March 2000 and the last of which was dated to 9 March 2001. All 21 items involved burglaries or attempted burglaries, and a smaller number involved arson to vehicles involved in the burglaries. 10. As for Mintern’s involvement in the conspiracies, the prosecution sought to prove that in particular by evidence falling under six main heads: a footprint, a jacket, a cigarette butt, a trip to New Milton, the Mercedes car chase, and association with two other vehicles, F223 KHO and G900 XFH. 11. The footprint: A ram-raid occurred on 24 March 2000 at Southsea and an ATM was stolen. A Subaru bearing foreign number plates was seen driving away with its boot open and a bulky item in the back. A Subaru Impreza and an ATM were later found burned out in Bramshill Forest near Camberley. A shoe later seized from Mintern’s home in Camberley on 14 April 2000 was found to have the same tread pattern as a print lifted from the crime scene. 12. The jacket: A ram-raid took place at the HSBC branch in Wokingham on 5 April 2000. CCTV evidence showed one of the participants wearing a dark jacket with silver or white stripes down the sleeves. A jacket similar in appearance was later found at Mintern’s home on 14 April 2000. There was no forensic scientific link between the jacket and the crime. 13. The cigarette butt: On 28 June 2000 police officers lay in wait at a shop called Supermacs at Horndean Road, Bracknell. A ram-raid took place involving four vehicles and five people. One of the vehicles was a dark Mondeo, S747 MBK, which was detained at the scene. Four men were arrested, including a nephew of Hinkley, one Danny Coombes. The fifth man escaped in a stolen Shogun, but the description given for him did not fit Mintern. This Mondeo was alleged to have been used in two previous ram-raids (in May or June). The contents of its ashtray were analysed, and Mintern’s DNA was found on one cigarette butt and Hinkley’s on two other butts. 14. The New Milton trip: Police surveillance at the home of Hinckley revealed that Mintern and others drove from there to New Milton in the New Forest on the evenings of 15 and again 17 August 2000. The car used on 15 August belonged to Hinckley and that used on 17 August belonged to Mintern. There was an attempted burglary on a store in New Milton on 31 August. The earlier trips were said to be by way of reconnoitre. 15. The Mercedes car chase: We have already described this above. It occurred on 10 October 2000. 16. Vehicles F223 KHO and G900 XFH: On 16 November 2000 F223 KHO, a Vauxhall Cavalier, was observed on Hinckley’s driveway, a few days after a ram-raid burglary at King and Sons in Sandhurst. The car was forensically linked to the burglary because fibres from it as well as glass from the burgled premises were both linked to the co-defendant Smith. On 29 November 2000 G900 XFH, a Vauxhall Belmont, was involved in a road traffic accident near Crowthorne in Berkshire. In a carpark close to the accident was a Citroen AX, which had been stolen only two hours before the accident and was on fire. Two weeks earlier the Vauxhall Belmont had been observed both outside Mintern’s home address and also outside Smith’s home. Indeed, Smith had a key to it. It was alleged that the Citroen was part of the conspiracy to commit arson and that the Belmont was to enable the conspirators to leave the area. The applications at the close of the prosecution case 17. At the close of the prosecution case counsel on behalf of Stevens made a submission of no case to answer on the conspiracy counts 3 and 4 on the basis that there was nothing to link him to the co-accused. The judge ruled in favour of that submission, saying that the evidence revealed more than one set of conspirators. The Crown responded with an application to amend the indictment to include two separate pairs of counts to cover the 2000 conspiracies: one pair against Mintern, Smith and Hinckley and persons unknown and another pair of counts against Stevens and persons unknown. 18. The judge considered and rejected the prosecution’s application to amend the indictment so as to split the allegations of conspiracy as against Stevens and as against the other three co-defendants respectively. He was satisfied that there would have been no technical difficulty with an original indictment in that form, but that it would not be fair to the defendants as a whole to permit such an amendment at the close of the prosecution case, on the basis of their counsel’s assertion ("without it appearing quite unsupportable") that that would have affected the way in which they would have conducted their case. 19. Mr Hadrill, on behalf of Mintern, for his part submitted that if the original conspiracies charged were now each to be seen as potentially covering two conspiracies, then the indictment was bad for duplicity and Mintern should also be acquitted on counts 3 and 4. 20. The judge rejected that application. He said: "I concentrate on those two particular counts because they are the ones which have led to the decision I made earlier today to conclude that there was no evidence to go before a jury to establish that Danny Stevens was part of either of the conspiracies alleged…But what emerged was that whatever evidence there might be as to Danny Stevens’ activities, there was nothing of any significance which could be placed before the jury to tie him in with the activities of the other three alleged conspirators… In effect, what one is left with is evidence which does not establish the existence of a single conspiracy in which Danny [Stevens] can be shown to have been involved. If it establishes conspiracy, it establishes two conspiracies (or possibly more) but at least two…. I should go on from there to consider where that leaves the other three defendants, because it has been forcefully argued by Mr Hadrill on behalf of Christopher Mintern that if I direct the acquittal of one defendant to that conspiracy I really in logic should direct the acquittal of all of them on the basis that the conspiracy that the prosecution set out to prove has not been proved and therefore the case should not go on against the other three defendants. I do not accept that argument. I think that the effect of my order is to say that the evidence does not prove that Danny Stevens was involved with a conspiracy with the other three. It does not follow that the other three were not themselves involved in a conspiracy to carry out burglaries." 21. The judge then referred to R v. Griffiths [1965] 49 Cr App R 275 , [1966] 1 QB 589 and R v. Greenfield [1973] 57 Cr App R 847 , [1973] 1 WLR 1151 and found that the following dictum from the latter authority met the prima facie facts of the case as they had been revealed so far, where Lawton LJ had said (at 857): "At the end of the prosecution’s case the evidence may be as consistent with the accused, or some of them, having been members of the conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution’s case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the accused, or two or more of them, of the conspiracy charged (despite evidence of the existence of another conspiracy) then the trial judge should let the case go to the jury." 22. The judge next considered Mr Hadrill’s alternative submission on behalf of Mintern that to continue against the background of all the evidence which the prosecution had led would be unfair to Mintern and place him at some disadvantage: but the judge did not accept that submission. He said: "The evidence remains the same. All it does is fail to prove the case of conspiracy against Danny Stevens. Its failure lies in failing to tie him into an agreement, not in failing to adduce evidence which might lead to the conclusion that he has been involved in ramraiding." 23. The judge also accepted an application on behalf of Hinckley of no case to answer on count 4, which was not resisted by the prosecution. Mr Hadrill in his written submissions described this as an "unexpected success". As a result, a similar application was made on behalf of Mintern, but this was opposed by the prosecution and failed. The grounds of appeal 24. In these circumstances Mintern has essentially three grounds of appeal. The first and second arise out of Stevens’ acquittal at half time on counts 3 and 4, the third out of Hinckley’s acquittal at half time on count 4. The first is that when the prosecution evidence disclosed two pairs of conspiracies, one pair involving Stevens and the other pair not involving him, the judge erred in not directing an acquittal in respect of all the defendants on the ground that the counts charged against them were duplicitous. The second is that the judge erred in any event in not discharging the jury but allowing the case to continue against the defendants other than Stevens in circumstances where he had ruled that it would have been unfair to amend the indictment as requested by the prosecution. It is said that that unfairness embraced count 5 as well. The third ground is that the judge erred in not acceding to the parallel application on behalf of Mintern to find no case to answer on count 4, since the evidence against Hinckley was effectively the same as against him. The consequences of the judge’s rulings 25. The judge took care to inform the jury, when they returned to court, about the results of the submissions that he had been hearing at half time in their absence. He told them: "So the conclusion that I have arrived at is that it is right for you to consider all the evidence that exists to see whether there is an agreement at all on both counts 3 and 4 and, if so, whether any of the defendants alleged was involved in it. But I am directing you now that on the evidence that exists at the moment the prosecution has not proved that Danny Stevens, whatever else he may have done, was not – the prosecution has not proved that he was involved in any agreement with the others." 26. The prosecution immediately set about amending the schedule of itemised events which were said to make up the subject matter of the conspiracies on counts 3 and 4 (the "amended schedule"). There were now only 10 robberies or attempted robberies, between 24 March and 23 November 2000, together with their associated car burnings. The prosecution made it clear that they were confining the evidence on which they relied to the items scheduled in the amended schedule. That the schedule would have to be amended was recognised at the time of the submissions which had led to the judge’s rulings. 27. In due course in his summing up, about which no criticism is made, the judge emphasised the need, before convicting any of the three co-defendants remaining in respect of counts 3 or 4, to find a single conspiracy to which each was linked; and he also emphasised the restricted case the prosecution was now making under those counts. Thus he said (at pages 20/21 of the transcript): "Finally on this, it is important to remember this. That where, as in counts 3 and 4 in this indictment particularly, you have an allegation that the defendants took part in a conspiracy over a long period, it is important to remember that the prosecution must prove a single conspiracy. That is what has been charged and that is what the prosecution must prove. You have been told that more than once. So if you have two alleged conspirators, A and B, and there is no evidence to link them into the same conspiracy, they cannot be convicted of conspiring together in that conspiracy. Whatever evidence there may be against each of them individually, they still cannot be convicted of conspiring unless they are linked together in the way I have indicated. That is why I directed you at the end of the prosecution’s case to acquit Danny Stevens. I concluded as a matter of law that there was not enough evidence of the link between him and the others to enable you to convict him as being involved in a single conspiracy with them. When a judge reaches a conclusion of that kind, it is his duty to direct the jury to acquit the defendant in question…It remains for you to consider whether the remaining defendants, or any of them, conspired together or with others in a single conspiracy. What the prosecution seeks to prove under counts 3 and 4 is that there was a longstanding agreement to carry out ram raids as and when the opportunity arose, and that each of the three defendants under count 3 and the two defendants charged under count 4 played some part in the course of conduct which had been agreed." 28. He went on, in dealing with the evidence, to address the jury solely by reference to the amended schedule, to which he referred in terms (at p 48 of the transcript). The first ground: duplicity 29. On behalf of Mintern, Mr Hadrill submitted that counts 3 and 4 were duplicitous, or charged what he described as "rolled-up" conspiracies. In effect he argued that when the judge found that the prosecution’s evidence under counts 3 and 4 prima facie revealed two separate (pairs of) conspiracies, the duplicitous form of the indictment was revealed. It then became impossible to know whether the counts charged a conspiracy or conspiracies against Stevens (with persons unknown but not the other three accused, Mintern, Smith and Hinckley) or a separate conspiracy or conspiracies against Mintern, Smith and Hinckley (and persons unknown but not Stevens). Who was to say that the indictment charged the conspiracies which remained in the charge of the jury, as distinct from the conspiracies which, of the original accused, only involved Stevens? After all, the prosecution’s schedule which had begun by particularising 21 events between March 2000 and March 2001 became an amended schedule particularising only 10 events between March and November 2000. It was submitted that the evidence revealed that the counts had charged duplicitous pairs of conspiracies, that it was impossible to say that the conspiracies which remained in the charge of the jury were the conspiracies alleged in the indictment, and that in effect the prosecution had achieved an amendment of the indictment by restricting it to only part of what the prosecution had earlier presented to the jury as demonstrating the conspiracies alleged. 30. On behalf of the Crown, however, Mr Stephen Parish submitted that duplicity was a pure matter of form, the indictment was not duplicitous in form and it did not matter that the evidence had revealed more than one conspiracy or that there was no evidence to link Stevens into a conspiracy involving the other three. Thus the conspiracies of which Mintern had been convicted were the conspiracies charged in the indictment even if some of the incidents previously relied on were abandoned half-way through the trial. Essentially all that had happened was that it had been determined at the half-way stage that one of the four alleged conspirators had not been party to the conspiracies charged. 31. Both counsel submitted that Griffiths and Greenfield supported their respective cases. We therefore turn to those authorities. 32. The usual point for which Griffiths is cited is that the practice of adding a "rolled up" conspiracy count to a number of counts charging substantive offences should be discontinued (at 288/9). It is in this sense that one speaks of a conspiracy count as "rolling up" a number of substantive counts, whether charged or not charged. The prosecution was castigated as overburdening the jury. The case is also authority for the proposition that a "wheel conspiracy", where each conspirator is alleged to conspire with a central conspirator but not with the other named conspirators, is unknown to the law. A number of farmers had been accused of conspiring to defraud the government in the matter of lime subsidy. Each, however, had acted independently of the other farmers, although they had all bought from the same supplier. The farmers’ convictions were therefore quashed. The judgment of Paull J went on to consider nevertheless whether the convictions of the two central characters could stand, but it was held that they could not, on the ground that the judge’s summing-up had been defective and their convictions were therefore unsafe. Nothing was said about a duplicitous indictment. The judgment ended as follows (at 296/7): "The fundamental mistake was even to attempt to try the matter as one case. In addition the learned judge was certainly not helped either by the somewhat confused way in which the case was developed for the prosecution by way of submissions, nor by the fact that no counsel for the defence even suggested that the conspiracy charge could not stand on the evidence presented by the prosecution, nor suggested that, in fairness to the accused, the case should not be tried as one conglomerate whole. The fact, however, is that the trial of this case and the summing-up are so unsatisfactory that none of the verdicts can possibly stand. The case started as a fraud by under-delivery of lime. When the whole of the prosecution evidence had been tested on this basis, the case began to change to lime for the cost of the subsidy. It was then seen that this would not do, at least in many of the cases, and the case then changed to a case of the parties exaggerating the value of the goods taken in exchange. Not only were the precise charges which finally remained never explained to the jury, but, as was pointed out by Lord Goddard C.J. in the case of ABBOTT (1955) 39 Cr.App.R. 141 , at p. 151; [1955] 2 Q.B. 497 , at p.506: "It cannot be right for a judge to leave a case to the jury where the whole structure upon which the prosecution has been built up to that moment collapses and falls, for that is what happened in this case."" 33. That passage was relied upon by Mr Hadrill, but in our judgment any relevance it has is primarily or exclusively to the second ground of appeal. 34. In Greenfield the defendants had been charged inter alia with conspiracy to cause explosions. A ground of appeal was that that conspiracy count was bad in law. The prosecution sought to prove the conspiracy by calling evidence about 25 explosions or attempted explosions within the 3½ year period of the conspiracy alleged. A schedule was prepared. In the course of the trial the prosecution, while maintaining their original case that all 25 incidents were the responsibility of the same persons, also developed an alternative case viz that at least half of those incidents were "and that all the accused had conspired to effect those incidents" (at 853). Lawton LJ explained the matter as follows (at 855): "Mr Lowry submitted that count 1 was bad in law because, as the trial progressed, the evidence was consistent with the existence of more than one conspiracy. In our judgment that did not make the count bad in law. A conspiracy count is bad in law if it charges the accused with having been members of two or more conspiracies. This is elementary law. We have had to consider whether count 1 did charge more than one conspiracy. It referred to one conspiracy only…Mr Matthew’s opening made clear that the prosecution was alleging that there was only one conspiracy which all the accused had joined. We mention this incident because judges may be in doubt as to what they should consider before deciding whether a conspiracy count is bad for duplicity. They should look first to the count itself. In most cases it will be unnecessary to look at any other material. If particulars of the count have been requested and given, these too should be considered… Duplicity in a count is a matter of form; it is not a matter relating to the evidence called in support of the count..." 35. Lawton LJ then went on to give two examples of counts which were bad for duplicity. One was in R v. West [1948] 32 Cr App R 152 , [1948] 1 KB 709 , where the count alleged conspiracy to infringe Defence Regulations which had changed over the course of time: it followed necessarily that such a conspiracy could not have been formed all at one time. The other example given was R v. Davey [1960] 45 Cr App R 11 , [1960] 1 WLR 1287 : the 11 year conspiracy there alleged to defraud certain companies again could not have been formed all at one time, for some companies had not been incorporated and some had already been wound up at times when some of the alleged conspirators had not been said to have joined it. In contrast to these two cases Lawton LJ cited Griffiths as an example where the conspiracy alleged had not been duplicitous (at 856): "…the conspiracy count alleged one conspiracy and was not bad for duplicity; but the evidence led to support that count wholly failed to prove the conspiracy charged. Instead of proving that the accused had all conspired together for a common purpose, it proved that many of them had conspired with one of their number for their own purposes. No such common purpose as charged was ever established and so, as a matter of proof, there had to be an acquittal." 36. Lawton LJ then returned to the case before him (at 856/7): "In our judgment, the distinction which exists between form and proof is the clue to the problem provided by this case. The prosecution was alleging that these appellants and the other accused had had a common purpose to cause explosions. All the accused in their several ways challenged this basic allegation of a common purpose; and they did so by alleging that the evidence revealed the possibility that those charged may have had in relation to some of the incidents purposes which were not common at all. What they were doing was challenging the existence of the conspiracy as charged, which is but a way of saying that they were denying that the prosecution had proved their case. A charge which is not bad for duplicity when the trial starts does not become bad in law because evidence is led which is consistent with one or more of the accused being a member of a conspiracy other than the one charged. Such evidence may make it impossible for the prosecution to establish the existence of the conspiracy charged. GRIFFITHS ( supra ) was such a case. At the end of the prosecution’s case the evidence may be as consistent with the accused, or some of them, having been members of a conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution’s case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the accused, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury. "That was happened in this case. James J. allowed the case to go to the jury and directed them in the clearest terms that before convicting anyone they had to be sure that the prosecution had proved the existence of the conspiracy charged. Thus at the outset of his summing-up he said this: "Remember this, the longer a conspiracy is alleged to have lasted, the more important it is that one should look with care, to make sure it is one and the same agreement that is being alleged and not a different number of agreements within that one period. The Crown say here that there was one and the same throughout." This direction was repeated over and over again during the long summing-up which this lengthy trial made necessary. In our judgment the conspiracy count was not bad in law and the direction to the jury on it was correct." 37. Mr Hadrill submitted that in this case the judge’s acceptance that the evidence prima facie demonstrated two separate pairs of conspiracies to only one of which the accused other than Stevens might belong caused a situation which went beyond what Lawton LJ was contemplating in Greenfield . It is true that in that case the alternative cases presented by the prosecution remained only that, cases for the jury to consider. Even so, for that very reason the matters there presented went beyond the present, because they permitted the possibility that the incidents which did not form part of the alternative case were caused by an alternative conspiracy. In the present case the judge’s ruling and the prosecution’s reaction to it, the amendment of their schedule, ensured that what was presented to the jury was a single conspiracy only, embracing part of the original incidents scheduled (as in Greenfield ), to which all the accused still left in to answer counts 3 and 4 were alleged to be party. Moreover, the essential distinction drawn by Lawton LJ, between a count which is duplicitous in form and one which merely turns out to be so when the evidence is in, as he put it "despite evidence of another conspiracy", entirely supports the lawfulness of the present counts 3 and 4. Mr Hadrill does not submit that those counts were duplicitous in form. While we think that the distinction between conspiracies which are duplicitous in form and those which are not may in certain cases be difficult to draw, as will often arise with a formal test, we were not asked to consider further the cases of West and Davey cited by Lawton LJ, and the possibility that counts 3 and 4 could be interpreted as being duplicitous in form was in any event not contended for. 38. In our judgment, the true ground on which the conduct of the trial and its convictions are to be challenged, if at all, is the second ground which raises the question of the fairness of the proceedings when once it had emerged that the evidence presented to the jury and the incidents scheduled by the prosecution did indeed cover two separate (pairs of) conspiracies. This is we think indicated by those passages in both Griffiths and Greenfield in which the fairness of the proceedings and of the judge’s directions was considered. It is also indicated by the cases referred to in a separate passage in Archbold , 2004 ed, at para 7-78 ( cf para 1-135 where Griffiths and Greenfield are discussed), to which the court drew attention but which otherwise were not cited. 39. Thus in R v. Thompson [1914] 2 KB 99 an objection taken at trial that a count was duplicitous was dismissed and a conviction was obtained, but on appeal although it was held that the indictment had indeed been duplicitous in that it had charged more than one offence in each count nevertheless the conviction was upheld under the proviso. That case concerned incest. Sir Rufus Isaacs CJ, giving the judgment of a five judge court of criminal appeal, said (at 104/5): "If we had thought that any embarrassment or prejudice had been caused to the appellant by the presentment of the indictment in this form we should have felt bound to quash the conviction whatever our views might be as to the merits of the case. It must not be thought that we are deciding that such objections should not be allowed to prevail either at the trial or in this Court. An indictment so framed might undoubtedly hamper the defence, and if it did we should undoubtedly give effect to the objection…One of the objects of section 4 [the proviso] was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice." 40. In R v. Wilmot [1934] 24 Cr App R 63 , on the other hand, a duplicitous indictment in a driving case led to the quashing of a conviction without more ado and even though the point had not been taken at trial. It was indicated that the vice of duplicity was that the defendant cannot know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois acquit . In R v. Jones [1974] 59 Cr App R 120 one of the counts charged several incidents of affray in a single duplicitous count. The point had been taken even before arraignment and the conviction was quashed: James LJ said (at 128): "If satisfied that no injustice would have been caused, [the judge] should have directed an amendment of the indictment. Alternatively he should have put the Crown to election as to the affray in respect of which the Crown would proceed. He did not do so. In those circumstances there was an error of law." 41. Coming to modern times, R v. Levantiz [1999] 1 Cr App R 465 reviewed these and many other cases. The appellant had been convicted on a count of supplying heroin which this court assumed for the sake of argument had duplicitously combined a series of separate supplies. Buxton LJ pointed out that Thompson "is an authority of this Court that has stood for more than 80 years and has been followed on a number of occasions" of which he gave examples (at 475). He then turned to cases such as Wilmot and Jones which had been relied on for the submission that a duplicitous indictment could not lawfully lead to a conviction or one that could be sustained as safe and demonstrated that they did not support such a conclusion contrary to the authority of Thompson . He also concluded that no injustice or handicap had been done to the appellant there, whose conviction was upheld despite the assumption of duplicity made in his favour. 42. Mr Hadrill did not dispute this principle, recorded in Archbold in the passage just cited, but sought to show in his second ground that Mintern had suffered an injustice. We mention the principle here for it seems to us to support the distinction drawn by Lawton LJ between initial formal duplicity and the development of evidence at trial. If an indictment is formally defective because duplicitous, that should be identified and rectified for all the reasons (referred to above in Wilmot ) why duplicitous counts may cause difficulties at trial and thereafter. If, however, an indictment is not duplicitous but evidence reveals that where one offence had been thought to have been charged there had emerged more than one or the possibility of more than one, then special precautions may need to be taken to ensure that the difficulties of duplicity are avoided. There was no duplicity in Griffiths , but the case as it developed at trial ran into the gravest difficulties which were never overcome, if indeed they were not insuperable. There was no duplicity in Greenfield , but the emerging problems at trial were addressed by what this court regarded as suitable directions. In other cases, like Thompson and Levantiz , there was duplicity, real or assumed, but there was on the facts no embarrassment or prejudice at trial, and convictions were upheld. A trial should not begin with a legally defective indictment, but in all cases it is the substance of the quest for fairness and not the mere form that is important. The question is how these considerations affect the present appeal, and we therefore turn to Mr Hadrill’s second ground. The second ground: unfairness 43. Mr Hadrill’s submission under this ground is that the question of fairness had really been answered by the judge’s own decision that it would have been unfair to have permitted the prosecution to amend the indictment to introduce a new pair of counts against Stevens and thus formally to separate him and the other accused on counts 3 and 4. He submitted that the judge should have permitted the amendments requested and then, on the basis of his finding of unfairness, discharged the jury so that separate re-trials could be conducted. As it was, the three defendants including Mintern left in on counts 3 and 4 were prejudiced. 44. Our difficulty, however, is in understanding how the three defendants were in fact or could in theory have been prejudiced or embarrassed, and nothing that Mr Hadrill said made this matter clearer. It seemed that his main complaint was that Stevens, who on his own admission in an intercepted conversation which had been put before the jury by the Crown was the biggest burglar in that region, had been acquitted of the 2000 conspiracies, while the three other defendants remained on trial. Thus the submission made was that in fairness if one defendant was successful at half-time, then all should have been. On an altogether contrary tack, reliance was placed on evidence subsequently introduced by Stevens (through the relevant investigating police officer) of a further 65 ram-raids carried out in the same area over the same time-scale, of which he said he was innocent: it was suggested that this could have thrown suspicion on the co-defendants and complaint was made that the prosecution could well have re-examined the police officer to show that such cases could be traced to Stevens through either relatives or other associates of his. 45. However, we are wholly satisfied that there was no unfairness to Mintern or his remaining co-defendants on counts 3 and 4. As was submitted on behalf of the Crown, we consider that if anything Mintern was assisted by the establishment in evidence led by the Crown that Stevens, with other persons unknown – for it was plain that ram-raiding could not be carried out by one person – but not the co-defendants, was implicated in incidents which had been originally scheduled against the accused but had now been dropped from the Crown’s amended schedule. In other words, ram-raids were not so unusual that any evidence linking Mintern to one such raid would necessarily link him to other raids too. The co-defendants were in a position to place any and all raids still blamed on them at the door of Stevens and his gang. In the meantime the Crown accepted, by the amendment of their schedule, that Mintern had nothing to do with the raids now omitted from the amended schedule. As for the judge’s ruling against an amended indictment, it seems to us that his predominant concern was of any unfairness to Stevens, who was otherwise entitled to an acquittal on these counts. In any event, the judge had to decide in the balance of his discretion whether in the absence of an amendment to charge Stevens with two new counts of conspiracy it would be right to discharge the jury in respect of the existing counts against the other three defendants, once the prosecution schedule had itself been amended. We do not think that he can be shown to have erred in the exercise of that discretion. 46. Finally, we have in mind the judge’s clear and helpful comments and directions to the jury both at the time of explaining what he had done in directing acquittals on counts 3 and 4 in favour of Stevens and in his later summing-up. At the end of the day, the case made against Mintern and his two remaining co-defendants was a limited and restricted one in circumstances where the Crown had to accept that other ram-raids were being carried out pursuant to other conspiracies not involving them: and the jury were so directed. 47. As for count 5, whatever ramifications it had for the other counts, the evidence against Mintern there was extremely strong and seems to us to be wholly unconnected with the arguments raised on the other counts. 48. We therefore found that Mintern’s second ground failed as well. The third ground: Hinckley’s acquittal on count 4 49. We think that there is no substance in this ground. In effect, Mr Hadrill’s submission is that the evidence against Hinckley and Mintern on count 4 was essentially the same, so that if a submission of no case to answer was accepted on Hinckley’s behalf, it should have borne fruit for Mintern as well. We do not agree. The judge was entitled to think that the evidence against Mintern went beyond that against Hinckley; and in any event, if Hinckley was lucky in having the Crown not oppose the submission in her case, that says nothing for the situation where Mintern is concerned. A submission was only made in Mintern’s case when Hinckley’s was accepted. That is consistent with our way of looking at the matter. In our judgment there was ample evidence in Mintern’s case to justify the judge’s decision to refuse to direct his acquittal on count 4 at half time. Conclusion 50. It follows that we reject all three grounds for the reasons given above. In the circumstances Mintern’s appeal was dismissed.

2004_01_21-173.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2004/7/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2004/7

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[2010] EWCA Crim 2144

EWCA_Crim_2144

2010-09-02

crown_court

Neutral Citation Number: [2010] EWCA Crim 2144 Case No. 2009/03321/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 2 September 2010 B e f o r e: LORD JUSTICE ELIAS MR JUSTICE SIMON and HIS HONOUR JUDGE STEPHENS QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - JAMES BRUCE LAMONT __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill C

Neutral Citation Number: [2010] EWCA Crim 2144 Case No. 2009/03321/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Date: Thursday 2 September 2010 B e f o r e: LORD JUSTICE ELIAS MR JUSTICE SIMON and HIS HONOUR JUDGE STEPHENS QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) __________________ R E G I N A - v - JAMES BRUCE LAMONT __________________ Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 165 Fleet Street, London EC4 Telephone 020 7404 1400; Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) __________________ Miss M Moore QC appeared on behalf of the Appellant Mr W Harbage QC appeared on behalf of the Crown ____________________ J U D G M E N T LORD JUSTICE ELIAS: 1. This is an appeal against conviction. Leave was granted by the full court. 2. On 17 July 2009, in the Crown Court at Cambridge, having been convicted by the jury, the appellant was sentenced by His Honour Judge Hawkesworth on count 1 (rape), to an extended sentence of twelve years, which comprised a custodial sentence of six years and an extended period of licence of six years; on count 4 (assault occasioning actual bodily harm), to three years' imprisonment concurrent; and on count 5 (false imprisonment), to one year's imprisonment concurrent. 3. The appellant was also charged with two further counts of rape (counts 2 and 3). The jury acquitted him on the judge's direction in respect of count 2. In respect of count 3 the jury were unable to agree a verdict and that count was ordered to remain on the file on the usual terms. 4. The rape allegations concerned two separate complainants. The count on which the appellant was convicted concerned an allegation of rape in relation to "CS". The offence took place in January 2002, seven years before the trial took place. The appeal is directed solely against the safety of that conviction. 5. The other four counts, including the two counts of rape which did not result in convictions, arose out of events which took place in 2007 and concerned a different complainant "NH" with whom the appellant had a relatively long-standing relationship. Since the counts relating to the second victim are not directly in issue in this appeal, we will deal with them very briefly. 6. The 2002 rape occurred in the following circumstances. The complainant, then aged 19, had a relationship with a close friend of the appellant, Wayne Rowe. He was the supervisor at a hotel where she worked as a waitress. At that time she lived in bedsit accommodation provided by her employer. The relationship with Rowe had not lasted a long time and it appears that she thought it more significant than he did. On one occasion Rowe had contacted her using the appellant's phone. She spoke to the appellant and there was some conversation about whether she might pair the appellant up with her friend. She stored his phone number in case, she said, she needed an alternative contact for Rowe. 7. CS contacted the appellant on 20 January 2002 because she was unsuccessful in trying to contact Rowe. There was some banter between them about the appellant getting together with her friend and it resulted in him arriving at her bedsit at 1.30am. This was the first time that she had met him in person. She said that the appellant sought to impress her. He talked of his stocks and shares and said that his father was a Lord. According to her, the atmosphere then changed when he complimented her on her appearance, touched her face and winked at her. The prosecution case was that he wanted to have sex with her. He asked her in earthy language whether she would have sex with him. Initially she did not take this seriously, but later (and whilst he appellant was still there) she left a voice message for Rowe complaining about the appellant's behaviour. The appellant then sent a text message to Rowe, inviting him to join them for a drink, but he did not do so. CS complained about a back pain and the appellant offered to give her a back massage. She accepted. He began to touch her breasts and to kiss her forcefully. Again he said that she wanted to have sex with her but she refused. He finally left at about 5.30am. 8. A few days later, on 24 January, the complainant sent a text message to the appellant saying that she was not happy with what had happened and would like to talk about it. He visited her in her room that afternoon. She drank a glass of wine while he smoked cannabis. The complainant said that on this occasion he forced her to have sexual intercourse against her will. He made sexual advances and when she resisted, he pushed her on her bed, removed her clothing and penetrated her. She said that she asked him on three occasions to stop and started to cry. He said that he was not listening. She pushed him away before he had ejaculated. He was "cocky and proud of himself". She was upset and crying and wanted him to leave. Shortly thereafter he did. 9. The complainant went to the hotel where she worked and informed Rowe of what had occurred. He told her to go to the police. She did so the following morning. She was examined by a doctor that day, but there was no DNA evidence linking her to the appellant in any way. 10. The appellant was arrested and interviewed. His evidence at trial, which was consistent with what he said in interview, was that he had had no sexual contact with the complainant at all. His case was that she had sought to make sexual advances towards him and that he had rejected them because he had a long-standing girlfriend. It was out of pique at his rejection that she made the allegations against him. He said that he went to her bedsit in order to obtain some cannabis. In the course of the interview he urged the police on a number of occasions to obtain telephone records from his phone, as well as those of the complainant and Rowe. He alleged that the complainant had made many calls and sent lots of text messages to him. The police did not do so. Nor did they interview Wayne Rowe. They tried to contact him to obtain a statement, but he failed to respond to their calls. He later admitted that he was deliberately avoiding them. 11. In the event, the police decided not to take action at that time. The appellant was told six months after the complaint that unless any further evidence was obtained, he would hear no more about the matter. It appears that the police were not prepared to take CS's word that the rape had occurred without DNA support, which was lacking. The matter was resurrected only after the second complainant made allegations of rape some years later. 12. At trial evidence was given by the complainant CS and by the appellant along the lines we have indicated. Rowe gave evidence in which he confirmed that CS had been to see him shortly after the alleged incident complaining that she had been raped. When he spoke to the appellant, the appellant denied that sexual intercourse had taken place at all. 13. Detective Sergeant Toovey, the officer who investigated the matter in 2002, gave evidence. He accepted that telephone records could have been obtained, as could billing evidence from telephone companies showing the phone traffic over the relevant days. 13. Evidence was also given by the appellant's former wife, AS, who had been in a long-term relationship with the appellant and who had been married to him for a short period of time. This was in the nature of bad character evidence because the appellant had attacked the character of the complainants and other witnesses. AS said that the appellant sometimes assaulted her and was often violent, triggered by his use of cannabis. In addition, he was unfaithful to her and lied to her. He conceded that he had been unfaithful during the marriage, but denied other deliberate assaults upon her. 14. The other two counts of rape (of which the appellant was not convicted) related to the second complainant, NH. One of them concerned an alleged incident when he was said to have raped her whilst she was asleep, and the other was a specific incident which was described in some details before the jury. NH alleged that the relationship had involved physical violence, emotional cruelty and sexual abuse. The incidents covered by counts 4 and 5 (assault and false imprisonment) occurred on an occasion when the complainant asked her parents to take her home following a dispute with the appellant and had then changed her mind. He had accused her of embarrassing him in front of the neighbourhood. He prevented her from leaving the house, punched her, pinned her to the bed and tied her wrists with black cable ties. She suffered a perforated eardrum. 15. At a pre-trial hearing, defence counsel submitted that it would be wrong to proceed on count 1 because it would be an abuse of process. The appellant could not receive a fair trial because the police had failed to obtain the relevant telephone records which he had requested that they obtain and which would have shown the phone traffic between the complainant, the appellant and Rowe. Furthermore, they failed to obtain a statement from Rowe at the relevant time. Inevitably, his evidence would be less reliable following a statement taken seven years later. 16. Miss Moore QC, who represented the appellant below and before us, submitted that had such investigations been carried out, they would have supported the appellant's account and undermined the complainant's. It was the appellant who pressed for this information, as indeed he pressed for the DNA test to be conducted. Miss Moore submitted that it was reasonable to assume that the material would be likely to have supported his account of the events. 17. The principles for determining whether a trial should be stayed for abuse of process where there is a failure to obtain potentially material evidence are now well established. The relevant principles were laid down in the leading authority of R (Ebrahim) v Feltham Magistrates' Court [2001] 1 WLR 1293 . Although that was a Divisional Court case, the principles there enunciated have since been applied in this court in cases such as R v Medway [2000] Crim LR 415 and R v Dobson [2001] EWCA Crim 1606 . 18. In determining whether there is a stay, the principles can be stated as follows: (1) Was the prosecution in breach of a duty in failing to obtain evidence? In determining that question regard should be had to the Code of Practice applicable to prosecuting authorities and the Attorney General's guidelines. If there is no breach of duty, then the question of stay will not arise. (2) If the prosecution is in breach of duty, have they acted in bad faith or otherwise in serious default of their duty? If so, then the prosecution should be stayed on that ground alone, irrespective of whether a fair trial would be possible. In these very exceptional cases it is not so much that the defendant cannot receive a fair trial but that it would be unfair to subject him to a trial at all. (3) Absent bad faith or serious default, there should only be a stay if there is such serious prejudice to the defendant that a fair trial cannot be guaranteed. (4) In most cases, the difficulty arising from the lack of evidence can be dealt with by an appropriate direction in the trial process itself. It is only in exceptional circumstances that a stay is likely to be appropriate. In this context it is in our view important to bear in mind two points which were emphasised by this court in Ebrahim . First, the discretionary power to ensure fairness means fairness to both the defendant and to the prosecution. It is important that the guilty are convicted as well as the innocent acquitted. Second, there will frequently be holes in the prosecution case which may result from some failing by the prosecution. Typically, for example, it may be a failure to recover CCTV material which would have been available had steps been taken at the appropriate time. In giving the judgment of the court Brookes LJ said: "27. .... If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of [relevant evidence] is likely to hamper the prosecution as much as the defence." 19. The trial judge directed himself in accordance with Ebrahim (although he did not recite the principles in precisely the way we have done). He held that in the circumstances it was not unreasonable for the police to fail to pursue these lines of enquiry. He accepted a submission to the effect that it was more difficult at that time to obtain the relevant telephone material than it might be today. He was satisfied that there was no evidence of serious default or bad faith, and therefore it was not a case in which there should be an automatic stay because of the conduct of the prosecution. 20. Finally, the judge said that even if he were wrong about whether the prosecution had been in breach of duty, he was satisfied that the issue could be dealt with during the trial with appropriate directions in the summing-up. In the judge's view the missing material went only to a peripheral issue. Furthermore, whilst the material might have assisted the appellant, equally he considered that it might have helped the prosecution. It was pure speculation to say that it would have been more favourable to one than the other. The judge observed in terms that the fact that it was the appellant who had pressed for the information to be obtained did not justify the inference that it must be to his advantage. In the course of his ruling he said: "[Investigations] may have revealed material which would have supported the credibility of [the appellant's] account and undermined [the complainant's]. But it remains the position, in my judgment, that they could also well have produced the reverse result because it is by no means outside the scope of the experience of this court that defendants make suggestions to the police which, when actually pursued, produce the contrary result than that which they .... invite the police to find." The judge was therefore satisfied that, provided proper directions were given in his summing-up, that would suffice to secure a fair trial for the appellant. 21. The principal ground of appeal is that the judge was wrong to say that the case should not be stayed. Miss Moore no longer pursues an argument that there was such a dereliction of duty that it would be unfair to have a trial at all. However, she submits that the judge was wrong to say that there was no breach of duty by the prosecution. She submits that, given the nature of the case and in particular the central significance of credibility, where it is essentially one word against another, the failure to obtain the telephone records meant that the appellant did not have available to him evidence which could, if obtained, have lent real weight to his case. 22. In relation to the breach, Miss Moore relies on certain passages from the Code which emphasise -- for example at paragraph 3.4 -- that an investigator should pursue all reasonable lines of enquiry whether these point towards or away from the suspect. She submits that the failure to obtain telephone records was a clear breach of that duty. The appellant wanted this information and there was no difficulty in obtaining it. The phones could have been checked at that stage for any text messages or voice messages. She contended, although there is no expert evidence about this, that even deleted messages could have been recovered at that time. Moreover, the police did not even obtain relevant billings for the days in question, notwithstanding that it was conceded by the police officer that they could readily have been obtained. When coupled with the subsequent delays, the effect was that no evidence relevant to any of the phone calls was now available. 23. Similarly, although Miss Moore puts far less emphasis on this, the police manifestly could at the time have found Rowe. Even if he had sought to avoid them, he could readily have been tracked down. She recognised that in view of the fact that Rowe subsequently made a statement, that failing was now of relatively limited significance, but she asserted that it was indicative of a somewhat cavalier approach by the prosecuting authorities. 24. Mr Harbage QC, on behalf of the prosecution, submits that the trial judge was fully entitled to conclude that there was no breach of duty here. The question is whether it was reasonable for the police at the time not to have carried out further investigations. They plainly adopted the position that absent relevant forensic evidence, they proposed not to seek to try the appellant. In those circumstances it would have been futile to have obtained further information which in all likelihood would simply have had to be retained for no good purpose. 25. In any event, even if the judge had been wrong about that, Mr Harbage submits that there was no basis for saying that there was serious prejudice such as to justify the exceptional conclusion that the appellant could not receive a fair trial. The judge was right to conclude that the relevant phone messages were essentially peripheral to the key issue in this case, which was whether there had been sexual intercourse and whether or not it was consensual. It was highly unlikely that those questions would have dealt directly with any text message or voicemail. It was not even alleged that any relevant phone messages had been sent during the meeting when the rape itself took place. Moreover, he submitted that the judge was plainly right to say that this lack of evidence might have hampered the prosecution as much as the defence. It was pure speculation to say that it would necessarily have assisted the appellant. 26. Mr Harbage further submitted that there was plainly sufficient credible evidence in this case, apart from the telephone records, which could justify a safe conviction. In addition to the evidence of the complainant and the appellant, there was the evidence of Rowe of the immediate complaint and certain background character evidence. The judge was fully entitled to conclude that this was not one of those exceptional cases where it would now be unfair to the appellant to allow the trial to go ahead. 27. We accept that submission. We have some reservations as to whether the judge was right to conclude that there was no breach of duty, given that the material was so readily available. Even in circumstances where it had been resolved that no trial should take place, it would have been prudent to take those relatively easy steps to obtain as much information as possible concerning the telephone traffic. In any event, we doubt whether the first principle adumbrated in Ebrahim to the effect that if there is no breach of duty there can be no stay is necessarily apt in a case such as this, where the police –no doubt in many cases for good reason – do not carry out investigations, which they would do if a trial were to be held, on the grounds that they do not at that time intend to prosecute. It seems to us it may indeed be reasonable for the authorities not to wish to waste resources and time on obtaining material which they think is unlikely to be relevant because it is not anticipated that a trial will occur. 28. However, in such circumstances we think that even if the prosecution had not acted in breach of duty, there may still be cases where the absence of that evidence, even if not the result of any such breach, could render it unfair to try the appellant. If that were the case, then a stay would have to be granted, even if no one was at fault. Article 6 would seem to dictate that outcome. However, we envisage that such circumstances will arise only rarely. 29. But whether or not there was a breach of duty in this case, we are satisfied that the judge was fully entitled to conclude that there was sufficient potentially credible evidence to allow this case to proceed. We recognise that credibility was, as Miss Moore says, an important feature in this case. The evidence, if it had been obtained, may indeed have cast some light on that issue. But it still would not have gone to the heart of the case. Moreover, in our view the judge was right to say that it was speculation to determine whether the text would have supported the prosecution or the defence. The fact that the appellant was pressing for it was far from decisive on that issue. As we have said, it is an important element in the concept of fairness and in the decision whether or not to grant a stay that the interests of the prosecution and those who allege that they are victims of serious crimes must also be weighed in the balance. 30. We think therefore that the judge's decision not to stay proceedings was in accordance with his discretion and in accordance with legal principle. 31. The other two grounds were, as Miss Moore accepted, not so much separate grounds of appeal but rather factors in support of her primary case. Given our conclusion on that, we will deal with them briefly. The first related ground was that the judge did not satisfactorily sum up the case so as to deal adequately with the potentially adverse consequences to the appellant for failing to obtain this information. She submitted that the judge should have emphasised more fully the nature of the appellant's concerns stemming from the lack of evidence and the potential adverse consequences. 32. We do not accept this submission. The judge dealt with the issue relatively early in his summing-up when he said this: "Even if you believe the delay here is perfectly understandable, if you believe that this has put the defendant at a real disadvantage in putting forward his case, why then take that into account in his favour when deciding if the prosecution has made you sure of his guilt. For instance, Miss Moore points to the absence of phone records as placing the defendant at a disadvantage when countering [CS's] allegations. She says they could have supported the credibility of his version of events, rather than hers. Well, of course, that is right. But, equally, I suppose, they could have supported [CS's] version of events. Although Miss Moore points to the fact that the defendant was calling for the records in his interview, he would hardly be likely to do so if they did not support his case. If you think the defendant was disadvantaged by the delay, and the unavailability of records, take it into account in his favour." Then towards the end of his summing-up, when dealing with the appellant's interviews, the judge commented that the appellant had emphasised that he was anxious for the phone records to be retrieved to see if any sort of material could be recovered which would corroborate what he was saying about these events. 33. In our view the matter was put fairly before the jury. Indeed, the judge also drew attention to the fact that it was the appellant himself who was pressing for this information. That is an important feature which is relied upon by Miss Moore. 34. In addition, the jury had before them the transcripts of the interview where it was clear that the appellant sought this evidence. No doubt in her closing submissions Miss Moore would have placed significant emphasis upon it. We do not think, therefore, that there is any unfairness in the way in which the judge dealt with the matter. 35. The third ground is also to some extent a makeweight. It is put in this way. Miss Moore observed that in 2002 it was decided to take no action with respect to the original rape allegation. Action was taken only after a complaint from the second complainant, NH. Indeed, she did not initially complain about any sexually impropriety. It was only at some stage after she had made allegations of physical abuse and false imprisonment. 36. Miss Moore submits that in many ways it was unsatisfactory that the two cases should be heard together. However, she says that she could not realistically have persuaded the court to sever the case in count 1 from that in counts 2 and 3 because there was an argument that the judge should allow the jury to hear the complaints with respect to both complainant on the basis that they may be cross-admissible on grounds of propensity. The judge had said that he would not determine that matter until the evidence had all been heard. In fact, the judge subsequently gave a bad character direction when he did not allow cross-admissibility on propensity, but he allowed the evidence to be adduced on the basis that if the jury were to find proved the rape count against one of the complainants, they would be entitled to have regard to that fact and to say to themselves that it might be an unlikely coincidence that there would be two separate allegations of rape from two separate complainants. The judge summed up this aspect of the case as follows: ".... What is implicit in this point is a contention by the Crown that if you were sure in respect of the allegations of one of the girls and you were sure two separate complaints of rape must be more than a coincidence, then your certainty in respect of one of the girls could assist you in determining the truth of the other's complaint of rape." The judge also directed the jury that they must be aware of any possible risk of one allegation of rape having influenced the mind of the other complainant. 37. It was suggested that this way of summing up the matter to the jury may have been more favourable than the law requires in that it suggests that the jury first had to be sure that one of the allegations was sustained before they could take that into account when assessing the other counts. It may be that the requirement is not that high. 38. Be that as it may, in this case the situation was that the jury were unable to reach a verdict in relation to one of the rape complaints of the second complainant. Miss Moore says that in the light of that, and given the judge's direction, it must be recognised that some members of the jury may have considered that the appellant was guilty of the rape in count 3 and may have used that to influence their conclusion that he was also guilty on count 1. 39. We make two points about that submission. First, it is not an argument related to the particular circumstances of this case, namely to the delays, to any failure by the prosecution or to anything of that nature. If correct, the argument would run where potentially cross-admissible counts resulted in a conviction on one and a hung jury with respect to the other. 40. Second, in any event, in our view the judge is telling the jury that if they (the jury) are sure about one of the counts, then they can if they wish use it to support their verdict in the other. He is not telling them that they can use the conviction in that way if they as individual members of the jury are satisfied of guilt. Miss Moore says that is not clear. We disagree. The judge summed up to the jury as a body. Accordingly, in our view, the premise of the argument is not sustainable. Indeed, as Mr Harbage pointed out, all the evidence suggests that the jury took considerable care over this case. They retired for a very lengthy period of time, and the fact that they were unable to reach a verdict on one count, but reached findings of guilt on other counts relating to the same complainant suggest that they properly took on board their obligation to look at the evidence with respect to each count individually. Mr Harbage submits, and we accept, that there is no reason to suppose that the jury failed properly to follow the directions of the judge in this matter. 41. For all these reasons this appeal against conviction is dismissed. _________________________________________

2010_09_02-2495.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2010/2144/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2010/2144

a04c535e3f6c151606dc132c1e28a4a339bfe07ef56990b444b57c2334682a59

[2005] EWCA Crim 859

EWCA_Crim_859

2005-04-06

crown_court

Case No: 200305991 D2 Neutral Citation Number: [2005] EWCA Crim 859 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 6 April 2005 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE BODEY MR JUSTICE OWEN - - - - - - - R E G I N A -v- MICHAEL WILLIAM LEWIS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020

Case No: 200305991 D2 Neutral Citation Number: [2005] EWCA Crim 859 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2 Date: Wednesday, 6 April 2005 B E F O R E: LORD JUSTICE ROSE (Vice President of the Court of Appeal, Criminal Division) MR JUSTICE BODEY MR JUSTICE OWEN - - - - - - - R E G I N A -v- MICHAEL WILLIAM LEWIS - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MR J TURNER QC AND MR J WOODBRIDGE appeared on behalf of the APPELLANT MR D PERRY AND MR E FOWLER appeared on behalf of the CROWN - - - - - - - J U D G M E N T 1. LORD JUSTICE ROSE: It is common ground that the question for this court in the terms of section 2 of the Criminal Appeal Act 1968 (as amended by section 2 of the 1995 Act) is whether in the circumstances of this case we think the appellant's convictions are unsafe. For reasons which we shall endeavour briefly to explain, we do not think the convictions are unsafe. 2. The circumstances are that on 12 November 1996 at Croydon Crown Court (before HHJ Crush) the appellant pleaded guilty to three counts of having custody of a counterfeit currency note with intent. On 20 November he was sentenced in relation to those offences to a total of four and a half years' imprisonment. He appeals against conviction by leave of the single judge, who generously granted an extension of time of six years and 10 months, and to that extension we shall later revert. 3. The facts were that on 25 July 1995 the appellant met two undercover police officers called "Chris" and "Ian" at a public house near Tonbridge. He showed them a substantial quantity of £20 notes (to which the first count in the indictment related) and of £10 notes (to which the second count related). He was arrested. His home was searched and a further quantity of counterfeit £10 notes was there seized. He said in interview that he had been introduced to a man called "Terry" by Colin Phelps in connection with bankrupt stock and tobacco. 4. At a meeting in July 1995, Terry had started talking about some counterfeit currency and had pressed the appellant to obtain some as part of the bankrupt stock and tobacco deal. The appellant, who was a man of previous good character, had never been involved with counterfeit notes before, but he had a contact he referred to as "John", who did have dealings with counterfeit money and would be able to supply counterfeit notes. Terry introduced the appellant to men called, respectively, "Jag" and "Jazz". 5. At a meeting on 14 July 1995, Jag arrived with Chris, the undercover police officer. A large order for counterfeit currency was placed. The transcript of the tapes which had covertly recorded that meeting and a subsequent meeting were served on the defence as part of the prosecution case. In the course of the recorded conversation, the appellant seemed willing to enter into a transaction to supply counterfeit money, but he was encouraged, certainly with regard to the degree of supply, by Chris and by Jag. 6. The case as advanced by counsel on behalf of the appellant was that, while he was motivated by money to enter into the transaction to sell counterfeit currency and was indeed, as he had told the police, to be paid £2,500, he had been entrapped into committing the offences by the police officers and the participating informants involved. 7. On 11 November 1996 the appellant sought to have the proceedings stayed as an abuse of process on the ground that, by reason of the activities of the undercover police officers and/or participating informants, it was not possible for him to have a fair trial, and the moral integrity of the criminal proceedings had been so impugned that the proceedings should be stayed. An application was also made for further disclosure, including material in relation to the status of Colin Phelps, Terry, Jazz and Jag. 8. Before he made his ruling on that application to stay, the judge held, at the behest of the prosecution, a public interest immunity hearing on an ex parte basis. He in consequence made no order for further disclosure. It is to be noted that the careful and detailed submissions by reference to authority and otherwise made by counsel on behalf of the defendant included this passage: "If your Honour came to the conclusion, for example, on evidence not before the court, that Mr Lewis was enticed initially into committing these offences and then got caught up within the transaction, so that by the time of the meeting of the 14th July he was well and truly in it, which is apparent from the transcript that we have, it is a very different situation than starting on the 14th July and reaching further conclusions on that basis. So that is the way in which the defence say it will be wrong for the Crown to be allowed to proceed without more." 9. In the light of the submissions which he had heard, the judge gave his ruling, which included the following passages: "The defendant is indicted on three counts of having custody or control of counterfeit currency notes. He was arrested on the evening of Tuesday 25 July 1995 and was in possession of notes of the quantities mentioned in the three counts in the indictment, the majority of which was in the rear of his car and the remainder at home. He was interviewed the next day and said he knew it was counterfeit and that he had been tempted into it due to financial circumstances. The evidence of the event of the 25th July are in themselves sufficient to found the offence in each case with which he is charged, but there is more material." 10. At page 62C, by reference to the transcript of the tape of the meeting on 14 July, the judge said this: "It is clear from the passages to which I have referred that Chris was keen to coax the defendant to sell counterfeit £20 notes. But the way in which such persuasion was expressed does not, in my view, amount to pressure, nor did the defendant complain of pressure when he was interviewed. The transcript, which, as I say, may not be complete, shows this defendant within half an hour, a dozen sentences of being introduced to Chris at that meeting offering him the £20 notes. I am not so far persuaded that he was a man who committed offences he would not otherwise have committed." 11. A little lower down that page the judge referred to the fact that, prior to giving his ruling, he had reviewed the PII application which had been made to him. The judge having refused to stay the proceedings on the ground of abuse of process, there was an application made in the alternative that the evidence relied upon by the Crown should be excluded under section 78 of the Police and Criminal Evidence Act 1984 . The learned judge refused the application to exclude the evidence, and he also ruled that the ambit of cross-examination in the course of the voir dire should be severely restricted. Those rulings having been given, the appellant pleaded guilty, as we indicated at the outset of this judgment, and was then sentenced, subsequently, as we have said. 12. At that time, junior counsel, then as now appearing for the defence, advised that there were no grounds of appeal to this court and at that time no appeal was sought to be made. However, application was made to the European Court of Human Rights in Strasbourg. They on 22 July 2003 (15 BRHC 189) held that there had been a breach of the appellant's right to a fair trial. In paragraph 52 of their judgment, the court referred to a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence: "The right to adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition, Article 6(1) requires that the prosecution authorities should disclose to the defence all material that is in their possession for or against the accused." 13. The court also went on to rehearse a passage from its earlier judgment in Jasper v United Kingdom , which includes: " ... the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused ... In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1) ... Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities ..." 14. The Strasbourg Court went on in paragraph 57 to say: "In the present case, however, it appears that the undisclosed evidence related, or may have related, to an issue of fact decided by the trial judge." 15. At paragraph 58, the court referred to the applicant having been denied access to the evidence, and said this: "In Mr Lewis' case, the nature of the undisclosed material has not been revealed, but it is possible that it also was damaging to the applicant's submissions on entrapment. Under English law, where public interest immunity evidence is not likely to be of assistance to the accused, but would in fact assist the prosecution, the trial judge is likely to find the balance to weigh in favour of non-disclosure. 59. In these circumstances, the court does not consider that the procedure employed to determine the issues of disclosure of evidence and entrapment complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused. It follows that there has been a violation of Article 6(1) in this case." 16. The court also went on in paragraph 62 to say: "In the present case, the applicants were in effect inviting the court to speculate as to whether the outcome of the trial might have been different had a different procedure been followed in the Crown Court. 63. It is well established that the principle underlying the provision of just satisfaction for a breach of Article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements. The court will award monetary compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible ... The finding of a violation of Article 6(1) in the present case does not entail that the applicants were wrongly convicted and the court does not consider it appropriate to award monetary compensation to them in respect of loss of procedural opportunity or any distress, loss or damage allegedly caused thereby." 17. That was a decision which attracted adverse academic comment, particularly in Criminal Law Weekly . But the United Kingdom Government did not pursue a referral, which had been contemplated, to the Grand Chamber in Strasbourg. 18. Against that background, the ground of appeal in relation to which the single judge gave leave is expressed in these terms: "The decision of the European Court of Human Rights in Edwards and Lewis v United Kingdom confirms that the procedure employed to determine the issues of disclosure of evidence and entrapment breached the appellant's Article 6 right to a fair trial. The conviction of the appellant is therefore [our emphasis] unsafe." 19. Before this court, Mr Turner QC, on behalf of the appellant, and Mr Perry, on behalf of the Crown, have advanced competing oral submissions in support of the very substantial written arguments which, together with relevant authorities, were placed before this court prior to the hearing. We intend no disrespect to the arguments advanced on either side to say that we do not propose to rehearse them in detail. 20. The essence of Mr Turner's submission is that the Strasbourg Court found the proceedings were unfair. This court ought not to reach any different conclusion. If there had been abuse of process there ought not to have been a trial of this appellant. Entrapment is a species of abuse. The appellant should not have been required, by virtue of the judge's ruling dismissing the application for a stay on the ground of abuse, to plead again as he did. He was deprived, as were the defendants in Early and Ors [2003] 1 Cr App R 19 , of the proper opportunity to establish entrapment because of the unfair course which proceedings took before the learned trial judge. 21. Before turning to our conclusions, it is pertinent to make three preliminary observations. First, despite Mr Turner's reliance on Mullen [1999] 2 Cr App R 143 and Early , the present case is very different from both of those authorities. It is different in many respects, of which it is necessary to identify just one. In each of those cases the prosecution had been demonstrably guilty of gross misconduct, bringing the whole prosecution process into disrepute. This had occurred in Mullen by reason of the kidnapping of the defendant in order to bring him from a foreign country within the jurisdiction of this court for trial. In Early , there had been incomplete disclosure supported by perjury. 22. In the present case, it is to be noted, in relation to the allegation of entrapment which was sought to be sustained before the learned trial judge, that, as we have indicated, on 14 July, the appellant evidenced willingness to provide large quantities of counterfeit currency. On arrest, in response to a question as to whether he had anything to say, he said, "there is not a lot I can say". On interview, he did not say that he had been set up, pressured or forced into committing the offence, but said that he had been tempted by reason of his financial circumstances and was to gain £2,500 from the commission of the offences. He had himself gone to visit the source of the counterfeit money. At no stage in the Crown Court was there any evidence from the defendant asserting that pressure had been put on him. There is no doubt that the burden of proving an abuse of process before the Crown Court judge rested, on the balance of probabilities, on the defence. There is also no doubt, as it seems to us, that entrapment of itself does not necessarily give rise to such an abuse of process as would require a stay of proceedings. 23. Secondly, in view of the House of Lords decisions in Lambert [2002] 2 AC 545 ; Kansal (No 2 ) [2002] 2 AC 65 , and Lyons [2003] 1 AC 976 , it is not open to the appellant to assert that his conviction at a time before the coming into force of the Human Rights Act 1998 was unsafe merely because the European Court of Human Rights found unfairness in breach of Article 6. The Act , as the House of Lords held, did not have retrospective effect. And the Strasbourg Court itself, in paragraph 63 of its judgment which we have rehearsed, rightly asserted that their finding did not establish a wrongful conviction. The Strasbourg finding is of course a factor to which this court should have regard, and it does. 24. Thirdly, it is impossible for the appellant to challenge the English PII procedures as being in themselves unfair in the light of the House of Lords decision in H and C [2004] 2 AC 174 . This is certainly not, as it seems to us, a case in which it begins to be shown that, exceptionally, special counsel ought to have been instructed in relation to the PII hearing. 25. In that context, the reasons why we reach the conclusion expressed at the outset of this judgment are these. First, the trial judge's ruling on entrapment was plainly based, in part, on the tape of the 14 July confiscation, a tape which, as we have said, had been disclosed as part of the prosecution case. His conclusion on the face of it seems to us to have been unimpeachable and there is nothing before us to suggest that it was in any way tainted by anything which he had learned in the course of the ex parte PII hearing such as might lend any sustenance to Mr Turner's suggestions in that regard. The material before the trial judge, as we have said, is no longer available because of the lapse of time before consideration by this court. But it is plain from the passage in his ruling which we have already cited that the judge revisited the PII material having heard submissions by counsel on behalf of the defendant with regard to the possibility of entrapment. That being so, as it seems to us, it is inconceivable that the trial judge would not then have ordered disclosure of any material which might help the defence in relation to entrapment. Although Mr Turner relied on Looseley [2001] 1 WLR 2060 , he expressly disclaimed any suggestion that that decision of the House of Lords had changed the law. His submission was that it did no more than bring together the previous authorities, all of which had been referred to by counsel for the defendant when making his submissions to the trial judge. There is, as it seems to us, no reason to believe that the learned judge did not, in his ruling, comply with the contemporary standards and approach relevant to the exercise of his discretion with regard to a stay at that time. 26. Secondly, there was, as we have briefly indicated, overwhelming incontrovertible evidence that the appellant, on arrest, was in possession of large quantities of counterfeit notes with the necessary intent; that evidence plainly, on its face, established the three offences appearing in the indictment. 27. Thirdly, the appellant, following legal advice, with full knowledge of the evidence relied on against him by the prosecution, and the judge having concluded, as he was entitled to, that, in relation to entrapment, there was no PII material which might help the defence, unambiguously pleaded guilty to offences to which, as is conceded, he had no defence - unless entrapment were viable to sustain a stay on the grounds of abuse of process. Such a plea in such circumstances, as it seems to us, affords no basis for appealing conviction: see Chalkley v Jeffries [1998] 2 Cr App R 79 at 94D to F. Accordingly, this appeal is dismissed. 28. We add this: it would, in our judgment, have been preferable had the single judge in this case referred the application for an extension of time approaching seven years to the full court. At the very least, the Crown should have been invited to make representations as to whether an extension of time should be granted by the single judge. If either of those courses had been followed, it would have been possible for the prosecution to identify the areas of potential concern to them when addressing the question of whether so long an extension of time ought properly to be granted. In that regard, we have in mind both the observations of Lord Bingham of Cornhill CJ in Hawkins [1997] 1 Cr App R 234 , and the observations made by the editor of Archbold in paragraph 7-182, which, as it appears to us, correctly summarise the legal position in this regard. 29. MR TURNER QC: My Lord, may I raise another matter. What we wish to do on behalf of the appellant is to seek certification of a point or points of general public importance. 30. LORD JUSTICE ROSE: I thought your argument proceeded on the basis that this case was fact specific. 31. MR TURNER QC: No, my Lord, the case ultimately has to be decided on a fact specific basis -- 32. LORD JUSTICE ROSE: I am only teasing you, Mr Turner. What is the question you want us to certify? 33. MR TURNER QC: -- but in accordance with principle. Can I hand up -- obviously we have not had the opportunity to craft a point or points in the light of the judgment that has actually been delivered. So unless your Lordships were prepared to certify the rather general points that we prepared in draft in case things went as they have, then we would seek to come back within, I think, we have 14 days within which to draft a point. But if your Lordships were prepared to certificate that general point, we would be content. We would submit that that is a point of law. We would submit that it is a point of some general importance. Whether or not permission for leave to appeal to the House of Lords is granted by your Lordships or by their Lordships in their House is quite another matter. But dealing firstly with the question of certification, we say the conditions of certification are satisfied on that point, but if they are not, we would wish to have time, as we are permitted under the rules, to craft something else. 34. Mr Perry has seen that document. 35. LORD JUSTICE ROSE: No, Mr Turner, we will not certify this question. 36. MR TURNER QC: So, my Lord, we have then the 14 days to try to come up with something which would -- 37. LORD JUSTICE ROSE: You have. If you think it can conveniently be dealt with on paper, we will deal with it on paper. If you think it cannot, you will be entitled briefly to be heard. 38. MR TURNER QC: My Lord, I am grateful. 39. LORD JUSTICE ROSE: Within 14 days, or at least the application must be made within 14 days. 40. MR TURNER QC: The application point does not have to be decided within 14 days, of course. 41. MR PERRY: My Lord, may I make our position clear. We do assert that the sole issue which arose for consideration in this case was the question of safety on these facts. 42. LORD JUSTICE ROSE: I thought you might, Mr Perry, but we have crossed today's bridge. If there is another bridge, we will cross it as is or is not appropriate. Thank you.

2005_04_06-481.xml

https://caselaw.nationalarchives.gov.uk/ewca/crim/2005/859/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2005/859

32105d1ef88d83b54194d39c226042d7778c1742a89a8acbdef420d7b1b9faf4

[2018] EWCA Crim 1397

EWCA_Crim_1397

2018-06-08

crown_court

2017/05382/B1 Neutral Citation Number: [2018] EWCA Crim 1397 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 8 th June 2018 B e f o r e: LORD JUSTICE HOLROYDE MS JUSTICE RUSSELL DBE and HIS HONOUR JUDGE MAYO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - R E G I N A - v - PASCOE PETGRAVE - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International

2017/05382/B1 Neutral Citation Number: [2018] EWCA Crim 1397 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 8 th June 2018 B e f o r e: LORD JUSTICE HOLROYDE MS JUSTICE RUSSELL DBE and HIS HONOUR JUDGE MAYO QC ( Sitting as a Judge of the Court of Appeal Criminal Division ) - - - - - - - - - - - - - - - - - - R E G I N A - v - PASCOE PETGRAVE - - - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd trading as Epiq 165 Fleet Street, London EC4A 2DY Telephone No: 020 7404 1400; Fax No 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - Mr S Reid appeared on behalf of the Appellant Mr D P Ryan appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - J U D G M E N T Friday 8 th June 2018 LORD JUSTICE HOLROYDE: 1. On 9 th November 2017, following a trial in the Crown Court at Inner London before His Honour Judge Seed QC and a jury, the appellant was convicted of causing serious injury by dangerous driving, contrary to section 1A of the Road Traffic Act 1988 . His defence was that he had admittedly driven dangerously and thereby caused serious injury, but that he had done so under duress of circumstances. 2. The appellant now appeals against conviction by leave of the single judge. 3. The facts, in summary, were these. At about 4.30am on Sunday 29 th May 2015, Ms Higgins and Ms Cox were walking along a side street in Norwood, south east London, having just left a nightclub. The appellant was the driver of a BMW car which was travelling in the same direction along that street. He left the carriageway, mounted the pavement and drove along the pavement towards the two young women. He did not sound his horn or flash his lights or do anything else to warn them of his approach. He collided with them and then drove on without stopping. His car struck only a glancing blow to Ms Cox, but collided directly with Ms Higgins, causing her very serious injury. Ms Higgins suffered spinal injury which resulted in paralysis and, sadly, has left her with permanent substantial disability. She is dependent upon the assistance of others with many of the activities of daily living and is particularly, and understandably, distressed by her inability to care for her children in the way she did before she was injured. 4. Three prosecution witnesses gave eyewitness evidence of these events. One described seeing the appellant's car turning off the carriageway and through a small gap between parked cars before mounting the pavement. She saw it strike the two victims, then carry on along the pavement at speed and re-join the main road at a junction. A second witness was on the pavement when a friend alerted her to get out of the way. She saw the BMW mount the pavement and move slowly towards her. She moved aside and the car began to speed up before it hit the two young women and carried on along the pavement. She also saw two boys running along the pavement and past her. They had their hoods up. One was holding a bat. A third witness, who was with the second, similarly jumped out of the way before seeing the car hit the two young women in front of her. She saw two males chasing the car, one with a baseball bat and the other with a hammer. She saw them get into a car. 5. Evidence was given by an accident reconstruction officer who had studied CCTV footage from the scene. He estimated that the appellant's speed was between 13 and 15mph when he first mounted the pavement, and between 19 and 22mph a little further along. The CCTV footage also showed that, notwithstanding the time, the side road was, effectively, grid-locked with vehicles. The only moving vehicle was the appellant's BMW car on the pavement. We understand the footage further showed that the two men chasing the appellant's car were carrying items. One, which was later recovered at the scene, turned out to be a length of wood with a nail through one end; the other was apparently carrying a hammer. 6. The prosecution also adduced evidence (we assume at the request of the defence) of a letter, dated 3 rd June 2015, in which the police informed the local authority in Croydon (the appellant's home area) that he was deemed at risk of gang violence. The letter appears to have been written in order to assist the appellant in obtaining accommodation outside the area, on the basis that his living in the family home posed a risk both to him and to his family. The letter said that there were numerous intelligence reports documenting the appellant's issues with local gangs and gang associates and that he had a history of both offending and being a victim in Croydon. It referred to crime reports in relation to incidents on 23 rd April 2015 and 9 th May 2015 when the appellant had been followed or chased by one or more persons armed with a knife, and to a note delivered to the family home in April 2015 saying: "You and your family are in danger". 7. Further evidence was adduced about one of the reported incidents, to the effect that the appellant and his father had been chased by several youths, at least one of whom had a knife, on 9 th May. 8. The appellant was spoken to about those matters on 3 rd June 2015, before he had been arrested for this offence. He said nothing at all about the incident involving the collision on the pavement, notwithstanding that at trial his defence was to be that he was in fear for his life. He was offered help by the police but did not seem to think there was anything the police could do to assist. 9. Other evidence was given as part of the prosecution case in the form of agreed facts. These included the fact that the appellant was arrested on 16 th June 2016 and was twice interviewed under caution on 17 th June and 8 th November 2016. He answered "No comment" to all questions on each occasion. We understand that in at least one of those interviews the CCTV footage was shown to him. 10. At the conclusion of the prosecution evidence a submission of no case to answer was made by Mr Reid, then as now appearing on behalf of the appellant, on the basis that the prosecution could not disprove the defence of duress of circumstances on which the appellant sought to rely. The submission was opposed by Mr Ryan, then as now appearing on behalf of the prosecution. His Honour Judge Seed QC rejected the submission. One aspect of his ruling, to which we will return, gives rise to the first ground of appeal. 11. Following the failure of Mr Reid's submission, the trial continued. The appellant gave evidence. He described the incidents in April and early May 2015 when he had been in fear of being stabbed. He denied being a member of a gang. He said that he had just been targeted and that it was "all to do with what it is like in Croydon". As to the night in question, he said that he had been stationary in traffic, waiting to turn from the side road on to the main road. He briefly spoke to an acquaintance who came to the side of his car and then noticed that someone in a vehicle on the other side of the road was pointing at him. He then saw two males get out of that vehicle, go to the boot and take something out. His evidence was that he thought one of the men had a Samurai sword and the other had a hard object which he thought could be a gun. He said that he felt he needed to get away, but could not drive on the carriageway because of the stationary traffic. Something was thrown at his windscreen and the two men charged towards his car. He said that he felt that if he did not move he would be dead. He therefore drove on to the pavement and continued along it because he knew that if he stopped, the men would stab or shoot him. He was in fear and did not think to take any action to warn the pedestrians. He accepted that he had driven dangerously and had caused serious injury, about which he said he felt guilty because his victim was an innocent woman, but he said he only drove on the pavement because he believed he would come to serious harm if he did not. 12. Thus, the legal ingredients of the offence charged were all admitted. The defence was one of duress of circumstances. 13. Before the summing-up the judge discussed with counsel the appropriate directions of law to be given to the jury. In the course of that discussion Mr Reid referred to the ruling on the submission of no case to answer, which he said he understood to mean that the judge would have stopped the case if the only issue had been whether the jury could be sure that there was no threat to the appellant. The learned judge said that that was so. Mr Reid then submitted that it followed, as a matter of law, that the first part of the defence was made out. To this the learned judge replied (at page 4F of the transcript): "Well, the fact that I have not stopped the case, I have allowed it to go on, means it is still a matter for them, but I will … put that to them in the same way that I put serious injury and dangerous driving to them. And I will say that you may well feel, having seen the closed-circuit television and two people, at least one of them [armed], that the answer to that question is yes." 14. Thereafter, the judge summed up to the jury. He gave oral directions of law. At the conclusion of his summing-up he provided the jury with, and read with them, a document entitled "Guide to the Indictment" which set out three questions which the jury had to ask themselves. The second ground of appeal relates to those questions. They read as follows: "Question 1 Was there a threat of death or serious injury to [the appellant] that was operational at the time? • If you are sure that there were no such threats, then you return a verdict of 'Guilty' and disregard the following questions. • If, however, you decide that he was or may have been, subject to threats, go to question 2. Question 2 Did [the appellant] do what he did or might he have done what he did because he genuinely and reasonably believed that if he did not do it, he would be killed or seriously injured either immediately or almost immediately? • If you are sure that this was not the case, return a verdict of 'Guilty' and disregard the following questions. • If you decide that this was or may have been the case, go to question 3. Question 3 Might a sober person of reasonable firmness, sharing the characteristics of [the appellant] have responded to that situation by acting as [the appellant] acted? • If you are sure that such a person would not, then return a verdict of 'Guilty' and disregard the following question. • If you decide that such a person would or might have acted in the same way, then return a verdict of 'Not Guilty'." 15. We turn to the grounds of appeal, about which we have heard submissions from both counsel. In his ruling rejecting the submission of no case to answer, the learned judge summarised, accurately, the evidence which at that stage of the trial had been given by the prosecution witnesses and in the agreed facts. He summarised the submissions of counsel as to the law of duress of circumstances and cited the decision in R v Martin (1989) 88 Cr App R 343 (at 346) in which the availability of duress of circumstances as a potential defence to a charge of disqualified driving was first recognised. In a well-known statement of the relevant law, the judgment of the court given by Simon Brown J (as he then was) said this: "13. … assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was yes, then the jury would acquit: the defence of necessity would have been established." 16. It was submitted by Mr Reid that, on the evidence adduced, the prosecution could not disprove that the appellant had been impelled to behave as he did because he had cause to fear that serious injury would otherwise result, having regard to the evidence of two men with weapons pursuing his car and to the evidence of previous incidents. Mr Reid further submitted that the prosecution could not disprove that a sober person of reasonable firmness in that position would not have behaved in the same way. 17. The learned judge then referred to the guidance set out in the Crown Court Compendium as to the directions to be given to juries when the defence of duress of circumstances is raised. The relevant sections at chapter 18.3 of the Compendium refer to Martin and indicate that the jury should be directed to determine the two questions which we have just quoted. 18. Having referred to the guidance in the Compendium, in his ruling the judge said this (at page 5H to 6D): "It is conceded by Mr Reid that it all turns on the second question, although I am not sure that Mr Ryan conceded that the evidence as it currently stands is resolved in favour of [the appellant], although he seemed so to do, and I certainly rule that it does. Mr Reid submits that the only thing [the appellant] could do to avoid the imminent threat was to drive on the pavement to get away, given the state of the evidence about the road. Mr Ryan submits that that was not the reasonable response to the situation and [the appellant] should have secured himself in the car and raised the alarm and not driven along the pavement. I have to say I do not think that this is a realistic proposition, framed in the way it is, but given the way that the second of the questions to which I have referred is framed, it seems to me that it is a question for the jury, and my view is about what a reasonable person would have done, unless I can say that no reasonable jury could come to a different conclusion (which I cannot) I have to leave that matter to the jury, and so this submission of no case fails on that very limited ground and the case needs to proceed." 19. In his submissions to this court, Mr Reid argues that the learned judge should have allowed the submission of no case to answer. He contends that in the passage which we have just quoted the learned judge ruled as a matter of law that the prosecution could not disprove the first limb of the defence, as explained in Martin . From that initial proposition Mr Reid goes on to argue as follows: the judge had assessed the evidence about the situation in which the appellant found himself and had decided that it was not "a realistic possibility" for him to have acted differently; that was a finding by the judge that no reasonable jury, properly directed, could reach any other conclusion; and that was because the judge's finding that it was not a realistic possibility for the appellant to have acted differently means that it would be fanciful for a jury to think that he might have done. 20. On this issue, Mr Ryan submits that the learned judge was correct to conclude that the case did not come within the second limb of the well-known case of Galbraith and that there was a case to answer. He argues that, in rejecting the defence submission, the judge did not give a binding ruling as to how the jury must approach the case; it was all a matter for the jury to decide, and it would not have been proper for the learned judge to substitute his own personal view of the evidence. 21. The second ground of appeal relates, as we have indicated, to the written questions posed to the jury by the learned judge at the conclusion of his summing-up. Mr Reid does not complain about the terms of the questions in themselves, but he submits that only the third of those questions should have been left to the jury. That, of course, was the submission which he had already made to the learned judge when discussing issues of law to be covered in the summing up. Mr Reid recognises that this second ground of appeal has to be founded on his first ground of appeal because it, too, relies on the passage which we have quoted from the judge's ruling on the submission of no case to answer. In his helpful written argument, Mr Reid summarises the point in this way: given his ruling at the end of the prosecution case, that is, that the jury would inevitably conclude that the appellant had been impelled to act as he did due to a genuine fear of death or serious injury, the judge should not have left that part of the case to the jury and should instead have directed them only to answer the third question which related to the objective part of the test. By not doing so, the learned judge fell into error in allowing and indeed directing the jury to consider part of the case which he had, effectively, ruled was withdrawn from the jury's consideration. 22. On this ground, Mr Ryan submits that the learned judge was correct to direct the jury as he did and would have been wrong to give the jury only a partial or incomplete direction as to their approach to the issue of duress. He emphasises the phrase used by Mr Reid suggesting that the judge "had effectively ruled" that matters had been withdrawn from the jury's consideration. They had not been so withdrawn, submits Mr Ryan. 23. We have reflected on these competing submissions. The defence of duress of circumstances may in principle be a defence to most crimes (with certain specific exceptions). We accept that it may be a defence to a charge under section 1A of the 1988 Act . It is a defence by which an accused justifies his commission of what would otherwise be a crime on the ground that he was compelled by force of circumstances to act as he did. It is to be distinguished from the defence of duress by threats, which may arise when an accused explains his commission of a crime by saying that he had been threatened with death or very serious injury if he did not commit it. That latter defence does not arise in this case. 24. The issues for a jury considering the defence of duress of circumstances are those identified by this court in Martin . Consideration of the defence therefore requires the jury to reflect upon the accused's reasons for acting as he did, his reasonable belief as to the situation in which he found himself and his good cause to fear death or serious injury, and also to reflect upon whether a sober person of reasonable firmness would have responded in a similar way to the particular situation in which the accused was placed. 25. We accept that there may be cases in which the evidence adduced as part of the prosecution case provides a basis for a successful submission of no case to answer on the ground that that evidence in itself raised the issue of duress and was such that no reasonable jury, properly directed, could find that the defence had been disproved. But, having regard to the nature of the defence, we think that such cases will be rare. In our judgment, this case is certainly not one of them. 26. In Martin the ground of appeal challenged the decision of the trial judge that the defence was not available. Other reported cases concerned challenges to the decision by a trial judge to withdraw the defence from a jury. This case is different. Here, as it seems to us, the logical starting point is the contention, necessarily implicit in the first ground of appeal, that by the conclusion of the prosecution evidence the defence had been raised and the burden accordingly lay on the prosecution to disprove it. 27. We are unable to accept that contention. The prosecution evidence showed, at its highest, that the appellant had in the past been threatened by armed men and that on the night in question his car was chased along the pavement by armed men. But the prosecution evidence was silent as to when, how or why that chase began. It did not, and could not, tell the jury anything about whether the appellant was driving on the pavement because he was being chased, or for some other reason. For all that the prosecution evidence showed, the appellant might deliberately have acted in a way which provoked the men to chase him; or he might have been driving on the pavement in order to remove himself from the scene of a crime of which his pursuers were the victims. Nor could the evidence at that stage tell the jury anything about whether the appellant was in fear. Even if he was in fear, there was at that stage of the trial no evidence that he was in such fear that he was compelled to drive along the pavement, without even sounding his horn as his car bore down on the pedestrians in front of him. Because he had declined to answer questions in interview, it could not be suggested on his behalf that the interview record raised any evidence which could and did sufficiently raise the defence of duress of circumstances. 28. Once the appellant gave evidence, of course, the position was different. The defence was raised in his evidence and it was for the prosecution to disprove it. But a defendant who wishes to rely on the defence of duress of circumstances cannot put it in issue through his advocate. It must be put in issue by evidence. In this case the prosecution evidence did not raise the issue. It did no more than provide a foundation on which the appellant could build to raise the issue himself, if he chose to give evidence, that he acted in fear and out of necessity. Thus, in our judgment, the learned judge's decision to reject the submission of no case to answer was correct. 29. Furthermore, and in any event, Mr Reid's reliance on the words which we have quoted from the judge's ruling is in our view misplaced. When the passage is read as a whole it is, in our view, clear that the judge was doing no more than saying that his personal view of the evidence led him to expect that the jury would resolve the first of the Martin points in the appellant's favour. That was a perfectly understandable view. With respect to the judge, his use of the phrase "and I certainly rule that it does" is difficult to follow. If it was intended to be a ruling of law that it was not open to the jury to take a different view, then in our judgment it would, with respect, have been improper. But it is important that the phrase must not be taken and read in isolation from the rest of the passage which we have quoted. Taken as a whole, it seems to us clear that the judge did not intend to withdraw from the jury points which were properly for their consideration, as his later response to a point made by Mr Reid during the discussion of legal issues confirmed. 30. We therefore regard the first ground of appeal as misconceived. The issue of duress of circumstances had not at that stage of the trial been raised by evidence so as to cast a burden of disproving it upon the prosecution, and the judge did not withdraw any factual issue from the jury by concluding that it could only be resolved in the appellant's favour. 31. As to the summing-up, we note that it is no part of the second ground of appeal to criticise the terms of the questions posed for the jury's consideration. Those questions assisted the jury by providing a structured approach to their consideration of the issue of duress of circumstances. That was, indeed, the only contentious issue in the case, as the appellant admitted all the ingredients of the offence charged, subject only to his claim that he acted under duress of circumstances. 32. We have already rejected the submission that, in his ruling on the submission of no case to answer, the judge had withdrawn (or, as Mr Reid put it, "had effectively withdrawn") part of the case from the jury. That submission is the necessary premise of the second ground of appeal, which consequently must also fail. But we make clear that, in any event, we cannot accept the argument that, having rightly determined the approach to be taken by the jury when considering duress of circumstances, the judge should have taken it upon himself to decide the first stage of that approach and to tell the jury what decision they must reach about it. On the contrary, as the judge correctly ruled, each step of the approach was a matter for the jury. The judge could no more usurp the jury's role by directing them in the manner for which Mr Reid contends than he could usurp their role by telling them that they must decide the first question against the appellant. 33. We, therefore, reject both the grounds of appeal. The judge's rulings were correct. There is no ground for doubting the safety of this conviction. 34. Accordingly, this appeal fails and is dismissed.

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https://caselaw.nationalarchives.gov.uk/ewca/crim/2018/1397/data.xml

https://caselaw.nationalarchives.gov.uk/id/ewca/crim/2018/1397