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You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
201304067 C2
Neutral Citation Number:
[2013] EWCA Crim 1851
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Maidstone Crown Court
His Honour Judge Griffith-Jones QC
T20127384
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
25/10/2013
Before :
LORD JUSTICE FULFORD
MR JUSTICE BURNETT
and
MR JUSTICE HICKINBOTTOM
- - - - - - - - - - - - - - - - - - - - -
Between :
William George Laws-Chapman
- and -
Regina
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr N
Cotter
(instructed by Fisher Cowe Solicitors) for the Appellant
Miss S Ellis
(instructed by
The Crown Prosecution Service) for the Respondent
Hearing date: 25 September 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Fulford :
Introduction
1.
On 8 July 2013 in the Crown Court at Maidstone the applicant, who is now aged 89, was convicted by a jury of indecency with a child under the age of 14 contrary to
section 1(1), Indecency with Children Act 1960
(count 1) and buggery with a person under the age of 21 contrary to
Section 12, Sexual Offences Act 1956
(count 2), in each instance between 1 January and 31 December 1978. He was sentenced by H.H. Judge Griffith-Jones QC to concurrent terms respectively of 2 years’ and 8 years’ immediate imprisonment.
2.
His application to appeal these convictions has been referred to the full court by the Registrar of Criminal Appeals.
The issue on the appeal
3.
The sole issue raised on this appeal is whether, in the context of two historic sexual offences dating back to 1978 which involved an allegation of violent, paedophile behaviour against the will of the victim (who was 12 or 13 years of age at the time) the judge was right to admit in evidence a single conviction for buggery in 1985, involving a 17 year old, which may well have been consensual and when the court had no details relating to the latter offending, save as regards the identity of the victim and the location of the offence.
The background
4.
The complainant, SB, was born in 1965 and in his evidence he described a difficult and unsettled home life; his parents drank excessively, and they were violent to each other and to SB and his siblings. They moved address frequently but when he was aged between 11 and 13 they lived in Carrow Hill, Norwich. Eventually he left home when aged 16 and lodged with neighbours. He was angry with his parents, particularly because he believed they had been aware of, and complicit in, the sexual abuse with which this case is concerned.
5.
His father had a friend called “Jim” who was a frequent visitor to their house and who invited him to play pinball at a local café. There he was introduced to the owner, whom he described as a “very big, fat greasy man” who walked around the premises smoking a cigarette. He recalled the view from the café window and that he was given free drinks and doughnuts by the owner. After a few visits he was offered a job washing up.
6.
On one occasion, when he had finished washing up, the owner locked the café door and offered him some food in the back room. He asked SB to “model” some tattoo transfers. He was instructed to remove his shirt and trousers and to lie down with his bottom raised. His underpants were pulled down and transfers were placed on his legs and backside. A knife was placed beside him and he was told not to look round. SB realised from the sound of the man’s breathing that he was masturbating and taking pictures at the same time. The man repeatedly touched and stroked his bottom before ejaculating over his back. He then drove SB home in his beige Ford Cortina. He was threatened that if he told anyone he would be hurt with the knife. These events were reflected in count 1.
7.
There was some confusion in the evidence of SB as to the location of the café. At one stage he suggested that it was in the vicinity of Ber Street where a man called Reynolds ran a café (we turn to issues concerning Reynolds in more detail later in this judgment), but in due course he indicated he had made an error when he was taken round Norwich by the investigating officers. He pointed out 16 Wensum Street (by that time the “Out of Africa shop” but formerly the location of the applicant’s café) where he suggested the abuse had occurred. SB said he recognised the shops opposite. SB failed to identify the applicant when he was shown a number of photographs, and in consequence the reliability of his identification of the premises where he alleged he had been assaulted became an issue of considerable importance in the case.
8.
Turning to count 2, on a later occasion, “Jim” and a scruffy dark haired man came to SB’s house and invited him to Jim’s flat, which was behind a public house called the Rose. He went with them and was given a cup of tea that made him feel tired. He believed he had been drugged because he fell in and out of consciousness. They walked him to another flat and he remembered seeing more men, about four or five, including the café owner who had previously abused him.
9.
He completely lost consciousness and when he came round he was being anally raped. He believed the perpetrator was the “fat man” from the café because he recognised the sound of his breathing. The others were laughing and encouraging what was taking place. Thereafter the other men raped him, one after the other, and ejaculated inside him. He said he had never experienced such pain. Afterwards he recalled being near the door of the flat and seeing the “fat café owner”. They sat him on the steps outside the flat and he felt embarrassed because he needed to use the lavatory and was uncontrollably soiling himself. Jim stayed with him for a while but then told him to go on his way.
10.
He thought he had used the lavatory in the park to wash himself and his trousers, but later corrected this and said he believed he used the one in the Ber Street Gates Public House, before he sat down in the park behind the railings.
11.
He walked for several hours, constantly needing to use the lavatory, before eventually deciding to go home. He had wanted to tell his parents but he found them in the living room, drinking and laughing with Jim and the scruffy dark haired man, two of the men who – as set out above – had been involved in raping him. They grinned at him and he felt so scared that he ran to his bedroom and barricaded himself inside. He believed his parents knew what had happened.
12.
SB accepted that he had not told anyone about this abuse at the time. He had been too afraid to confide in his family or anyone from social services, and he had no teachers with whom to talk because he was kept away from school for a good deal of the time. He decided to repress his memory of these events and to get on with his life. However, the memories started to resurface and he had nightmares in the mid-1990s, and at that stage he began to piece together these past events.
13.
A number of witnesses were called who gave evidence about the way in which SB began to address what had happened to him in 1978, and they described what he told them about the two offences.
14.
He made a report to the police. During walks with DS Crouch around Norwich to which we have already referred, he identified two particular locations: 16 Wensum Street and the flat where he had been raped by several men.
15.
The applicant was arrested on 14 March 2012. In interview he denied the allegations. He said he had run the café at 16 Wensum Street between 1975 and 1978 and had been assisted by his wife Ivy in setting it up. He suggested he had weighed less at the time, and he used to keep fit. He had owned a brown Ford motorcar and someone called Ian worked as a tattooist in the back room. He did not recall the names of either the complainant or his father. He agreed that children sometimes helped with the washing up in return for a packet of cigarettes or some similar reward. When he was asked whether he had ever touched any boys inappropriately, he answered, “
No, definitely no
”. When the allegations were put in more detail he stated, “
I should never think I would want to do that sort of thing
” and “
When you’re a married man why the hell do you want to do a thing like that
.”
16.
The applicant did not give evidence and he did not call any witnesses. He denied the entirety of the sexual allegations made by the complainant. Particularly, he suggested SB was mistaken in his identification of his café as being the site of the alleged sexual abuse. It was asserted on his behalf that the true culprit was a known paedophile named Roy Reynolds who ran a café nearby, as described above.
The application to introduce evidence bad character
17.
The prosecution in a written application dated 30 January 2013 to introduce evidence of bad character relied on a single basis: that the applicant’s conviction on 14 November 1985 at the Norwich Crown Court for an offence of buggery committed on 29 March 1985 at the rear of the Cathedral Café, Wensum Street was relevant to an important matter in issue between the defendant and the prosecution pursuant to
section 101(1)(d)
Criminal Justice Act 2003
. The prosecution put the application as follows:
[…] the defendant has a propensity to commit sexual offences of the type charged in the current case. The facts of the current case are very similar to the incident of bad character. It is alleged in this case that the defendant sexually abused a 13 year old boy in the same café that featured in the 1985 case. It is also alleged that he committed buggery with the same victim on a separate occasion. These offences took place in 1978.
This evidence supports the prosecution case that the defendant has a propensity to commit offences of the type, or identical to those alleged in the this case and that that propensity makes it more likely that the defendant committed the offences with which he is charged
.
The ruling
18.
The judge delivered his ruling on 3 July 2013 (during the trial), in which he decided that evidence of the applicant’s alleged bad character was admissible. He noted that the present charges involved the contention, first, that the victim had been indecently assaulted in the late 1970s in the backroom of a café in Norwich operated at the time by the applicant and, second, that he and others had been guilty of the offence of buggery at a nearby flat. The judge suggested that the applicant’s conviction in 1985 for an offence of buggery on a 17 year old boy, committed apparently once again in the back room at the same café when no other details of the incident were available, could properly be described as relevant and admissible evidence of bad character.
19.
The routes to admissibility identified by the judge were various, and he referred to the provisions of
section 101 of Criminal Justice Act 2003
(“
the Act
”), and particularly Gateways F, D and G.
20.
The judge suggested that this evidence served to contradict the impression created in interview by the defendant that he would never have acted as alleged towards the victim in the present case and “
was not that way inclined
”.
21.
We interpolate to note that during the interview, when the officers put to the applicant that he had forced the victim to undress and had touched him inappropriately, the applicant responded by stating
that the allegation was a lie and he said “
I wouldn’t do it anyway
”. He went on to suggest that the victim may have stolen a large sum of money from him. Under further questioning the applicant referred to the fact that he was married with two sons. When asked by the officers if he had ever had anal sex with a man, he denied the suggestion.
22.
Returning to the judge’s ruling, the court accepted that in order for the evidence of bad character to be admissible to correct a false impression given by the applicant, it needed to demonstrate “a relevant propensity”. For that reason, the judge proceeded on the basis that the prosecution’s application was:
[…] founded primarily upon Gateway D, in that it is said that the evidence is relevant to an important matter in issue between the defendant and the prosecution, that issue being (as contemplated by Section 103) whether the defendant had a propensity to commit offences of the kind with which he is now charged; more particularly whether he had a sexual interest in boys and an inclination for buggery. I should say that a second strand of propensity also alleged, namely a propensity to be untruthful. That is on the basis that his conviction came after a trial, he having denied the 1985 offence.
23.
It was expressly accepted by the judge that for the purposes of section 103(2), the applicant’s conviction was not for an offence of the same category as either of the present offences, in that it related to an offence against a 17 year old. However, having made that observation, the judge stated:
Nevertheless, it seems to me that the fact that the conviction does provide evidence from which the jury could properly conclude that the defendant had a sexual interest in boys and moreover was inclined towards buggery.
24.
The court concluded that the fact that it was an isolated conviction, involving the circumstances just described, would not preclude the jury properly from concluding the applicant had the relevant propensity.
25.
The judge also decided that the assertion by the defence that the victim in the instant offences had mistakenly identified the applicant, and that the “
more likely candidate is another individual named as Mr Roy Reynolds, who is said to have a conviction or convictions for offences of child sex abuse of one form or another
” meant that the application was properly made out under Gateway G, on the basis of an attack on the character of another.
26.
Addressing the issues of fairness and injustice, the judge concluded that none existed as regards the applicant that could not be cured by appropriate directions; there would be unfairness to the prosecution if the evidence was excluded; and there was a risk of the jury being misled as regards the suggested involvement of Mr Reynolds if they were unaware of the applicant’s conviction.
27.
Finally, the judge rejected the suggestion that this evidence would impermissibly bolster a weak case, on the basis of the identification of the site of the applicant’s café by SB.
The relevant provisions of the
Criminal Justice Act 2003
28.
The provisions relevant to the judge’s ruling are as follows:
Section 101
(1)
In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if –
[…]
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
[…]
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
Section 103
(1)
For the purposes of
section 101(1)(d)
the matters in issue between the defendant and the prosecution include –
(a)
the question whether the defendant has a propensity to commit the offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b)
the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.
(2)
Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of –
(a)
an offence of the same description as the one with which he is charged, or
(b)
an offence in the same category as the one with which he is charged.
(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.
(4) For the purposes of subsection (2)—
(a)
two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;
(b)
two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.
[…]
Section 105
(1)
For the purposes of
section 101(1)(f)
–
(a)
the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;
(b)
evidence to correct such an impression is evidence which has probative value in correcting it.
(2)
A defendant is treated as responsible for the making of an assertion if –
(a)
the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
(b)
the assertion was made by the defendant –
(i)
on being questioned under caution, before charge, about the offence with which he is charged, or
[…]
Section 106
(1) For the purposes of
section 101(1)(g)
a defendant makes an attack on another person's character if—
(a)
he adduces evidence attacking the other person's character,
(b)
he (or any legal representative appointed under
section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (c. 23)
to cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or
(c) evidence is given of an imputation about the other person made by the defendant—
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it.
(2) In subsection (1) “evidence attacking the other person's character” means evidence to the effect that the other person—
(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or
(b) has behaved, or is disposed to behave, in a reprehensible way;
and “imputation about the other person” means an assertion to that effect.
(3) […]
The summing up
29.
The suggested relevance of the bad character evidence to a propensity on the part of the applicant to be untruthful did not feature in the summing up. Instead, the judge directed the jury on this issue as follows:
“You have heard that in November 1985 the defendant was convicted of an offence of buggery on a 17 year old boy and that the offence was committed in the back room at the same café where [SB] says he met the defendant and the incident in Count 1 took place. The reason why you have heard about that is principally because the Crown say it contradicts the impression which you may think the defendant gave during his interviews when to the allegations being put to him you may think he suggested that he was not the sort of person to do something like that. The Crown say, on the contrary, his conviction demonstrates that he was someone with a particular side to his character, which included having a sexual interest in boys and being inclined to act pursuant to that sexual interest, even to the extent of buggery.
This is something which you will wish to consider, bearing in mind that his history reveals only one such conviction in 1985 with nothing similar in his record before or since, and also that his victim on that occasion was aged 17. If you are not sure that he had that side to his character then the Crown’s point simply does not arise and you should consider it no further. If, however, you are sure that he was someone at the material time did have that side to his character you are entitled to consider whether that makes it more likely that he acted as [SB] said he did towards him in the late 1970s, initially in the same back room at that café. Again, that is something for you to consider. It is a matter for you.
There is further reason why you heard of the defendant’s conviction, and it is this, it has been part of the defence case to suggest that [SB] may have made a terrible mistake and that the true culprit who abused him may have been not this defendant but someone else, in particular Roy Reynolds, who, you have heard, has numerous convictions for sexual offences, they are listed now in your admissions. In the circumstances it is thought right that you should know about the defendant’s conviction so you are not misled in any way when weighing all the evidence, and in particular when considering the relative likelihood of the defendant and Mr Reynolds being the man referred to by [SB], something you will do, of course, in the light of all of the evidence you have heard.
Although you know of the defendant’s conviction, it is important that you do not attach too much importance to it. Plainly, you must not conclude that because of it he must be guilty or either of these offences with which he is now charged, and it obviously does not follow that just because the defendant behaved in a certain way in 1985 he behaved in a similar fashion on either of the two occasions here alleged. You must consider your verdicts in each case in the light of all the evidence about what happened on each occasion respectively. In considering all the evidence, however, you are entitled to have regard to the fact that the defendant has this conviction in 1985 to the extent that you feel it helps you in the manner in which I have directed you.”
30.
It follows, the 1985 conviction was left for the jury’s consideration as being relevant to three issues: first, it corrected a misleading impression that the applicant did not have “
a particular side to his character
which included having a sexual interest in boys and being inclined to act pursuant to that sexual interest, even to the extent of buggery”;
second, if he did have that side to his character, it potentially made it more likely that he committed the offences in 1978; and, third, it was relevant to whether Reynolds, rather than the applicant, was the perpetrator.
The submissions
31.
The applicant suggests that the judge wrongly admitted this evidence, given it related to a single conviction for buggery that post-dated the current offence and involved a victim (aged 17) who was significantly older than SB. It is argued the later conviction lacked probative value, given the absence of similarity beyond the fact that it was an offence against the same legislative provision; furthermore, the facts of the previous conviction were essentially unknown save as regards its location.
32.
It is submitted the judge erred in ruling that the evidence was admissible given the defence case was that the principal witness was mistaken in his identification, and that the lies told by the applicant in interview as to his sexual past did not justify the judge’s decision to admit the evidence. In all the circumstances, it is argued that the introduction of this material was unfair and it had an adverse impact on the trial.
33.
Although the prosecution in its written submissions sought to uphold the judge’s decision, in oral argument, as explained below, it was conceded that the 1985 conviction was inadmissible and that the conviction was unsafe.
Discussion
34.
As we have indicated, little was known about the earlier offence, save that on 14 November 1985 the appellant was convicted of buggery under a now-repealed provision,
section 12 Sexual Offences Act 1956
, for which he received a sentence of 8 months’ imprisonment, with 4 months suspended. The date of the offence was 29 March 1985, and the particulars were that he had committed buggery on RF, a 17-year-old man who was under the age of consent that then applied, namely 21 years. The only details of the circumstances of the offence available for the present trial were recorded on a contemporary arrest/summons form, namely that the offence was committed at the rear of the appellant’s shop premises, the Cathedral Café, Wensum Street, Norwich. The prosecution accepts that the sentence the judge imposed on that occasion strongly tends to indicate that it was not suggested that the appellant had used coercion, or that this offence was otherwise committed against the will of RF.
35.
The instant offences have been tried in 2013, not 1978 or 1985, and it is highly likely that the circumstances of the 1985 incident no longer constitute a criminal offence of any kind, given that since January 2001 consensual sexual activity between males over the age of 16 (including buggery) has been lawful (see
Sexual Offences (Amendment Act) 2000)
.
36.
The essence of the allegation in the present case is that the appellant committed violent, paedophilic offences against the will of the 12 or 13 year old victim, and it is critical that none of those features formed part of the 1985 incident. During the course of oral submissions – in order to explore the relevance of the 1985 conviction – these overall circumstances were notionally transposed into a heterosexual context, and the Crown accepted that it is inconceivable that an attempt would be made to introduce the fact that a male defendant, at some stage in his past, had had lawful, consensual sexual intercourse with a female – however great the age difference between them – in support of a prosecution for violent and paedophile offences, committed against an unwilling young victim. Lawful and consensual sexual activity would simply be irrelevant in this context, regardless of whether the offender is a homosexual or heterosexual. Put otherwise, mutually agreed sexual relations between individuals over the age of consent do not, certainly without more, tend to prove that the older participant is a paedophile, who has a propensity to commit violent crimes against children.
37.
The judge’s directions to the jury reveal the lack of any real relevance of the 1985 conviction. As set out above, the judge – having reminded the jury that the offence of indecent assault in 1978 and the buggery in 1985 were allegedly committed in the same place – suggested that they had been told about the latter offence because the appellant had suggested that he was “
not the sort of person to do something like that
” and that potentially “
his conviction demonstrates that he was someone with a particular side to his character, which included having a sexual interest in boys and being inclined to act pursuant to that sexual interest, even to the extent of buggery
”. With respect to the learned judge, in our judgment this direction involved wholly flawed reasoning.
38.
The applicant denied, when interviewed by the police, having previously had anal sexual intercourse with a man. That assertion, which was elicited in response to questions put to him, did not form part of his defence at trial. It was an irrelevant issue which could easily have been excluded from the copies of the interview transcripts put before the jury. Instead, the central issue in this case, for which the applicant had been arrested and about which he was interviewed, was whether in 1978 he had committed two violent paedophile offences against the will of the victim. The applicant argued he had been mistakenly identified, and whether he had had consensual sexual relations with other males over the present-day age of consent on other occasions was not germane to the question of whether he had committed these offences. In our judgment, the circumstances of the 1985 offence did not tend to demonstrate that the appellant was more likely to “
do something like that
”, namely engage in two violent sexual attacks on SB in 1978 or that he had “
a particular side to his character
”, namely a proclivity or a propensity to commit violent sexual offences against children.
39.
The judge added that this evidence had additional relevance because the appellant had alleged during the trial that SB might have confused him for a man called Roy Reynolds, the owner of the café on Ber Street, who had numerous convictions for sexual offences against children. The judge suggested that it was relevant for the jury to know about the 1985 offence “
so that they [were] not misled in any way in weighing all the evidence, and in particular when considering the relative likelihood of the defendant and Mr Reynolds being the man referred to by SB
[…]”. This reasoning is equally flawed: the 1985 conviction is not to be equated with offences against children of the kind with which this case was concerned, for the reasons we have set out, and it would have been of no legitimate use to the jury when assessing whether Reynolds, as opposed to the appellant, was the perpetrator of the 1978 offences.
40.
As already indicated, Miss Ellis for the prosecution accepted during oral submissions – in our view fairly and properly – that the 1985 conviction was a highly prejudicial piece of evidence, and she conceded it was inadmissible. In those circumstances, she did not seek to uphold the judge’s decision, in which he had granted the Crown’s application to admit this evidence. At the conclusion of the hearing we allowed the appeal and quashed the convictions on both counts. These are our reasons for that decision. | ```yaml
citation: '[2013] EWCA Crim 1851'
date: '2013-10-25'
judges:
- LORD JUSTICE FULFORD
- MR JUSTICE BURNETT
- MR JUSTICE HICKINBOTTOM
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 4 of the judgment, because the case concerned sexual offences against children. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Case No: 2023/00558/A3
[2023] EWCA Crim 1633
Royal Courts of Justice
The Strand
London
WC2A 2LL
Thursday 21
st
December 2023
B e f o r e:
VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(
Lord Justice Holroyde
)
MRS JUSTICE CHEEMA-GRUBB DBE
MR JUSTICE SWIFT
____________________
R E X
- v -
COLIN BARKER
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_____________________
Miss K Thorne KC
appeared on behalf of the Applicant
____________________
J U D G M E N T
(
Approved
)
____________________
Thursday 21
st
December 2023
LORD JUSTICE HOLROYDE:
1.
On 16
th
January 2009, in the Crown Court at Croydon, the applicant pleaded guilty to three offences of sexual activity with a child family member, contrary to
section 25
of the
Sexual Offences Act 2003
(counts 6, 11 and 15); one offence of causing or inciting a child under 13 to engage in sexual activity, contrary to
section 8
of
the 2003 Act
(count 7); and nine offences of making indecent photographs of a child, contrary to section 1(1)(a) of the Child Protection Act 1978 (counts 17 to 26).
2.
On 11
th
February 2009, His Honour Judge Macrae imposed sentences of detention for public protection, pursuant to
section 226
of the
Criminal Justice Act 2003
, with a minimum term of four years (less the days spent on remand in custody) on each of the first four charges. The judge imposed no separate penalty for the offences of making indecent photographs. Ancillary orders were made to which we need not refer further.
3.
The applicant now seeks an extension of time (of about 14 years) in which to apply for leave to appeal against his total sentence. His application has been referred to the full court by the Registrar.
4.
The victims of these offences are twin sisters. They are entitled to the lifelong protection of the provisions of the
Sexual Offences (Amendment) Act 1992
. Accordingly, during their respective lifetimes no matter may be included in any publication if it is likely to lead members of the public to identify either of them as a victim of the offences.
5.
We need say little about the facts of the offences. They were committed when the applicant was aged 19 or 20 and his victims were aged 11. In relation to one of the girls, the offending involved the applicant causing her to watch pornography with him and then to masturbate him; and causing her to pull down her trousers, masturbating himself and ejaculating onto her leg, with contact being made between his genitals and her. In relation to the other girl, the offending involved touching her vagina and standing behind her, touching her bottom with his penis. Aggravating features were the breach of trust involved in the offences, the fact of ejaculation (albeit in the context of non-penetrative offences), and the presence of the first child when the applicant committed the offences against her sister.
6.
Investigation of the applicant's computer revealed that he had downloaded some 400 indecent images. Most were at category 1, the lowest of the five categories under the classification used at that time; but five of the images depicted penetrative sexual activity and were in category 4.
7.
There was clear evidence that the offending had caused significant psychological harm to both girls.
8.
The applicant was of previous good character.
9.
Having committed the offences, he had removed himself to Scotland where he had confessed his offending to his sister. He had, at least for a short time, contemplated suicide.
10.
The judge was assisted by a pre-sentence report which assessed the applicant as posing a high risk of serious harm to children.
11.
The judge found the applicant to be a dangerous offender, as that term was defined for sentencing purposes. His sentencing remarks continued as follows:
"In these circumstances I am driven to conclude that I must impose a sentence of detention for public protection."
The judge indicated that he took into account the applicant's young age and his guilty pleas. He assessed the appropriate notional determinate sentence as one of eight years. He therefore imposed the sentences to which we have referred.
12.
We say at once that the judge was in error in describing the sentences as detention for public protection. Having regard to the applicant's age when he was convicted, such sentences were not available and the judge should instead have imposed sentences of imprisonment for public protection.
13.
No appeal was brought at the time.
14.
The applicant remained in custody for many years. In January 2020, the Parole Board directed his release, subject to the strict conditions of his life licence. The applicant then sought advice from those who now represent him.
15.
In her grounds of appeal and in her very helpful written and oral submissions, Miss Thorne KC challenges the judge's approach to the imposition of a sentence of detention for public protection, rather than an extended sentence. She also challenges the length of the custodial term.
16.
Before considering those submissions, we must address the explanation given for the lapse of so many years before the application for leave to appeal was brought. In part it is due to difficulties which have recently been encountered by Miss Thorne and those instructing her in seeking to obtain the necessary papers and to make contact with the previous legal representatives. The majority of the delay has been explained by the applicant in a statement. He says that he was initially advised that there were no arguable grounds of appeal, and that he accepted that advice in the belief that he would be released after about three years. As time passed, he found himself unable to progress because of the unavailability of courses which he was told he would need to take before he could be considered for release. In 2012 he saw on television that the sentence of imprisonment for public protection had been abolished. He thought, incorrectly, that this meant that his sentence would at some stage be altered. He was eventually able to complete a number of courses between 2014 and 2016; and in 2017 he made his first application to the Parole Board for release on licence. His application was refused, and he understood that he would have to complete further courses, one of which had recently been discontinued. The applicant indicates that through this long process his mental health deteriorated, he lost all hope, and he saw no point in trying to appeal. Eventually, the Parole Board concluded that his continued incarceration was no longer necessary and that it was not necessary for him to take the course which had replaced that which had recently been discontinued. In those circumstances he was released, and then for the first time sought advice on appeal.
17.
We see no reason to doubt that account given by the applicant.
18.
Miss Thorne realistically accepts that the judge was entitled to find the applicant dangerous, and she does not seek to challenge that part of his decision. She further accepts that imprisonment for public protection was, in principle, available. But she emphasises that such a sentence was not mandatory. The judge also had a power to impose an extended sentence. Miss Thorne submits that the judge wrongly failed to consider that course.
19.
She further submits that the notional determinate term of eight years was far too long for non-penetrative offences committed by a young man of previous good character who had pleaded guilty. She has assisted us by reference to the guidelines published by the Sentencing Guidelines Council to which courts had to have regard at the time when the applicant was sentenced.
20.
As is well known, the original statutory provisions governing sentences of imprisonment for public protection required such sentences to be imposed in certain circumstances. With effect from July 2008, however,
section 225
of the
Criminal Justice Act 2003
was amended. In its amended form it provided that in circumstances where the court had found an offender aged 18 or over upon conviction to be dangerous and the court was not required to impose a sentence of imprisonment for life, the court may impose a sentence of imprisonment for public protection if either the offender had a previous conviction for a relevant scheduled offence, or the notional minimum term to be specified was at leas two years.
21.
At the time of sentencing, section 227 provided that where the court had found an offender aged 18 or over upon conviction to be dangerous, and the court was not required to impose a sentence of imprisonment for life, the court may impose an extended sentence of imprisonment if either the offender had a previous conviction for a relevant scheduled offence or the appropriate custodial term would be at least four years. An extended sentence would comprise the appropriate custodial term and an extension period comprising a further period of licence "of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by [the offender] of further specified offences".
22.
Where, as in this case, the offender had been convicted of specified sexual offences, the maximum extension period was eight years.
23.
On 26
th
November 2008, this court gave judgment in
Attorney General's Reference No 55 of 2008 (R v C and Others)
[2008] EWCA Crim 2790
,
[2009] 1 WLR 2158
. At [14], Lord Judge CJ said this:
"Returning to the exercise of the court's discretion, or more accurately, its judgment, whether a sentence of imprisonment for public protection should be passed when the necessary criteria are established, the court is entitled to and should have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender. For example, structured around a determinate sentence, or indeed an extended sentence under
section 227
of
the Act
, which we shall shortly address, a sexual offences prevention order, with appropriate conditions attached could form part of what we may colloquially describe as the total protective sentencing package. Apart from the discretionary sentence of life imprisonment, imprisonment for public protection when the necessary conditions are fulfilled, is the most draconian sentence available to the court. If they are, we re-emphasise that the primary question is the nature and extent of the risk posed by the individual offender, and the most appropriate method of addressing that risk and providing public protection. If what we have described as the overall sentencing package provides appropriate protection, imprisonment for public protection should not be imposed."
24.
With all respect to the sentencing judge, it does not appear that he followed the approach stated by the Lord Chief Justice in that passage. The words which we have quoted from the judge's sentencing remarks (see paragraph 11 above) are somewhat equivocal. They might mean either that the judge believed that the statutory provisions left him with no alternative but to impose a sentence of imprisonment for public protection; or they might mean that the judge was aware that such a sentence was discretionary, but concluded that in all the circumstances it was necessary and appropriate. If the judge meant the former, he would have been in error. We are not confident that he did fall into that error. But assuming that he meant the latter, he gave no indication of why he took the view that an extended sentence for this young adult of previous good character would not provide sufficient protection for the public.
25.
We recognise that, at this remove in time, there is a limit to the material available to us. We are nonetheless bound to say that we can find nothing in the facts of the offending, and nothing in the pre-sentence report, which could provide any sufficient basis to enable the judge to conclude that an extended sentence would not provide adequate protection for the public or that "the second most draconian" sentence was unavoidably necessary.
26.
As to the length of the custodial term, we bear in mind that the absence of any clear indication of the extent of the reduction made for the applicant's guilty pleas was by no means atypical at the time of sentencing. We note, however, that the applicant's guilty pleas were entered only about three months after his arrest. Under the Sentencing Guidelines Council's guideline then in force, it seems to us that the applicant must have been entitled to a reduction of at least one-quarter, if not one-third. The notional determinate term of eight years which the judge took therefore implies a total sentence after trial of between ten and a half and 12 years. Even giving full weight to the seriousness of the offences, the period of time over which they were committed and the harm which they caused to two very young victims, we accept the submission that such a sentence was too long for a young adult of previous good character.
27.
An appropriate total sentence after trial, taking account of personal mitigation, would, in our view, have been about seven years' imprisonment. Allowing a little more than a 25 per cent reduction, to reflect the likelihood that the pleas were entered before the stage at which a trial date would have been set, the appropriate total sentence is five years.
28.
We therefore grant the extension of time and grant leave to appeal. We allow the appeal. We quash the sentences of detention for public protection. We substitute for them, on each of counts 6, 7, 11 and 15 concurrently, extended sentences comprising custodial terms of five years’ detention in a young offender institution and extension periods of five years. As before, there is no separate penalty on counts 17 to 26.
29.
Those sentences take effect as at the date of the original sentencing. The practical result of our decision, from the appellant's point of view, is that he has completed his sentence and is no longer subject to any licence.
30.
Miss Thorne, thank you very much for your 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: [email protected]
______________________________ | ```yaml
citation: '[2023] EWCA Crim 1633'
date: '2023-12-21'
judges:
- MRS JUSTICE CHEEMA
- MR JUSTICE SWIFT
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No: 200803926 & 03949 A4
Neutral Citation Number:
[2008] EWCA Crim 1930
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 30th July 2008
B e f o r e
:
LORD JUSTICE HUGHES
MRS JUSTICE DOBBS DBE
HIS HONOUR JUDGE PERT QC
Sitting as a Judge of the Court of Appeal Criminal Division
- - - - - - - - - - - - - - -
R E G I N A
v
(1) PEIWEN SHI
(2) LI YANG
- - - - - - - - - - - - - - -
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 Sharpe
appeared on behalf of the
First Appellant
Mrs T J Turner
appeared on behalf of the
Second Appellant
Mr S Hickey
appeared on behalf of the
Crown
- - - - - - - - - - - - - - -
J U D G M E N T
1.
MRS JUSTICE DOBBS: On 4th April 2008 at the York Crown Court, the appellant Shi pleaded guilty to one count of keeping a brothel used for prostitution and a second count of possession of criminal property. On 2nd May 2008 the appellant Yang pleaded guilty to the same offences and both were sentenced on 19th June by His Honour Judge Ashurst. Shi was sentenced to 21 months' imprisonment on each count to run concurrently, with a direction that the 182 days spent on remand count towards sentence. There was also a recommendation for deportation. In respect of Yang, she was sentenced to 15 months' imprisonment on each count to run concurrently. Similarly, the 183 days spent on remand was to count towards sentence and a recommendation for deportation was made in her case. These applications have been referred to the full court by the Registrar. We give leave.
2.
The Crown's case was that the two appellants ran a brothel at 32 Balmoral Terrace in York from 26th August to 18th December 2007. Money obtained from the running of the brothel was the subject of the acquiring criminal property count.
3.
By way of background, Shi had been given a leave to enter this country as a student and Yang was an illegal immigrant. They rented the property in question, signing the leases; Yang in a different name. Adverts were placed at a weekly cost of £100 in the North Yorkshire Times by Shi which read "Personal services for oriental flower". Council Tax and electricity were paid on Shi's debit card and over the period in question some £6,000 had been paid out of his account for rent, electricity, Council Tax, et cetera. The evidence of prostitution came from the test purchase officers who phoned the number given in the advert, to be advised by Yang of the services: £60 for half an hour and £100 for an hour. Two officers visited the premises where Yang introduced them to a prostitute called Lena. There was further evidence of Chinese girls being picked up at York railway station and taken to the brothel. Shi would visit the brothel from time to time to check on its management. There is also some evidence of Yang banking the payments.
4.
Both were arrested on 17th December of last year, Yang at number 32 and Shi elsewhere. A search of the premises revealed items consistent with sexual activity. In interview Shi made no comment but gave a prepared statement saying that he had rented a massage parlour on behalf of a Mr Liang. He denied running a brothel or to arranging to take the girls in. Yang told various stories, initially denying having been to the premises apart from the day she was arrested, to say that it was a massage parlour, but eventually admitting that she had worked as a prostitute for two weeks and had made about £1,000 in that time. She denied knowing Shi.
5.
There was a basis of plea entered by both, not accepted by the Crown. However, on the day of the Newton hearing Shi abandoned his basis of plea. Yang's basis was that she worked as a receptionist and prostitute on a number of occasions and she helped Shi by signing the lease, and on one occasion went to pay the takings from prostitution into the bank.
6.
Shi is 26 and Yang is 34. Both were of previous good character. The Pre-Sentence Report for Shi indicated that he thought he had done nothing wrong and this was of considerable concern. However, there was a low risk of serious harm to the public. For Yang there was a low to medium risk of re-offending.
7.
The judge gave credit to both appellants for their pleas and cooperation. He accepted that there was no background of coercion or threats, but noted that prostitutes from the Far East were regularly ferried from London to York to work in the brothel. Whilst he took into account the guidelines, he observed that they were not a rigid formula or a straitjacket and that deterrent sentences had to be passed to discourage other like-minded people, given the increase in the setting up of such brothels. As for deportation, he said that those who come to this country to set up criminal enterprises undermine the value of genuine visitors to the country and this is not conducive to the public good.
8.
The grounds are that the sentences are manifestly excessive and that the recommendations for deportation were wrong in principle. The main points of mitigation were pleas, good character, no background of coercion and the short period of enterprise. Additionally, in respect of Yang, it was said there was limited financial gain and lesser involvement than Shi.
9.
A number of authorities were drawn to our attention by both counsel for the appellants in their advice and grounds of appeal which pre-date the coming into force of the
Sexual Offences Act 2003
Guidelines prepared by the Sentencing Guidelines Council which show sentences once reduced by the Court of Appeal in the range of 3 to 18 months on pleas of guilty, the top brackets involving cases significantly more serious on the facts.
10.
The Crown in their skeleton argument drew the court's attention to the fact that the Sentencing Guidelines Council's Guideline on the
Sexual Offences Act 2003
had come into force after the authorities focused on by the appellants' counsel, and also pointed out that the old offence of keeping a brothel carried a maximum of 6 months, whereas the maximum under
this Act
is 7 years. In the Crown's submission, Shi fell into the top bracket, namely having made at least £5,000 (that amount being in his bank account) and accepted by the judge at the court below, and that Yang fell into the second bracket.
11.
The Guidelines identify three brackets. The top bracket is relevant to an offender who is the keeper of a brothel and has made substantial profits in the region of £5,000 upwards, with a starting point of 2 years' custody and a sentencing range of 1 to 4 years. The second bracket is where the offender is the keeper of the brothel or a person involved in its management, with a starting point of 12 months and a sentencing range of 26 weeks to 2 years. The third bracket is where the involvement of the offender was minimal where a community order is thought to be appropriate.
12.
We accept the Crown's contention that Shi fell into the top bracket, which is the starting point of 2 years, but we do note the point that this case on its facts was very much on the cusp of the two brackets, although falling just into the top bracket. We also accept, and it is accepted by the Crown, that Yang fell into the second bracket with a starting point of 12 months.
13.
Today counsel for the Crown drew the court's attention to the case of
Veio
[2008] 2 Cr.App.R(S) at page 61, number 10. It was a case where the appellant pleaded guilty to managing a brothel and possessing criminal property. The appellant ran a hairdressing salon but also offered sexual services to customers. The women concerned were not procured or coerced and were not under age. The court was unable to work out how much, in fact, had been made in that case in relation to the brothel activities and, on the basis of the plea of guilty and the fact that there were only two girls involved, neither being under age and that there was no coercion or corruption, a sentence of 18 months was reduced to 12 months to run concurrently.
14.
We take the view, having looked at the facts of this case, being mindful of the guidelines, taking into account the mitigation -- including the pleas of guilty, the short duration of the offences, the previous good character, that this was the appellants' first sentence of imprisonment -- that the sentences were too high. In the case of Shi we consider that the appropriate sentence is one of 16 months' imprisonment and in the case of Yang, one of 10 months' imprisonment. In relation to Shi the 182 days served in custody should count towards the sentence and in relation to Yang the 183 days already served should be taken into account.
15.
We turn now to the question of the recommendations for deportation. The submission, in short, is that the offences are not serious enough to warrant a recommendation and that it was wrong in principle for one to have been made. The test is whether the continued presence of the defendant is to the detriment of the country or community. It is in the judge's discretion whether or not to make such an order, having considered all relevant circumstances. The focus is on the expected future behaviour, taking into account the offence, previous record and other relevant circumstances. The principles that counsel for the appellant say can be derived from the authorities are as follows: that a recommendation should not be made for an isolated offence, and that it should not be made merely because the offence is a serious offence. It is said on Shi's behalf that, despite his lack of remorse, he must have learned from the sentence imposed on him that this kind of behaviour is not approved of and thus he presents no future risk. In relation to Yang, it is submitted that the assessment of low to medium risk in the Pre-Sentence Report should be taken into account and also there is the deterrent element of the sentence as being a factor that can allow the court to find that there is no risk.
16.
There is nothing wrong in principle with making a recommendation for deportation in relation to an offender of previous good character where the offences involved are serious and of a deliberate nature (see the important case of
Nazari
71 Cr.App.R 87). In Yang's case it has been argued that she faces problems in her home country of China, but that is something which these courts here need not concern themselves within relation to a recommendation. Such matters are for the Secretary of State. Both appellants, although not assessed as a high risk of re-offending, were assessed as a risk. Shi thought he had done nothing wrong. Yang was assessed as low to medium risk, but one has to put that in the context that she is unable to work legally in this country and that must be relevant to risk.
17.
Not only are the offences serious, as the judge found, both were involved in a commercial enterprise which encourages the influx of illegal immigrants and thrives on the use of them, extracting substantial profit for those who carry out the services. Even though we have reduced the sentences passed by the trial judge, we do not consider that he erred in making the recommendation for deportation. Whether it is acted upon is entirely a matter for the Secretary of State.
18.
The appeals are allowed to the extent already indicated, namely that the sentences of imprisonment will be quashed and a sentence of 16 months substituted in the case of Shi imposed, with 182 days on remand, and 10 months in the case of Yang with 183 days on remand. The recommendations for deportation will stand. | ```yaml
citation: '[2008] EWCA Crim 1930'
date: '2008-07-30'
judges:
- LORD JUSTICE HUGHES
- MRS JUSTICE DOBBS DBE
- HIS HONOUR JUDGE PERT QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 217
Case No:
200804120
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE CROWN COURT
RECORDER DAVIES
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/02/2009
Before :
LORD JUSTICE PILL
MR JUSTICE MADDISON
and
MR JUSTICE HAMBLEN
- - - - - - - - - - - - - - - - - - - - -
Between :
Trafalgar Leisure Limited
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J Goldberg QC (instructed by Michael Henderson) for the Appellant
Mr R Bloomfield
(instructed by
Newcastle-upon-Tyne City Council, Legal Services Dept
) for the Respondent
Hearing date : 22 January 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pill :
1.
On 26 June 2008, in the Crown Court at Newcastle-upon-Tyne before Miss Recorder Davies and a jury, Trafalgar Leisure Limited (“the company”) was convicted, on count 2 of an indictment, of failure to control or prevent the escape of waste contrary to
sections 34(1)(b)
and
34(6)
of the
Environmental Protection Act 1990
(“
the 1990 Act
”). On the following day, the company was given a conditional discharge for a period of 12 months. There was no order as to costs. The company was acquitted of unlawfully depositing controlled waste contrary to
sections 33(1)(a)
and
33(6)
of
the 1990 Act
(count 1).
2.
The company appeals against conviction by leave of the single judge.
3.
The Blackett Arms public house, at Nelson Street, Newcastle-upon-Tyne, was operated by the company. It dealt with its waste by hiring a large green bin which was kept on the street. The company had a contract with Durham Waste Management to empty the bin weekly and dispose of the waste.
4.
At 9.30 am on 26 September 2007, a local authority enforcement officer, Mr Elliott, when on patrol in the area, saw the green bin. On the pavement next to it were 21 bags of rubbish and cardboard boxes. A purple bin was also nearby the ownership and use of which has not been established. The Blackett Arms is situated near an entrance to the Grainger Market where stallholders trade in a variety of products.
5.
Mr Elliott examined the contents of the bags. Many contained material, such as bottles and cans, and indeed till receipts from the public house, which had clearly come from the Blackett Arms. Mr Elliott did not look inside the green bin. He had the bags removed and destroyed. He did not enter the public house or make contact with its staff.
6.
On the same day, Mr Elliott wrote to the company’s head office requiring an explanation for the offending behaviour. No reply was received. On 16 October, he again wrote to inform the company that it had been reported for offences under
the 1990 Act
and stated that any representations should be addressed to him within seven days of receipt of the letter. Six days after the letter was sent, proceedings were commenced.
7.
Section 33(1)(a)
of
the 1990 Act
provides that a person shall not:
“Deposit controlled waste or knowingly cause or knowingly permit controlled waste to be deposited in or on land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence.”
Section 33(6)
provides:
“A person who contravenes sub-section (1) above . . . commits an offence.”
8.
Section 34(1)
of
the 1990 Act
provides:
“. . . it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances –
(a)
To prevent any contravention by any other person of
section 33
above;
. . .
(b)
To prevent the escape of the waste from his control or that of any other person;
. . .”
Section 34(6)
provides that any person who fails to comply with the duty imposed by sub-section (1) commits an offence.
9.
Sub-
sections 34(7)
and (10) provide:
“The Secretary of State shall, after consultation with such persons or bodies as appear to him representative of the interests concerned, prepare and issue a code of practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by sub-section (1) above.
. . .
A code of practice issued under sub-section (7) above shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.”
10.
It was conceded that
sections 33
and
34
applied to the Blackett Arms as commercial property, that controlled waste was present on land at Nelson Street, and that a Waste Management Licence authorising the deposit was not in force. The prosecution strongly argued for a conviction on count 1. They contended that the staff of the Blackett Arms, employees of the company, put the bags and cardboard on the pavement outside the public house. The circumstances were such that there was clearly a case to answer on count 1. It was possible to infer, depending on the jury’s view of the evidence, that the bags had been deposited on the pavement in that way. Witnesses were called on behalf of the company. The jury acquitted on that count.
11.
At the close of the prosecution case, Mr Goldberg QC, who appeared for the company at the trial as he has before this court, submitted that there was no case to answer on count 2. It arose only upon an acquittal on count 1. The prosecution case on count 2, inconsistent with that on count 1, had to be that other persons had removed the pub waste from the green bin, probably to put their own waste in it. That was the only feasible alternative explanation in the circumstances. The case on count 2 was put on the sole ground that the green bin should have been kept locked so that no waste could be removed from it. It was alleged that by failing to lock the bin, the company had failed to take all such measures as were reasonable in the circumstances to prevent the escape of the waste from its control, contrary to
section 34(1)(b)
.
12.
Mr Goldberg submits that, on that case, the company should have been charged under
section 34(1)(a)
, that is failure to take reasonable measures to prevent other persons from depositing controlled waste by removing it from the bin, and that prosecution under
section 34(1)(b)
was misconceived. The word ‘escape’ means an involuntary act, such as leakage, and not a deliberate dumping by a third party, it is submitted. It is further submitted that, in any event, there was no evidence on which a jury could properly convict of an offence under
section 34(1)(b)
.
13.
On count 2, the evidence of Mr Elliott did not assist the prosecution. The only potential evidence was in a letter written by the company’s managing director on 10 October 2007, though not received by the prosecution until 2 November 2007. It was conceded that the contents of the bags “most likely originated from the [company’s] premises”. The letter continued:
“After receiving your letter we have investigated this matter thoroughly with our staff at the premises, the manageress has confirmed that she has had problems with our bin since the redevelopment of Eldon Square started and the Grainger Market stall holders lost their waste disposal facility which was replaced by a restricted bag collection from their stalls. This has led to rubbish being dumped beside our bin and rubbish pulled out of our bin and dumped on the ground to make room for other persons rubbish in the bin.
Our Manageress has complained to the market inspector about this on more than one occasion and the complaints have been prior to your letter of 26
th
September 2007. Clearly as the Grainger Market is both owned and controlled by Newcastle City Council it should not be too difficult for you to verify these problems.”
Thus there was evidence of previous problems which could conceivably have permitted a conclusion that the bin should have been kept locked.
14.
When cross-examined about the letter, Mr Elliott, rejected the reliability of that evidence on behalf of the company. When asked why he had not made an enquiry of the market inspector on receipt of the letter, Mr Elliott said, as summarised by the Recorder in her summing up:
“He did not regard it as one of his jobs to investigate it any further and that he was quite sure that if there had been a problem in the market, the market inspector would have rung him and told him. It was, in a nut-shell, as he put it: ‘It was my view that the bags that were (?) taken were for the public house and not for anywhere else, and I wasn’t prepared to do any more investigating.’”
15.
In submitting that count 2, if it was to be pursued, was pursued under the wrong paragraph in
section 34(1)(b)
, Mr Goldberg relied, and relies in this court, on the decision of the Divisional Court in
Gateway Professional Services (Management) Limited v Kingston-upon-Hull City Council
[2004] EWHC (Admin) 597
.
16.
The company in that case was charged under
section 34(1)(b)
when one of its employees had deposited a number of black bags containing commercial office waste at premises adjoining the company’s own premises. The defence submission was that the word “escape” in
section 34(1)(b)
was not apt to denote a deliberate act of depositing waste. Laws LJ, with whom Eady J agreed, stated at paragraph 11:
“However, it would be close to unthinkable, in my judgment, if the negligent spillage of waste on to a neighbour's property were prohibited with criminal sanctions but its being deliberately deposited there were not. If that had been the apparent position, it might be open to the court to construe the term "escape" in
section 34(1)(b)
sufficiently widely so as to cover an act of deliberate dumping by the person charged. But in my judgment such a case is already covered and plainly covered by
section 33(1)(a)
.”
17.
Laws LJ added, at paragraph 12:
“Where the environmental wrong is constituted by an act of deliberate dumping of waste, it would seem to be covered by
section 33(1)(a)
. This company was not prosecuted under that sub-section, nor under
section 34(1)(a)
which . . . requires a person (such as this company) to take reasonable measures to prevent any contravention of another by
section 33
.” (sic)
. . .
“The word ‘escape’ cannot be read as widely as [the prosecution] would have it read.”
18.
That approach to the meaning of the word ‘escape’ was followed on a prosecution appeal by way of case stated in
London Borough of Camden v Mortgage Times Group Limited
[2006] EWHC (Admin) 1615
, also a decision of the Divisional Court. Controlled waste had deliberately been deposited in the public highway. Latham LJ, with whom McCombe J agreed, stated, at paragraph 7:
“. . . Depositing waste on the highway cannot be any different from depositing it on neighbouring land for the purpose of determining whether there had been an ‘escape’.”
19.
Latham LJ added at paragraph 8:
“However Mr Lewis, on behalf of the [prosecution] has submitted to us that the justices had not been asked to determine the relevant question. He points out that
section 34
of the Act imposes a duty to take reasonable measures to prevent, in the present case, the escape of waste. It is the failure to take such reasonable steps which constitutes the offence. An escape is not a prerequisite of liability. The true case, he submits, against the respondent was that by depositing the waste on the highway a significant period of time before collection was due to take place, it had materially increased the risk of an escape of that waste, and had accordingly failed to take reasonable measures to prevent that escape.”
“The offence under
section 34(6)
is the failure to take reasonable measures as required by the duty imposed under
section 34(1)
. The prosecution does not have to establish that an "escape" has taken place. It has to establish that there has been a failure to exercise the statutory duty of care.”
The appeal was, however, dismissed because the case had not been presented to the magistrates in that way.
20.
Though the narrow construction of the word ‘escape’ in
section 34(1)(b)
was not challenged, the court accepted that a conviction under the paragraph could properly be obtained in the absence of an escape by reason of a deposit of waste at such a time which materially increased the risk of its escape. That was no part of the prosecution case on count 2 in the present case, the alternative case, upon a failure on count 1, being based solely on a deliberate removal by third parties following a failure to lock the bin.
21.
On that alternative case, the appropriate charge, in our judgment, would, on the evidence, have been under
section 34(1)(a)
. The failure to lock was, on the facts, a failure to prevent other persons depositing controlled waste, contrary to
section 33
.
22.
However, we acknowledge the difficulty the prosecution may face in deciding under which paragraph to frame the charge in circumstances such as the present. The Secretary of State issued a Code of Practice under
section 34(7)
of
the 1990 Act
. It was entitled “Waste Management the Duty of Care”. Under the heading “Keep the waste safely” it was stated:
“2.1
All waste holders must act to keep waste safe against:-
(a)
corrosion or wear of water containers;
(b)
accidental spilling or leaking or inadvertent leaching from waste unprotected from rainfall;
(c)
accident or weather breaking open contained waste and allowing it to escape;
(d)
waste blowing away or falling while stored or transported;
(e)
scavenging of waste by vandals, thieves, children, trespassers or animals.”
23.
The first sentence of paragraph 2.2 provides:
“Holders should protect waste against these risks while it is in their possession.”
24.
Under the heading “Waste left for collection”, it is stated, at paragraph 2.7:
“Waste left for collection outside premises should be in containers that are strong and secure enough to resist not only wind and rain but also animal disturbance, especially for food waste. All containers left outside for collection will therefore need to be secured or sealed. For example, drums with lids, bags tied up, skips covered. To minimise the risks, waste should not be left outside for collection longer than is necessary. Waste should only be put out for collection on or near the advertised collection times.”
There is no mention in the Code of locked bins.
25.
Thus the Code contemplates that keeping waste safe against scavenging by trespassers or animals, or (
Mortgage Times
) the possibility of such scavenging, may amount to a failure to take reasonable measures under
section 34(1)
. The removal and depositing of the waste could be by some other person (paragraph (a) of
section 34(1)
) or it could be by accident, the weather or scavenging by animals, in which case paragraph (a) would not apply and resort to paragraph (b) of the section would be necessary. There may be cases in which the evidence available to the prosecution requires that an offence is charged under paragraph (b) instead of, or as well as, a charge under paragraph (a).
26.
In circumstances such as the prosecution’s alternative case, we would expect the charge normally to be under paragraph (a) of
section 34(1)
but a charge under paragraph (b) may also be appropriate so that both the possibility of removal by human hand and removal in other ways contemplated in paragraph 2.1 of the Code of Practice are covered.
27.
In the present case, the alternative prosecution case (count 2) depended, in the event, solely on the contents of the letter of 10 October. Not only was the count based on facts which involved a rejection of the prosecution’s main case (count 1) but the only evidence which potentially supported it, the contents of the letter, was robustly rejected by the council’s enforcement officer.
28.
The Recorder should have directed a verdict of not guilty on count 2 at the close of the prosecution case. On the jury’s acquittal on count 1, a case could arise on count 2 only on the assumption that the company’s employees had put the rubbish in the green bin. On the evidence at the close of the prosecution case, there was nothing to suggest a failure to take reasonable measures to prevent the escape of the waste from the bin. On that evidence, the same result would have followed if the charge had been under
section 34(1)(a)
.
29.
The verdict on count 2 is unsafe by reason of the failure to stop the case. On count 1, the company was virtually obliged to call evidence to defeat the inference, which almost certainly would otherwise have made, of depositing by their employees. The jury’s attention should thereafter have been confined to count 1. There was a danger that in calling evidence to defeat count 1, a case could be created for the prosecution on count 2. It was unfair to proceed on count 2 and the conviction on that count is unsafe.
30.
That is sufficient to dispose of the appeal but we consider the subsequent events because we share the Recorder’s concern about the way the case was conducted by the prosecution. Criticism was made at the trial of the failure by the enforcement officer to make enquiries of the staff when he saw the rubbish on the morning of 26
th
September (the day on which the green bin was due to be emptied), especially given the absence of evidence of any previous convictions or complaints, and given the good character and excellent reputation of the company’s employees at the public house, including the manageress, as to which evidence was called. His explanation, as summarised by the Recorder, was that he knew or assumed that the manageress was not a director of the company or holder of the waste management licence, an unsatisfactory explanation in our view.
31.
The Recorder stated, when summing up:
“The Defence have also suggested, and you may think, that the prosecution was swift, to say the least, that the tone of the letter, you might think, the tone of the letter was peremptory and unreasonable, and the Defence suggest, you may think, that as a response to a single occurrence the Prosecution, coming so very rapidly upon a letter in terms (inaudible), is quite disproportionate.”
32.
However, in the next paragraph, the Recorder rightly added:
“Members of the jury, you should put such thoughts as those to one side, because they are not relevant to the question has the Prosecution proved its case on one or other of these counts?”
33.
In her ruling refusing costs to the prosecution, the Recorder stated, amongst other things:
“Fourthly, this Prosecution was, in my view, clearly unnecessary. A warning letter would have achieved the Council’s perfectly proper objective to keep the streets of Newcastle clean without the time and expense entailed in a four day trial.”
. . .
“Fifthly, and furthermore, the Prosecution issued summonses against the company before the Council said they would in their curt and pre-empting letters . . .”
34.
We agree with the Recorder’s remarks. A more measured approach may achieve better results in keeping clean the streets of Newcastle-upon-Tyne.
35.
A further matter, of a different kind, has given us concern in relation to the Recorder’s direction to the jury in her summing up on count 2. There was evidence that of the customers of Durham Waste from whom the company had hired the green bins, about 15% had lockable bins and about 25% of those operating in public houses. Many large respectable companies did not have such bins. On the evidence for the defence, there had been two previous occasions when rubbish from the public house had been taken out of the bin and put on the floor. The manageress said that, on the telephone, she had asked for a lockable bin.
36.
The Recorder correctly and helpfully set out the ingredients of an offence under
section 34(1)(b)
. We commend the care with which the Recorder summarised the evidence and conducted the trial. She added that the sole allegation was that a lock should have been put on the bin, and summarised the case for prosecution and defence. The Recorder then stated:
“It is a matter for you, and take into account also the fact that the application to a dustbin of a lock is not something that anywhere is apparently specifically encouraged or mentioned in the Environmental Protection Act, nor in that jolly lengthy code of practice that you have. So, members of the jury, you set the standard.”
The expression ‘you set the standard as to what is reasonable’ had been used earlier.
37.
In our judgment, a jury required to “set the standard” were entitled to further guidance as to how to do it. This was not a negligence case but a criminal charge. In
R v Adomako
[1995] 1 AC 171
, the nature of the case was quite different, and much more serious. The House of Lords considered the test to be applied by a jury in a case of involuntary manslaughter which involves the jury deciding whether the breach of duty alleged should be characterised as gross negligence. Lord Mackay of Clashfern L.C, at page 187C, stated that the jury would have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care was such that it should be judged criminal. In assessing the meaning of dangerous driving, it has been found expedient to lay down a detailed statutory test to be applied by juries in making their decision (
Road Traffic Act 1988, Section 2A(1)
).
38.
On count 2, given the very limited number of previous incidents which might have alerted the company to the desirability of a lock, and the small percentage of commercial premises, including public houses, with locked bins, the prosecution case that the company was guilty of an offence under 1990 Act was thin. Guidance was required as to how to approach the evidence. There was a danger, for example, that, without guidance, the jury would conclude that, since the bin was unlocked when a lock had been requested, it inevitably followed that the company was guilty. Further, in a case of this kind, the jury should at least have been told that they would have to consider whether the company’s conduct fell below a proper standard to the extent that it should be judged criminal. The jury were not required to consider general standards for rubbish control in Newcastle-upon-Tyne but whether a particular defendant was guilty of a specified criminal offence. However, we have decided to allow the appeal on other grounds, on which we heard fuller argument, and do not propose to rule on whether the lack of guidance would have been fatal to the conviction.
39.
The appeal is allowed and the conviction on count 2 quashed. | ```yaml
citation: '[2009] EWCA Crim 217'
date: '2009-02-20'
judges:
- LORD JUSTICE PILL
- MR JUSTICE HAMBLEN
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200601085/C3
Neutral Citation Number:
[2006] EWCA Crim 2572
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
THURSDAY, 24th August 2006
B E F O R E:
LORD JUSTICE HUGHES
MR JUSTICE MACKAY
MR JUSTICE TREACY
- - - - - - -
R E G I N A
-v-
JONATHAN ERIC LAWSON
- - - - - - -
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 CAUDLE
appeared on behalf of the APPELLANT
MR M LEVETT
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE HUGHES: This appellant was convicted at the Chelmsford Crown Court of manslaughter.
2.
His appeal raises the question as to whether his co-accused was entitled to cross-examine upon a previous conviction for wounding.
3.
There were originally in the case three defendants. One pleaded guilty. The manslaughter consisted of pushing a man into deep lake water.
4.
The victim, a Mr Watts, was a man of 44, unfortunately suffering from a handicap so that his mental age was approximately 8 or 9. On a Saturday afternoon in March he emerged from a Lakeside public house, went onto a pontoon jutting out into the lake, took all his clothes off and sat down on the pontoon, dangling his feet in the water.
5.
He attracted the attention of passers-by. Many watched him. Some called jocular remarks. He was made fun of and somebody, not one of the defendants, took away his clothes and ran off.
6.
Among the things called out were shouts of "push him in". The victim was heard to say that he could not swim. Among those who saw all of this were the present appellant, Lawson, and his cousin, Quirk, who were together, and also the third defendant, King, who was not known to either of them. King went down to the pontoon and spoke to Watts. He can be seen to give him a cigarette. As he came back off the pontoon, the other two defendants were approaching it and he turned and returned with them, down to the end of it, close behind Watts. When all three defendants were close behind Watts, laughing and joking, Lawson, who was probably closest to him, made a pushing action by extending his hands and, more or less immediately afterwards Quirk stepped forward a pace and pushed Watts into the water. Very sadly, he never surfaced alive.
7.
The appellant and Quirk made off as soon as that was done. King remained on the pontoon, plainly, from the camera coverage, anxious. He then left, but a little later he went back to the scene, by which time police officers were there, and he identified himself to the police as having been there and concerned with what had happened.
8.
The Crown case was that all three defendants were party to the offence by encouragement to push the dead mean into the water. Quirk, who had physically pushed him, eventually pleaded guilty shortly before the trial, leaving this appellant, Lawson, and the other youth, King, to be tried. Each of those two contended that he had nothing to do with pushing Watts into the water and had not meant that it should happen.
9.
This appellant was shown by closed circuit television camera coverage to have made the pushing gesture to which we have referred. In interview with the police he initially claimed not to have seen Quirk push the man in. His account, however, changed during the series of interviews. At one stage, part way through, he admitted that he had contemplated putting the man into the water but said that he had internally intended that nothing should be done about it. In his final interview he accepted, on more than one occasion, that he and Quirk had agreed to push the man in, though he asserted that he had privately changed his mind before the deed was done.
10.
At trial, it was his case that that last admission had been a false one, made because he was anxious to get out of the police station. He admitted the pushing gesture but said that it was merely miming by way of joke, and he said that he had had no idea that Quirk would then do as he did.
11.
King was with the other two, close behind Watts when Watts was put into the water. His evidence at the trial was that he did not want the man put in and that he stayed in the hope that his presence would discourage the others from doing it.
12.
The defences of the two defendants who were tried were not entirely consistent. It was part of King's evidence that when he passed the appellant and Quirk, who were en route to the pontoon, he had asked them if they were going to push the deceased into the water and that he had received from this appellant the answer "too right".
13.
For his part, the appellant had told the police in his last interview and he gave evidence that when King returned from speaking to the deceased, the appellant had asked him what he had been doing on the pontoon, and received the answer from King that he had been going to push the man in but had "bottled out" of it.
14.
Each therefore gave an account of incriminating conversation with the other at the point where they met and just before they returned together and with Quirk to the end of the pontoon. Each denied the evidence of the other about his own remark.
15.
This appellant was 20 at the time of trial. Between the incident which we have been describing and the trial he had committed and been convicted of an offence of unlawful wounding. That offence consisted of striking someone on the head with a bottle in the course of an altercation at a New Year's party.
16.
King was 16 at the time of trial and of good character. When counsel for King cross-examined this appellant, he put to him that he was not a man of good character, rather that he had a conviction for assault. Contrary to Rule 35.5 of the Criminal Procedure Rules no notice had been given either formally or informally of the intention to adduce bad character evidence.
17.
We are, of course, conscious that we have not heard from counsel for King but we should say that we are quite unable to understand how that came to happen. It was directly contrary to the Rules which are recent in origin but quite apart from it is directly contrary to every good practice of advocacy, as it has been understood for generations. It may have had the result that the appellant did not consider the possibility that his conviction would go into evidence before he decided whether to go into the witness-box. That seems to us to be a possibility which can be overstated. However, whether that was so or not the unannounced cross-examination certainly meant that the jury heard something which, at that stage, it had not been decided it was entitled to hear. The risk was accordingly taken of a serious trial being compromised or aborted if the judge subsequently held that it was material which should not have been before the jury and that the trial could not continue. In the circumstances, we are wholly unsurprised by the judge's description of this conduct of counsel as reprehensible.
18.
That quite unnecessary history gives rise to the first ground of appeal. It is contended that in the absence of notice the judge should not have allowed the question to be asked or the evidence to stand as admitted. We sympathise with those who had to respond to this situation but we entirely agree with the way that the judge dealt with it. He had a discretion under Rules 35.8 to allow evidence of bad character to be adduced, notwithstanding that the required notice had not been given, by permitting notice to be given orally or in a different form to that prescribed, and he had power to shorten time for it. It must be implicit in the power to shorten time that it can be shortened to any degree, and thus dispensed with.
19.
While the Rules are there to be complied with, it does happen, not infrequently, that something is said in the course of trial which either creates for the first time the occasion for bad character evidence to be arguably admissible or leads to a different view being justified as to whether an attempt to adduce it should be made.
20.
This very experienced judge took into consideration the fact that notice had not been given before Lawson decided to give evidence. That, however, as we have said, was of limited force. First, one would have expected him to be advised that it was a possible eventuality. Second, under the
Criminal Justice Act 2003
, if the evidence of Lawson's conviction was admissible in the hands of King it could have been adduced as part of King's case whether Lawson gave evidence or not. It is no longer the law that the only way in which such evidence can be adduced is by cross-examination as used to be the case under the
Criminal Evidence Act 1898
.
21.
The judge concluded that the evidence should be admitted. He limited its relevance to the issue of Lawson's truthfulness about King and he directed the jury carefully that it had no bearing on whether Lawson had himself committed the offence or not. In short, he held it went to truthfulness but not to propensity to offend as charged.
22.
The correctness of his decision that it did not go to propensity to offend as charged has not been queried by either party on this appeal. We say no more about it except that whilst it was a conviction for an offence of violence, it is readily understandable that on the facts of this case it was held incapable of showing a propensity to commit an offence of this kind, which might be seen as a quite different kind of misconduct and recklessly dangerous rather than aggressive.
23.
The substantial ground of appeal is that the evidence of this conviction was wrongly admitted as relevant to truthfulness. As this Court has had occasion to say before, the
Criminal Justice Act 2003
introduces a wholly new scheme for the admission of evidence of bad character. The previously existing common law and statutory rules are abolished. The correct approach is not to start with what the old law would have been, but to address the law as it is set out in the new Act. Section 101(1)(e) provides:
(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if-
...
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant."
24.
Section 112(1) then provides by way of definition that
"... 'important matter' means a matter of substantial importance in the context of the case as a whole."
25.
Was there, in this case, such an issue? In our judgment, there was. The issue was whether or not King had said that he had intended to push Watts in and had said that at or about the time that he turned and returned with Quirk and Lawson to the end of the pontoon. With it went the issues whether or not he, King, was now lying or truthful when he said that he had not uttered any such remark, and whether Lawson was or was not truthful when he said it had been said.
26.
It seems to us that that did not cease to be an important issue for either of two reasons which have been advanced. First, it is suggested that even if King had said what was alleged by Lawson that would not by itself constitute the offence of manslaughter. That is no doubt true because, if Lawson's evidence was accepted, King was saying he had had the intention but had abandoned it before the deed was done. That does not alter the fact that Lawson's evidence remained evidence which, if it was accepted by the jury, was likely to reinforce the Crown's case against King, which was of course that he had resumed the intention to push Watts in when he returned to the pontoon with the other two.
27.
Secondly, Lawson, in giving the evidence that he did, added that he did not think that King had done anything wrong, and did not take it that King still had the intention to push Watts in. That also, as it seems to us, does not prevent the important issue to which we have referred from arising. There was, after all, every danger that the jury might conclude that those qualifications put on his evidence by Lawson were untruthful because, if he had said anything else, it would mean that he was accepting that he had gone to the end of the pontoon expecting King to push Watts into the water. By contrast, the jury might well think that Lawson's evidence about what King had first said was not tainted by self-protection and was therefore likely to be true. So the issue whether that part of Lawson's evidence was true remained, and its importance to King made it, we are satisfied, an important issue in the context of the case as a whole. Once Lawson had given evidence that King had said this, Lawson's truthfulness or credibility in saying so became an important matter in issue in the case.
28.
In order for the evidence of his conviction to be admissible, two further conditions had to be met:
(a) because it was a question of Lawson's truthfulness or credibility as a witness, the bad character evidence could be adduced only if the nature or conduct of his defence was such as to undermine the defence of King (see section 104(1)); and
(b), if that condition was satisfied, the bad character evidence had to have substantial probative value in relation to the issue of Lawson's truthfulness or credibility. For that see section 101(1)(e).
29.
It is apparent that there is an element of overlap between the questions whether there arose an important matter in issue between the defendants, whether the defence of Lawson undermined that of King and whether the proposed evidence had substantial probative value. This, as it seems to us, will often be the case but it remains necessary for the question to be addressed seriatim.
30.
This evidence given by Lawson did undermine King's defence. It was an important part of King's defence that he had never contemplated touching Watts, that he had only gone near out of curiosity, that he had done no more than offer him the kindness of a cigarette and that it was Lawson who had spoken of pushing him in whilst he, King, was simply an innocent bystander. If accepted, Lawson's evidence, however qualified, that King had made the remark alleged undermined that defence. We are satisfied that it did not cease to undermine it for either of the two reasons which we have previously analysed.
31.
Once gateway (e) is passed there is no discretion in the judge to exclude bad character evidence as there is where application is made by the Crown under gateway (d) or (g). Nevertheless, although discretion does not enter into it, an exercise of judgment is called for, because if objection is taken to the evidence being adduced, the judge must determine whether it has substantial probative value in relation to the important matter in issue which arises. That applies to a case where the bad character evidence is advanced as going to credibility or truthfulness, just as it does when the evidence is advanced as going to propensity to offend as charged.
32.
This is one of several respects in which the law relating to the admissibility of the bad character evidence has been changed by the
Criminal Justice Act 2003
. Under the previously existing provisions of the
Criminal Evidence Act 1898 section 1(3)
(iii) formally 1(f)(iii), once defendant A had given evidence against defendant B, which included any case in which the nature or conduct of his defence undermined that of B, there was no restriction upon what could be put to him in cross-examination. The earlier statute proceeded by providing the defendant with a shield against cross-examination as to bad character, but then stipulating that he lost that shield in certain circumstances of which this was one. The new statute proceeds by a different route. Cross-examination as to credit is no longer unrestrained. Whether evidence of bad character is adduced by cross-examination of the defendant or otherwise, it must have substantial probative value in relation to the issue.
33.
This Court pointed out in
R v Hanson
[2005] 2 Cr App R No 21, 299, paragraph 13 that untruthfulness is not synonymous with dishonesty, and that a previous conviction for an offence of dishonesty will not necessarily be capable of establishing a propensity for untruthfulness. The Court was there considering applications made by the Crown to adduce evidence of the bad character of the defendant on trial. In such a case, particular attention has to be paid if the evidence is suggested to be relevant only to truthfulness or credit, to the danger that the jury may even subconsciously and despite careful direction be influenced by the evidence on the question of propensity to offend and thus directly as to guilt. Whether upon examination of the test of relevance under gateway (d), or on application of the discretion under section 101(iii), it remains essential that a cautious test of admissibility should be applied to applications of this kind made by the Crown in relation to the character of the defendant who is on trial.
34.
It does not, however, follow that previous convictions, which do not involve the making of false statements or the giving of false evidence are incapable of having substantial probative value in relation to credibility of a defendant, when he has given evidence which undermines the defence of a co-accused. No doubt in this case also there exists the risk that a jury may subconsciously and despite direction be influenced by the evidence on the question of propensity to offend as charged as it exists in the case of an application made by the Crown against a defendant on trial. But it remains nevertheless wholly rational that the degree of caution which is applied to a Crown application against a defendant who is on trial when considering relevance or discretion should not be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge. A defendant who is defending himself against the evidence of a person whose history of criminal behaviour or other misconduct is such as to be capable of showing him to be unscrupulous and/or otherwise unreliable should be enabled to present that history before the jury for its evaluation of the evidence of the witness. Such suggested unreliability may be capable of being shown by conduct which does not involve an offence of untruthfulness; it may be capable of being shown by widely differing conduct, ranging from large scale drug - or people - trafficking via housebreaking to criminal violence. Whether in a particular case it is in fact capable of having substantive probative value in relation to the witness' reliability is for the trial Judge to determine on all the facts of the case.
35.
It is quite apparent from the shape of this Act that although it uses the expression "propensity for untruthfulness" in both section 103(1)(b) in relation to prosecution applications and in section 104(1) in relation to applications by co-accused, it addresses the various different occasions on which bad character may arguably be admissible separately and provides a different framework of rules for each situation.
36.
R v Osborne was one of a series of cases decided by this Court, Sir Igor Judge P presiding, under the title of R v Renda
[2006] 1 Cr App R No 24, at page 380.
Osborne
was a case in which the Crown had been permitted at trial to put to a defence witness his previous conviction for a single offence of serious violence, which had resulted in a 2 year sentence of imprisonment. The defendant was charged with robbery committed at a public house. His defence was that the allegation was trumped up by the licensee, to cover deficiencies in his till and other irregularities in his conduct of the house. The defence witness in question had given evidence to support the suggestion that the licensee was guilty of such irregularities. At paragraph 59 of the its judgment this Court said this:
"Welsh [that is the witness] had as recently as February 2003 been sentenced to two years' detention for an offence of serious violence. The judge agreed with the Crown that he could be cross-examined about it. The evidence of the conviction fell within s 100, particularly germane to the fundamental question whether or not a robbery had taken place. Without knowing of Welsh 's character, the jury would have been deprived of important evidence of substantial probative value in relation to the issue of the credibility of Welsh' s evidence on the vital question whether Mr Cleverley had fabricated his complaint, or whether in truth he was rightly to be regarded as a victim.
We cannot find any principled basis for interfering with the judge' s decision."
37.
We have been helpfully referred in addition by Mr Caudle to
R v M
[2006] EWCA Crim 1126
. That must remain its sole identification at least for the time being because this Court has ordered a retrial which may not yet have taken place. There the defendant was charged with an offence contrary to section 18 of the Offences Against the Person Act. The issue was self-defence. He had two recent previous convictions for aggressive violence. The Crown successfully applied to adduce evidence of them before the jury. The judge directed the jury that that evidence went both to propensity to offend as charged and to truthfulness. This Court allowed the appeal on the basis that although the evidence was relevant to propensity to offend as charged, that is to say that the defendant acted on the present occasion aggressively or in self-defence, it did not go and could not go to truthfulness.
38.
Understandably Mr Caudle drew our attention to that decision. However, in that case, the proposition that convictions could not go to truthfulness or credit was presented to this Court as a matter of agreement. It was not the subject of argument. The Court was not referred to the decision in
Osborne, which we have just cited. It was moreover a case of a Crown application in relation to the defendant on trial. It was not either an application by one side or the other in relation to a witness, as Osborne was, or an application by one accused in relation to a co-accused whose evidence undermined his case.
39.
On behalf of the Crown in the present case Mr Levett accepted, as it seems to us wholly correctly, that not every past conviction or other episode of bad character on the part of a witness whose truthfulness or credibility is in issue will be capable of having substantial probative value on that question. The judge must address on the differing facts of each case the question whether the evidence proposed is capable of having substantial probative value, not some possible theoretical relevance to the issue which arises. Where the issue is truthfulness or credibility, he must address the question of whether it is capable of having substantial probative value in relation to that issue. If the evidence has such value, there is no discretion to exclude it. If it has not, it cannot be admitted. We accept that it may well be that, for example, a single conviction for an offence of shoplifting especially some time ago might not be held to be capable of having substantial probative value on an issue of truthfulness or credibility. As in other areas of the application of this part of the
Criminal Justice Act 2003
, the feel of the trial judge will often be critical. This Court is unlikely to interfere unless it is demonstrated that he is plainly wrong or Wednesbury unreasonable. We endorse on this point the words of Sir Igor Judge in Renda
at paragraph 3.
40.
We should add for completeness out of deference to submissions made to us that we do not accept the proposition that if a defendant has a history of bad character which the judge holds not to be capable of having substantial probative value on the issue of his truthfulness or credibility, so that the application to adduce evidence of it fails, then it follows that that defendant is entitled to a conventional good character direction. It does not follow. The good character direction is appropriate to those who are, or who the judge rules may be treated as if they are, those without known bad character of any kind. It does not extend automatically also to those whose bad character exists, but is not of sufficient probative value or relevance to be admitted against them. Still less does it extend to those whose bad character is excluded as a matter of discretion.
41.
Wherever a co-accused proposes to adduce bad character evidence under gateway (e), he should always, without exception, alert counsel for the other defendant to his intention. That is so that the latter can take objection, if he properly can, and it is that the judge can rule, after proper argument on both sides, whether the evidence is admissible or not. That requirement that counsel be alerted is not a substitute for the notice called for by the Criminal Procedure Rules, where the possibility of such an application can be anticipated. It is, however, a practice which must be observed even in any case where the Criminal Procedure Rules notice either has not or could not have been given.
42.
In the present case, the unannounced cross-examination of Lawson put the judge in a very difficult position. We are quite satisfied for the reasons which we have explained that he was right to rule that the conduct of Lawson's defence had been such as to undermine King's defence and that an important matter arose in issue between the defendants, namely whether King had said what was alleged and thus whether Lawson was truthful about it.
43.
It is no doubt because argument arose without proper forethought on the part of counsel for King and thus without proper scope for consideration by counsel for Lawson, or the judge, that the judge did not address the questions which arose in the manner which we have indicated. It looks as if he was referred to Archbold and to the reference there contained to the decision of the House of Lords in
R v Randall
[2004] 1 Cr App R(S) 26
. But it seems from what we can tell that he had no more material to go on and no more assistance than that. The judge said this:
"In those circumstances, I have come to the conclusion that the learned editors of Archbold are correct in referring to the decision of House of Lords in
R v Randall
... I read: 'It seems likely that the courts will adopt the
R v Randall
test to gateway (e) where there is an important matter in issue between co-defendants to where they directly blame each other and exculpate themselves. Evidence of bad character of one of the defendants will be said to have substantial probative value in relation to that issue if it tends to show that version of the facts put forward by one defendant is more likely to be true than the version of the other defendant.'
So I allow those questions to be asked because, in my view, they ago to the truth of them. They do not (and I wish [counsel] to pay a particular close attention to this), go to propensity to commit acts of violence and he is not entitled to suggest to the witness or to make any submission to that effect to the jury in his final speech."
44.
Randall
was a case which was really about propensity to offend as charged. It was a case where the offence must have been committed by one or other of the two defendants charged and each of them blamed the other. Accordingly Randall does not provide a definitive answer to the question that was posed before the trial judge and which is posed before us. As we have said, the judge did not have the benefit either of the sustained submissions which we have had or of the decision of this Court in
Renda
(
Osborne). In the light, however, of those submissions and of that decision, we are satisfied that it is quite impossible to fault the judge in the conclusion to which he came. He was entitled to say that the evidence of the previous conviction was capable of having substantial probative value. As this Court observed in Renda
, a crucial feature of these cases will always be the feel of the trial judge for the way that the case is developing, the way evidence is given and the conduct of cross-examination. In those circumstances that is sufficient to conclude the issue before us in this case and sufficient to dismiss this appeal.
45.
We have, however, in any event reached the clear conclusion that even if we had decided that this conviction ought not to have been before the jury, this is nevertheless a conviction which is wholly safe. This jury was not allowed to think that the conviction made it any more likely that Lawson had committed the offence. It seems that counsel for King, having introduced it, made no further reference to it in his closing address to the jury. The jury had enquired with some perspicacity why it had been told of the conviction and what use it could make of it. It then received from the judge a very clear direction that it had no bearing at all on whether Lawson was guilty, but only had the limited relevance of going to whether he was truthful in what he had said about King. Although Lawson's defence undermined that of King in the manner which we have explained, this, unlike
Randall
, was not the kind of cut-throat case in which it had to be the case that one or other of the two defendants tried was guilty of the offence. The defences of these two men ran in parallel rather than in direct conflict. If King was not guilty, that did not make Lawson guilty. It left the jury to judge separately in his case whether he was a party to the push by Quirk or not. All that the conviction did, even if it had been wrongly admitted, was to weaken the evidence against King; it did not strengthen it against Lawson.
46.
Quite apart from that there are other factors. The really important evidence in the case came in the form of closed circuit television coverage which was uncontradictable and which we have seen. That shows that Lawson approached Watts with Quirk, his cousin with whom he had spent the day and with King in close attendance. Immediately before Watts was pushed into the water Lawson was closest to his back, and makes the pushing gesture or movement. It may be that he looked towards the audience as he did so, but then almost immediately Quirk steps forward and pushes the man in. King at the time is just to one side, with his hands in his pockets. Quirk and Lawson immediately made themselves scarce. King remained looking anxiously at the water and apparently waiting for Watts to surface. Whilst in this case, of course, the jury might have convicted King also, there was plainly a proper basis for treating him differently. He had been independent of the other two, whom he did not know. He had been to speak to Watts and left him quite undisturbed. He remained after Watts went into the water at least initially, and he had come back and presented himself unasked to the police in order to tell them what had happened. Moreover, his account of what had occurred was consistent throughout. Lawson's was not and included a number of admitted lies. King had always denied any complicity in pushing Watts into the water. Lawson had admitted it in interview, in the presence of his solicitor, on more than one occasion. Quirk had photographed what happened on a video camera mobile telephone and there was evidence from the interviews that Lawson was aware of it and was party to it being done. In other words, King's acquittal does not in this case carry the implication that the jury ignored the judge's direction and convicted Lawson by treating his conviction as evidence of propensity to offend as charged. The combination of strong evidence and the very limited nature of the bad character evidence, would have convinced us in any event that this conviction is wholly safe.
47.
We need to deal, briefly, with sentence. Lawson was 20 years of age. In passing sentence the judge confined himself to passing a sentence of 13 months (after allowance for time in custody) without stipulating its nature. In error, when that sentence was recorded in the Crown Court records, it appeared as a sentence of imprisonment. In view of the defendant's age, it should of course have been a sentence of detention in a young offender institution. There is and can be no challenge to its length, but the error needs to be repaired. We grant leave to appeal against sentence. We allow the appeal against sentence to the extent that we quash the sentence of imprisonment and substitute for it a sentence of 13 months' detention in a young offender institution. Accordingly to that extent the appeal against sentence is allowed and the appeal against conviction is dismissed.
48.
MR CAUDLE: For completeness, Sir John also passed a consecutive sentence in relation to the section 20 matter.
49.
LORD JUSTICE HUGHES: Consecutive?
50.
MR CAUDLE: A total of 18 months. Initially he said 12 months plus 6. For a reason I cannot now remember, we juggled with the figures so my Lords might grant the identical appeal in relation to that sentence, in section 20 making it young offender institution?
51.
LORD JUSTICE HUGHES: Let me have the details. You are quite right to remind us, Mr Caudle, I had not appreciated it. Thank you. Five months consecutive it was for the section 20 offence. Well, for clarification the same adjustment must be made to the sentence which was passed for the separate offence of unlawful wounding. That was 5 months. For the same reason the sentence of imprisonment is quashed and a sentence of identical length of detention in a young offender institution is substituted. The net effect for this appellant is that the length of his sentence remains 18 months and we are reassured to hear that he has in fact been detained in a young offender institution since his trial. Thank very much, Mr Caudle.
52.
MR CAUDLE: Out of interest, my Lord is absolutely right that Sir John had no more assistance than Archbold when of course the jury were out and we had to deal with it in a hurry.
53.
LORD JUSTICE HUGHES: Thank you very much. | ```yaml
citation: '[2006] EWCA Crim 2572'
date: '2006-08-24'
judges:
- LORD JUSTICE HUGHES
- MR JUSTICE MACKAY
- MR JUSTICE TREACY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No: 2015/03956 A7; 2016/00311 A4; 2016/00944 A1; 2016/01278 A1; 2016/01242 A4; 2015/03441 A2; 2016/02265 A4; 2016/00180 A2 and 2016/00323 A3
Neutral Citation Number:
[2016] EWCA Crim 1031
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURTS
Strand, London, WC2A 2LL
Date:
15/07/2016
Before:
LORD JUSTICE DAVIS
MR JUSTICE JAY
and
MR JUSTICE WILLIAM DAVIS
- - - - - - - - - - - - - - - - - - - - -
Between:
REGINA
Respondent
- and -
DANIEL HYDE
JESURAJAN JESUTHANSAN
CHRISTY STOKES
BERNARD MCGINLEY
MICHAEL WILLIAMS
DAVID COLLINS
NIGEL HAYWOOD
JOSE HENRY
MOHAMMED NAQI HUSSAIN
Applicants/Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Simon Heptonstall
for the
Crown
Rory Keene for
Appellant Hyde
Susan Meek for Appellant Jesuthansan
Balbir Singh
for
Applicant Stokes
Richard Herrmann
for
Appellant McGinley
A Price
for
Appellant Williams
Jason Elliott
for
Appellant Collins
S Hennessy (Solicitor Advocate) for Applicant Haywood
Jose Henry was not represented
Mohammed Naqi Hussain in person
Hearing date: 24 June 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Davis:
Introduction
1.
This is the judgment of the court.
2.
These appeals and applications have been listed together to enable the court to consider in a number of varying contexts a point of practice which seems to have given rise to a divergence of approach between High Court Judges who are considering on the papers under
s. 31
of the
Criminal Appeal Act 1968
(“
the 1968 Act
”) applications for leave to appeal against sentence.
3.
In its essentials the point comes to this. Is the Single Judge entitled, if he or she considers that some of the grounds of appeal are arguable and some not, to grant leave to appeal on limited grounds only? Or is the Single Judge required in such a situation to grant leave on (or refer to the Full Court) all grounds of appeal?
4.
There is currently no Practice Direction or Rule covering the point.
5. The former viewpoint is expressed in paragraph A10-1 of the Guide to Commencing Proceedings in the Court of Appeal Criminal Division (“the blue book”). It is there stated that in both conviction and sentence cases the Single Judge may where appropriate grant limited leave: that is, leave to argue some grounds before the Full Court but not others. The latter viewpoint, which is founded on a reading of
s. 11(2)
of
the 1968 Act
, is put forward by the authors, Alix Beldam and Susan Holdham, of the widely used Court of Appeal Criminal Division - A Practitioner’s Guide (2012) (“the purple book”). The authors have unsurpassed knowledge and experience of the law and practice relating to criminal appeals. At paragraph 5-095 they say this on applications for leave to appeal against sentence:
“If a single judge finds merit in some grounds but not in others, he should not grant leave on some grounds and refuse leave on others because of
s. 11(2)
. He should grant leave generally and grant a representation order generally but indicate the grounds which he considered arguable and those which he did not.
If the single judge sees merit only in the grounds relating to an ancillary order (such as a disqualification from driving or an order for the destruction of a dangerous dog) and would have refused the other grounds, he should grant leave generally because of
s. 11(2)
but grant a representation order relating only to the ancillary order.”
5.
It can straightaway be said that the latter viewpoint, even if reflecting an understanding of the court’s practice, is an inconvenient and in many ways unexpected conclusion. It is inconvenient because it means that the filter, and de facto case management, system comprehended by the
s. 31
scheme, designed to save court time and to save resources, will not have been operated to full effect and in consequence the time of the Full Court may have to be directed at considering grounds previously considered not to be arguable. It is unexpected because it means that a sharp distinction for no obvious reason of principle is drawn between applications for leave to appeal against conviction (where a Single Judge may routinely and unexceptionally grant leave on limited grounds) and applications for leave to appeal against sentence.
6.
The point also has implications in terms of cost in the situation identified in the purple book: because ordinarily no representation order will be available to counsel for renewing grounds refused by the Single Judge.
The statutory provisions
7.
Section 9(1)
of
the 1968 Act
gives a general entitlement to a person who has been convicted of an offence on indictment to appeal to the Court of Appeal against any sentence (other than one fixed by law) passed on him for the offence; whether passed on his conviction or in subsequent proceedings.
8.
By s.10(1), the entitlement to appeal is extended to persons dealt with by the Crown Court (otherwise than on appeal from the Magistrates Court) for an offence of which he was not convicted on indictment. The proceedings to which that applies are identified in s 10(2) and (3).
9.
In the relevant respects
s. 11
provides as follows:
“(1) Subject to subsection (1A) below, an appeal against sentence, whether under
section 9
or under
section 10
of
this Act
, lies only with the leave of the Court of Appeal.
(1A) If the judge who passed the sentence grants a certificate that the case is fit for appeal under
section 9
or 10 of
this Act
, an appeal lies under this section without the leave of the Court of Appeal.
(2) Where the Crown Court, in dealing with an offender either on his conviction on indictment or in a proceeding to which
section 10(2)
of
this Act
applies, has passed on him two or more sentences in the same proceeding (which expression has the same meaning in this subsection as it has for the purposes of
section 10
), being sentences against which an appeal lies under
section 9 (1)
or
section 10
, an appeal or application for leave to appeal against any one of those sentences shall be treated as an appeal or application in respect of both or all of them.
. . . . . .
(3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—
(a) quash any sentence or order which is the subject of the appeal; and
(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;
but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”
. . . . . .
10.
By s. 22 there is a general entitlement for an appellant to be present at the hearing of the appeal. Stipulated exceptions include (by s. 22(2) and by Criminal Procedure Rule 39.11) where the appeal is on a question of law and an application for leave to appeal.
11.
By
s. 31
it is provided that a Single Judge may exercise in the same manner as the Court of Appeal the powers there specified. Such powers include the power to give leave to appeal. By
s.31(3)
if an application is refused by the Single Judge the applicant is entitled to seek to have the application determined by the Full Court. To do so, he must comply with the requirements, and time limits, stipulated in Criminal Procedure Rule 36.5.
12.
Finally, for present purposes, the provisions of s. 50 may be noted. They give a wide, non-exhaustive, meaning of “sentence”: which is extended to an order made by a court when dealing with an offender, including in particular (among others) hospital orders and confiscation orders and other matters there identified.
Discussion
13.
There is nothing on the face of these provisions, in this court’s judgment, to preclude a Single Judge from granting leave to appeal on limited grounds on an application relating to sentence.
14.
It was nevertheless submitted to us that paragraph 5-095 of the purple book is correct and that
s. 11(2)
precludes the grant of limited leave on sentence appeals. We do not consider that to be either the intention or the consequence of the language used in that sub-section. The broad effect of the wording is to preclude an applicant making multiple or successive appeals against sentence passed on the same occasion and to preclude an applicant “banking” one constituent part of his sentence whilst challenging another part. (We say nothing here as to the extent to which more than one appeal against sentence may in some circumstances – for example relating to ancillary orders – be permitted. It has been decided, for instance, that an appeal against a custodial sentence does not preclude a further appeal against a subsequent confiscation order:
Neal
[1999] 2 CAR (S) 72;
Hughes
[2010] 1 CAR (S) 25. Such cases will hereafter have to be decided as and when they arise.) The wording of
s. 11(2)
thus does not, in our judgment, have the effect of precluding the Single Judge from an entitlement to grant leave to appeal against sentence on limited grounds or to grant leave to appeal against part of a sentence.
15.
In fact, so much has been decided by a previous decision of a constitution of this court in
Cox & Thomas
[1999] 2 CAR 6. The court (Lord Bingham LCJ, Ian Kennedy J and Jackson J) there considered this very point of practice. It was specifically held after a detailed consideration of the matter that, both on leave applications relating to conviction and on leave applications relating to sentence, the Single Judge may grant leave on limited grounds. It follows that, as the court pointed out, if an applicant wishes to pursue those grounds in respect of which leave has been refused by the Single Judge he must renew his application for leave in respect of such grounds before the Full Court. He has no entitlement to appeal on those grounds. Further, in our opinion, it follows that if a new ground is added after the decision of the Single Judge the applicant likewise will need the leave of the Full Court.
16.
At paragraph 5-095 of the purple book it is suggested that there is “some tension” between the decision in
Cox & Thomas
and
s. 11(2)
. That decision does refer to the provisions of
s. 11
“so far as relevant” (p.8), albeit not expressly setting out or referring to
s. 11(2)
, which presumably was not considered important enough to quote. It can hardly be thought that the decision was per incuriam on this point. In any event, we agree with it.
Section 11(2)
is not inconsistent with the conclusion expressed in
Cox & Thomas.
17.
This conclusion permits us to express some further observations on applications where limited leave is appropriate.
18.
One common situation arising is where a part of a sentence is identified as unlawful. Frequently, such errors are identified by the Criminal Appeal Office where applications on entirely unrelated grounds have been lodged (we take this opportunity of reminding practitioners that it is their responsibility in all cases to remind themselves of the Crown Court’s relevant sentencing powers in advance of the sentencing hearing; and, if error is identified thereafter, to utilise the provisions of
s. 155
of the
Powers of the Criminal Court (Sentencing) Act 2000
where available). The error may be of a wholly technical kind: for example where - as in one of the cases before us – a term of years has been expressed as “imprisonment” when it should have been expressed as “detention (in a Young Offender’s Institution)”. Another example may be where a concurrent sentence on a multi-count indictment is in excess of the statutory maximum under the legislation applicable at the time of the offence but where correction of such sentence can have no conceivable impact on the correctness of the totality of the overall sentence. There will be other examples. In such circumstances, it is entirely proper for the Single Judge to refuse leave to appeal on all other grounds advanced for which the Single Judge thinks there is no arguable basis and simply to grant leave to appeal on that part of the application for correction by the Full Court of the unlawful element of the sentence. That correction ordinarily will be directed to be done “on the papers” and with no grant of a representation order. The Full Court (whilst dealing with the correction of the sentence in open court) will have considered the matter in advance on the papers and no representation by counsel will be called for or justified. But what is not normally appropriate or necessary in such cases is for the Single Judge to refer the
whole
application to the Full Court. The simplest course in such a case is to grant leave to appeal limited to the correction of the unlawful aspect of the sentence and withholding the grant of a representation order for that purpose.
19.
We also add that where the Single Judge grants leave to appeal for the sole purpose of correcting a legal slip or unlawful sentence, and limited to that ground, the appellant ordinarily will have no right of attendance: as the prospective appeal will be on a point of law only.
20.
We would note that if in any particular case leave to appeal has been granted on a limited basis then the effect of
s. 29(2)
of
the 1968 Act
seems to be that no loss of time direction thereafter can be made by the Full Court if the applicant unsuccessfully renews those grounds for which leave was refused (a point, incidentally, which we consider does not affect the meaning and effect of
s. 11
as discussed above). Limited leave does not, however, preclude the Full Court from restructuring a sentence under
s. 11(3)
, provided there is no more severe outcome than was the outcome below.
21.
Another consequence of the Single Judge’s entitlement to grant leave to appeal on limited grounds relates to sentences which include a sentence for a Bail Act offence. In the Crown Court an offence of failing to appear under
s. 6
of the
Bail Act 1976
is treated as if it were a contempt of court. There is an entitlement to appeal, subject to compliance with the 28 day time limit, against such a sentence under
s. 13
of the
Administration of Justice Act 1960
: no leave of the Single Judge is required. Further, the sentence will not be in respect of a conviction on indictment and also will not be within the ambit of
s. 10
of
the 1968 Act
. Accordingly
s. 11
will not be engaged.
22.
That a total sentence imposed by a Crown Court includes, as one element, a sentence for a Bail Act offence does not mean that leave to appeal on all grounds, or reference to the Full Court on all grounds, is then required to be given by the Single Judge. In many cases, the sentence imposed for the Bail Act offence will in fact attract no ground of appeal at all: the grounds will relate solely to other aspects of the overall sentence. The Single Judge thus considers those grounds in the usual way and decides whether or not to grant leave to appeal on them. But even where there is raised, as one ground, a challenge to the Bail Act sentence (and so there is an entitlement to an appeal hearing before the Full Court) the Single Judge is still free to assess any other grounds raised and, if the Single Judge sees fit, to refuse leave on those grounds.
23.
That leads into a consideration of the issue of totality, which so often features in appeals against sentence. It is important to emphasise the obvious: that the Single Judge is
empowered
to grant leave to appeal on limited grounds, where the Single Judge considers some grounds not to be arguable, does not mean that the Single Judge necessarily
should
in all cases. There may well be cases where grounds advanced are clearly discrete. An illustration of this may be, for example, be where there is a ground of challenge to, say, a trial judge’s finding of dangerousness and consequential decision to impose an extended sentence and a second ground of challenge to the actual length of the custodial element of the extended sentence. The Single Judge would in such a situation be perfectly entitled, where appropriate, to refuse leave on the first ground and grant leave on the second ground: indeed, to do so reflects a proper application of the filtering system and may well be a valuable saving of the time of the Full Court and of resources. There will be many such cases.
24.
But equally there will also be many cases where the grounds, even if in formal terms separately formulated, in truth overlap or have a cumulative impact. There will be cases where what is in issue – by however many grounds it is formulated in conformity with Criminal Procedure Rule 39.3 – is in the last analysis one of totality. In such instances, the Single Judge may well think it much more convenient (if the Single Judge thinks there is overall merit in the proposed appeal) to grant leave generally. There thus will be cases where a Single Judge, having assessed some particular grounds as arguable, sees no practical point in precluding the applicant from arguing the remainder of the grounds before the Full Court. This was precisely the point made by Lord Bingham in
Cox & Thomas
at p 11G – 12C.
26. In this context, however, it should be stressed that, where the Single Judge intends to grant only limited leave, that should be made clear on the Form SJ itself: in at least one of the cases before us it was not wholly clear just what the appellant was being given leave to argue and what he was not. Accordingly, in the part of the SJ form setting out the Single Judge's Reasons for Decision the position should be clearly identified. That may well of itself suffice. But it would also be good practice, in the preceding part of the SJ form which is headed Decision, in addition to specify (if it is the case) that leave to appeal against sentence is limited: for example by saying: "granted, limited as set out in the Reasons below" or "granted (limited to Grounds 1 and 4)"; or by some other means which are unambiguous.
27.
This leads to a further point. In
Cox & Thomas,
it is (in our respectful view, rightly) said that it is not always necessary for a Single Judge to grant or refuse leave on each specific ground advanced. Often, of course, to deal specifically with each ground may well be a convenient course to adopt. But in other cases - for example, where the grounds, although in point of written form raised as distinct numbered grounds, are in reality variations on a single theme of totality; or, by way of another example, where a litigant in person, even when trying his best, has presented a hugely lengthy and unstructured assembly of "grounds" - it will not always be necessary or practical to do so. If a Single Judge grants leave to appeal generally then all of such grounds may be advanced. If a Single Judge refuses leave to appeal then that refusal likewise extends to all grounds advanced, whether discussed specifically in the Reasons for Decision or not. But what if the Single Judge grants leave focusing on specific grounds without expressly refusing leave on the other grounds?
28. In
Cox & Thomas
the following is stated at page 10F-11A,
“There is, however, a further and important practical question: is it necessary or desirable where more than a single ground of challenge is advanced against conviction or sentence for the single judge to grant or refuse leave on each specific ground? To that question we answer that it is certainly not necessary. If, having identified a ground or grounds as justifying the grant of leave to appeal, the single judge grants such leave either generally or on those grounds without expressly refusing leave on any of the grounds put forward, it is open to the appellant to rely on any of the grounds advanced, whether the single judge has singled out a particular grounds for approval or not. This is very often a convenient course for single judges to adopt. The burden on judges exercising their jurisdiction under
section 31
is very great. If, in a heavy case in which numerous grounds of appeal are relied on, the single judge identifies one as plainly justifying the grant of leave, it will often be convenient and efficacious to grant leave on that ground without going further. It is then open to the appellant to pursue any of the grounds relied on. But it may very well be that in the event of other grounds may never call for detailed consideration at any stage.”
We express some reservations, however, about the width of the suggestion that where the Single Judge grants leave, having identified a ground or grounds for doing so, then the appellant may as of right rely on all other grounds advanced which the Single Judge has not specifically dealt with. Sometimes that may indeed be what the Single Judge has intended. That said, if the single Judge grants leave, having focused on a particular ground or grounds in doing so and failing expressly to deal with other grounds, that can normally be taken as an indication of where the Single Judge sees the merits of the appeal. In such circumstances counsel should consider carefully whether to pursue those other grounds. If leave has indeed been granted generally, it remains open to counsel in such circumstances to pursue all grounds which had been put before the Single Judge; but it would be good practice in such cases for counsel clearly to identify in advance of the hearing before the Full Court which grounds are being pursued and which not. But ultimately the effective solution here is, as noted above, for the Single Judge to be explicit as to whether leave is granted generally or on a limited basis and to be explicit as to what are the ground or grounds for which leave is being granted and what are the ground or grounds for which leave is being refused. Where grounds are lengthy one way of making the position clear would be, for example, by concluding with words such as: “Save as identified above, I refuse leave on all other grounds advanced.”
29. We should also say something about applications for leave to appeal against sentence which require a very lengthy extension (as opposed to a short extension) of time: the position in one of the cases listed before us. If the Single Judge takes the view that there is no proper explanation for the delay and no proper basis for granting the extension of time or leave to appeal there is no problem: the application will be refused. In this regard the general approach indicated in
Wilson
[2016] EWCA Crim 65
should be borne in mind. But if the Single Judge takes the view that there may be a point worthy of argument before the Full Court, notwithstanding the great delay, the Single Judge should ordinarily
not
grant the very lengthy extension sought or grant leave. Rather the entire application should normally then be referred to the Full Court (the Single Judge giving such brief reasons for so doing as is thought appropriate).
30.
Mr Heptonstall for the Crown (for whose submissions generally we have been grateful) suggested that this court should give guidance as to how the Single Judge should exercise discretion in deciding when it would be suitable to grant leave on limited grounds and when it would be suitable to grant leave generally on all grounds. We decline the invitation. The multi-faceted combination of circumstances that can arise on applications for leave to appeal against sentences is such that guidance would be neither helpful nor practicable. The matter can safely be left to the discretion and evaluation of the Single Judge in each case. And if there are cases - as there assuredly will be - where the Single Judge is particularly impressed by one ground but thinks it appropriate to grant leave generally on all grounds, it is always open to the Single Judge to give a steer as to his or her particular thinking in the Reasons for Decision. Indeed, the Full Court may well be greatly assisted by that.
31.
Nothing we have said should be taken to displace the Registrar’s powers to refer, in an appropriate case, any particular application for leave to appeal against sentence directly to the Full Court, without it being placed before the Single Judge on the papers. To do so is particularly useful where an appeal against a short custodial sentence is lodged; but there will be other instances and the Registrar and Criminal Appeal Office staff have great expertise in this. The norm remains, nevertheless, that applications will be placed before the Single Judge as part of the statutory filtering process.
32. In summary the position is this:
(1) The Single Judge is entitled to grant leave to appeal against sentence on limited grounds or against part of a sentence only.
(2) The limited basis on which leave to appeal is granted should be made unambiguously clear on the form SJ.
(3) It is a matter for the discretion and evaluation of the Single Judge (where not refusing leave outright on all grounds) as to whether to grant leave to appeal on limited grounds or whether to grant leave to appeal generally.
(4) If an applicant desires to pursue those grounds for which leave to appeal has been refused by the Single Judge he is required to renew his application in the usual way within the prescribed time limit.
(5) Where the Single Judge has granted leave, either generally or on a limited basis, leave from the Full Court is required to advance a further ground formulated since the Single Judge’s decision.
(6) If limited leave is granted by the Single Judge together with a Representation Order, that funding is limited to the ground(s) identified as arguable by the single Judge. It will only extend to arguing renewed grounds of appeal if the Full Court subsequently grants leave on the renewed grounds.
(7) No different approach is called for where one element of the sentence relates to a Bail Act offence (although of course leave is not required to argue any ground challenging a sentence for a Bail Act offence).
(8) Where a sentence requires to be corrected in order to put right an unlawful element of the sentence, but the totality of the sentence will not arguably be affected by correction of such error and there are no other grounds considered arguable and there is no other complexity, the Single Judge ordinarily should grant leave to appeal on that part of the sentence only, withholding a grant of representation order; the matter will then be dealt with by the Full Court as a non-counsel application. If in such a case any other grounds have been raised and rejected by the Single Judge the applicant is then required to renew in the usual way if he wishes to pursue those grounds.
33. We turn to the individual appeals and applications before us.
Daniel Sean Hyde
34. Hyde is now aged 46. On 29 June 2015 in the Crown Court at Plymouth at the plea and case management hearing he pleaded guilty to a single offence of conspiracy to supply cocaine. On 24 July 2015 at the same court he was sentenced to a term of 9 ½ years’ imprisonment. He now appeals against that sentence by leave of the single judge. The grounds of appeal considered by the single judge argued that the sentencing judge had failed to give proper credit for the appellant’s plea of guilty. There were two limbs to the argument. The first limb concerned the judge’s decision to reduce credit because the appellant had absconded whilst on police bail. It was said that the extent to which he had reduced credit on that basis was excessive. The second limb concerned an indication of the appropriate credit said to have been given at the first hearing in the Crown Court, namely that another judge then had indicated that full credit for plea was preserved. The Single Judge gave leave to appeal in respect of the second limb i.e. full credit should have been given due to what was said at the early hearing. That is the only point on which leave was given.
35.
For the reasons we have given this was an appropriate exercise of the Single Judge’s power to grant leave on limited grounds only. Although both points raised in the grounds of appeal related to credit for plea, they were discrete issues. This was not a case in which there was such overlap between the points raised that it was necessary or appropriate to grant leave generally. Had the appellant wished to pursue the argument relating to reduction of credit because he absconded, he would have had to renew his application for leave. In the event a renewed application was not made. The argument was not pursued. We need say nothing more about it.
36.
Subsequent to the grant of leave by the Single Judge the appellant’s solicitors put in further grounds which raised a wholly new point, namely the failure of the sentencing judge to specify in open court the number of days for which the appellant was kept in custody in Holland whilst he was awaiting extradition. That failure has resulted in a refusal by the Prison Service to apply those days as remand time. Had this been identified within 56 days of the sentence being imposed, this is the type of slip which could have been dealt with under the provisions of
section 155
of the
Powers of Criminal Courts (Sentencing) Act 2000
. Since it was not, the route by which the position can be rectified is by an appeal to this court. We shall grant leave in relation to this further ground. Had this issue been the only subject of appeal, the single judge’s proper course would have been as set out at paragraph 19 of this judgment, namely to grant leave to appeal to enable the Full Court to correct the slip without a grant of a representation order for that purpose.
37.
The conspiracy to which the appellant pleaded guilty involved the supply of cocaine in bulk over a period of about seven months from September 2011 onwards. The cocaine was brought from London to the South West of England, in particular Devon and Cornwall. There were regular trips by those involved in the supply from London to the West Country with each trip involving about ½ kilo of cocaine. Over the period of the conspiracy around 10 kilos of cocaine were supplied. The appellant, who lived in Sussex at the relevant time, took part in many of those trips in association with others. He acted as a shadow of those who actually carried the drugs and facilitated their supply. When in January 2012 the police arrested the appellant, he was on a train travelling back from Cornwall to Paddington. He had £1,000 in cash with him.
38.
The appellant had a significant criminal record. In particular, in 2008 he was sentenced to a period of 5 years’ imprisonment for an offence of possession with intent to supply cocaine.
39.
That relatively brief recitation of the facts and the appellant’s antecedents is sufficient to allow proper assessment of the level of harm and the appellant’s role. Within the Sentencing Council definitive guideline the offence fell within Category 1 in relation to the amount of drugs involved. The appellant had a significant role in the supply i.e. as part of the wholesale supply operation rather than as a customer. The appellant’s previous conviction for a drug trafficking offence involving cocaine justified a sentence at the upper end of the category range. In those circumstances a starting point of 12 years’ imprisonment as identified by the sentencing judge cannot be criticised. It is of significance that the same judge had sentenced the other conspirators, some of whom he had tried. He was ideally placed to assess the role of the appellant. The grounds of appeal accepted that this starting point could not be said to be excessive.
40.
The appellant pleaded guilty at the PCMH. Ordinarily that would indicate a reduction in sentence from the starting point of 25%:
Caley
[2013] 2 CrAppR (S) 47. The sentencing judge reduced the credit for plea to approximately 20%. He did so because the appellant, having been granted bail after his arrest in January 2012 and after various extensions of his bail, failed to attend in January 2013. As he put it in his sentencing remarks the judge concluded that the appellant should not receive full credit “because you were on the run for 2 years”. The appellant always has accepted that this approach was not wrong in principle. As we have indicated above the appellant now accepts that the arithmetical reduction was appropriate.
41.
The issue for us to determine is whether the appellant is indicated his willingness to plead guilty at the first hearing and whether he was entitled to full credit as a result of what was said by the judge at the first hearing in the Crown Court. In the course of his opening prosecution counsel told the sentencing judge that “the note I have seen of the preliminary hearing indicated that the defendant was saying at that stage through his legal representatives that there was likely to be a plea.” He also said that the plea in fact was not tendered until the PCMH. The sentencing judge made no reference in his sentencing remarks to this supposed indication or to its effect on credit for plea.
42.
The grounds of appeal assert that the judge at the first hearing “stated in open court that in the event of a guilty plea at his PCMH…… (the appellant) would receive a full third discount on his sentence.” We now have a transcript of that hearing. The appellant was not represented then by counsel who appeared at sentence and who appears before us today. All that was said by counsel at the first hearing in relation to plea was that “it may well be, it remains to be seen, that there is not going to be a trial in this matter because we already have quite a lot of papers…” Counsel went on to say that it was a substantial case “so if the position changes in terms of whether or not the defendant is pleading guilty we will notify the court as soon as we can.” None of that constitutes an indication of a willingness to plead guilty. The judge’s response to counsel’s reference to notifying the court was to say “if you do that then you will have a good argument when Judge Mercer (the eventual sentencing judge) gets it for him attaching whatever credit he feels appropriate.” That comment does not begin to amount to an indication of full credit being preserved to the PCMH. The extent of credit for plea was left to the discretion of the sentencing judge which he duly and properly exercised.
43.
There is no basis in fact for the argument that the appellant was given any indication that he would be given full credit for his plea. His appeal against the sentence of 9 ½ years’ imprisonment must be dismissed.
44.
As we have already noted the appellant failed to answer his bail in early 2013. He fled the jurisdiction. He was eventually arrested early in 2015. He spent 35 days in custody while awaiting his extradition. He fell within the definition of “an extradited prisoner” for the purposes of
Section 243
of the
Criminal Justice Act 2003
.
Section 243(2)
requires a judge sentencing an extradited prisoner to specify in open court the number of days for which the prisoner was in custody while awaiting extradition. If that is not done, the Prison Service has no authority to apply those days to the sentence imposed by the Crown Court. In this case no-one reminded the sentencing judge of the requirement. He did not specify the number of days. We now do so. The sentence imposed in the Crown Court will be adjusted to specify 35 days spent in extradition custody. To that extent only this appeal is allowed.
Jesurajan Jesuthasan
45.
This is a case to which the Sexual Offences (Amendment) Act apply. No matter likely to lead members of the public to identify the victim of the offence shall be included in any publication.
46.
The appellant is 21. Prior to December 2015 he had no criminal convictions. On 3 December 2015 in the Crown Court at Aylesbury he was convicted of a single offence of assault by penetration. On 22 December 2015 he was sentenced to 6 years’ imprisonment. He appeals against that sentence by leave of the Single Judge. In giving leave the single judge referred only to the argument that the sentencing judge failed to give sufficient credit for the appellant’s lack of any previous convictions and general good character. That was the sole matter raised in the application for leave to appeal.
47.
Following the grant of leave, the appellant dispensed with the services of counsel and solicitors who had represented him at the Crown Court. New counsel was instructed. She provided the Full Court with a document headed “Additional Written Submissions”. The document raised a fresh argument though it was not expressed as a further ground of appeal and no application for leave to appeal on this fresh ground was made. The further ground was that the sentencing judge placed the offence in the wrong category in the Sentencing Council definitive guideline in relation to sexual offences. In argument counsel now instructed accepted that the Full Court would have to give leave for this further ground to be considered. This is not a case in which the two issues now raised overlap or have a cumulative effect. The ground on which leave was given proceeds on the assumption that the starting point taken by the judge was correct, the only criticism being that the judge failed to reduce the sentence sufficiently to allow for mitigating factors. The new ground seeks to attack the judge’s finding in relation to the starting point. These are discrete grounds.
48.
The appellant was an acquaintance of the young woman whom he assaulted. She and her partner had been introduced to the appellant by a mutual friend about a week prior to the offence. On the evening of 11 April 2015 the appellant was at the home of the complainant and her partner. They were drinking together. In the early hours of the morning the complainant’s partner went upstairs to bed saying that he felt unwell. The appellant and the complainant stayed downstairs in the living room and continued drinking. In due course the complainant fell asleep on a sofa. As she slept the appellant pulled her off the sofa and onto the floor. The complainant clearly was deeply asleep or affected by drink or both. She did not wake. The appellant pulled a cover over them as he lay down beside her. He then penetrated her digitally. The complainant woke up as this happened and jumped up wanting to know what had happened. The appellant left shortly afterwards. He was arrested the same morning.
49.
Some of what occurred was captured on a CCTV camera within the living room. The appellant was interviewed during which he was shown the CCTV footage. This court has had the opportunity to view the footage. The appellant chose to make no comment to the police.
50.
The appellant’s case at trial was that he had formed some kind of mutual romantic attachment with the complainant and that any sexual activity was consensual. The jury rejected that account. Nonetheless, the appellant maintained it when speaking to the author of the pre-sentence report.
51.
The judge in sentencing the appellant said that he had taken advantage of a young woman who “was dead to the world” in part due to the effects of alcohol. By reference to the Sentencing Council definitive guideline he described the offence as “a Category 2 case.” Although the sentencing judge did not spell it out, he must have found that the complainant was particularly vulnerable due to her personal circumstances i.e. due to her being comatose. There were no higher culpability factors so the case fell into culpability level B i.e. a starting point of 6 years’ imprisonment.
52.
As we have indicated counsel now instructed wishes to argue that the sentencing judge was wrong in reaching that finding as to the level of harm despite the general consensus in the court below that this was a case involving a particularly vulnerable victim. Counsel seeks to say that the sentencing judge was not entitled to conclude that the complainant was in the state he described even though the judge heard the trial, a trial at which she was not present. We do not consider that it is arguable that the sentencing judge was not entitled to reach the view he did about the vulnerability of the complainant. For the avoidance of doubt, we are quite satisfied that a young woman who is in such a deep sleep due to the consumption of alcohol and the effects of tiredness that she can be pulled to the floor from a sofa and then digitally penetrated without her state of consciousness being disturbed is particularly vulnerable due to her personal circumstances. We decline to grant leave in relation to the additional ground of appeal.
53.
The Single Judge gave leave because the sentencing judge did not refer to the appellant’s lack of previous convictions in his sentencing remarks when such lack is identified as a mitigating factor. However, the Single Judge went on to say this: “Although 6 years could easily be justified for this offence, even taking account of the applicant’s lack of previous convictions, noting the aggravating features identified by the judge, I grant permission to argue these grounds.” There were indeed aggravating factors to be taken into account. This was an offence committed in the complainant’s own home by a man whom she had invited as a guest. He committed the offence when under the influence of alcohol. It follows that we agree with the Single Judge when she said that the sentence imposed “could easily be justified.” Any mitigation available to the appellant was counterbalanced by the aggravating factors. There was nothing wrong with the sentence imposed. This appeal is dismissed.
Stokes and McGinley
54. The appellant Stokes pleaded guilty in the Crown Court at Middlesborough on 2 December 2015 to an offence of conspiracy to commit blackmail; the appellant McGinley on the same occasion also pleaded guilty to that offence and in addition pleaded guilty to an offence of transferring criminal property. Stokes was sentenced to a term of 45 months’ imprisonment. McGinley was sentenced to a term of 54 months’ imprisonment on the conspiracy count, with a concurrent sentence of 12 months’ imprisonment on the further count.
25.
Leave to appeal was granted by the Single Judge, but limited to a ground challenging whether appropriate credit had been given for the pleas. Consequently to the extent that they seek to pursue their other grounds these appellants have been required formally to renew their application on those grounds.
26.
Shortly put, the background facts are these. A farmer in North Yorkshire had in around 2005 been duped by two men whom he described as “two Irish guys” into parting with some £100,000 in cash for a digger which never materialised. No further steps were taken, the men were never identified and the complainant heard nothing more about it until 2015.
27.
On 24 August 2015, Dennis McGinley turned up at the complainant’s farm. He clearly knew of the previous incident. He told the complainant that he (McGinley) could retrieve the money: warnings were also given, however, to the complainant about how the complainant came to have the money in the first place, it being insinuated that it derived from criminal activity. At all events, the complainant was told that for a fee it could be arranged for the money to be returned. Between the date of that meeting and 3 September 2015 the complainant was induced to pay over in cash, on various occasions, as much as £196,000 in total. The deliveries were arranged over the telephone. Threats of death and violence to the complainant and his family were made in such calls. The locations where the money was handed over included Richmond market place and a car park in Darlington. Further pressure was applied after each delivery for more and larger payments by the man, styling himself “Big Boss Man”. The threats of violence continued. The complainant was told that he would get a bullet in his head if he did not pay. When he eventually said that he had no more money, Big Boss Man told him that his entire family would be killed. The complainant believed these threats. He borrowed money to keep making the payments.
28.
On one occasion, on instructions, he travelled to London to hand over cash. Dennis McGinley, his wife Bianca and the appellant McGinley (who is Dennis McGinley’s younger brother) then went on a spending spree with the money.
29.
Still the demands continued, accompanied by threats, including threats of a bullet to the head. Further handovers at various locations took place. Eventually the complainant went to the police. The appellants (and Dennis McGinley) were arrested on 8 September 2015. So far as these two appellants were concerned cell-site evidence linked Stokes to eight of the handovers and Bernard McGinley to five of the handovers.
30.
They made no comment in interview.
31.
Detailed bases of plea were entered by both in the due course. The bases were accepted, or at least not challenged. Both appellants were not particularly forthcoming in their bases as to what their actual roles and involvement were: they were rather more forthcoming about what they were not.
32.
Stokes was to say that he was not the planner, had joined the conspiracy after it had commenced, had never actually met or telephoned the complainant, had not been present when the demands were made and had never taken delivery of any cash. It was said that he was essentially used as a back-up driver and received £5,000 for his assistance.
33.
Bernard McGinley was to say in his basis of plea that he was involved by “lending support by my continued presence”. He did not organise the conspiracy, was not involved in any of the telephone calls and was not present when actual handovers of cash occurred. He joined the conspiracy after it started.
34.
Stokes is aged 44. He is married with a family. He has no previous convictions. Bernard McGinley is aged 25 and married with a family. He was treated as of effective good character.
35.
It is right to record that compensation in respect of all of the money has since been made to the complainant.
36.
Dennis McGinley (aged 40) was the leader of the group, if not of the overall operation. It is to be noted that he had been sentenced to 8 years imprisonment in 2010 for conspiracy to defraud, blackmail and money laundering offences. The resulting confiscation order was for over £800,000 in his case on that occasion.
37.
The ground of appeal for which leave was granted is based on an assertion that the judge had given insufficient credit for the pleas. What had happened was this. There was a plea and case management hearing before the Recorder of Middlesborough on 27 November 2015 which, for various reasons, had to be adjourned without the defendants being arraigned (the actual sentence hearing eventually took place 18 February 2016).
38.
This court now has a transcript of the hearing of 27 November 2016. Near the outset the judge indicated that “I haven’t made up my mind about credit yet.” There was then a discussion about adjournment; and the Judge adjourned the case until next Wednesday. Mr Singh, then appearing for Stokes, asked that “in his case credit remains intact until next Wednesday”. The judge agreed that it would not be right to force people into arraignment on 27 November 2015. Another counsel then asked that “credit might be preserved”. The judge then said: “A line in the sand in relation to credit is 10 o’clock, 2
nd
December.” He confirmed that applied to all defendants. The defendants thereafter pleaded at the adjourned hearing on 2 December 2015.
39.
When he passed sentence on 18 February 2016, the judge stated that the defendants did not plead guilty at the first opportunity: he accordingly gave credit of 25% to each defendant. He then passed the sentences we have described. Dennis McGinley received a sentence of 88 months.
40.
It is now said that by his statements on 27 November 2015 the judge had indicated that
full
credit would be maintained: and that is what counsel had understood. Accordingly, it is said, the judge erred in withholding full credit when he eventually passed sentence.
41.
There is nothing in this point. Clearly, from a subjective viewpoint, the judge had had no such intention - because he would not otherwise subsequently have limited credit for the pleas to 25%. From an objective viewpoint there is also no basis for such a conclusion: and no legitimate expectation to the contrary should or could have arisen. At the outset of the hearing on 27 November 2015 the judge had indicated he had not made up his mind on credit for pleas. The subsequent reference to “drawing a line in the sand” was no indication of full credit being maintained. All it was was an indication that whatever credit was appropriate on 27 November would continue to be appropriate on 2 December. That is all. Thereafter (since the pleas were not at the first practicable opportunity, a preliminary hearing having taken place in September 2015 and the 27 November hearing being the plea and case management hearing) the judge was entirely justified in according credit of 25%. That the defendants may have wished (reasonably) to take further legal advice after 27 November and that the bases of plea were thereafter formulated is no bar to such a conclusion by the judge: see
Caley
[2013] 2 CAR (S) 47 at paragraph 14. A suggested discrepancy with the calculation of credit afforded to Dennis McGinley also provides no basis of challenge to the credit given to these two appellants.
42.
We think, however, that there is rather more substance in the renewed grounds, for which we grant leave.
43.
What is said is that the judge took too high a starting - point; failed to give appropriate weight to the mitigation; and overall passed sentences which were excessive. A principal focus of the argument was that the judge had placed insufficient weight on the bases of plea: these appellants, of previous good character, had not themselves made any threats of violence or even met the complainant: their role was essentially one of back-up, for limited financial gain to themselves: £5,000 for Stokes and the participation in the spending spree by McGinley. It was said that this case was of a less serious kind than that of, for example,
Cunningham
[2016] EWCA Crim 1884
where a sentence of 4½ years imprisonment was substituted on appeal - although in our view
Cunningham
is to be taken as a decision on its own special facts and circumstances.
44.
Overall, however, we consider that there is force in these arguments. Accordingly, as announced at the hearing, we allow the appeals. In the case of Stokes the sentence is reduced to one of 36 months’ imprisonment (connoting a starting point, before credit for plea, of 48 months’ imprisonment). In the case of McGinley - who was convicted on two counts - the sentence is reduced to a sentence of 42 months’ imprisonment on Count 1. The appeals are allowed to the extent indicated accordingly.
45.
This case, however, provides an illustration of a form SJ which perhaps is at first sight capable of being ambiguous. The decision, as stated on the form, was that permission to appeal against sentence was “Granted”. No reference to any limitation was there made. In the following Reasons for Decision on the form the Single Judge endorsed the decision of the judge to regard this as a “serious offence of blackmail”. The Single Judge further recorded his view that the starting point of 5 or 6 years (as the case may be) taken by the judge was not excessive. The Single Judge then went on to consider the ground relating to credit for plea and said “I give leave so that the Full Court can consider whether the judge did indeed give that indication”: the Single Judge properly also directing that the transcript of the hearing of 27 November 2015 be obtained (as it since has been).
46.
Mr Herrmann on behalf of Bernard McGinley noted that in his Grounds of Appeal challenges had, among other things, been made to the credit for the plea (Ground 1); to the starting - point taken by the judge (Ground 2); and overall to the sentence as manifestly excessive (Ground 5). But there had also been grounds challenging the judge’s asserted failure to make sufficient deduction from the starting point because of the personal mitigation (Ground 3) and an asserted error on the part of the judge in unfavourably distinguishing McGinley from Stokes (Ground 4). Mr Herrmann submitted that the Single Judge had failed to deal expressly with these grounds: and in consequence, relying on Lord Bingham’s observations in
Cox and Thomas
at p 10F- G, Mr Herrmann said that he was entitled to advance these grounds on appeal without seeking further leave.
47.
We do not agree. This involves too narrow an approach to the form SJ. It is clear enough that, read as a whole, the Single Judge was giving leave solely on the credit for plea point (and directing a transcript accordingly). His rejection of all the other grounds was sufficiently identified. As to the substance of those grounds advanced by Mr Herrmann we reject them as not arguable.
Williams
48.
The appellant Williams was on 12 February 2016 convicted after a trial at Mold Crown Court of an offence of fraud and an offence of burglary. He was sentenced by the Recorder conducting the trial to a term of one year’s imprisonment on the fraud count and a consecutive five year term on the burglary count. The total sentence thus was one of six years’ imprisonment.
49.
Three grounds of appeal were advanced. The first was that the Recorder placed the burglary too high up in the range indicated in the relevant Definitive Guideline. The second was that the Recorder placed the fraud too high up on the range indicated in the relevant Definitive Guideline.
The third was that the Recorder failed adequately to consider principles of totality. In giving leave the Single Judge indicated that a sentence of 5 years for the burglary could not be criticised; but he was persuaded that it was arguable that the sentence for the fraud did not, on the facts, accord with the relevant Guideline. Having so stated, the Single Judge went on "It may be therefore that the total sentence of 6 years was too high".
80. Here too there is some possible ambiguity. It was accepted that in such circumstances leave was needed from the Full Court on Ground 1. Prudently, the applicant has also renewed on Ground 3: although arguably the limited leave extended to that ground and was not confined solely to Ground 2. In the circumstances of this case, indeed, it might perhaps overall have been more convenient for the Single Judge to have granted leave to appeal generally.
81.
The facts can be shortly stated. The applicant was a salesman for a home improvement company working in North Wales. On 19 February 2015 he attended the home of the complainant - a widow in her sixties, since deceased - to sell products. She ordered new windows. He requested a deposit of £2,000 which she paid in cash. However, the applicant then falsified the deposit forms, so as to indicate a total deposit of £1,050 payable to the company. He retained the balance for himself. This represented the fraud count.
82. A month later the appellant telephoned the complainant. He pretended to be from the Post Office. He asked her to attend the Post Office to collect a parcel. She did so. Whilst her property was thus left empty, he gained entry by smashing a window. The house was ransacked. Around £20,000 in cash and a number of family heirlooms and items of significant sentimental value were taken.
83.
The appellant is 46 years of age. He had minor previous convictions of some antiquity. He had no previous convictions for burglary. There was no pre- sentence report.
84. The Recorder in passing sentence described the offending as calculated, callous and cowardly. He placed the burglary offence within Category 1 and said "in my judgment it falls towards the very top end of this category". He said the victim was targeted and there was a breach of trust. As to the fraud the Judge described it as of high culpability but low harm. He placed it at "very much towards the top end" of Category 5 of the relevant Guideline and imposed a consecutive 1 year sentence. He said that he had had regard to the principle of totality.
85.
Miss Price submitted that each constituent sentence was placed too high up in the range and the totality of the sentence was excessive. She rightly accepts that this was a Category 1 burglary, with a starting point of 3 years’ custody and a range of 2-6 years’ custody. There had been theft of property of considerable sentimental value (as well as the £20,000 in cash) and a degree of ransacking, and the victim had been targeted and the burglary cunningly planned. But she submitted that there were no further aggravating factors justifying so significant an upward adjustment to the starting point. As to the fraud this was, she said, properly categorised as a Category 5B case: that connoted a range of a fine to 26 weeks’ custody. But the Recorder had adopted a sentence at the very top of the range appropriate to Category 5A: moreover that is based on loss of £2,500 for the starting point: and here the loss was just £950.
86. There is force in these points. A total sentence of 6 years’ imprisonment was too long. In particular whilst this was a Category 1 burglary, a sentence of 5 years was too high up the range, unpleasant though this burglary was, for a man with no previous convictions for burglary. The sentence on the fraud count was also too great a departure from the range and starting points indicated in the Guideline. The resulting sentence overall is excessive as a matter of totality. In the circumstances, we grant leave on Ground 1 and, to the extent necessary, Ground 3. We allow the appeal by quashing the sentence on Count 1 and substituting a sentence of 3 months’ imprisonment; and by quashing the sentence on Count 3 and substituting a sentence of 4 years and 3 months’ imprisonment. The total sentence thus becomes one of 4½ years’ imprisonment.
Collins
87. The applicant (now aged 50) was as long ago as 4 November 2005 sentenced in the Portsmouth Crown Court, following his plea of guilt to an offence of causing or inciting a child under the age of 13 to engage in sexual activity, to imprisonment for public protection. The minimum term specified was 18 months (less time on remand). He has remained in prison ever since. He had also been made the subject to a Sexual Offences Prevention Order, framed in extremely wide terms.
50.
His applications for an extension of time and for leave to appeal against sentence were referred to the Full Court by the Single Judge (this occurring before the decision in
Roberts
[2016] EWCA Crim 71
). In view of the lengthy extension of time needed the Single Judge was right to refer the matter to the Full Court. In doing so, the Single Judge very helpfully indicated that the point he considered potentially arguable was the making of a Sexual Offences Prevention Order where a sentence of imprisonment for public protection had also been imposed. The Single Judge, again very helpfully, indicated his view that there was no substance in the ground which challenged the finding of dangerousness and the imposition of imprisonment for public protection.
51.
The facts can be shortly stated. On 31 May 2005 the applicant had been drinking at lunchtime in a pub in Portsmouth, where he was a regular. A young child aged nine, who was with her family, went to the ladies toilets. The applicant followed her when she come out of the cubicle and ordered her back in. He then shut the door and told her to take off her knickers. She refused but he then took his own trousers and pants down and exposed himself to her. She managed to escape from the cubicle and ran screaming into the main bar area. The applicant left but was caught up by a woman in the bar and made to go back and apologise.
52.
The applicant had no previous convictions. However, he had a troubled mental health background. A Pre-sentence Report was obtained. That recorded the applicant as having frequent fantasies about children, involving causing them serious harm or even death. He was frightened of those thoughts "because of the potential he may one day carry them out”. He had a history of mental health problems and had been diagnosed as suffering from acute anxiety and personality disorder. He had previously had treatment to address his deviant sexual fantasies. The applicant had now started to put his sexual thoughts into practice. (In fact on one occasion he had admitted to intending to rape the little girl at the pub.) The report stated the view that he presented a significant risk to children.
91. Psychiatric reports dated 16 September 2005 and 26 October 2005 were before the Court. The applicant’s recorded preoccupation with sexual feelings and fantasies about young girls was set out. There was no evidence of mental illness but he had a personality disorder with schizoid features. His offending behaviour, however, was "related to his sexual preference for children and not to his personality disorder”.
92. In all such circumstances, the sentencing judge was clearly justified, under the law as it then stood, to make a finding of dangerousness and to impose an indeterminate sentence in respect of this specified sexual offence. As he said, the contents of the reports give rise to the "greatest concerns". The Single Judge was quite right in his opinion on this. We refuse leave on this renewed ground.
93. There is much more force in the second point. Mr Elliott attacked the width of the Sexual Offences Prevention Order. But his primary point was that such an order should not have been made at all in the light of the imposition of the indeterminate sentence; and there were no exceptional circumstances justifying such a course. We agree. Such an order should only be made, under the statutory provisions, where it is "necessary". Here, it was not necessary. Although the position on this particular point was clarified in
Smith
[2012] 1 CAR (S) 82 that decision involved no real change in the law on this point as previously understood: rather, it simply restated the effect of the actual statutory provisions.
94. We appreciate that this was a point which was available to be taken on appeal at the time. However, in the particular circumstances of this particular case, we will grant the necessary extension of time for this application and grant leave to appeal on this ground. Having done so, we allow the appeal. The Sexual Offences Prevention Order should not have been made and it is wrong to allow it to continue to subsist. We quash that order accordingly.
Haywood
53.
This application has been referred to the Full Court by the Registrar. He has done so in view of the fact that the proposed appeal includes a challenge, by one of the grounds, to a sentence imposed for a Bail Act offence.
54.
The applicant, a man aged 41, had pleaded guilty on 23 February 2016 to an offence of burglary. He was sentenced on 18 April 2016 by a Recorder sitting in Stafford Crown Court to a term of 12 months imprisonment. In the course of the proceedings he had also failed to attend a plea and case management hearing. He subsequently admitted failing to surrender in breach of his bail; and was sentenced to one month imprisonment for that Bail Act offence, consecutive to the sentence on the burglary count. The burglary offence was in fact committed during the operational period of a conditional discharge for a criminal damage offence and he was re-sentenced to a concurrent term of one month imprisonment for that offence.
55.
The facts, shortly stated, are these. On 23 November 2015 in the mid-afternoon a resident entered a block of flats in which he lived in Burton. As he approached the main door the applicant engaged him in conversation. The resident then went into his own flat. Some 10 minutes later he heard a bang and when he looked out he saw the applicant trying to take away a large table from the main foyer. He went outside to stop him, confronted him and then escorted him back into the flat. The table was recovered but a mirror had gone missing.
56.
The failure to surrender related to the failure to attend the plea and case management hearing fixed on 22 February 2016 in the Stafford Crown Court. The applicant was brought to court the following day.
99. The principal offence might, on the face of it, seem to be relatively trifling. Unfortunately it has to be set in the context of a very lengthy antecedent history on the part of the applicant. He has a serious drug problem. He has numerous previous convictions, having appeared before the courts on 18 previous occasions in respect of 54 offences, starting in 1991 and continuing thereafter. The convictions include public order offences; driving offences; drug offences; and offences of dishonesty. He also has previous convictions for non-dwelling burglary. He has received a number of custodial sentences. His antecedents also include a number of instances of failure to comply with community orders and suspended sentence orders. There have also been eight previous Bail Act offences: for which he has received sentences of up to 2 months’ imprisonment. A Pre-sentence Report dated 22 March 2016 recorded a lack of motivation to attend any appointments with the Probation Service.
100. The Recorder, in passing sentence, referred to the many opportunities the offender had been given by the courts to help himself. This offending had itself been committed during the currency of a previous sentence. The Recorder accepted that this was a "relatively low level" burglary, albeit there was "an element of confrontation". The Recorder went on to say: "But also .... it is very significally elevated by your antecedent record..... Overall, it seems to me that although this may have been categorised in the lowest level of burglary initially, given the aggravating factures that are mentioned, they take it into Category [2], which gives a starting point of a year and a range of up to two years".
101. The Recorder indicated that he would have taken a starting point of 18 months after trial: giving full credit for the plea, the sentence was one of 12 months' imprisonment. As to the Bail Act offence, the Recorder said:
“....this is one of many failures to attend. It has to be marked by a custodial sentence. It won't be longer than previous custodial sentences for Bail Act offences...”
102. Mr Hennessy submitted to us (as he had below) that this was a Category 3 burglary, the range of sentence being a low level community order to 26 weeks’ imprisonment. He said that the offence was more akin to theft than anything else, even if technically a burglary: the property had been stolen from the common parts of the block of flats and the (minor) confrontation had been outside. He said that there was no justification for going beyond the top of the range for Category 3, let alone beyond the starting point for Category 2 offending. As to the Bail Act offence, a sentence of one month imprisonment was, he submitted, disproportionate to the substantive offence and to the sentence appropriate to the substantive offence.
103. This was, on its face, a Category 3 case of burglary. But as the Guideline (at page 9) makes clear, relevant recent convictions are likely to result in an upward adjustment and in some cases, having considered these factors, it may be appropriate to move outside the identified category range. One can see from the Recorder's remarks that that is precisely the view he took of the matter. He was entitled to do so. While an adjusted starting point of 18 months imprisonment (6 months above the indicated starting point for Category 2) was on the severe side, it is to be borne in mind that there were aggravating factors over and above the very bad antecedent history of the applicant and there was little in the way of personal mitigation.
104. As to the Bail Act offence, given the frequency of such offending on the appellant’s antecedents a sentence of one month imprisonment was entirely appropriate and was not disproportionate to the substantive offence. It was correct in principle to make the sentence consecutive; and there can be no valid complaint on totality grounds.
105.
In the result, although we grant leave to appeal with regard to the burglary count we dismiss the appeal.
106. In the present case, as we have said, the Registrar had referred the entire application to this court. That makes practical sense where the overall sentence is, as here, relatively short and where an appeal as of right in respect of a sentence for a Bail Act offence is in any event being pursued. In other cases, where these considerations do not arise, there is, as we have previously said, no bar to the matter being placed before the Single Judge in the usual way and for the Single Judge to decide on what grounds (if any) leave to appeal is to be granted, where leave is needed.
Jose Henry
107.
On 10
t
December 2015 Jose Henry was sentenced following his conviction at trial for an offence of causing grievous bodily harm with intent, contrary to
section 18
of
the Offences against the Person Act 1861
, to an extended sentence of 18 years, comprising a custodial term of 13 years’ imprisonment and an extension period of 5 years, pursuant to
section 226
A of the
Criminal Justice Act 2003
. He also received a concurrent sentence of 3 months’ imprisonment in relation to an offence of possessing a class B drug, in respect of which he had pleaded guilty. Further, HHJ Henshell made ancillary orders with which we are not concerned.
57.
Given that Henry was born on 12
t
November 1996 and was aged 19 at the date of conviction, the custodial term should have been expressed as “detention in a Young Offenders’ Institution” rather than one of imprisonment.
58.
The Single Judge has referred to the Full Court Henry’s application for leave to appeal against sentence limited to the foregoing point. It is clear from her detailed reasons that her referral is limited to the issue of detention as opposed to imprisonment, and that she has not referred Henry’s wider grounds of appeal based on the finding of dangerousness and the length of the custodial term. The Single Judge made clear that the referral could be dealt with by the Full Court without the need for an oral hearing.
59.
For the reasons we have already given, we entirely endorse the Single Judge’s approach. Were it not for the fact that this applicant had informed the court that he wished to be produced and to renew his refused grounds of appeal in person, this court would have listed the matter referred to be dealt with on this extremely narrow point, and the judge’s error rectified. The judge imposed an unlawful sentence the remedying of which is straightforward; and we so order. This appeal must be allowed and for the extended sentence of 18 years imposed under
section 226
A of the
Criminal Justice Act 2003
(composed as previously set out) must be substituted an extended sentence with a custodial term of 13 years’ detention in a Young Offenders’ Institution and an extension period of 5 years.
60.
Henry’s application to be brought to court for the hearing was refused by Davis LJ on 7 June 2016. We now proceed to consider his renewed application for leave to appeal on his remaining grounds on the basis of all the available material.
61.
The background facts were that on 12 May 2015 the complainant, Hamza Lababidi, boarded a bus travelling into Manchester and sat upstairs, towards the rear. He was on his way to college. Henry had threatened to stab him on a number of occasions. Henry then boarded the same bus at a later stop and went to sit next to the complainant on the top deck. A fist fight broke out which was caught on CCTV. Within minutes, Henry pulled out a knife and the complainant fled from the bus, protecting himself with his bag. He used his mobile phone to film Henry following him and he baited this applicant by offering to fight him. Henry then struck the complainant, penetrating his chest with the knife and causing a wound 10cms deep which pierced the right atrium of the heart.
62.
The complainant managed to cross the road but he collapsed against a low wall. Henry followed and tried to stab the complainant again, notwithstanding the latter’s pleas to be left alone. The complainant managed to block the further stabbing motions but was repeatedly kicked about the head and body, even after passers-by tried to intervene. Eventually Henry stopped, pulled up the hood of his top, and walked away.
63.
Henry’s criminal record contained nothing of note, although there was a caution for disorderly behaviour or threatening behaviour likely to cause harassment in 2010.
64.
In his interview with a probation officer for the purposes of a pre-sentence report, Henry maintained that he did not stab the complainant and did not know who was responsible. He disclosed that he had problems with anger management and previous aggressive incidents which had been managed within the family. The author’s assessment was that he posed a high likelihood of causing serious harm to the public by the commission of future specified offences.
65.
In his sentencing remarks the judge held that the circumstances of the offence, including the applicant’s clear demonstration of anger and his heartless treatment of the complainant even after the latter had been stabbed, clearly warranted a finding of dangerousness. It was agreed between counsel that this was a category 1 case with a 12 year starting-point. The use of the knife and the circumstances of the offence, including Jose Henry’s sustained pursuit of the complainant, justified an uplift of one year to 13 years’ custody.
66.
The grounds of appeal are that the sentence is manifestly excessive and wrong in principle in that the judge ought not to have concluded that Jose Henry was dangerous within the meaning of
section 229
of the
Criminal Justice Act 2003
, and that the custodial term was too high.
67.
We have carefully considered these grounds in the light of all the available evidence, but we cannot accept them as being arguable. Notwithstanding the youth of Henry and his dearth of relevant previous convictions, there were two pieces of evidence which strongly supported the conclusion that he amply fulfilled the provisions of
section 229
. First, the circumstances of this offence were horrific, and Henry has exhibited no insight or remorse. Secondly, the clearly expressed and reasoned views of the probation officer were capable of weighing heavily with the judge. Further, the custodial term of 13 years’ detention was amply warranted on the Sentencing Council’s Definitive Assault Guideline, pages 4 and 5, because this was clearly a Category 1 case (greater harm and higher culpability) with a starting point of 12 years’ custody and a category range of 9-16 years. It is also clear from the judge’s sentencing remarks that he paid full account of Henry’s youth and his favourable character references.
68.
Jose Henry’s renewed application for leave on these grounds must be refused.
Mohammed Hussain
69.
On 16 December 2015, at Reading Crown Court (Mr Recorder Jones QC sitting with a jury), Mohammed Hussain was convicted of an offence of dangerous driving contrary to
section 2
of the
Road Traffic Act 1988
and an offence of driving whilst disqualified contrary to section 103(1)(b) of the same Act. He received consecutive sentences each of 6 months’ imprisonment. He had pleaded guilty to the summary offence of driving without insurance, for which he received no separate penalty. Further, having committed an offence during the 18 month operational period of a suspended sentence of 10 months’ imprisonment imposed on 21 February 2014 (for an offence of dangerous driving), when he was also disqualified from driving for 2 years and until an extended test was passed, the suspended sentence was activated in full to run consecutively. Thus, the total sentence of imprisonment was one of 22 months. Finally, Hussain was disqualified from driving on the two counts for which he had been found guilty, such orders to run concurrently. The disqualification period was for 4 years and (on count 1 only) until an extended sentence was passed.
70.
The facts were that on 21 January 2015 at 2:45pm a police officer in Slough Road, Datchet, noticed Hussain driving a black Vauxhall Insignia. The officer was in a marked police car. He knew that Hussain was a disqualified driver and attempted to stop the vehicle. The latter failed to stop. Hussain then overtook vehicles on single carriageway roads, and drove over the grassy area of a roundabout at the junction of the A4 to avoid stationary vehicles at a red traffic signal. He drove onto the Uxbridge Road and barged through traffic. He drove over the pavement to avoid stationary traffic at another red signal. He drove out of sight of the police vehicle and then decamped and hid in a garden. An eyewitness saw that this Applicant was the only person to exit the vehicle. The police officer then located him and he was arrested. Notwithstanding that Hussain’s phone was in the vehicle and his fingerprints were on the driver’s door handle, he gave a prepared statement saying that he was not the driver.
71.
Hussain, who was born in November 1984, had 15 previous convictions for 29 offences committed between 2005 and 2015. He had three convictions for driving with excess alcohol in 2005, 2008 and 2010, five further convictions for driving whilst disqualified and seven further convictions for driving whilst uninsured. He had received short custodial sentences for driving offences in 2010, 2011 and 2012. As previously stated, on 21 February 2014 Hussain was sentenced to 10 months’ imprisonment suspended for 18 months (together with other orders) for driving dangerously, whilst disqualified and whilst uninsured the previous year.
72.
In his sentencing remarks the Recorder made clear that, in the light of the circumstances of this offence and Hussain’s prolific record, immediate and substantial custodial sentences were appropriate.
73.
The Single Judge referred this application for leave to appeal against sentence to the Full Court on the ground that the effect of
section 36(7)
of the
Road Traffic Act 1988
is that, given that Hussain had not passed his extended driving test after 21 February 2014, it was wrong in law for the judge to impose another such requirement. The Single Judge considered that the remainder of the grounds were unarguable.
74.
After the decision of the Single Judge, Hussain submitted written representations to the Registrar, making the point that the time spent on qualifying curfew has not been taken into account in sentencing. He now acts in person, and the procedure laid down by this court in
Thorsby
[2015] EWCA Crim 1
has not been complied with. However, the prosecution has proven to be of great assistance in this respect, and it is agreed that Hussain was on monitored curfew between 30 September 2013 and 3 January 2014 (95 days) and 3 January 2014 to 21 February 2014 (28 days, at 4 days a week). This yields a total of 123 days, less one day for breach of the curfew provision. The total of available days for the purposes of
section 240
A of the
Criminal Justice Act 2003
is 122, and halving that produces a total of 61 days which should count towards sentence.
75.
Hussain requires the leave of this court to advance his further ground relating to
section 240
A. Given that the days to be credited have been accepted by the prosecution, we consider that it is appropriate in the circumstances of this case to accede to this application.
76.
Hussain also indicated that he wishes to renew the grounds of appeal which were refused by the single judge, and we permitted him to appear in person by video-link to do so. He advanced his case before us both effectively and courteously.
77.
The grounds of appeal are that a maximum sentence of six months’ imprisonment was passed for driving whilst disqualified when the fact that he was a disqualified driver was taken into account when fixing the appropriate term for the dangerous driving, and that it was unjust to activate in full the suspended sentence of 10 months having regard to the mitigation and to Hussain’s completion of the drug rehabilitation requirement as well as compliance with the supervision requirement attached to the suspended sentence. It was this second ground that Hussain pressed harder in oral argument.
78.
We have carefully considered these grounds in the light of the submissions we heard and all the material available to us. We do not consider that there is any merit in the ground that it was manifestly excessive to impose the maximum sentence for driving whilst disqualified. Given the circumstances of this offence, and Hussain’s deplorable record, this sentence was well within the ambit of the judge’s discretion. However, we have concluded that the judge erred in principle in activating the whole of the suspended evidence in circumstances where Hussain had fully and successfully complied with the requirements of the Suspended Sentence Order that had been made conditional to it. In the circumstances of this case, we consider that 5 months of the suspended sentence should have been activated. Accordingly, we grant leave to appeal on this ground.
79.
We allow the appeal to the extent prefigured. We quash the orders disqualifying Hussain from driving for a period of 4 years (such orders to run concurrent) and, on count 1, until an extended test is passed, and for these substitute orders on counts 1 and 2 disqualifying Hussain from driving for a period of 4 years, such orders to run concurrent with each other. Further, in substitution for the order that the suspended sentence of 10 months’ imprisonment imposed on 21 February 2014 should be activated in full, we make an order that the suspended sentence should be activated to the extent of 5 months. The other orders made on 21 February 2014 (viz. disqualification from driving for 2 years and until an extended test is passed) shall remain in place. Finally, we make an order under
section 240
A of the
Criminal Justice Act 2003
for 61 days on qualifying curfew to count towards sentence.
80.
The effect of our order is that the total period of imprisonment in this case is reduced from 22 months to 17 months.
81.
Muhammed Hussain’s application and appeal are allowed to this extent. | ```yaml
citation: '[2016] EWCA Crim 1031'
date: '2016-07-15'
judges:
- LORD JUSTICE DAVIS
- MR JUSTICE JAY
- MR JUSTICE WILLIAM DAVIS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2012] EWCA Crim 2035
Case No:
2012/00252
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE THORNTON QC
T20107453
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/10/2012
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE MR JUSTICE MACKAY
THE HONOURABLE MRS JUSTICE DOBBS
- - - - - - - - - - - - - - - - - - - - -
Between:
Mohamed Khaleel
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
S Stein QC
for the
Appellant
J Hallam
for the
Respondent
Hearing dates: 25
th
July 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
The Lord Chief Justice of England and Wales:
1.
On 19 December 2011 in the Central Criminal Court before His Honour Judge Thornton QC and a jury, Mohamed Khaleel, (the appellant) was convicted of murder. He was sentenced to life imprisonment and a period of 33 years was specified as the minimum term under s.269(2) of the Criminal Justice Act 2003 (the 2003 Act). Appropriate ancillary orders were also made.
2.
On 9 September 2010, the victim, Mr Zubrot, a homosexual aged 67, was found lying dead in his home in Greenford Middlesex. He had injuries to the back and right side of his head and neck. He was found, arms outstretched, lying on his back, wearing a pair of boxer shorts, with his shirt pulled up to expose his stomach.
3.
A post mortem examination established that death had been caused by large stab wounds to the back of the head and neck, with multiple stab wounds to the neck and throat. The condition of the body was consistent with his having been murdered on 30 August.
4.
There was evidence of association between the appellant and the deceased prior to his death. They had first met three months before in a park in Ealing. The deceased enjoyed short term relationships with men of Asian or Mediterranean extraction and he and the appellant, who is now 39 years old, had met on three previous occasions. During at least one of them they had returned together to Mr Zubrot’s flat. The appellant’s interest in the deceased may well have been commercial.
5.
On the day of the murder they walked together and returned to the victim’s home. There they consumed some alcohol. Quite what led to the killing was unclear. It looked as though the appellant took his victim by surprise from behind, cutting his throat and jugular vein in two, while stabbing him in the neck. Afterwards the appellant disappeared from the scene, taking the murder weapon, a knife, with him.
6.
At the time of this murder the appellant was on licence, having been released from prison following his conviction for a homicidal attack which had taken place in January 2003, in strikingly similar circumstances. On this occasion the appellant was convicted not of murder but of manslaughter on the grounds of provocation. He was sentenced to 8 years imprisonment. The issue in the appeal arises from the way in which the judge reflected the impact of this first homicidal attack when assessing the seriousness of the offence and the appropriate minimum term.
7.
The judge was prepared to accept that the murder of Mr Zubrot was not carried out for gain, and proceeded on the basis that there was no clear evidence that the appellant had taken a knife to the scene, and he could find no obvious planning or premeditation. On the other hand, he took into account the nature and ferocity of the attack, which he regarded as a cold blooded execution, as a seriously aggravating feature of the offence.
8.
The judge addressed the previous conviction on the basis that the deliberate previous killing by an offender was a highly aggravating factor affecting the seriousness of the instant offence. All the ingredients of the offence of murder were proved in relation to the 2003 conviction for manslaughter, but the jury had accepted that the appellant might have lost his self control as a result of provocation by the deceased. Nevertheless, the conviction involved deliberate homicide. He considered the terms of Schedule 21 of the 2003 Act, and asked himself whether the seriousness of the current offence fell within the “particularly high” category within paragraph 5. He noted that while paragraph 5(2) made no reference to a previous homicide in the list of circumstances which would normally fall within that category, the list itself was inclusive rather than exclusive. In the end, because of the previous conviction, and the circumstances in which it occurred, he took the view that the seriousness of the instant offence was indeed particularly high. That gave him the “appropriate starting point” for the determination of the minimum term, that is, 30 years.
9.
Mr Sam Stein QC for the appellant submitted that this approach was wrong. The previous conviction did not bear on the seriousness of the instant offence. Although the previous conviction was a seriously aggravating feature bearing on the sentencing decision, it was not a murder, and as other types of unlawful killing are not included in the cases listed in paragraph 5(2), even though the list is not exclusive, it could not be used as part of the process of deciding the category of seriousness which applied to the present case. The cases set out in paragraph 5(2) are confined to the facts of the offence itself, rather than the situation of the offender. Schedule 21 provides the legislative policy laid down by Parliament, outside which it is inappropriate for the judge to travel. The starting point should therefore have been 15 years and then, because of the aggravating features, including the previous conviction for homicide, the minimum term should have been fixed at, as he put it, “just below 30 years”.
10.
So far as relevant to this appeal, Schedule 21 of the Criminal Justice Act 2003 provides:
“Starting Points
4 (1) If –
(a) The court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it), is exceptionally high and
(b) The offender is aged 21or over when he committed the offence,
the appropriate starting point is a whole life order.
(2) Cases that would normally fall within sub paragraph (1)(a) include ….
(d) a murder by an offender previously convicted of murder.
5
(1) If –
(a) The case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it is particularly high…
the appropriate starting point, in determining the minimum term, is 30
years.
(2) Cases that (if not falling within paragraph 4(1) ) would normally fall within sub paragraph (1)(a) include –
(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,
(c) a murder done for gain…,
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation,
(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.
6
if the offender was aged 18 or over when he committed the offence
and the case does not fall within paragraph 4(1) or 5(1), the appropriate
starting point, in determining the minimum term, is 15 years.”
11.
Section 143 of the 2003 Act, which falls within Chapter 1 of Part 12 of the Act headed “General Provisions about Sentencing – matters to be taken into account when sentencing” reads as follows.
143 (2) In considering the seriousness of an offence …committed by an offender who has one or more previous convictions, the court must treat each conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard ,in particular, to -
“(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) the time that has elapsed since the conviction:”
12.
These statutory provisions have been considered in this court on numerous occasions. When considering the seriousness of an offence of murder, the obligation on the court is to have regard to the general principles provided in Schedule 21, together with any appropriate guidelines issued by this Court or the Sentencing Council. It was suggested in
Height
[2009] 1 Cr. App. R(S) 656 that paragraph 6 appears to be drafted on the basis that any case which falls outside the specific identified criteria in paragraphs 4 and 5 must proceed on the basis of a 15 year starting point. The court rejected this suggestion. The 15 year starting point is appropriate for cases which are not of exceptionally high seriousness, within paragraph 4(1), or of particularly high seriousness, within paragraph 5(1). However there are cases properly judged to be of exceptionally high or particularly high seriousness which fall outside the specific circumstances described in paragraph 4(2) or paragraph 5(2) respectively. The judgment to be made is the relative seriousness of the offence.
13.
The principle was encapsulated in
Kelly
[2012] 1 Cr. App R(S) 56 where the court was considering a number of cases listed together to examine the ambit and impact of the Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010 which, by inserting a new paragraph 5A into Schedule 21 provided a new starting point in the determination of a minimum term in specific circumstances where a knife was taken to the scene and used to commit murder. The court observed at para 5:
“… para. 5A now represents another “general principle” to which the court must have regard when making the determination. The structure of Sch.21 of the Act … requires the starting point for the assessment of the minimum terms for adults convicted of murder to be identified by a reference to murders of exceptional seriousness (full life); of particularly high seriousness (30 years); and murders where the seriousness is neither exceptional nor particularly high (15 years). Cases which would normally fall within the exceptional and particularly high levels of seriousness are listed and exemplified in paras 4 and 5 respectively. Nevertheless these lists do not create impenetrable compartments and every case will be subject to its own specific and individual features of mitigation and aggravation. Therefore cases which are not expressly described in paras 4 and 5 may be treated as cases of exceptional or particularly high seriousness, and cases which on their face appear to fall within one or other of the paragraphs may, on examination, be assessed at a lower level of seriousness than at first appeared”.
At paragraph 9, the court concluded:
“Careful study of the statutory language that makes clear that paras 4(1) and 5(1) identify not the ultimate decision but “the appropriate starting point” …”
14.
In the evaluation of seriousness consideration must be given to every previous conviction in accordance with the provisions in s.143(2) of the 2003 Act. If the defendant convicted of murder has already been convicted of murder on a previous occasion, Schedule 21 expressly establishes that such a case will “normally” fall within the cases of exceptionally high seriousness attracting a whole life order. It does not follow from the absence of any specific reference to a previous conviction for manslaughter, whether in paragraph 4(2) or paragraph 5(2), that such a case cannot be treated as one of particularly high seriousness merely because it is not specifically identified as a case which would “normally” be so treated. Murder committed by a man at large on licence following conviction for manslaughter on an earlier occasion in virtually identical circumstances of violence may be assessed as an offence of particularly high seriousness. That, we note, does not mean that every case of murder committed by a defendant with a previous conviction for manslaughter must be so treated. The earlier conviction may be an old one; the second killing may not be a virtual carbon copy of the first; it may be in relative terms a conviction for an offence which happened many years previously. All we are deciding is that a previous conviction for manslaughter may lead the judge to treat a subsequent offence of murder as an offence of particularly high seriousness. In our judgment, in the circumstances of this case, the judge was entitled to do so.
15.
Whether he had done so or not, it is plain, and Mr Stein accepted, that a 15 year sentence for this particular murder would have been wholly inappropriate. Certainly it would have led to a successful application by the Attorney General for it to be treated as unduly lenient. Once the court reflected on the serious additional aggravating features of the case, including the previous conviction for manslaughter, the end result would, inevitably, and again Mr Stein did not suggest otherwise, have produced a sentence very close to the 30 year starting point. In essence, Mr Stein was inviting us to consider whether the adoption of the 30 year rather than the 15 year starting point, resulted in a disproportionate and excessive minimum term. He suggests that if the 15 year starting point had been applied, even allowing for the aggravating features, the 33 year minimum term arrived at because the judge had taken the 30 year starting point would have been lower.
16.
The ultimate question for this court when examining any minimum term following conviction for murder is whether it is or is not manifestly excessive or wrong in principle. In considering the submissions on behalf of a defendant, the court will examine the starting point taken by the judge, not least because if, for any reason, it is inappropriate, confidence in the correctness of the eventual outcome may be undermined. In addition, in a case which does not fall within the express provisions in paragraphs 4(2) and 5(2), but which is nevertheless treated by the judge as an offence of exceptional or particularly high seriousness, the court will examine whether the eventual sentence may have involved an element of what is sometimes described as double counting.
17.
In our judgment, given the aggravating features identified by the judge, including the previous conviction for manslaughter, he was entitled to conclude that this was an offence of particularly high seriousness, and that a 30 year starting point should apply. That conclusion would have reflected all the relevant aggravating features. Some discount from the starting point should have been allowed for his further conclusion that there was insufficient evidence to justify the case being treated as a planned or premeditated murder. Setting this consideration against all the remaining features of this particular offence, the minimum period of 33 years was too long, and should be replaced by a minimum term of 28 years. To that extent this appeal will be allowed. The remaining parts of the judge’s order will remain undisturbed, and the sentence of life imprisonment remains in force. | ```yaml
citation: '[2012] EWCA Crim 2035'
date: '2012-10-09'
judges:
- THE HONOURABLE MR JUSTICE MACKAY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2019] EWCA Crim 321
No: 201602805/B2-201603536/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 21 February 2019
B e f o r e
:
LORD JUSTICE SINGH
MR JUSTICE SOOLE
HIS HONOUR JUDGE WALL QC
(Sitting as a Judge of the CACD)
R E G I N A
v
JOHN MARTIN KIRBY
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:
[email protected] (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.
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Mr J Harrison
appeared on behalf of the
Appellant
Mr D Pawson-Pounds
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
1.
LORD JUSTICE SINGH: The appellant appeals against conviction in relation to two indictments with the leave of the Full Court, which was granted on 13 March 2018 when the court also granted the necessary extension of time.
2.
On that occasion the court made some further directions which are set out at paragraph 9 of its judgment. Those directions included that, within the specified time, the appellant was to notify this court whether any application had been made to set aside the second order of the High Court, being an order dated 25 March 2014. Secondly, the appellant was to inform the local authority in this case, that is Tower Hamlets London Borough Council, of the appeal before this court. Thirdly, a copy of the court's order was to be served on the local authority and the prosecution. Fourthly, the appellant was to provide this court with a copy of the first order of 2013 made by the High Court under its inherent jurisdiction. We have been able to have sight of that, it would appear through the Criminal Appeal Office. Fifthly, a transcript of the judgment of 13 March was to be made available to the parties and indeed to any court subsequently dealing with the appeal, which it has been.
3.
The facts of the case can be briefly summarised as follows. On 25 March 2014 the High Court issued a non-molestation order on the application of Tower Hamlets. The order placed requirements on the appellant, including a requirement which prevented him from attending his elderly mother's address (which was set out). On 25 April 2014 police attended that address and served the order upon the appellant.
4.
The matter which was the subject of the first indictment concerned this. On 9 May 2014, following information received about a disturbance at the property, police officers attended and found the applicant present in breach of the order. He was remanded in custody. On 3 November 2014, in the Crown Court at Snaresbrook, the appellant pleaded guilty to breach of that non-molestation order contrary to
section 42A of the Family Law Act 1996
. He was sentenced by Her Honour Judge Sarah Paneth on 1 December 2014 to 12 weeks’ imprisonment.
5.
The matter which was the subject of the second indictment related to the following. On 23 April 2015 police officers attended the property following the activation of an emergency alarm. The appellant was present and was arrested for being in breach of the order. He pleaded guilty on 12 October 2015 at Snaresbrook Crown Court. On this occasion, he was sentenced by Her Honour Judge Louise Kamill to 5 months’ imprisonment.
6.
Subsequent events have a bearing on this appeal. Between 7 and 8 March 2016 the appellant appeared again at Snaresbrook Crown Court, following allegations that he had again breached the non-molestation order by attending his mother's address. During those proceedings it was conceded on behalf of the Crown that the original non-molestation order was invalid, by which we understand was meant that it should
not have been made. This was because the order had been made on an ex-parte application by Tower Hamlets who were not "associated persons" as required by the
Family Law Act 1996
. Consequently, as a matter of law, they were not permitted to apply for such orders in a case where there were no other proceedings before the court.
7.
In those circumstances, on this occasion, the Crown offered no evidence and the appellant, who had been held in custody since his arrest, was released.
8.
In this appeal Mr Harrison has advanced five grounds in writing. The first is that the non-molestation order was erroneously granted by the High Court on 25 March 2014 because it was not applied for by an associated person. Secondly, the application for the order should therefore have been refused. Thirdly, the application should have been further refused on the basis that there was already a properly granted prohibitive order in place which had been granted in 2013. Fourthly, the fact that statutory framework was not complied with should make the order invalid
ab initio
, submits Mr Harrison, and therefore not something that can form the basis of separate criminal proceedings. Fifthly, in a sense as an umbrella submission, sweeping up the earlier grounds, Mr Harrison submits that the Crown Court should not be used to enforce improper and unlawful orders.
9.
Before this court, at this oral hearing, Mr Harrison has also emphasised that such cases concern the liberty of the subject and may well concern members of society who are vulnerable and will often not appreciate what the legal requirements of various court orders are. They may therefore not be in a position, realistically submits Mr Harrison, to question the propriety of making a court order, in particular if it has been made on an ex-parte basis.
10.
That all said, Mr Harrison fairly acknowledged at this hearing that the normal course which the legal system expects people to take is for them to apply to have an order of a court set aside on the ground, for example, that the court had no power to make it; or that a condition precedent which must be met before a court has a power to make a particular order was not satisfied.
11.
We have been assisted in this case by helpful grounds of opposition, set out in the respondent's notice by Mr Pawson-Pounds. He has attended the hearing today in order to assist the court but in the event that the court felt it unnecessary to call upon him. In essence, he submits, in his written grounds of opposition, first, that an appeal against conviction arising from a guilty plea can only be considered in exceptional circumstances. He submits that the appellant was well aware of the substance of the cases against him and it cannot be realistically argued that he was misled in any way. There is no indication of the instructions given or the advice received by the appellant on either occasion.
12.
Secondly, and perhaps fundamentally, the Crown submit that the correct avenue for relief in cases such as this is for the appellant to challenge the validity of the non-molestation order in an appropriate manner, if an appeal is available or by applying to the original court to have it set aside. It is not a defence to criminal proceedings, submits Mr Pawson-Pounds.
13.
In approaching this appeal, we remind ourselves that there is a long-standing principle of our law that there is an obligation to obey an apparently valid order of a court unless and until that order is set aside. This is a crucial feature of a civilized society which has respect for the rule of law. The authorities amply demonstrate that that is the long-standing principle of our legal system.
14.
In 1846 in
Chuck v Cremer
[1846] Cooper temp Cottingham 2005 at 338, Lord Cottingham LC said:
"A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void — whether it was regular or irregular. That they should come to the court and not take it upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed."
15.
That passage was cited by Romer LJ in
Hadkinson v Hadkinson
[1952] P 285 at page 288:
"It is the plain and unqualified obligation of every person against, or in respect of whom an order is made, by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void."
16.
Those passages were cited with approval by the Judicial Committee of the Privy Council in
Isaacs v Robertson
[1985] AC 97
, at page 101, in the judgment of the Board which was given by Lord Diplock. There, Lord Diplock considered an argument based on the operation of Order 34 Rule 11(1)A of the Rules of the West Indies Associated States Supreme Court (Revised 1970) that the order made by the High Court of St Vincent granting an interlocutory injunction was "a nullity" so that disobedience to it could not constitute a contempt of court.
17.
That submission had been accepted at first instance but rejected by the Court of Appeal.
On further appeal to the Privy Council it was held that the Court of Appeal was correct. The passages we have cited from
Chuck v Cremer
and
Hadkinson v Hadkinson
were, in the view of the Privy Council, "all that needs to be said upon this topic".
18.
It should also be noted that at page 103 Lord Diplock said:
"The contrasting legal concepts of voidness and voidability form part of the English law of contracts. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies."
19.
Issacs v Robertson
was cited with approval by the House of Lords in
M v Home Office
[1994] 1 AC 377
, at page 423, where Lord Woolf said, in considering an argument that an order made by the High Court of England and Wales had been made without jurisdiction:
" ... the order was made by the High Court and therefore has to be treated as a perfectly valid order and one which has to be obeyed until it is set aside. (See the speeches of Lord Diplock in
In re A Company
[1981] A.C.
374 at p.384 and
Isaacs v. Robertson
[1985] A.C. 97
at p. 102.)"
We would observe that in the case of in
Re: A Company
it was held by the House of Lords that for this reason it is not possible to apply for judicial review of a decision made by the High Court.
20.
The mainstay of the submissions made in writing by Mr Harrison is to be found in the decision of the Court of Appeal (Criminal Division) in
R v Beck
[2003] EWCA Crim 2198
; [2003] All ER (D) 471, at paragraphs 25 to 29, in the judgment of Mance LJ. That case concerned, we would observe, an order made by the Crown Court which was described by Mance LJ as being "a court of limited statutory jurisdiction". That, of course, is not the status of the High Court which, as we have observed, is a court of unlimited jurisdiction - see the speech of Lord Diplock in
Re: A Company
at page 384.
21.
It should also be observed that in the judgment given by Mance LJ in
Beck
, at paragraph 27 he said, referring to an argument outlined at paragraph 26 as to whether the fresh restraining order made on 6 October 2000 could be said to be valid so long as it had not been set aside:
"As to point (a), it seems to us that, if the making of a restraining order was outside the power of the Kingston Crown Court on 6th October 2000, then the decision to make one 'amounts to nothing', even though the order is only now being formally set aside: see Halsbury's Laws of England (4th Ed. Reissue) Vol. 10, para. 314. The Crown Court is a court of limited statutory jurisdiction, rather than a court of unlimited jurisdiction to which, in at least some contexts, the principles in
Isaacs v. Robertson
[1985] 1 AC 97
might apply. Further, we are concerned with a criminal context, in which article 7 of the European Convention on Human Rights would, if anything, increase the problems which would be involved in upholding a conviction for an offence of acting contrary to an order which the court, a public authority, had no jurisdiction to make and which this court is now setting aside. We say no more on point (a), in view of the very limited submissions addressed to us on it."
In the result, at paragraph 29, the court found that it had to quash the appellant's conviction because there was a defect in the indictment. It did not record the date of the correct restraining order.
22.
Be that as it may, we would observe that the rule that an order of the court must be obeyed unless and until set aside has been applied to courts of limited jurisdiction. For example, in
Johnson v Walton
[1990] 1 FLR 350, a case which does not appear to have been cited to this court in
Beck
.
Johnson
concerned an application in the County Court to commit for contempt of court for breach of a non-molestation undertaking given to the court. The Court of Appeal (Civil Division) held that the County Court had been wrong to say that there could not be a contempt of court if there is no jurisdiction to accept the undertaking in the first place. Lord Donaldson of Lymington MR said at page 352:
"It cannot be too clearly stated that, when an injunctive order is made or when an undertaking is given, it operates until it is revoked on appeal or by the court itself, and it has to be obeyed whether or not it should have been granted or accepted in the first place."
23.
The same principle was applied in the case of a District Judge making an anti-social behaviour order under the
Crime and Disorder Act 1998
in
DPP v T
[2006] EWHC 728 (Admin)
;
[2007] 1 WLR 209
, at paragraphs 27 to 34 in the judgment delivered by Richards LJ. In that case the Divisional Court distinguished the decision of the House of Lords in
Boddington v British Transport Police
[1999] 2 AC 143
, on the ground that that case concerned the validity of bylaws and not court orders. In
Boddington
it had been held by the House of Lords that the validity of a bylaw can be questioned by way of defence in criminal proceedings. However, in
T
the Divisional Court said at paragraph 27:
"Very different considerations apply in the present context. First, the normal rule in relation to an order of the court is that it must be treated as valid and be obeyed unless and until it is set aside. Even if the order should not have been made in the first place, a person may be liable for any breach of it committed before it is set aside."
T
was recently cited with approval by the Civil Division of the Court of Appeal in
R
(on the application of) TN (Vietnam) v Secretary of State for the Home Department
[2018] EWCA Civ 2838
, paragraph 78.
24.
Before this court, and principally in reliance on the decision of this court in
Beck
, Mr Harrison seeks to distinguish the case of
Isaacs
on the basis that, in the present context, albeit that the High Court is a court of unlimited jurisdiction, it was exercising a jurisdiction conferred on it by statute only, namely the
Family Law Act 1996
. He submits that it only had power to make the non-molestation order concerned if certain conditions were satisfied. One of those conditions, as is now conceded by the Crown, was not satisfied. We reject that submission. The crucial point which has been emphasised in all of the cases to which we have referred is the status of the High Court as a court of unlimited jurisdiction.
25.
In those circumstances, the appropriate remedy was not a challenge to the conviction of a defendant but to the order imposed by the High Court. We would observe, with respect, that if it was to be done so as to provide a defence, it ought to have been done before an offence is committed. Making an application to set aside, even if that had been done, some 4 or 5 years after the event, does not appear to us to lay any foundation after the event to providing a defence to criminal proceedings. In any event, as Mr Harrison fairly accepts before this court, there is no material before the court to show that Mr Kirby has in fact done anything, even since the order of this court of March 2018, even now to apply to set aside the non-molestation order. We have reached the conclusion that the case of
Beck
is clearly distinguishable and does not provide any assistance to the appellant in his submissions.
26.
However, it would not be right to leave this case without putting down a marker even in relation to courts or Tribunals, which unlike the High Court do not have unlimited jurisdiction but have what was described in
Beck
as a "limited statutory jurisdiction", for example, the Crown Court, the County Court and Tribunals. This court may on a future occasion have to reconsider whether what was said in
Beck
is correct. We note that it was the subject of only "very limited submissions" in that case and that it would appear to be inconsistent with other authorities including not only
T
, a decision of the Divisional Court but also decisions of the Civil Division of the Court of Appeal. We need not dwell on this point further because, for reasons we have explained, it does not in fact arise on the facts of this case.
27.
But the jurisdiction of the Court of Appeal (Criminal Division) to reach a view which is different from an earlier decision of the same division is well established and is outlined in
Beldam & Holdham
Court of Appeal (Criminal Division), A Practitioner's Guide, 2nd edition at paragraphs 2-010 to 2-013 (see in particular the decision of this court in
R v Magro, Varma & Ors
[2010] 2 Cr App R 25
, in particular paragraphs 30 - 31 in a judgment of the court delivered by Lord Judge CJ.
28.
For the reasons which we have given, we have reached the clear conclusion that this appeal must be dismissed.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
29.
Tel No: 020 7404 1400
Email: [email protected] | ```yaml
citation: '[2019] EWCA Crim 321'
date: '2019-02-21'
judges:
- LORD JUSTICE SINGH
- MR JUSTICE SOOLE
- HIS HONOUR JUDGE WALL QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
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judges: <list of judge full names>
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{context}
======
| No:
200802942/A1
Neutral Citation Number:
[2008] EWCA Crim 3170
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 11th December 2008
B e f o r e
:
LORD JUSTICE STANLEY BURNTON
MR JUSTICE GROSS
MR JUSTICE ROYCE
- - - - - - - - - - - - - -
R E G I N A
v
CHRISTOPHER HARRISON
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Miss A Scott-Beckett
appeared on behalf of the
Appellant
Mr D Dunkin
appeared on behalf of the
Crown
- - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE GROSS: On 19th October 2007 in the Crown Court at Lewes, the appellant, aged 38, pleaded guilty to counts 2 to 6. On 8th November 2007 he pleaded guilty to count 8 and on 10th December 2007 His Honour Judge Kemp sentenced the appellant as follows: on count 2, sexual activity with a child, 2 years' imprisonment concurrent to count 3. On counts 3 to 6, sexual activity with a child, four counts of that, 5 years' imprisonment on each count concurrent. Count 8, possession of an indecent image of a child, 12 months' imprisonment consecutive. The total sentence was thus 6 years' imprisonment less the number of days that the appellant had spent in custody on remand. In addition a sexual offences prevention order was made under
section 104 of the Sexual Offences Act 2003
. Certain other counts were left on file. The appellant appeals against his sentence by leave of the single judge.
2.
The facts are these. On 9th November 2006 the parents of an 11-year-old girl became concerned as to her use of her mobile phone. Her mother checked the phone and then passed it to her husband because it became clear that there were a number of sexually explicit texts which had been sent to her. The texts grew more explicit and contained descriptions of what the sender wanted to do to her. The parents confronted the girl and she gave details of a website that she had visited and who she had been communicating with. It showed that she had been communicating with a man called Mr Kit. The police were contacted. The girl revealed in interview that the man she had been communicating with wanted to meet her and wanted to go to a hotel with her and had stated that he wanted to have sex with her. She also revealed that she had sent an indecent image of the bottom half of herself wearing only a thong. The police enquires revealed that the sender of the messages and the recipient of the image was the appellant. That is count 8.
3.
On 10th December 2006 the appellant was arrested. His computer was examined and it was found that he had solicited the image from the 11 year old by asking for a picture of her, as he put it, "titties" or "pussy".
4.
When interviewed he admitted sending messages to the girl since October 2006 but he was adamant that he had no intention of carrying out the stated intention in those messages of meeting her and having intercourse with her.
5.
As a result of this investigation his mobile telephone was interrogated and the police followed up on certain other numbers. One of those belonged to a 14-year-old girl who the appellant had contacted over the Internet. She had revealed her age, so he, well over 30, knew that she was 14.
6.
When she was interviewed, she revealed that after their contact with one another over the Internet she had agreed to meet him and he had picked her up from school. He had taken her to his home. He cooked her a meal. They watched a DVD together. He touched her bottom and breasts over her clothing. That gave rise to count 2. Matters, however, developed from there. She subsequently met him three days later, on 16th September 2006. They went to his home. They had full sexual intercourse (count 3). Thereafter they would meet on Wednesdays and Saturdays, eventually just on Saturdays for the rest of September, October and November and they would have intercourse at his home. She disclosed that he had always worn a condom.
7.
He was subsequently arrested in respect of those offences. When interviewed he gave a full account of his relationship with her and explained that he knew what he was doing was wrong but that he was suffering from depression. He admitted that he knew she was 14 when he had first met her.
8.
Passing sentence, the experienced judge said that the appellant had to be sentenced for indulging in full sexual intercourse with a 14-year-old girl over a period of time and possession of an indecent image of an 11-year-old girl. At the time of the offences he was lonely and depressed following the breakdown of a relationship and had turned to his computer and the Internet for solace. That was the reason for his relationships with both these girls.
9.
In September 2006 he formed a relationship with a 14-year-old and he had a full sexual relationship, notwithstanding the knowledge of her age. The relationship persisted for some three months. Thereafter he engaged in chat with the 11 year old over the Internet. The chat was an overtly sexual nature. He had asked the child to send in an image of her and she had sent him one of herself clad only in knickers.
10.
He was of good character but seemed to have little comprehension of the harm that he might have caused by the commission of these offences. He was the adult and however these children had sought his company, he was responsible for what had occurred. Although he had ended the relationship with the 14 year old, it had taken some three months to come to his senses and do that. It was to his credit that he had pleaded guilty. Account was taken of all the matters advanced in mitigation but a custodial sentence was inevitable. A sexual offences prevention order was also made. However, it has come to light that no order was made disqualifying the appellant from working with children, a mandatory order and a matter of which this court has helpfully been reminded by the Registrar.
11.
In the grounds of appeal, counsel, Miss Scott-Beckett, to whom we are grateful, submitted that the sentence was manifestly excessive. Insufficient credit was given for his guilty pleas and insufficient account was taken of the mitigation, lack of aggravating features and the sentencing guidelines. Developing those submissions today, Miss Scott-Beckett underlined the fact that the relationship was consensual. Sex had taken place with precautions. The relationship with the 14 year old had been terminated by the appellant himself, and in particular having regard to the guidelines, the sentence passed was manifestly excessive. Realistically Miss Scott-Beckett did not resist the imposition of a disqualification order regardless of what else we might do with the sentence.
12.
The appellant was hitherto a man of good character. It is sad indeed that he has, as the learned judge observed, lost that good character in so spectacular a fashion. But these are serious offences, involving both full sexual intercourse and what may be called grooming. There is a substantial age gap between the appellant and both girls. A substantial prison sentence was inevitable. What remains is whether the sentence passed was manifestly excessive.
13.
We shall put one matter out of the way at the outset. Sentencing is not an arithmetically precise exercise. Guidelines are guidelines. A mechanistic approach cannot be supported. We have been referred to a number of authorities helpfully by Miss Scott-Beckett but it is unnecessary to list those. None are precisely in point. This case involved two young girls. It involved grooming, as that word has become to be understood. It involved full penetrative intercourse over a substantial period of time with a 14 year old. True it is, as Miss Scott-Beckett has submitted, that the relationship was consensual but one of the objects of the law in this area is to protect vulnerable young people from themselves.
14.
Our task is to look at the sentence in total. Having done so, we are unable to conclude that the sentence was manifestly excessive. It was severe. It may have been at the top end of what is unobjectionable but it was not manifestly excessive. Put another way, any reduction would involve tinkering only. The appeal against the length of the custodial sentence must therefore be dismissed.
15.
As to the remaining orders, some concern was voiced that the sexual offences prevention order was for an indefinite period of time. There is, as counsel rightly accept, no difficulty with that. The statute, by section 107, expressly permits an order to be made until further order and that is precisely what happened here.
16.
For completeness and finally, a disqualification order must be added, and we do so. | ```yaml
citation: '[2008] EWCA Crim 3170'
date: '2008-12-11'
judges:
- LORD JUSTICE STANLEY BURNTON
- MR JUSTICE GROSS
- MR JUSTICE ROYCE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
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=====
{context}
======
| Case No
200205458B2
Neutral Citation No
[2003] EWCA Crim 3228
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHELMSFORD CROWN COURT
(HIS HONOUR JUDGE PEARSON)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Wednesday 10 December 2003
Before :
LORD JUSTICE LAWS
MR JUSTICE CURTIS
and
THE RECORDER OF CARDIFF
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Appellant
- v -
CHEONG WANG
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr A Shaw (instructed by Roach & Co) for the Appellant
Mr A Abell (instructed by Crown Prosecution Service) for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Laws:
1.
At the Chelmsford Crown Court on 28 August 2002 before His Honour Judge Pearson this appellant was convicted on the judge’s direction of two offences of being in possession of an article with a blade or point contrary to
s.139(1) of the Criminal Justice Act 1988
. On 4 October 2002 he was conditionally discharged for a period of 12 months.
2.
He now appeals against conviction by leave of the single judge.
3.
The case is an unusual one. The appellant is a Chinese asylum seeker. On 27 February 2002 the police were called to a disturbance at Clacton Railway Station, where they came upon the appellant who was detaining another man. He was also holding a curved sword, which was, however, still in its sheath. The appellant said that the other man had stolen his bag. Inside the bag there was a knife, called a “willow leaf” knife, which was indistinguishable in shape from a Ghurkha kukri knife. The sword was to be the subject of count 1 in the indictment, and the knife that of count 2. The appellant was arrested and interviewed with the assistance of a Mandarin interpreter. He told the police that his bag had been stolen at the railway station, that he had located the thief and the bag on a train, and that the sword had been covered with clothes inside the bag, but the thief had been through the bag and uncovered it. He said that he was trying to detain the thief and at the same time hold on to the sword, to stop the thief getting hold of it when the police arrived. At no time was the sword out of its sheath. The appellant said that he always carried the sword with him and used it to practise martial arts at deserted places. He had bought the knife at a market because it looked antique.
4.
When he gave evidence before the jury the appellant did not dispute his possession of the two bladed items. He claimed to be a practitioner of the martial art of Shaolin, which involved or required practice with such weapons: indeed a Shaolin follower had to become expert in the use of 18 weapons. It was asserted on his behalf that his need to practise with the weapons constituted “good reason” for his being in possession of them, within the meaning of s.139(4) of
the 1988 Act
. (We shall set out the relevant statutory provisions in due course.) The appellant was moreover a Buddhist, and Shaolin was a branch of Buddhism; so that the appellant (it was contended) enjoyed a further defence, to both counts, arising under s.139(5)(b). The appellant told the jury that on the occasion in question he had been going to see his immigration solicitor in London; he did not think it safe to leave the two weapons at his home, so he had taken them with him.
5.
In light of the issue joined in the appeal it is important to be as clear as possible about what the appellant actually said in evidence relating to his practice with the weapons as a Shaolin follower. When he was interviewed by the police he said nothing about it at all. We do not have a transcript of his testimony before the jury. We felt able to proceed without it, however, having regard to the references to what he said which appear in a ruling made by the trial judge which, as we shall shortly explain, is the genesis of this appeal, and also because of the assistance given to us by Mr Shaw for the appellant who was trial counsel and was able to refer us to his note of his client’s evidence. We describe these materials below.
6.
At the end of the defence case, on 28 August 2002, the judge sent the jury out and indicated to counsel that he could see no defence to either count arising on the appellant’s evidence. After hearing argument the judge maintained his earlier view and directed the jury to convict on both counts, explaining that the matters raised by the appellant were no defence. The essence of the appeal to this court is that the judge was wrong to do so; the appellant was entitled to a verdict from the jury, and had they accepted his evidence or thought it might be true, then by force of 139(4) and/or (5)(b) he should have been acquitted.
7.
It is convenient at this stage to set out the relevant statutory provisions.
S.139 of the Criminal Justice Act 1988
in part provides:
“(1) Subject to subsections (4) and (5) below, any person who has an article which has a blade or is sharply pointed with him in a public place shall be guilty of an offence.
…
(4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place.
(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him… (b) for religious reasons.”
8.
In view of the course taken by the judge it is perhaps little surprise, and it is certainly no criticism, that much energy and paper has been expended on the appellant’s behalf in marshalling argument and learning in order to demonstrate that the power of a trial judge to direct a jury to convict is, on constitutional grounds, very severely circumscribed. Reference has been made to authority such as
Gent
89 CAR 247,
Hill & Hall
89 CAR 74,
Stonehouse
[1978] AC 55
and
Wright
[1992] Crim LR 596. There is no doubt but that such a power is much constrained. In her skeleton argument for the Crown, however, Miss Davey, who appeared in the Crown Court, submits that it is necessary to distinguish between two classes of case: (1) where it is said that on the evidence an issue as respects which the burden of proof lies on the prosecution could only rationally be decided against the defendant, and (2) where it is said that the defendant has failed to discharge an evidential burden which lies on him. Miss Davey submits, in our judgment correctly, that the decision of this court in
Gent
shows that if it is ever permissible for the judge to direct the jury to convict in the first class of case, it would only arise in exceptional circumstances, and may be confined to the situation in which there had been something like a formal admission of guilt. However a different approach has been taken in the second type of case. In
Hill & Hall
the judge directed the jury to convict the defendants of possession of an article with intent to damage property (contrary to
s.3 of the Criminal Damage Act 1971)
because the defendants had failed to discharge an evidential burden which lay on them in relation to the defence of reasonable excuse. The convictions which followed were upheld in this court.
9.
Bown
[2003] EWCA Crim 1989
was a case, like the present, in which the appellant was prosecuted for an offence under
s.139(1) of the Criminal Justice Act 1988
. He had been found in possession of a lock knife. His defence was good reason under s.139(4). His “good reason” was that he had the knife on him to satisfy his propensity to harm himself. He did not give evidence at his trial. The Recorder ruled that it was for him to determine whether the reason advanced was capable of amounting to a good reason within s.139(4), and held that in this case it did not. Accordingly he directed the jury to convict. Keene LJ, delivering the judgment of this court, stated:
“16. … there are some limits as a matter of law as to what can amount to a good reason under s.139(4). It is for the judge to determine as a matter of law whether the explanation is capable of being seen by a jury as a good reason. If it is, then it is indeed for the jury to decide whether in fact in all the circumstances it did amount to a good reason.
…
17. … As a matter of approach… to his role as compared to the jury’s role, the Recorder in the present case in our judgment did not err…
Keene LJ proceeded to emphasise (paragraph 18) that the trial judge “should be slow to rule that the particular facts cannot as a matter of law fall within the scope of a ‘good reason’. The words are very general in nature.” He went on to consider whether on the facts the Recorder was right to rule that the defence put forward was incapable of amounting to good reason; but at length the court concluded (paragraph 25) that it was in the event unnecessary to decide whether self harm might amount to a good reason, because it considered (paragraph 26) that “the crucial factor [was] the absence of evidence from the defendant… There was simply insufficient evidence to establish the defence to the degree of particularity which was requisite.” And so the appeal was dismissed.
9.
Here, of course, the appellant did give evidence. Following
Bown
(and in line with
Hill & Hall
) the judge was entitled to consider whether the appellant’s account, if it were accepted, disclosed material which was capable of being accepted by the jury as showing that he had the sword and knife with him for religious reasons (or for good reason). The question for this court is whether he was right to hold that it did not.
10.
While we accept that we should be very slow to rule that particular facts, which raise at least some issue as to religious motivation, are in law incapable of furnishing a defence under s.139(5)(b), there are some features of the statutory provision which should in our judgment be clearly stated. Mr Abell, who was instructed to conduct this appeal for the Crown submitted that s.139)(5)(b) should be narrowly construed. We would not necessarily adopt that language, since in our view the two considerations which we are about to emphasise involve no tension with the ordinary meaning of the words the legislature has used. They are as follows. First, the religious reason (or reasons) proffered, assuming it can reasonably be regarded as a religious reason, must in our judgment constitute at least the predominant, if not the only, motivation for the accused’s being in possession of the bladed instrument in a public place, if the s.139(5) defence is to be made out. Secondly, (and in truth this flows from the first consideration) it must be shown that the religious reason specifically motivated the accused to have the article with him on the particular occasion in question. As Keene LJ said in
Bown
:
“25. … [I]t cannot… be a good reason in our judgment to have a knife with you in public one evening because you may want to self-harm at some time the next week.”
We consider that these limiting factors are necessary to preserve the force of the offence created by s.139, whose efficacy is very greatly in the public interest.
11.
We turn then to consider whether on the material before him the judge was right to direct the jury that the appellant’s account was not in law capable of furnishing a defence under s.139(5)(b). What was the appellant’s evidence as to the purpose for which he had the weapons in his possession, undoubtedly in a public place, on his trip to see the solicitor? As we have indicated, Mr Shaw referred us to his note of his client’s evidence. He told us that the appellant made it plain that he was on his way to London intending to practise with the weapons after he had seen his solicitor. But counsel’s note did not go so far. We do not of course suggest that Mr Shaw was seeking to put his case too high before us; but this is what he had recorded:
“I was going with my friend to see the Home Office lawyer in Romford. I always went with the bag and stopped at remote and uninhabited places to practise my Shaolin.”
The transcript of the hearing before the judge on 28August 2002 contains these following passages. First, there is Mr Shaw’s submission at 4C – D:
“The defendant’s evidence is plain; that Shaolin and Buddhism are inextricably linked, that members help society to protect people, to behave and keep the spirit. It teaches love without denominations or limitations. The basic belief of the Buddhist people teaching Shaolin, he said.”
Then the judge said this at 5A – C:
“… what this defendant has said is simply this: that whilst Shaolin may be a part of Buddhism and certainly it can have beneficial effects in terms of protecting people and loving all people, nevertheless the martial arts themselves and the weapons in connection therewith are not important to the faith as such. It is the personality and the faith itself which are crucial.”
Then at 5E – F:
“It seems to me that to say that he carries them in a bag – and what we are interested in is why did he have them in a public place, namely Clacton Railway Station, on the 27
th
? Put quite simply, to say that he had nowhere else to put them and he might want to practise with them cannot amount, in my judgment, to a defence of law.”
8E – F (now addressing the jury, who had returned to court):
“What this defendant has told you, put quite simply, is that he is a Buddhist; that he is a follower of traditional Chinese martial arts, called Shaolin; that Shaolin himself was a Buddhist and that Shaolin has become part of, as it were, the Buddhist religion, but it is clearly an adjunct and not central to Buddhism because he said himself: ‘Martial arts themselves are not important. What is important is the personality and the faith.’”
Lastly 9B – D (again to the jury):
“On the 27
th
, he was going to London to see a solicitor. What possible reason could one have for having those two blades for that purpose? The reason he gives is simply this: ‘There was no-one at home to look after the knives. The bag was the best place for them. I wanted to practise with them’, and you will recall his evidence about wanting to become the leading figure in martial arts and, perhaps, even to become a film star.”
12.
After careful consideration we have come to the conclusion that on this material the judge was justified in directing the jury to convict. The appellant’s evidence was not capable of discharging the burden, which lay on him, of showing that he had the weapons with him for good reason (s.139(4) or for religious reasons (s.139(5)(b)). It is very far from clear that he had any settled intention to practise with them on the day in question; even if he did, there was on his own evidence no religious requirement that he do so, and in any event that was plainly not the predominant or only reason for his possessing them that day; the fact that “there was no one at home to look after [them]” cannot, in our judgment, be a good reason for taking these weapons into public places. To borrow the words of Keene LJ in
Bown
: “[t]here was simply insufficient evidence to establish the defence to the degree of particularity which was requisite”.
13.
The facts here are unusual. Nothing we have said is intended to encourage trial judges to direct convictions, even where the material issue is one on which the defendant carries the burden, unless it is plain beyond sensible argument that the material before the jury could not in law suffice to discharge the burden.
14.
There was some discussion at the Bar as to the impact of Article 9 of the European Convention on Human Rights. Assuming, without deciding, that Article 9 might require the State authorities to allow persons to carry bladed instruments in public in pursuit of their religious beliefs (at least in some circumstances), such a right is guaranteed by s.139(5)(b) itself; there is no need for the subvention of Strasbourg authority. | ```yaml
citation: '[2003] EWCA Crim 3228'
date: '2003-12-10'
judges:
- LORD JUSTICE LAWS
- MR JUSTICE CURTIS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
201102352D4
Neutral Citation Number:
[2011] EWCA Crim 1649
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
HHJ PATIENCE QC
T20100912
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
01/07/2011
Before :
LORD JUSTICE HOOPER
MR JUSTICE STADLEN
and
MR JUSTICE SWEENEY
- - - - - - - - - - - - - - - - - - - - -
Between :
TIMOTHY WAKEMAN
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Ms. R. Burns
(who did not appear at trial) appeared for the
Appellant.
Ms A. Oragwu
appeared for the
Respondent.
Hearing date: 17
th
June 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hooper:
1.
During the course of the oral hearing we granted the appellant leave to appeal sentence and, taking into account the fact that the appellant had already served the equivalent of a six month sentence of imprisonment, substituted for the sentence a conditional discharge for one year. We also announced our decision that the appeal against conviction did not succeed. We now give our reasons for these two decisions.
2.
On 2 March 2011 in the Crown Court at Maidstone (HHJ Patience QC and a jury) the appellant was convicted, by unanimous verdict in each case, of two offences of taking a child without lawful authority so as to remove her from the lawful control of the person having lawful control over her, contrary to
section 2(1)(a)
of the
Child Abduction Act 1984
(counts 1 & 2).
3.
On 30 March 2011 he was sentenced to 9 months’ imprisonment concurrent on each count, making a total sentence of 9 months’ imprisonment.
4.
The provisions of
section 39 of the Children and Young Persons Act 1933
are engaged in this case because the two children in the case were aged 3 years. An order under
section 39
was
made in relation to proceedings in the Crown Court and we continue that order in respect of the two children. We shall not identify them or their mothers in this judgment.
5.
On 5 August 2010 Mrs X and Mrs Y took their 3 year old daughters to a local park. As the women were talking the little girls began pushing their buggies round the park. Not for the first time they ended up near the park bench on which the appellant and another were sitting. The appellant, who had been drinking and was sitting on a bench with another man, took hold of the girls’ hands and walked with them for a distance of about 20 to 30 metres, leaving the buggies by the bench. When the mothers confronted him he said he was going to show them a teddy bear in a window of a house overlooking the park and he referred to his own children. The mothers took hold of their children and the incident came to an end.
6.
It was not in dispute that a very large teddy bear could be seen in the first floor window of a house overlooking the park and that the teddy bear could be seen from an area not far away from where the mothers took hold of their children.
7.
In interview the appellant said that his behaviour was a silly mistake and he should have just told the children where the bear was. If he had seen his children disappearing with a stranger he would have been distressed.
8.
The appellant gave evidence. He is an educated man of hitherto good character who had become an alcoholic. Alcoholism ran in the family and may well have been triggered in the appellant by tragic loss.
9.
There was no evidence that the appellant, when he took hold of the children’s hands, had any ulterior motive. In his drunken state he wanted to show the children the teddy bear in the same way as he had shown his children the teddy bear. He said that he had not intended to take the children out of the park.
10.
Section 2 (1) of the Child Abduction Act 1984
provides:
Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen—
(a) so as to remove him from the lawful control of any person having lawful control of the child; or
(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.
11.
Section 3
of the Act defines “taking” in the following way:
a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken.
12.
It is accepted that the appellant took the child.
13.
At trial it was conceded by counsel – not Ms Burns – that on the evidence the appellant had taken the children out of the lawful control of their mothers. That followed, so the judge told the jury, from the following three concessions:
It is conceded that the defendant took Child X, and indeed Child Y, by the hand and walked away with them across the park without enquiring of the children where their parents were, without asking the children to go and get their mothers’ permission to be taken across the park, and without getting the direct permission of the parents themselves. There is no dispute, therefore, that that is what he did.
14.
The sole issue for the jury was whether the appellant had a reasonable excuse for taking the children away from the lawful custody of their mothers in the light of his evidence about why he took hold of the children’s hands. The jury rejected that defence.
15.
It is now submitted that counsel should not have made the concession.
16.
It is established that, in so far as the taking out of lawful control is concerned, the prosecution need only prove an intentional or reckless taking (or detention) the objective consequence of which is to remove (or keep) the child from the lawful control of any person having lawful control of the child. See
Foster v DPP
[2005] 1 WLR 1400
, at paragraph 36 cited in
X
[2010] EWCA Crim 2367
, para. 18. The appellant had thus intentionally taken the children.
17.
Ms Burns submits that the concession was wrongly made because the jury would have been entitled to find that the objective consequence of what the appellant did was not to remove the children from the control of their mothers. She submits that the mothers at all times retained control albeit that the appellant had some control also.
18.
In
Norman
[2008] EWCA Crim 1810
, Thomas LJ giving the judgment of the Court in paragraph 26 summarised the authorities on this point:
In
R v A
[2000] 1 Cr App R 418
(at page 424), this court held that a person took a child within the meaning of the Act if his actions were an effective cause of the child accompanying him; the consent of the child was irrelevant. In
R v Leather
(1994) 98 Cr App R 179
, this court held that no spatial or geographic element was involved; the question was whether the child was deflected by some action of the appellant from what he would, with parental consent, have been doing.
19.
Applying
Leather
, was counsel at trial entitled to concede that the children were deflected by the appellant from what they would, with parental consent, have been doing? In our view, the answer must be in the affirmative. It follows, at least on the facts of this case, that counsel was entitled to concede that the appellant did remove the children from the control of their mothers.
20.
For these reasons we dismissed the appeal against conviction.
21.
We turn to sentence.
22.
There is no doubt that the incident had a very deleterious effect on the mothers. One wrote of feeling constantly anxious, guarded and abnormally protective, concluding that the ordeal unfortunately would always haunt her.
23.
The judge said that he was not prepared to speculate about the appellant’s motive. He recognised that alcohol had had a disinhibiting influence. He took the view that the offences were of the utmost severity and crossed the custody threshold.
24.
We do not agree that the custody threshold was crossed.
25.
In our view the judge should have sentenced the appellant on the basis that he did not intend to remove the children from the control of their mothers and that his only intention was to show them the teddy bear. Whereas it was no defence that the appellant did not intend to remove the children from the control of their mothers and whereas on the jury’s findings, the appellant had no reasonable excuse, both his intention and motive were highly relevant on the issue of sentence.
26.
In our view, a non-custodial sentence should have been passed. Given that the appellant has now served the equivalent to a six month sentence, we quash the sentence of 9 months’ imprisonment and substitute for that sentence a conditional discharge for one year. | ```yaml
citation: '[2011] EWCA Crim 1649'
date: '2011-07-01'
judges:
- LORD JUSTICE HOOPER
- MR JUSTICE SWEENEY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2017] EWCA Crim 558
Case Nos. 2016/01056/A1, 2016/01402/A1, 2016/01225/A1, 2016/01222/A1 2016/01220/A1, 2016/01214/A1, 2016/01061/A1 & 2016/01059/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Wednesday 29
th
March 2017
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE HOLROYDE
and
HIS HONOUR JUDGE KINCH QC
(
Sitting as a Judge of the Court of Appeal Criminal Division
)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
- v -
MARTIN FRANCIS COOPER
JONATHAN PAUL FERRY
JAMIE ALAN DARBY
ADAM LEE HIGGS
PAUL JAMES HULL
STUART ANDREW FRAZIER
TYRONE SLY
JAMES ROBERT STRAW
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
A P P E A R A N C E S
:
Mr J Lake
appeared on behalf of the Appellant Martin Francis Cooper
Mr N Edwards
appeared on behalf of the Appellant Jonathan Paul Ferry
Mr M Cranmer-Brown
appeared on behalf of the Appellant Jamie Alan Darby
Mr C Milligan
appeared on behalf of the Appellant Adam Lee Darby
Mr A Stranex
appeared on behalf of the Appellant Paul James Hull
Mr J F Harrison QC
appeared on behalf of the Appellant Stuart Andrew Frazier
Mr J Thomas
appeared on behalf of the Appellant Tyrone Sly
Mr J Bourne-Arton
appeared on behalf of the Appellant James Robert Straw
Mr M Lowe
appeared on behalf of the Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
(Approved)
LORD JUSTICE DAVIS:
I shall ask Mr Justice Holroyde to give the judgment of the court.
MR JUSTICE HOLROYDE:
1. On 8
th
February 2016, in the Crown Court at Lincoln, His Honour Judge Pini QC (the Honorary Recorder of Lincoln) sentenced thirteen defendants for their respective involvement in serious offences involving the supply of controlled drugs. Eight of those defendants now appeal against their sentences by leave of the single judge.
2. The appellants were all charged on an indictment containing four counts. Each count alleged a conspiracy to supply a controlled drug between 1
st
January and late October 2014. The drugs referred to in the charges were: count 1, cocaine (Class A); count 2, methylmethcathinone ("M-cat", Class B), count 3, diamorphine ("heroin", Class A), and count 4, amphetamine (Class B).
3. The individual appellants and the sentences against which they appeal are as follows. Jonathan Paul Ferry, born 11
th
June 1969 and now aged 47, pleaded guilty at a plea and case management hearing on 20
th
February 2015 to all four counts. He received full credit of one-third for those guilty pleas. He received concurrent sentences of 16 years' imprisonment on counts 1 and 3, and seven years' imprisonment on counts 2 and 4. Thus, his total sentence was one of 16 years' imprisonment.
4. Adam Lee Higgs, born 4
th
March 1991 and now aged 26, pleaded guilty to counts 1 and 3 at the hearing on 20
th
February 2015. He, too, received full credit for his pleas. He was sentenced to concurrent terms of 14 years' imprisonment on each count.
5. Paul James Hull, born 8
th
July 1968 and now aged 48, pleaded guilty on 6
th
October 2015 to counts 1, 2 and 3. He received credit of 20 per cent for those delayed guilty pleas. He was sentenced to twelve years' imprisonment on each of counts 1 and 3, and to six years' imprisonment on count 2. Those sentences were ordered to run concurrently with each other. Accordingly, his total sentence was twelve years' imprisonment.
6. James Straw, born 5
th
February 1965 and now aged 52, pleaded not guilty. On the first day of his trial, however, he changed his plea to guilty to count 4. He stood trial on count 3. Ten weeks later, the jury found him guilty of that offence. He received a sentence of 16 years' imprisonment on count 3 and a concurrent term of six years' imprisonment on count 4.
7. Tyrone Sly, born 26
th
October 1969 and now aged 47, pleaded guilty to counts 3 and 4 at the hearing on 20
th
February 2015. He received full credit for his guilty pleas. He was sentenced to concurrent terms of ten years six months' imprisonment on count 3 and six years' imprisonment on count 4.
8. Stuart Andrew Frazier, born on 29
th
July 1961 and now aged 55, pleaded not guilty, but he too was re-arraigned at the start of the trial when he pleaded guilty to counts 1 and 2. He was given 15 per cent credit for those late guilty pleas. He was sentenced to concurrent terms of ten years' imprisonment on count 1 and four years six months' imprisonment on count 2.
9. Jamie Alan Darby, born on 11
th
April 1976 and now aged 41, was convicted after trial. He was sentenced to ten years' imprisonment on count 1 and to five years' imprisonment concurrent on count 2.
10. Finally, Martin Francis Cooper, born 19
th
October 1984 and now aged 32, pleaded not guilty but changed his plea to guilty to count 1 on day 3 of his trial. He, too, received 15 per cent credit for his late guilty plea. He was sentenced to three years six months' imprisonment, which was ordered to run consecutively to a sentence which he was then already serving.
11. The facts of the case, in outline, were these. During the ten month period covered by the charges, an organised crime group in Grantham purchased and sold large quantities of controlled drugs. The Grantham group had two principal sources of supply. An organised crime gang in Manchester supplied principally cocaine and, to a lesser extent, M-cat. The head of that group was not before the court. Three other accused, Anderson, Smith and Moynihan were Mancunian defendants who delivered cocaine and M-cat to the Grantham group. They are not involved in this appeal.
12. A separate organised crime group in Nottinghamshire, of which the appellants Straw and Sly were the principals, supplied heroin in wholesale quantities throughout the period of conspiracy. From August 2014 onwards, they also supplied amphetamine.
13. The prosecution relied on surveillance evidence and other evidence relating to the use and location of mobile phones and the movements of vehicles. They relied upon evidence relating to a number of specific occasions when conspirators have been arrested.
14. On 17
th
January 2014, Straw drove to Grantham and met Higgs and Cooper. Straw was later arrested and found to have £6,010 in his possession.
15. On 19
th
June 2014, one of the Manchester group delivered cocaine to a hotel in Grantham, where it was collected by Hull. Hull was then joined by Cooper and another man, and they used a hotel room to process the delivery.
16. On 3
rd
July 2014, Hull travelled to Manchester to meet a member of that group. He was stopped by the police as he was returning. He was found to be in possession of just under 1.5 kilograms of cocaine at 13 per cent purity, and also 55 grams of cocaine at 69 per cent purity. The larger quantity had a wholesale value of £26,400, and a street value of £95,500. The smaller quantity of higher purity cocaine was valued at £2,400 wholesale, £5,500 retail.
17. Evidence from a drug expert was that on importation cocaine would generally be at about 60 per cent purity, and that street deals would vary in purity between 6 and 20 per cent.
18. A mobile phone was seized on this occasion which showed contact between Hull, Ferry and someone in Manchester on that day. It also showed contact with drug suppliers, including Straw and Sly.
19. Frazier, who gave evidence at trial, confirmed that there had been a supply of cocaine from another of the Manchester group on 4
th
July 2014, when the telephone data showed calls between Frazier, Darby, Ferry and Higgs.
20. On 18
th
July 2014, Anderson (one of the Manchester group) drove to Darby's address in Grantham, where he was met by Frazier. He delivered 1.5 kilograms of cocaine at between 11 and 13 per cent purity. The estimated value was £24,000 wholesale, £90,000 retail.
21. When the police raided the house a short time later, they found Darby and Frazier in the act of breaking the cocaine up into one ounce deals. Police also recovered just under one kilogram of M-cat, with a wholesale value of £3,500 and a retail value of £10,000. A phone found at the address that had been used by Frazier to direct Anderson to Darby's house bore Ferry's fingerprints and DNA. Also found were the paraphernalia of drugs supply. A large quantity of benzocaine (a cutting agent) was later found, which Frazier had stored at another address. Anderson was stopped as he returned to Manchester. He was in possession of £26,000. That cash had been provided by Ferry to Frazier, so that Frazier could pay Anderson for the drugs.
22. On 28
th
July 2014, Ferry was seen with Higgs in a car park in Long Bennington. After an observed telephone call, Sly arrived in a van. Higgs entered the van and a short time later Higgs was seen with a white carrier bag.
23. On 4
th
August 2014, Ferry, Higgs, Straw and Sly met in South Yorkshire. Four days later, on 8
th
August, Higgs, Straw and Sly met in Nottinghamshire. Part-payment was made for a delivery of heroin that was made two days later. There was telephone contact between Higgs, Ferry, Hull, Straw and Sly.
24. On 10
th
August, Straw attended Sly at his home address, where they prepared the heroin for delivery. Sly then delivered the drugs to Higgs. Higgs was stopped on the A1 trunk road. He was in possession of 2.5 kilograms of heroin at 20 per cent purity, with a further 261 grams of heroin at 15 per cent purity. The wholesale value of the heroin was estimated at £67,000, with a street value of £137,000.
25. Following his arrest, Higgs was later released. Less than two hours after his release, he met Ferry, Straw and Sly to discuss the implications of his arrest.
26. On 26
th
September 2014, Straw, Sly, Ferry and Toulson (another defendant) were observed to meet near Sedgebrook. Ferry was given a bag of amphetamine by Straw and Sly. The bag was then given to Toulson, who took it to his home in Grantham for processing.
27. When Toulson's home was searched by the police later that day, they seized a kilogram of amphetamine at a purity level of between 43 and 49 per cent, together with the paraphernalia of drug cutting and supply. The amphetamine was valued at £13,000 wholesale and £35,000 retail.
28. Overall, the evidence showed 21 meetings between Straw, Sly, Ferry and Higgs during the period February to September 2014, together with a high volume of telephone traffic between them.
29. In the light of the observed events, the prosecution case as to the roles played by those of the appellants who were based in Grantham was as follows. Ferry was the head of the Grantham group. Higgs was Ferry's right-hand man; he played an active role in both collecting and supplying drugs. When Hull was arrested partway through the indictment period, Higgs took over his role of collecting heroin. Frazier assisted Ferry and Higgs; he was involved principally in the storage and preparation for sale of cocaine. Hull was a courier of significant quantities of heroin and cocaine between the suppliers in Manchester and Nottinghamshire and the Grantham group. The evidence showed over one thousand mobile phone contacts between himself and Ferry during the indictment period. Cooper assisted with the cocaine on one occasion after others had been arrested. Darby took deliveries of cocaine and M-cat on behalf of Ferry and assisted with storage and preparation for sale, again following the arrests of some of the conspirators in July.
30. We note, as a potent indication of the scale and level of organisation of these conspiracies, that when individual conspirators were arrested, they were replaced and the operation was able to continue without significant interruption.
31. Following their arrests, many of the conspirators made no reply when interviewed. The appellants Straw, Hull, Frazier and Darby did answer questions, but did not tell the truth.
32. Frazier, as we have said, gave evidence at the trial. His account of the hierarchy of the Grantham group placed Ferry at the top, with Higgs and Hull. Frazier said that Higgs dealt with the heroin; Hull dealt with the cocaine.
33. In his sentencing remarks, the learned judge gave a clear and detailed explanation of his approach to the sentencing exercise and of his reasons for imposing the sentences he did. He noted that in a police investigation such as had been necessary in this case, there will be only limited opportunities for the police to make arrests and to seize drugs; but evidence may show other occasions when an inference can properly be drawn that additional deliveries of drugs were made. He said, and this court agrees, that in such circumstances the judge is entitled to come to his own conclusions based of course on evidence as to the quantity of drugs which had been traded. In this case he said that there was direct evidence as to what was seized on the occasions when arrests were made and that it was inconceivable that the evidence found on the two arrests was wholly exceptional in the context of the conspiracy. Moreover, it had been accepted by two Mancunian defendants (Smith and Anderson) that they had respectively made seven deliveries and six deliveries of drugs to Grantham.
34. The judge then analysed the evidence and the inferences which could properly be drawn. His conclusions, in summary, were these. As to counts 1 and 2, the surveillance, telephone and ANPR evidence showed that there were 13 potential deliveries during the indictment period. The judge had in mind the evidence that on two of those occasions the police had seized about 1.5 kilograms of cocaine. Anderson had been involved in six deliveries between January and July. Smith had been involved in seven deliveries between March and July. In addition, cocaine had been delivered by Smith to the hotel in Grantham on 19
th
June, where it was collected by Hull.
35. The judge found that the vast majority, if not all, of the 13 trips involved deliveries of cocaine at significant levels, each of 1.5 kilograms. That would mean that some 19.5 kilograms of cocaine had been supplied by the Manchester group to Ferry's group during the indictment period. The judge accepted that the figure may be slightly less than that, and he accepted that some M-Cat had undoubtedly been supplied also. He noted that the overall purity of the drugs covered by these counts, with the exception of the one package of 55 grams of cocaine at 69 per cent purity, were neither of low nor of high purity.
36. As to counts 3 and 4, the judge said that the evidence showed that heroin, and then later amphetamine, had been supplied to the Grantham group by Straw and Sly. The judge allowed for the fact that those two appellants had supplied amphetamine, as well as heroin. He calculated that, even if only half of their 21 deliveries had involved heroin, and on the inference that each of those deliveries broadly reflected the quantity known to have been delivered on 10
th
August, that would mean that over 20 kilograms of heroin had been supplied during the indictment period.
37. The judge thus concluded that, in all, the Grantham group had received some 40 kilograms of Class A drugs, and, in addition, quantities of amphetamine and M-cat. Having made those findings, and having made some general observations about his approach to the sentencing exercise, the judge considered the cases of the individual defendants. He took considerable care to apply the Sentencing Council’s Definitive Guideline on sentencing in drugs cases. In relation to each defendant in turn, the judge followed through the stepped procedure set out in the guideline, and set out in detail his analysis of culpability and harm. In relation to each defendant, he decided that it was appropriate to impose concurrent sentences, with the sentence for the most serious offences reflecting the overall criminality of each defendant.
38. We, therefore, now turn to consider the individual cases. We start with the appellant Ferry. He received the longest sentence. It is inevitable that a number of the points made in his case were also relied on by other appellants and are capable of having consequences for the appeals of others. Thus, in reaching our conclusions initially in relation to Ferry, we have taken into account the submissions of all counsel who argued the points of general application.
39. Ferry has some 56 previous convictions, mainly for offences of violence and dishonesty, but no previous convictions for drugs offending. The judge found that Ferry had played a leading role as the head of the Grantham group, controlling and directing the conspiracies and buying and selling on a commercial scale. He had provided all the finance and had obtained substantial financial gain. He had been able to continue his operation without significant interruption, despite arrests being made. The judge noted that in the sentencing guideline the indicative quantity for the category 1 starting point in relation to Class A drugs was 5 kilograms in the case of heroin or cocaine. The guideline also states that where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender. Here, on the judge's findings, the quantities of Class A drugs were in the region of 40 kilograms, together with significant amounts of amphetamine and M-cat. The harm, therefore, considerably exceeded the category 1 indicative level. Moreover, the fact that there were four conspiracies was an aggravating feature.
40. The judge concluded that the overall starting point for sentence in Ferry's case should be 24 years' imprisonment. Giving full credit for the early guilty pleas, that meant a total sentence of 16 years.
41. It is accepted on Ferry's behalf that he played a leading role. The grounds of appeal are that the starting point was, nonetheless, too high and the total sentence was manifestly excessive. Three specific points are made in support of that submission: first, that the judge should not have made the findings he did as to the quantities of drugs which were involved in the conspiracies, in particular because, it is said, the judge could do no more than speculate as to what type and what quantity of drugs had been delivered on any occasion other than those when drugs were seized; secondly, that the judge should not have taken into account the evidence at trial of another defendant to the effect that it was common knowledge in Grantham that Ferry was a drugs dealer; and thirdly, that the judge should have treated the low purity of the drugs as a mitigating factor.
42. Taking those points in turn, we are unable to accept the first of them. The judge had presided over a ten week trial of those defendants who had maintained not guilty pleas. He had the assistance of a detailed prosecution opening for the sentencing hearing, which set out the way the case was put. In our view, the judge avoided speculation and drew legitimate inferences from the evidence which he accepted. He was, in our judgment, entitled to make the evidence-based findings he did as to the scale of the drug trafficking. In particular, he was entitled to find that the occasions of the arrests cannot have been the only occasions when drugs were being trafficked. He was entitled to reject, as the jury in Straw's case must have done, the innocent explanations which were put forward for the various meetings between the accused. He clearly took into account the submission that some of the visits might not have involved deliveries of drugs at all, or might have involved deliveries of different drugs. Overall, in our judgment, the judge was entitled to conclude that the total criminality involved quantities of drugs which took the case above the category 1 range in the sentencing guideline.
43. As to the second point, in his sentencing remarks the judge said this:
"It is submitted that he [Ferry] has no previous convictions for drugs offences and this was his first venture. That submission does not sit very well with the evidence of Ferry's reputation in Grantham as an established drug dealer, nor with the efficient way in which these conspiracies were organised and run."
With respect to the judge, we think that that passage was unhappily phrased. Ferry had no previous convictions for any drugs offence. It would have been wrong for the judge to increase the sentence on the basis that Ferry had a reputation as an established drugs dealer. We are not, however, persuaded that the judge did fall into that error. It was accepted that Ferry was the head of the Grantham group. On any view, he was engaged in running a well-organised criminal operation on a very substantial scale. On that basis alone, the judge was entitled to conclude that the mitigation to the effect that he had no relevant previous convictions could carry only limited weight in Ferry's case.
44. As to the third point, the expert evidence permitted the inference that the cocaine and heroin purchased by the Grantham group was already at a level of purity suitable for street sales and was, therefore, unlikely to be adulterated further before onward sale. The judge accepted that proposition. He said that some of the drugs seized were of high purity, but the majority were neither high nor low, and that accordingly, "this is not a case where the court is looking at purities at such a high level as to constitute an independent aggravating feature". It is, however, submitted that the judge should have regarded the drugs as being of low purity, which the sentencing guideline identifies as a factor reducing seriousness.
45. Developing that submission, counsel pointed out that an arithmetical calculation, taking into account the level of purity of the drugs which were seized, would yield, even on the judge's findings, an overall quantity of about 7 kilograms of Class A drugs at 100 per cent purity.
46. In our judgment, such an approach is contrary to the sentencing guideline which the court is required to follow, unless satisfied that it would be contrary to the interests of justice to do so. The guideline clearly indicates that in assessing harm at step 1, quantity is determined by the weight of the product; and for harm category 1, the guideline starting point is based on an "indicative quantity" of 5 kilograms. Purity of the drugs is not taken into account until step 2. It can, of course, be highly relevant at that stage of the sentencing exercise. But as this court made clear in
R v Boakye
[2012] EWCA Crim 838
,
[2013] 1 Cr App R(S) 2
, the guideline does not proceed, as earlier case law did, on the basis of the quantity of drugs assessed at 100 per cent purity. Moreover, we cannot accept the proposition that the sentencing guideline mitigating feature of "low purity" should routinely be found when drugs are at a level of purity which is commonly found in street supplies. We agree that care must be taken, as this court noted in
R v Kelly
[2014] EWCA Crim 1141
, [2014] 2 Cr App R(S) 17, to avoid an anomalous situation in which a drug trafficker lower down the chain of supply is treated as committing a more serious category of offence than his supplier higher up the chain who dealt in a lower weight of the drugs at a much higher level of purity. But that anomaly will be avoided, because in such a case the high level of purity would inevitably be treated as a serious aggravating feature in the case of the trafficker who was higher up the chain. In any event, no such anomaly arises here.
47. We, therefore, reject the individual grounds of appeal advanced on Ferry's behalf. But we step back and consider whether, in all the circumstances, the starting point of 24 years, and therefore the total sentence of 16 years imposed on Ferry, was, as counsel submits, "far too high". We are unable to accept that submission. Counsel realistically accepted that in Ferry's case it could not be said to be wrong in principle for the judge to put him into the category of defendant for whom sentences of 20 years and above may be appropriate. He also accepted, equally realistically, that the evidence showed that Ferry was known in the area as a drug dealer able and willing to supply a range of drugs. He submitted, nonetheless, that whilst he might not have been able to argue against a sentence of up to 20 years, the 24 year starting point was simply too high and that this case, serious though it undoubtedly is, did not reach the level of gravity for which such a long sentence would be appropriate.
48. We bear in mind that Ferry was at the head of a group which, for about ten months, was trafficking Class A and Class B drugs on a very substantial scale. Drug trafficking is, of course, a type of offence which causes untold misery and leads others into crime. It is, in our view, a very significant feature that the Grantham group was engaged in supplying a range of different types of drug. That demonstrates, in our view, the scale of the enterprise, the level of organisation, and the resources of this criminal group. The clear picture, as it seems to us, is of the group, headed by Ferry, being dominant suppliers in the area in which they operated. We also bear very much in mind that the judge was in the best position to assess the overall criminality, and it is evident that he approached this difficult sentencing exercise with great care.
49. In those circumstances, we conclude that the challenge to the starting point in Ferry's case fails. Certainly, it was a severe sentence. It may well have been at the top of the range which was properly open to the judge, but we do not accept that it was manifestly excessive in length.
50. Since Ferry stands at the head of the Grantham group, our conclusion in his case inevitably affects our view as to the sentences passed on other members of that group.
51. We turn to the appellant Higgs. He has previous convictions for violence and disorderly behaviour, but none for drugs offences. The judge rejected a submission that Higgs had only a significant role and found that he had a leading role but under Ferry's direction. He described Higgs as being "on the board of directors, but not the managing director", and said that Higgs had played a "hands-on" role. He was involved with heroin and cocaine in quantities in excess of the indicative quantity for category 1. That role ended in August 2014, when Higgs was arrested. The judge accepted that he was now truly sorry for what he had done and was seeking to address his offending behaviour. Balancing the relevant factors, the judge took a starting point of 21 years before giving full credit for the guilty pleas.
52. The grounds of appeal raise points similar to those taken on behalf of Ferry as to the overall starting point, the judge's findings as to the quantities of drugs trafficked and the level of purity. We do not think the submissions in these respects add anything to the arguments we have already considered and our conclusions have been expressed in dealing with Ferry's case.
53. In addition, it is submitted that Higgs should have been found to have played only a significant role and that there is an unjust disparity between his total sentence of 14 years' imprisonment and the total sentence of 16 years' imprisonment in Straw's case.
54. As to Higgs' role, the judge took into account two of the factors listed in the sentencing guideline as indicating a leading role, namely, organising, buying and selling on a commercial scale and expectation of substantial financial gain; and one factor indicating a significant role, namely, operational function within a chain. The guideline states that, in assessing culpability, the sentencer should weigh up all the factors and that, where there are characteristics present which fall under different role categories, the court should balance these characteristics to reach a fair assessment of culpability. In our judgment, the judge carried out that balancing exercise entirely fairly and was entitled to reach the conclusion he did. Indeed, it would have been surprising for him to reach any other conclusion, given that the judge described Higgs as being only "slightly subordinate" to Ferry. Counsel acknowledged the force of the conclusion that Higgs had been involved at all stages of the drug trafficking activity; and, without attaching undue significance to labels such as "right-hand man", we are satisfied that the judge was entitled to view Higgs' role as a leading one.
55. As to the suggested disparity, we see some force in the submission that there was no clear reason why Higgs' sentence was based on a starting point of 21 years, when Straw, who was also found to have played a leading role and who was a principal supplier of drugs to the Grantham group, received only 16 years after his trial. The explanation may lie in the fact that Straw was involved only in the supply of heroin, whereas this appellant was involved in trafficking two different Class A drugs. But, in any event, even if it might be said that Straw was fortunate not to have received a heavier sentence, it would not follow that Higgs' sentence was wrong. We are, therefore, not persuaded that any disparity point assists Higgs.
56. Although Higgs has no relevant previous convictions, it is a serious aggravating feature that for much of the time he was engaged in these conspiracies he was either on bail or subject to a community order for unrelated and comparatively minor crimes. The point is made, with justification, that this was a heavy sentence for a young man who had never before received a custodial sentence. But we must also take into account the leading role which he played in these very serious crimes. As we did with Ferry, and as we have done in relation to all the other appellants to whom we will come, we step back to consider the overall position and ask ourselves whether the total sentence in Higgs' case was manifestly excessive. It was a stiff sentence, but in our judgment it was within the range properly open to the judge; it was not manifestly excessive.
57. The appellant Hull has no relevant previous convictions. The judge found that Hull was a highly trusted courier in close contact with Ferry, Higgs, Straw and Sly. He was responsible for meeting the cocaine deliveries from Manchester and collecting consignments of heroin from Straw and Sly, before taking them on to whichever address was to be used for processing them. The judge assessed his role as "extremely significant". He was involved with cocaine, heroin and M-cat; the indicative quantities of the Class A drugs exceeded the category 1 levels. Although he had pleaded guilty only a few days before the jury was sworn, Hull had indicated his pleas at an earlier date. The judge allowed a reduction of 20 per cent from an overall starting point of 15 years. Hull's total sentence was, therefore, 12 years' imprisonment.
58. The ground of appeal in his case is that the judge failed to take proper account of Hull's individual circumstances, role and length of involvement, and that his sentence was, therefore, manifestly excessive. Counsel accepts that Hull played a significant role, but points out that it ended in Hull's arrest in early July 2014, three months before the end of the conspiracy, and that there was no evidence of high living or substantial financial benefit. On the contrary, we are told that little was recovered from Hull on his arrest. Counsel also points out that when Hull was arrested, he was quickly replaced which, it is suggested, points to Hull being far from an essential participant in the conspiracy.
59. As to role, the judge noted that in Hull's case, as with Higgs, there were factors indicating a leading role, namely, organising, buying and selling on a commercial scale, and expectation of substantial gain; and factors pointing to a significant role, namely, that he played an operational function and had awareness of the scale of the operation. We take the judge's use of the phrase "extremely significant" as indicating that a fair assessment of those features placed Hull firmly in the significant category with two of the features indicating that he came close to being placed into the leading category. In our judgment, the judge was entitled so to conclude. Hull's role, coupled with the fact that he was involved with three different drugs in quantities exceeding the indicative weights, made a long prison sentence inevitable. We cannot accept the submission that Hull was "simply a courier", if by that is meant that his role was an insignificant or lowly one. In all the circumstances of his case, we conclude that Hull's sentence cannot be said to have been manifestly excessive.
60. The appellants Straw and Sly acted in partnership and played similar roles. Their grounds of appeal raise similar issues, though part of Sly's case is that he should have been treated as being subordinate to Straw. It is convenient for us to consider them together.
61. Each of them had a relevant previous conviction, each having received a substantial prison sentence for supplying drugs in about 2004. The judge found that over a period of nine months these appellants had supplied about 20 kilograms of heroin from Nottinghamshire to the Grantham group, and that in the latter part of that period they had also supplied amphetamine, a feature which, as the judge rightly said, had to be included in their overall criminality. They had been in regular contact with Ferry and Higgs. The judge found that they played leading roles, because in each case they were directing or organising buying and selling on a commercial scale and had substantial links to, and influence on, others in the chain, and had the expectation of substantial financial gain. He regarded their previous convictions as an aggravating factor in each case. The judge concluded that the appropriate total sentence to reflect the overall criminality of each of these appellants would be 16 years' imprisonment. In Sly's case, that sentence would be reduced by one-third because of his guilty pleas. The total sentence in his case was, therefore, ten years six months' imprisonment. Straw, however, had contested count 3. The total sentence, in his case, accordingly, was 16 years' imprisonment.
62. The grounds of appeal advanced by these two appellants challenge the judge's findings as to role and as to the quantity of drugs trafficked. In relation to the latter point, it is argued that in his sentencing remarks the judge indicated that he had inferred the supply of large quantities both of heroin and of amphetamine. Counsel argue that that feature demonstrates that there was no safe basis on which the judge could properly infer that any particular delivery or other activity involved the supply of one drug rather than the other.
63. We reject the submissions made as to role. The evidence pointed to these two appellants being partners in a substantial business of supplying drugs. We can see no merit in the contention that they played only significant roles. They had the resources and the ability to purchase drugs in substantial quantities for onward sale to the Grantham group. We reject also the submission made on behalf of Sly that a distinction can and should be drawn between the two men, with Sly being regarded as subordinate to Straw. The judge, in our view, was entitled to treat them as equally involved, albeit that they sometimes undertook different aspects of their business.
64. As to the quantity of drugs, we have already noted that the judge was entitled to make the findings he did in relation to the quantity of heroin for the reasons which he gave, and was therefore entitled to regard the overall criminality as involving a quantity of heroin well in excess of the indicative quantity in the sentencing guideline. We do, however, accept that it is unfortunate that the judge, in his otherwise comprehensive sentencing remarks, failed to give any clear explanations of his reasons for taking a starting point of nine years in respect of the amphetamine offence. In our view, in the absence of any clear explanation of the judge's reasons for reaching that conclusion, the sentences on count 4 should be reduced.
65. In relation to both these appellants, we conclude that their total sentences cannot be said to be manifestly excessive. Indeed, they might have been sentenced rather more heavily than they were. We will allow their appeals only to the very limited extent that in each case we will reduce the sentence on count 4 to one of two years' imprisonment. That variation will not, of course, affect their total sentences.
66. The appellant Frazier has previous convictions which, although long ago, cannot be left out of account. In 1981, he was convicted of murder and was therefore subject to the terms of his life licence at all material times in this case. In 1999, he was sentenced to a total of nine years' imprisonment for supplying cocaine, crack cocaine and MDMA. The judge summarised Frazier's role as being a member of the Grantham group who became involved after the arrest of Hull in early July, and on two occasions, 4
th
and 18
th
July 2014, had been involved in receiving and processing cocaine. The latter occasion had also involved what appears to have been an unexpected delivery of M-cat. Frazier had been arrested, as we have said, in the act of bagging 1.5 kilograms of cocaine, with a retail value of £90,000. He accepted that he had recruited Darby to the conspiracy.
67. Rejecting a submission that he could be regarded as playing a lesser role, the judge concluded that Frazier had played a significant role. He said, rightly, that the starting point in Frazier's case had to reflect the overall criminality, taking into account the M-cat offence and the aggravating feature of the previous convictions. On the other hand, he also took into account that Frazier's active participation was limited to the two occasions we have mentioned. Having regard to the total weight of heroin involved on those two occasions – 3 kilograms, as opposed to the indicative weight of 5 kilograms in the sentencing guideline – the judge concluded that the appropriate overall starting point was twelve years' imprisonment. He allowed credit of 15 per cent for the late guilty pleas, and rounded down the resultant figures in the appellant's favour. Thus, the total sentence was one of ten years' imprisonment.
68. The grounds of appeal are that the judge took too high a starting point; that the weight of the drugs with which he was involved did not bring him into category 1 of the sentencing guideline; that insufficient importance was given to the limited nature of his role; and that the sentence was, accordingly, manifestly excessive.
69. We cannot accept these submissions. As is now conceded, the judge was clearly entitled to find that this appellant played a significant role. The judge was correct to have regard to the fact that this appellant's culpability, as with others, lay in his involvement in the conspiracies, not merely in his specific acts. This court has made clear on many occasions that those who are party to a conspiracy are part of the wider course of criminal activity which that conspiracy entails, and they agree to the commission of crime by other conspirators. In any event, the 3 kilograms of heroin with which the appellant was directly involved is three times the indicative amount for a category 2 offence and justifies placing the case into category 1. In all the circumstances of Frazier's case, we conclude that there is no ground on which his sentence can be said to be manifestly excessive.
70. The appellant Darby has no recent or relevant previous convictions. He was recruited by Frazier to provide premises on 4
th
and 18
th
July, and to help with weighing and bagging the cocaine on those occasions for limited financial reward. The appellant, who did not give evidence, contested the case on the basis that he was involved on only one day, and only because he was intimidated by Frazier, of whose murder conviction he was aware, and reluctantly agreed to do what Frazier wanted him to do. The judge was, nonetheless, satisfied by the evidence, including parts of Frazier's evidence which he accepted as reliable, that Darby had been involved on two days, though had only received modest reward. The judge accepted that there were features both of a significant role and of a lesser role, but took an overall starting point of ten years to reflect the overall criminality. There was, of course, no reduction for any guilty plea, as Darby was convicted after a trial.
71. In his closing speech, whilst putting the case primarily on the basis that this appellant was more extensively involved than he had admitted, prosecuting counsel had suggested to the jury that the appellant was guilty of the offence charged, even on his own account. In summing up, the judge directed the jury to the effect that they would be entitled to convict on that basis. The defence had, earlier in the proceedings, invited the prosecution to add a count to the indictment which would enable the jury to return a verdict which would specifically indicate the basis of any conviction, but the prosecution had declined to do so. The written grounds of appeal contended that, in those circumstances, the judge was obliged to sentence Darby on the least serious basis, that is to say, on the basis of his admitted reluctant involvement on one occasion. It was also argued that the judge could not properly accept those parts of Frazier's evidence which implicated this appellant.
72
. Sensibly, counsel no longer pursues those particular submissions. The prosecution were not obliged to amend the indictment in the way suggested, and it would, arguably, have been improper for them to do so. The judge had properly directed the jury as to possible routes to their verdicts, and, following conviction, it was for him to determine the factual basis of the sentence. In making that determination, he was entitled to accept parts of Frazier's evidence, notwithstanding that there were obvious reasons why Frazier had interests of his own to serve. The judge was clearly alive to the need to approach Frazier's evidence with caution, and he gave sound reasons for accepting parts of it.
73. Counsel has, realistically, focused his submissions on points in which we see more force, namely, that the judge should have regarded Darby's role as being, at most, on the borderline between significant and lesser, and that the judge should have given greater weight to the personal mitigation which was available to Darby. We do not think it necessary to go into the details of that personal mitigation, but we note in summary that the appellant's mental health problems and his childcare responsibilities. Moreover, we note that, in the circumstances of Darby's individual case, the fact that his involvement related to two types of drug is of lesser significance than in the cases of other appellants.
74. We are persuaded that the factors which counsel has identified are factors which should have led the judge to impose a shorter total sentence than he did. In our judgment, in all the circumstances of Darby's case, the appropriate sentence was one of six years' imprisonment.
75. Finally, we turn to the appellant Cooper. Prior to 2014 he had a number of previous convictions, but they were neither recent nor relevant, and he had very little experience of custody. However, on 15
th
July 2014, for offences of conspiracy to supply cocaine and possession with intent to supply cocaine, he was sentenced to a total of 15 years' imprisonment. He was serving that sentence when convicted on count 1 of this indictment. Importantly, he was actually standing trial for the earlier offence when he committed this offence.
76. The judge found that Cooper played a lesser role under direction from Hull. There were, however, elements of a significant role. In particular, his motivation by financial advantage, and the fact that he had involved another defendant (a man called Gill). It was a serious aggravating feature that Cooper had committed this offence in the course of his trial for the earlier matter.
77. The judge took a starting point of seven years, being the top of the range for a lesser role in a category 2 offence because of the aggravating features. He generously allowed credit of 15 per cent for the guilty plea entered on the third day of the trial. He took account of the favourable reports received from the prison. He then made a substantial reduction for totality because he would be imposing a sentence to run consecutively to the sentence already being served. On that ground, he reduced what he said would otherwise have been a sentence of six years' imprisonment to one of three years six months' imprisonment, to run consecutively to the earlier sentence.
78. The grounds of appeal focus, realistically, on the issue of totality. We have considered counsel's submissions, but we are not persuaded by them. The commission of this offence whilst on trial for an earlier, similar offence, was a grave aggravating feature. In our view, the appellant could not realistically have expected to receive any more substantial reduction than he did on the ground of totality. Had he been sentenced on one occasion for all offences, both the earlier offending and this more recent offence, we do not accept the submission that he would have received a total sentence of less than 18 years six months' imprisonment. In his case, accordingly, we conclude that the total sentence cannot be said to be manifestly excessive.
79. We are grateful to all counsel for the assistance they have given the court by their written and oral submissions. In the result, our conclusions can be summarised as follows. In the cases of the appellants Sly and Straw, the sentences of six years' imprisonment on count 4 will be quashed. In each case a sentence of two years' imprisonment will be substituted, to run concurrently with the longer sentences on count 3.
80. In the case of Darby, we quash the concurrent sentences of ten years and five years' imprisonment imposed below. We substitute for them concurrent sentences of six years' imprisonment on count 1 and two years' imprisonment on count 2.
81. With those exceptions, all these appeals fail and are dismissed.
____________________________________________ | ```yaml
citation: '[2017] EWCA Crim 558'
date: '2017-03-29'
judges:
- LORD JUSTICE DAVIS
- MR JUSTICE HOLROYDE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2013] EWCA Crim 1306
Case No:
201201876 C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Woolwich Crown Court
HHJ Sullivan
T20100393
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
25/07/2013
Before:
LORD JUSTICE TREACY
MR JUSTICE MACDUFF
and
MR JUSTICE DINGEMANS
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- and -
Peter John Sale
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J Goose QC
(instructed by
Registrar of Appeals
) for the
Appellant
Mr S Farrell QC and Mr J Riley
(instructed by
Crown Prosecution Service
) for the
Respondent
Hearing dates: 27th June 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Treacy:
1.
This appeal is concerned with a confiscation order. There are three main aspects to it. Firstly, questions relating to piercing the corporate veil; secondly, as to the assessment of benefit, and thirdly, whether the confiscation order was disproportionate in the light of the Supreme Court’s decision in
R v Waya
[2012] 3 WLR 1188
.
2.
On the 14
th
March 2011 in the Crown Court at Woolwich the Appellant pleaded guilty to corruption contrary to
Section 1 of the Prevention of Corruption Act 1906
(Count 1), and to fraud by false representation contrary to
Sections 1
and
2
of the
Fraud Act 2006
(Count 2). On 11
th
April 2011 he was sentenced to twelve months imprisonment suspended for two years with a requirement of undertaking two hundred hours of unpaid work. That sentence was passed on each count concurrently.
3.
Subsequently, confiscation proceedings took place under the
Proceeds of Crime Act 2002
(“
POCA
”). On 28
th
February 2012 the judge held that the Appellant had benefited in the sum of £1,918,562.44. The Single Judge has granted leave to appeal in this case.
4.
Count 1 covered the period between January 2006 and April 2008 during which the Appellant offered and gave gifts to Anthony Burgess, an employee of Network Rail. The purpose of this was to secure commercial favour. Burgess died before the case came to court. He was employed as corporate offices manager, leading a team of twenty, at Network Rail. He was responsible for managing office accommodation. His job involved seeking new accommodation, disposing of unnecessary accommodation and refurbishing accommodation when necessary. His job made him responsible for organising suppliers and contractors.
5.
The Appellant was managing director of Sale Service and Maintenance Limited (“The Company”), which became a supplier used by Network Rail. The company installed and maintained air conditioning units and undertook electrical engineering work.
6.
In the course of the corrupt relationship and in return for gifts and hospitality, paid for by the appellant and/or the company, and whose value was a little under £7,000.00, Burgess arranged for the award of a number of high value contracts to the company. Until this point there had been no prior relationship between the company and Network Rail.
7.
Purchase orders exceeding £2.4 million were raised in the company’s name. A little over £2 million was invoiced, and around £1.85 million was received.
8.
When the Appellant’s home address was searched, investigators found documentation relating to three large contracts recently awarded to the company. The company thereby replaced existing suppliers. The value of those contracts was a little over £1 million.
9.
The evidence showed that Burgess had shared tender information with the Appellant. There was evidence that they had split sales invoices so that values remained within Burgess’ delegated authority of £50,000.00 per order. In some cases invoices were raised before the work was done.
10.
Count 2 concerned an invoice for around £60,000.00 which had already been submitted by the company to Network Rail and been paid. The invoice was then resubmitted and paid again in August 2007. Email correspondence showed that this was no mistake. In the spring of 2008 Network Rail, having become alert to what was going on, began disciplinary proceedings against Burgess. On the day of the hearing the company issued a credit note relating to the invoice, so that prior to the time of the Appellant’s arrest, the sum obtained on the resubmitted invoice had been repaid.
11.
The Appellant submitted a basis of plea which was not challenged. It stated that the period over which gifts were made was one of fifteen months between January 2007 and April 2008. In addition, and significantly for the purposes of this appeal, it stated that the work carried out by the company was done without criticism as to price or quality.
12.
The background showed that the company had been started by the Appellant in 2004. He was the sole shareholder, being paid a salary and receiving dividends. By 2006 the company’s turnover was £9.9 million, with profits before tax of £631,000.00. We are told that the accounts for 2009 and 2010 show similar levels of turnover and profits. The company employed a large number of people and traded with a wide range of well known established companies. There is no suggestion that the company was anything other than a legitimate business. It is only in relation to its dealings with Network Rail that illegality is involved.
13.
For the purposes of the appeal, the Appellant and Respondent have agreed that:
i)
£125,000.00 represents the value of the Appellant’s personal benefit, taking into account the apportioned salary and dividends of the Network Rail contracts in relation to the total trading of the company, together with interest;
ii)
£197,683.12 is the gross value of the profit earned by the company, after deducting the costs of production, but before any taxation, together with interest.
14.
The figure in which the confiscation order was made represented the total sum paid to the company by Network Rail (a little over £1.9 million). That sum included an adjustment for interest. The prosecution’s case before the judge was that, although those payments were never made to the Appellant, the court should lift the veil of incorporation and declare the total benefit of the Appellant to be in that sum received by the company.
15.
The Crown did not proceed under the criminal lifestyle provisions of
POCA
. Accordingly, the court’s task was to assess whether the Appellant had “benefited from his particular criminal conduct”. See
Section 6(4)(c)
POCA
. The Crown did not seek to argue that any benefit had been obtained in relation to Count 2.
16.
The Appellant argued that the court should not lift the corporate veil, emphasising that the company was not a sham, that Network Rail had received full value under the various contracts, and asserting that the Appellant had not hidden behind the company to carry out the crimes. These were offences personal to the Appellant which did not involve using the company as a vehicle for crime.
17.
Having heard the competing submissions, the judge in a brief ruling, held that the corporate veil should be lifted. She referred to
Jennings v CPS
[2008] 2 Cr App R 29
and
R v Seager & Blatch
[2010] 1 Cr App R (S) 60
. The essence of her ruling was that the Appellant had done acts in the name of the company which constituted two separate criminal offences, to which he had pleaded guilty, so that it was right and just to lift the corporate veil. She distinguished the result from that in
R v Seager & Blatch
, (where the corporate veil was not lifted), on the basis that there the business carried out by the companies was entirely legitimate. In those cases the matters were before the court purely because the Defendants were disqualified from acting as company directors. The present case was different in the light of the business conducted by the company with Network Rail and the plea of guilty to corruption.
18.
When the judge made her decision the Supreme Court had not heard the case of
Waya
, so considerations of proportionality were not argued before her. However, Mr Goose QC now relies in part on the result in
Waya
, as will become apparent.
19.
Shortly before this appeal was heard, the Supreme Court gave judgment in
Prest v Petrodel Resources Limited & Others
[2013] UKSC 34
. That decision has a bearing on this appeal, although its subject matter related to the question of piercing the corporate veil in relation to the provisions of the
Matrimonial Causes Act 1973
. Detailed consideration was given to the concept and meaning of piercing the corporate veil in terms which are of general application.
20.
Whilst strictly speaking the discussion in
Prest
about piercing the corporate veil was obiter to the decision, it is plain that the Supreme Court was addressing the issue across the law generally and intended to do so. None of the cases cited to or considered by their Lordships were criminal confiscation order cases, but the principles enunciated apply across the board. Neither party to this appeal sought to argue that the observations in
Prest
did not apply. Indeed both parties made arguments by reference to
Prest
.
21.
Before us, Mr Goose QC, for the Appellant, argued that the judge below was in error in declaring that the Appellant’s benefit from his particular criminal conduct was the same as the turnover of trading between the company and Network Rail. The judge had wrongly lifted the veil of incorporation in assessing the Appellant’s benefit, and should have found that his benefit was represented by a proportion of his salary and benefits from his employment with the company in relation to the company’s trading with Network Rail compared with the total trading of the company during the relevant period.
22.
Mr Goose submitted that the court should not lift the veil by considering the company’s position. The payments by Network Rail had only ever been paid to the company and not to the Appellant. The company was a legitimate and profitable business and not a sham or a front. The Appellant’s unlawful activities did not involve hiding behind the company to carry out the offences. He was acting in his own behalf and not using the company as a vehicle for crime. The judge had fallen into error by applying the second of three tests identified in
R v Seager & Blatch
[2010] 1 Cr App R (S) 60
at paragraph 76. The judge had wrongly applied the second test too precipitately.
23.
The relevant part of paragraph 76 of
Seager & Blatch
provides:
“It is “hornbook” law that a duly formed and registered company is a separate legal entity from those who are its shareholders and it has rights and liabilities that are separate from its shareholders…a court can “pierce” the carapace of the corporate entity and look at what lies behind it only in certain circumstances. It cannot do so simply because it considers it might be just to do so. Each of these circumstances involves impropriety and dishonesty. The court will then be entitled to look for the legal substance, not just the form. In the context of criminal cases the courts have identified at least three situations when the corporate veil can be pierced. First, if an offender attempts to shelter behind a corporate façade, or veil to hide his crime and his benefits from it…secondly, where an offender does acts in the name of a company which (with the necessary mens rea) constitute a criminal offence which leads to the offender’s conviction, then “the veil of incorporation is not so much pierced as rudely torn away”: per Lord Bingham in Jennings v CPS, paragraph 16. Thirdly, where the transaction or business structures constitute a “device”, “cloak” or “sham”, i.e. an attempt to disguise the true nature of the transaction or structure so as to deceive third parties or the courts…”
24.
Mr Goose submitted that the judge had wrongly applied the second situation identified in
Seager & Blatch
because this was a legitimate trading company and it had not been used as a vehicle for crime. In truth, the criminal activity was that of the Appellant in his own capacity. The company had merely lawfully provided work and materials in fulfilment of the contracts which the Appellant had obtained for the company.
25.
Mr Goose conceded that the question was one of fact and degree and must necessarily involve an analysis of the extent to which the company had been used to carry out the crime. He argued that in the circumstances of this case, in contrast to others where the whole business was a vehicle for fraud or criminal conduct, matters had not gone far enough so as to enable the court to look beyond the Appellant’s position and to that of the company, particularly where it was accepted that the company had given full value for the work which it had carried out.
26.
In
Prest
Lord Sumption said at paragraph 27:
“27. In my view, the principle that the court may be justified in piercing the corporate veil if a company’s separate legal personality is being abused for the purpose of some relevant wrong doing is well established in the authorities…”
“28. The difficulty is to identify what is relevant wrong doing. References to a “façade” or “sham” beg too many questions to provide a satisfactory answer. It seems to me that two distinct principles lie behind these protean terms, and that much confusion has been caused by failing to distinguish between them. They can conveniently be called the concealment principle and the evasion principle. The concealment principle is legally banal and does not involve piercing the corporate veil at all. It is that the interposition of a company or perhaps several companies so as to conceal the identify of the real actors will not deter the courts from identifying them, assuming that their identity is legally relevant. In these cases the court is not disregarding the “façade”, but only looking behind it to discover the facts which the corporate structure is concealing. The evasion principle is different. It is that the court may disregard the corporate veil if there is a legal right against the person in control of it which exists independently of the company’s involvement, and a company is interposed so that the separate legal personality of the company will defeat the right or frustrate its enforcement. Many cases will fall into both categories, but in some circumstances the difference between them may be critical…”
“35. I conclude that there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose of depriving the company or its controller of the advantage that they would otherwise have obtained by the company’s separate legal personality. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil…”
27.
Lord Neuberger, at paragraph 81, expressly accepted the formulation at paragraph 35. Lady Hale, with whom Lord Wilson agreed, at paragraph 92 said:
“What the cases do have in common is that the separate legal personality is being disregarded in order to obtain a remedy against someone other than the company in respect of a liability which would otherwise be that of the company alone…”
28.
Lords Mance and Clarke were concerned about being too prescriptive in analysis, but accepted the general principle put forward by Lord Sumption. However, they thought there might be rare cases when the principle might extend beyond the narrow circumstances of evasion. Lord Walker was reluctant to add to the discussion, but considered that many of the cases of piercing the corporate veil were properly understood as applications of other legal principles.
29.
In the light of that clarification as to the limited category of cases in which piercing of the corporate veil, properly understood, takes place, Mr Goose submitted that the situation in this case was probably not correctly identified as one involving piercing the corporate veil. The second situation identified in
Seager & Blatch
could, in an appropriate case, be based on the law of agency, so that where a company is used as a vehicle for crime, it acts as the agent of the principle.
30.
However, Mr Goose submitted that on the facts of this case, the company was not so used in a way which would create principal/agent’s liability. This was not a case where Lord Sumption’s “evasion principle” could apply since the Appellant had not interposed the company so as to frustrate or evade the enforcement of an existing legal obligation. He submitted that the “concealment principle” did not apply either, arguing that the Appellant’s position, and that of the company, was always open and public. In the circumstances the court should concentrate on the Appellant’s personal benefit without reference to the company’s financial position.
31.
In the event that those submissions were not accepted, Mr Goose sought to rely on
Waya
. He contended that if the court looked at the company’s position in assessing benefit, the order made by the judge for approximately £1.9 million was disproportionate in that it took the benefit figure as being the company’s turnover resulting from the corruptly obtained contracts. He submitted that where full value had been given in work and materials by the company in performing those contracts with Network Rail, it was disproportionate and unjust to look at the headline turnover figure. The costs of production, in wages, equipment and materials supplied were all incurred in an entirely lawful way, albeit in performance of what was an illegally obtained contract. Those costs should properly be brought into account, and the proportionate method of doing that would be to look at the company’s gross profit generated from the illegally obtained contracts. For the purposes of this appeal that had been agreed at £197,683.12 – see paragraph 13 above.
32.
Mr Farrell QC, for the Respondent, began by pointing out that the Appellant was the sole shareholder in the company, and that the company itself could have been charged alongside him. The decision had been taken not to do that to avoid over-complication. In
R v H & Others
[1996] 2 All E.R 391
Rose LJ had approved such a course.
33.
Mr Farrell submitted that the case was covered by the principles enunciated in
Prest
. The court should treat a company’s assets as belonging to the controller of the company when the company has been used for the purposes of crime. The decision in
R v Grainger
[2008] EWCA Crim 2506
could be distinguished on the basis that the Appellant in that case did not have control of the company. In
Seager & Blatch
where the Appellants did have control of the company, the corporate veil was not pierced because the business of the companies was lawful and they had not been used for criminal purposes. There the Appellants’ criminality had been to act in breach of a director’s disqualification order. This case was, however, different because this Appellant controlled the company and used it actively for the purposes of his corrupt offending.
34.
Mr Farrell then discussed the concealment and evasion principles referred to in
Prest
. He invited us to consider that the evasion principle applied, but said that in any event the concealment principle did. In relation to that, he said that the Appellant, as the controller of the company, was a joint actor with it in the relevant events. Contracts which the Appellant had secured for the company had been put in place between the company and Network Rail. The company had then managed those contracts throughout by invoicing and collecting payment, and by providing labour and materials in satisfaction of the contracts. The Appellant and the company had been involved in the provision of gifts and other benefits to Mr Burgess. Their actions were inextricably linked. Accordingly, the second situation identified in paragraph 76 of
Seager & Blatch
was satisfied since the Appellant had done acts in the name of the company constituting a criminal offence. In those circumstances there was no difficulty in bringing his conduct within Lord Sumption’s concealment principle, enabling the court to look at the real situation in a proper application of the criminal law, without needing to pierce the corporate veil. It mattered not that the company had originally been incorporated without any criminal intent, what was relevant was its use for criminal purposes at the time of the relevant transactions. Accordingly, it was justifiable in this case to look at how the company had benefited.
35.
Section 76 of the Proceeds of Crime Act provides:
“(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.”
36.
In the context of benefit, Mr Farrell argued that there could be no argument about the necessary causal connection. What had been obtained as a result of the corrupt conduct was the contracts. The value of the work was reflected in the approximately £1.9 million invoice total. The true question therefore was whether an order in that sum was disproportionate. At paragraph 21 of
Waya
it had been submitted that it would be very unusual for orders under the statute to be held to be disproportionate. If, as the Appellant argued, it was only appropriate to attack the profit resulting from a corruption offence, that would be offensive. Network Rail was not the only victim, the market itself had been corrupted and distorted, and other identifiable companies affected by the tainted tendering process. Accordingly, the figure of approximately £1.9 million should not be viewed as disproportionate in the context of corruption: it would be wrong just to look at the profit engendered.
37.
It would not be disproportionate for the costs of performing the contract to be left out of account in a case such as this. If that did not occur, offenders would only lose their profit, and that would not be proportionate.
Discussion and Conclusions
38.
When the judge identified the benefit as approximately £1.9 million, she also held that the amount available to satisfy the order exceeded the benefit figure so that the recoverable amount was equal to the benefit figure. There is no appeal against the findings relating to available and recoverable amounts. The appeal has concentrated on the benefit figure and its proportionality.
39.
The first question for us is the correct approach to the finding of a benefit figure. Should it be assessed by reference to the Appellant’s personal position or by reference to the activities of the company? It is clear to us from Lord Sumption’s analysis of the concept of piercing the corporate veil in
Prest
, that there has in the past been some confusion of nomenclature in this respect. We are not persuaded that this is a case coming within the evasion principle referred to at paragraph 28 of
Prest
. This is because in this case there was no legal obligation or liability which was evaded or frustrated by the interposition of the company in this case whereby the interposition of the company would mean that the separate legal personality of the company would defeat the right or frustrate its enforcement. This was a company which existed long before this corrupt conduct, and which existed for bona fide trading purposes: there was no interposition of the sort described.
40.
We do, however, consider that in the circumstances of this case, the effect of
POCA
is that this matter falls within the concealment principle. Thus, we accept the Crown’s argument, rather than that put forward by Mr Goose, who himself accepted that the matter was one of fact and degree. In the circumstances of this case, where the Appellant was the sole controller of the company, and where there was a very close inter-relationship between the corrupt actions of the Appellant and steps taken by the company in advancing those corrupt acts and intentions, the reality is that the activities of both the Appellant and the company are so interlinked as to be indivisible. Both entities are acting together in the corruption.
41.
Accordingly, insofar as the company was involved, what it did served to hide what the Appellant was doing. Although the Supreme Court did not consider
Seager & Blatch
, there is in our judgment, nothing inconsistent in the approach taken at paragraph 76 of that case with
Prest
. It may be that the three situations identified by the court in
Seager & Blatch
might be prefaced as if the preceding sentence read as follows:
“In the context of criminal cases the courts have identified at least three situations when
a benefit obtained by a company is also treated in law by
POCA
as a benefit obtained by the individual criminal
.”
42.
The italicised phrase replaces the words “the corporate veil can be pierced”. It seems to us that the three situations identified in
Seager & Blatch
do not necessarily involve a piercing of the corporate veil in the more limited sense of the evasion principle. They appear to be consistent with the operation of the concealment principle. We see no reason why the analysis relevant to criminal confiscation proceedings made at paragraph 76 of
Seager & Blatch
should not continue to apply in criminal confiscation proceedings, subject to an understanding of
Prest
.
43.
What is clear to us in this case is that the court is entitled to look to see what were the realities of this Appellant’s criminal conduct. We are satisfied that such an exercise, consistent with the objectives of
POCA
, is to seek to discover the facts which the existence of the corporate structure would otherwise conceal so as properly to identify the Appellant’s true benefit.
44.
In this respect it is to the provisions of
POCA
that we must look. First of all, this was not a criminal lifestyle case, so by reason of
Section 6(4)(c)
the court must decide whether the Appellant benefited from his particular criminal conduct. By Sections 76(3)(a) and (b) the relevant conduct is that covered by Counts 1 and 2, albeit that it is conceded that no benefit resulted from Count 2. Then, the provisions at Sections 76(4) and (5) set out above come into play. We are not concerned with the provisions of Sections 79 and 80 relating to valuation as there is no controversy about those matters.
45.
Applying the provisions of Sections 76(4) and (5), it seems to us that Section 76(4) is apt to capture the whole of the invoices paid (about £1.9 million) as benefit obtained as a result of or in connection with the admitted criminal conduct. In addition, it would seem that pecuniary advantage has also been derived in that the corrupt conduct will have improperly enhanced the company’s place in the market. Such an approach is consistent with that taken by Lord Justice Thomas in
R v Innospec Limited [a judgment at Southwark Crown Court]
[2010] EW Misc 7 (EWCC)
. At paragraph 34 he said:
“However in the present case as the benefits were not merely profits derived from the contracts obtained by corruption, but the very contracts themselves, the financial benefit to Innospec Limited may have been as high as $160 million.”
46.
Accordingly, prior to the decision in
Waya
, we would not have found fault with the judge’s conclusion either as to permissibility of examining the company’s finances, or as to the benefit figure of about £1.9 million.
47.
The decision in
Waya
requires any confiscation order to bear a proportionate relationship to the purpose of the Proceeds of Crime Act, which is to recover the financial benefit which an offender has obtained from his criminal conduct. The confiscation provisions are not intended to work as an additional form of fine or other punitive sanction.
48.
In seeking to persuade us that the figure of £1.9 million would be disproportionate, great emphasis was laid upon the fact that, apart from the corruption underlying the offence, the contracts had been properly carried out and given full value to Network Rail. The expenses incurred in carrying out those contracts by the company, some ninety percent of the total invoice price, were expenses which would have been incurred in the performance of any legitimately obtained contract. Those expenses represented management, administration, labour, materials, and other ordinary business overheads. Such payments were to be distinguished from the expenses of criminal activity itself, such as the cost of the bribes or favours for which no credit was claimed.
49.
We have considered paragraph 26 of
Waya
where Lord Walker and Sir Anthony Hughes stated:
“It is apparent from the decision in R v May that a legitimate, and proportionate, confiscation order may have one or more of three effects…
(c) It may require a defendant to pay the whole of a sum which he has obtained by crime without enabling him to set off expenses of the crime. These propositions are not difficult to understand. To embark upon an accounting exercise in which the defendant is entitled to set off the cost of committing his crime would be to treat his criminal enterprise as if it were a legitimate business and confiscation a form of business taxation. To treat (for example) a bribe paid to an official to look the other way, whether at home or abroad, as reducing the proceeds of crime would be offensive, as well as frequently impossible of accurate determination. To attempt to enquire into the financial dealings of criminals as between themselves would usually be equally impracticable and would lay the process of confiscation wide open to simple avoidance. Although these propositions involve the possibility of removing from the defendant by way of confiscation order a sum larger than may in fact represent his net proceeds of crime, they are consistent with the statute’s objective and represent proportionate means of achieving it.”
50.
Their Lordships continued at paragraph 27:
“Similarly, it can be accepted that the scheme of the Act, and of previous confiscation legislation, is to focus on the value of the defendant’s obtained proceeds of crime whether retained or not. It is an important part of the scheme that even if the proceeds have been spent, a confiscation order up to the value of the proceeds will follow against legitimately acquired assets to the extent that they are available for realisation.”
51.
In paragraphs 28 and 29, however, they held that it would be disproportionate to make a confiscation order where the criminal has wholly restored to the loser any benefit he had obtained from his crimes. At paragraph 34 their Lordships stated:
“There maybe other cases of disproportion analogous to that of goods or money entirely restored to the loser. That will have to be resolved case by case as the need arises. Such a case might include, for example, the defendant who, by deception, induces someone else to trade with him in a manner otherwise lawful, and who gives full value for goods or services obtained. He ought no doubt to be punished and, depending on the harm done and the culpability demonstrated, may be severely, but whether a confiscation order is proportionate for any sum beyond profit may need careful consideration.”
52.
It seems to us that there are certain important features of this case which require close consideration. Firstly, this is not, in our judgment, a case analogous to one where goods or money have been entirely restored to the loser. True it is that Network Rail received value for money, but Mr Sale had obtained contracts for his company by corrupt means on a continuing basis so that every contract obtained was tainted by it. Moreover, in a case of this nature it is wholly unrealistic to regard Network Rail as the only victim of the crime. Corruption of this nature clearly impacts on others. The company obtained contracts with a client with whom it had had no previous business relationship. Existing contractors with Network Rail were cheated out of the tendering process. The substantial market in Network Rail contracts of this type was distorted, with the company gaining a market share to the detriment of others. Tendering costs were avoided.
53.
The turnover figure of £1.9 million does not reflect the pecuniary advantage obtained by obtaining a market position and similar advantages at the expense of legitimate competitors. This case therefore, unlike
Waya
, is not one where the Appellant can claim to have put matters right by fully recompensing the victim and divesting himself of the benefit of his crimes.
54.
Post
Waya
decisions of this court in
R v Axworthy
[2012] EWCA Crim 2889
,
R v Hursthouse
[2013] EWCA Crim 517
, and
R v Jawad
[2013] EWCA Crim 644
all demonstrate that in cases of total restoration, the property originally obtained should not be treated as benefit, as to do so would be disproportionate. However, it is implicit from
Jawad
, paragraph 27, that in the event of only partial restoration, the whole order for confiscation should stand. The recent decision of this court in
R v Harvey
[2013] EWCA Crim 1104
affirmed this approach, having considered the approval of the decision in
R v Morgan & Bygrave
[2009] 1 Cr App R (S) 60
in
Waya
.
55.
However, this present case might be better analysed by reference to paragraph 21 of
Jawad
, where Hughes LJ said:
“
Waya
requires the court to consider whether a
POCA
confiscation order is disproportionate. We are satisfied that it generally will be disproportionate if it will require the defendant to pay for a second time money which he has fully restored to the loser. If there is no additional benefit beyond that sum, any
POCA
confiscation order is likely to be disproportionate. If there is additional benefit, an order which double counts the sum which has been repaid is likely, to that extent, to be disproportionate, and an order for the lesser sum which excludes the double counting ought generally to be the right order.”
56.
Applying those observations to this case and having regard to
Waya
, and in particular paragraph 34, had this been an offence whose only criminal effect was upon Network Rail which had been provided with value for money achieved by the performance of a contract which required the company to expend monies in the ordinary course of business, it would have seemed to us proportionate to limit the confiscation order to the profit made, and to treat the full value given under the contract as analogous to full restoration to the loser.
57.
However, we have already alluded to the pecuniary advantage gained by obtaining market share, excluding competitors, and saving on the costs of preparing proper tenders. A proportionate confiscation order would need to reflect those additional pecuniary advantages and, it seems to us, that an order for profit gained under these contracts, together with the value of pecuniary advantage obtained, would represent a proportionate order which would avoid double counting. There is no difficulty in attributing these items to the Appellant as proportionately representing his benefit since he was the sole shareholder in the company.
58.
Unfortunately, in this case, we do not have the materials to make a confiscation order in substitution for that made below on this basis. There has been no analysis done in relation to pecuniary advantage. The matter was put before this court on the basis of three sets of figures; the turnover figure (£1.9 million); the company profits (£197,000.00), and the Appellant’s personal benefit (£125,000.00). The question of pecuniary advantage and the provisions of Section 76(5) do not appear to have been raised in the court below, nor was reference made to them in argument before us.
59.
This court is limited to a review of the decision of the Crown Court unless it considers that in the circumstances of an individual appeal, it would be in the interests of justice to hold a rehearing – see
Criminal Procedure Rules 2012
Rule 73.7.(2). In the circumstances we do not consider that the interests of justice require a rehearing. Accordingly, we must deal with the matter on the materials available.
60.
We have concluded that a confiscation order in the sum stipulated by the judge (around £1.9 million) is disproportionate for the reasons given. However, the agreed figure of £197,683.12 would, in truth, represent a generous order as far as this Appellant is concerned since it fails to take account of the pecuniary advantage we have identified. However, since there is no material before us to put a value upon the pecuniary advantage obtained, we cannot properly add to that sum. In cases of this nature in the future, it is to be hoped that prosecutors will be alert to this aspect of the case, so that the real benefit or pecuniary advantage derived by the wrongdoer can be identified. In the circumstances we quash the amount of the confiscation order made below, and in its place substitute the figure of £197,683.12.
61.
There is a consequence of the reduction in the sum ordered. We must reduce the term of imprisonment in default of payment. In place of the term ordered below, we impose a term of thirty three months imprisonment.
62.
To that extent indicated, the appeal is allowed. | ```yaml
citation: '[2013] EWCA Crim 1306'
date: '2013-07-25'
judges:
- LORD JUSTICE TREACY
- MR JUSTICE DINGEMANS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
2002/1875/C3
Neutral Citation Number:
[2003] EWCA Crim 3870
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 18 December 2003
B E F O R E:
LORD JUSTICE BUXTON
MR JUSTICE GOLDRING
MR JUSTICE MACKAY
- - - - - - -
R E G I N A
-v-
PETER SHARP
- - - - - - -
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 TRAVERS AND MR P SINCLAIR
appeared on behalf of the APPELLANT
MR W CLEGG QC AND MR J CAUDLE
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE BUXTON: This is an appeal brought on a reference by the Criminal Cases Review Commission from the conviction of Mr Peter Sharp, now aged 70, on one count of murder, in the Crown Court at Maidstone on 23rd November 1992 in respect of which he was sentenced to life imprisonment.
2.
The case that Mr Sharp faced at that trial was that he had shot two victims, a Mr Leslie Taylor and his wife, Mrs Joy Taylor. Mr Taylor survived that incident. Mrs Taylor unfortunately died.
3.
The appellant and Mrs Taylor had lived together for a number of years before Mrs Taylor (as she became) left Mr Sharp in 1990 and went to live with Mr Leslie Taylor whom she married in January 1991. It was the prosecution case that the appellant was obsessed with recovering the affections of Mrs Taylor. He had, it was alleged, hired someone to observe the family's movements and he had harassed the couple both at home and at work. He had threatened to kill her. She indeed had gone so far as to obtain a non-molestation order against him in October 1990.
4.
The offence occurred just after midnight on 25th November 1991. The couple drove up to their home in their car, followed by the appellant who stopped his car behind theirs. Mr Taylor got out of the car. The appellant shot him in the head causing him to lose consciousness. He then walked to the driver's door of the car and shot Mrs Taylor as she sat in the driver's seat. He telephoned Mrs Taylor's father, saying: "They are both dead. I have shot them". He was arrested later that day a couple of miles from the crime scene. The gun that he used was never found.
5.
At the trial the appellant relied on a detailed and circumstantial defence in support of which he gave evidence. We need to set that out in some detail because that fact has an important bearing on the issues in this appeal.
6.
Mr Sharp's case was that on the afternoon of the 24th November he had received a phone call from someone whom he thought to be Mrs Taylor, speaking incoherently. Out of concern for what he thought might be her condition he went to the home of the Taylors on a couple of occasions, and when he saw they were not there on the second occasion he waited for them to return. When they did eventually come back he pulled up behind them, intending to inquire whether Mrs Taylor was in fact well or not. He claimed that as he got out of the car he saw Mr Taylor get out of his vehicle, Mr Taylor making threatening and derogatory remarks to him. He saw Mr Taylor pull something out of his car which the appellant thought to be an iron bar. The appellant went over to him and when he tried to grab the bar he realised that it was in fact a gun. As they struggled he heard a loud bang. The next thing he remembered was being in a police station. The death of Mrs Taylor with which he was accused was therefore an accident. It should be said that Mr Sharp was also charged with and convicted of attempted murder in the case of Mr Taylor and possessing a firearm with intent to endanger life. No appeal is brought in respect of those matters.
7.
It will be clear from the account that we have given that the defence of accident in relation to Mrs Taylor was extremely difficult, and it was no doubt no surprise that it was rejected by the jury. That it would be so rejected was also the view of Mr Sharp's then advisers, as we shall in due course see.
8.
An application for permission to appeal was made to this court, complaining of various alleged failings on the part of counsel and solicitors. Statements were taken from those then concerned. The single judge said that there was no basis for the court to interfere. The appeal was not further pursued.
9.
The matter returns to this court, as we have said, through a reference by the Criminal Cases Review Commission. They had received submissions from Mr Sharp and his solicitors in March 1998, in particular in relation to information about and the effects of a drug called Halcion. The three grounds upon which submissions were made to the Commission were first that the defence lawyers had failed to adduce evidence of the long-term effect of Halcion on Mr Sharp; secondly that they did not properly prepare for Mr Sharp's trial; and thirdly that the police failed to disclose a tape recording by the victim's daughter which did not accord with her evidence. The Commission rejected all of those three arguments and they are not pursued in front of us. However, the first of them has some impact upon the ground that is argued before us, because the Commission, apparently on its own motion, decided that there was, as they put it, an additional issue not raised in Mr Sharp's application: that is to say, whether a defence of diminished responsibility had been available to him at the trial and should now be considered by this court.
10.
The Commission's view that a defence of diminished responsibility may have been available and should in any event be considered by the court is strongly related to the drug Halcion and the evidence of its effects. Halcion is a drug that was used to treat sleeping disorders. For the purpose of the present appeal we accept that it was being taken by the appellant in substantial amounts. The exact amounts are a matter of some controversy but we do not think that affects the issues in the appeal. And we also accept, as we shall explain in more detail, that the drug is said by at least some psychiatrists to cause behavioural disorders, some of them of the most serious nature.
11.
We have had some difficulty in elucidating what were Mr Sharp's instructions to his lawyers leading up to his trial. It is clear that at some stages he claimed amnesia as to the events that occurred. He was examined by Dr Burman in order to report to the court in May 1992. That, it will be recalled, was some six months after the incident and after his arrest. Dr Burman, who is a member of the Royal College of Psychiatrists and had then for nearly 15 years been a consultant psychiatrist, was asked to examine Mr Sharp by reference from the medical officer of the prison where he was then held. Mr Sharp effectively told Dr Burman that he could not recall what had occurred; he was suffering from amnesia. Dr Burman set out in some learned detail the psychiatric views of the effect and presence of amnesia in cases of traumatic stress, and then he said this at page 5 of his report:
"In Mr Sharp's case I consider that he adopted, in a voluntary fashion, a disinclination to recall information during the police interviews but that it is quite possible that he has subsequently convinced himself that he has actually lost his memory. From a common sense position and a simpler one my preferred conclusion is that this is probably a pretence and that Mr Sharp is malingering."
Dr Burman then went on to address the issue of Halcion. There is no indication of how that directly came to his attention, save that it appears that from page 2 of the report that Mr Sharp had as part of the history told Dr Burman of the taking of Halcion. Dr Burman gave an account of what Mr Sharp had said. He then said this in relation to Halcion in the last paragraph of his report:
"There have been some rare reports of extreme mood and behavioural disturbances on individuals receiving the above sleeping medication including violence. The drug has been withdrawn (taken off the market) in view of adverse side effects. From his account Mr Sharp did not complain of any daytime adverse reactions or side effects whilst receiving this drug such as mood changes, irritability and other effects appertaining to Benzodiazapene usage. On ceasing the drug likewise his only complaint has been of insomnia and frequent non-specific dreaming episodes at night. It is therefore not apparent to me that Halcion has any bearing on Mr Sharp's case. I should point out however that the clinical opinion of whether, to the contrary, Halcion may have had an adverse effect on Mr Sharp's mental state by way of mitigation is too specialised an opinion for me to offer. That is to say that I am not an expert on the adverse effects of this drug."
We do not know, and the Commission did not appear to inquire into, the state of the proceedings in May 1992 when Dr Burman wrote his report, nor into the case advanced on behalf of Mr Sharp at what appears to have been a three day committal proceedings in the Magistrates Court. We know about these proceedings only from a document that happens to be in our papers, in circumstances again that we are not clear about, and which was also before the Commission. This is described as a Note on Taxation, signed by the junior member of the Bar who represented Mr Sharp at the trial. No statement has been taken from that gentlemen: we are told that he has retired from the Bar and is now working for the United Nations. Nonetheless, we have no hesitation in saying that we should take this statement at its face value. It was a considered account given by the member of the Bar who had been responsible for the case throughout, in response to the enquiries of the taxation authorities. It was an account to support the claim that counsel was making. In the absence of any counter indication, of which there is none, this court is bound to accept that it is a full and accurate account so far as it goes. It is therefore appropriate to set out some parts of it. Counsel says this:
"1. I first met Peter Sharp in the Magistrates' Court when I was instructed to conduct the live committal proceedings. He was then, as he remains still, a very withdrawn personality. There was a measure of difficulty in establishing any rapport at the lower court but, nevertheless I managed to substantially cut down the evidence that he required to be given live and so interminably long proceedings were happily reduced to some three days.
2. I was then instructed as junior counsel. I have had considerable time to prepare these papers and have made use of that time. However, on obtaining a proof of evidence from the defendant, it appeared his defence was not to be along the lines hitherto thought. His defence transferred to the one wholly untenable in view of the surrounding evidence."
He then gives some account of that defence contained in the proof of evidence, which appears to have been in substantially the same terms (paragraph 5 of counsel's note) as the evidence that Mr Sharp gave in detail at the trial. Counsel then says this in paragraph 6:
"It was anticipated that the defence run would be a 'Halcion' defence, because the defendant had been on that drug for some 12 years prior to this incident taking place. The drug is notorious as having character personality disordering effects. Much work was done on this area..."
We draw from that that the defence originally expected by Mr Sharp's advisers was indeed what was called a Halcion defence, that is to say a claim that the drug had had the character personality disordering effects on Mr Sharp that junior counsel says he was well aware of. It would appear to be the case, though we cannot be certain of this, that that was a matter ventilated in the three day committal to which counsel refers, and about which we know virtually nothing else. However, when Mr Sharp settled his proof that defence was apparently abandoned by him. Its place was taken by the account that he gave at the trial.
12.
It is unsatisfactory that it has not been possible to discover in detail what actually happened in the preparation of the defence. Mr Sharp cannot help because we are told from the Bar that he now has complete amnesia in respect of the preparation of the case, and has made a witness statement, to which we will refer later, to that effect. However, we consider that we are fully entitled on the evidence before us to draw the conclusion that we have already set out. We are reinforced in that by an extract quoted by the Commission from a letter that Messrs Goldkorns -- that is to say the solicitors who advised Mr Sharp at the trial -- sent to the central taxation unit in June 1993. We have not seen that letter. We assume that the Commission did see it. Having addressed the medical position as shown in Mr Stapleton's Note on Taxation, the solicitors then said this:
"These matters were put plainly to the defendant who despite having been advised in conference with Queen's Counsel, junior counsel and senior solicitor maintained his plea of not guilty to the end."
13.
It is however contended before us in this appeal that there was no basis that could properly be used at the trial to put forward what is called the 'Halcion' defence, and that it must be inferred that a decision was taken to abandon the defence, not because Mr Sharp was pleading accident, but because the basis for it was not available. It will be seen that that contention is extremely difficult in the light of what is said by junior counsel who had conduct of the case. This submission relies to a substantial extent upon an expert's report that was obtained on 9th November 1992 -- that is to say some eight days before the trial -- from a Dr Scannell who is now unfortunately deceased but who was then a consultant psychiatrist at St. Bartholomew's Hospital. He gave a detailed account of the circumstances. He said on page 2 of his report on instructions from Mr Sharp:
"The defendant concurs that he was in the vicinity of the accident at the material time and that it was 'possible' that he was responsible for the shootings, but as he has no firm recollection he is pleading not guilty."
Those instructions, it will be noted, were given no more than 10 days before Mr Sharp went into the witness box and gave a very circumstantial account of what had occurred. It is not clear whether Dr Scannell had seen -- indeed it appears from his list of documents that he had not seen -- the proof of evidence made by Mr Sharp, apparently well before this date, to which junior counsel refers in his note. Having examined Mr Sharp, Dr Scannell says this on page 10 of his report:
"The defendant's presentation at interview is compatible with a life long history of psychopathic disorder. This presented during his childhood and early teenage years and has been characterised by a criminal behaviour of one variety or another virtually ever since. Beneath his somewhat defensive manner is a very insecure individual, who on his own admission was very close to his own mother and whose relationships with women subsequently have replicated to an extent his dependency problems on her.
As stated at the outset of this report, the defendant gave a somewhat ambiguous account of the material time, stating that he was probably in the vicinity of the alleged shooting and then later in the interview stating that he was certainly there and admitting later still that he 'possibly' committed the shootings. However, he then stated that as he had no formal recall of the events in more detail, he is pleading not guilty.
If he were to plead guilty then the question of whether or not at the material time the defendant was suffering from an abnormality of mind could be raised and the relevance of his psychopathic disorder, reactively depressed state and obsessional behaviour could then be discussed. Nevertheless the defendant is pleading not guilty, so I can add little at the current time."
On the basis of that, it is submitted that we should infer that the particular defence now sought to be adduced, that is to say the specific effect of Halcion upon Mr Sharp's behaviour, possibly overlaid by the psychopathic disorder referred to by Dr Scannell, was foreclosed by the fact that Dr Scannell did not avert to the particular issue of Halcion. It is to be assumed, therefore, it is said, that Mr Sharp and those advising him were deterred from putting forward a defence based on Halcion, or decided that that was not possible to promote that defence.
14.
We are not prepared to make any such assumption. It is inconsistent with the Note on Taxation that we have already referred to. In practical terms it is inconsistent with the account of the development of the defence that we find in that Note. It is also inconsistent with Mr Sharp's claim that he now makes that he put his evidence forward at the trial as an invention because he could not recall anything about the incident. We do not accept that that claim is plausible in the light of the history of the case already set out.
15.
Mr Sharp has sought to support these points with a witness statement which we were asked to receive as fresh evidence. In paragraph 8 he said this:
"In the long years that I took Halcion I was never aware that I should not take them constantly, nor that doing so could cause serious side effects. If my Doctor mentioned it when first prescribing me the drug I do not recall such a warning. Some months after my arrest, when I started to appreciate that drug had been banned and had been the subject of some publicity, I became somewhat concerned that it might have adversely affected my health. I was certainly never conscious of any side-effects (except withdrawal symptoms) and I did not personally start to investigate whether the killing or my amnesia might be associated with my use of Halcion until well after the trial. However, during the months leading up to my trial, I had been told that my solicitors were looking into this issue."
16.
Mr Sharp's claim that he had no practical interest in Halcion is difficult to maintain in the light of other evidence put before this court, exhibited by a DSI Henneker in a witness statement dated 20th February 2003. That demonstrates that when Mr Sharp was arrested and searched at the police station on 25th November 1991 there was in his possession a cutting or photocopy from the Daily Mirror dated 3rd October 1991, that is to say some several weeks before these incidents occurred, setting out in detail the alleged dangerous effects, including homicidal effects, that could accrue from Halcion. Express and detailed complaint was made of the Government's failure to act and various cases were cited.
17.
Mr Sharp seeks to explain his possession of those documents by saying that his doctor had told him that he would not prescribe any more tablets for the reason that they were about to be withdrawn, and that that happened shortly before the killing. Mr Sharp continued:
"I was unable to find anyone who had any. Someone explained that the reason for this was that Halcion had been banned and he gave me a newspaper or cuttings in order to prove to me that he was telling the truth. However, at that time, I was not particularly interested and did not pay much attention. My principal concern was to obtain a supply of Halcion."
We do not think that that explanation is capable of belief. We are reinforced in that assumption by further documents that are exhibited by Superintendent Henneker, that is to say correspondence between Mr Sharp and the Medway Justice's clerk in which Mr Sharp sought the recovery from the Medway Justice's clerk of that correspondence. It is important to note that the correspondence was directed to the court itself. He said this in a letter received by the Justice's clerk on 13th January 1992:
"DI Henneker took some newspaper cuttings from my property when I was arrested. They concerned my health. I am writing for them back, or copies. If not it means me subpoenaing the police to court to say he took them."
That is plainly inconsistent with a claim that this was all a matter of no importance to him. The fact that the correspondence was with the Magistrates Court would also appear to us to reinforce the view that we had already formed that this correspondence did or may have played a part in the three day old-style committal proceedings to which counsel referred in his note.
18.
We have therefore come to the clear conclusion that, firstly, in the passage that we have quoted from his report, Dr Scannell opened up the possibility of a defence of diminished responsibility even though he did not specifically refer to Halcion; secondly, that Halcion was actively under consideration by those advising Mr Sharp, as demonstrated by the report of Dr Burman which they would have read, and in very clear terms by the Note on Taxation; and thirdly by the striking fact that Mr Sharp had this document about Halcion in his possession when he was arrested for this crime. We are quite satisfied that it was Mr Sharp who insisted on there being a plea of not guilty, as is demonstrated by the instructions that he gave to his solicitors. We do not accept, and it is wholly unrealistic to think, that the position was as put to us in argument, that he remained in a state of amnesia remembering nothing or nothing reliable up to and after the time that he was interviewed by Mr Scannell, and it was only effectively on the day before the trial that the detailed account that he gave at the trial became available.
19.
In support of this appeal it is however sought to adduce certain new evidence. We have already dealt with the statement of Mr Sharp. As we have said, in so far as it deals with amounts of drugs we do not think that it is of material assistance. In the respects where it might touch upon the appeal and which we have dealt with in this judgment so far we do not think it is capable of belief, and we are not prepared to listen to it.
20.
The new evidence, however, apart from that, is of a medical nature. Mr Sharp submitted to the Criminal Cases Review Commission a report by a Professor van der Kroef, who is a Dutch psychiatrist who has taken a very close interest in Halcion over the years. Although he had not examined the appellant nor had been involved in the case at any earlier stage, he effectively attributed all of Mr Sharp's criminal behaviour to Halcion.
21.
The Criminal Cases Review Commission did not think that that gave a complete answer or account but it did instruct another distinguished scientist, Dr Sugarman, to produce a report on its behalf. Dr Sugarman is a member of the Royal College of Psychiatrists and a consultant forensic psychiatrist who directs the Trevor Gibbens Unit in Maidstone. The Criminal Cases Review Commission thought that the relevant and important passages in Dr Sugarman's report were as follows, as set out in paragraph 10.9 of their determination:
"In relation to the issue of mens rea, a combination of a disorder of personality, a clear depressive illness, and Halcion withdrawal would be likely to produce an abnormal state of mind... I cannot see any ground for a defence of insanity.
A defence of diminished responsibility under
section 2 of the Homicide Act 1957
must however be considered. In my opinion there was an abnormality of mind at the time. This was caused by disease, namely depression; injury, being the short and long term effects of drugs and alcohol; and an inherent cause, personality disorder. These combined causes led to impairment of judgment and self control. If asked in court I would give the opinion that this state would impair an individual's mental responsibility for their actions to some degree at least. It is a matter for the court to decide whether the degree of impairment could be regarded as 'substantial', as is required for the defence to be accepted.
Peter Sharp committed a murder and attempted murder at the end part of an escalating series of difficulties, the final compounding factor in all likelihood being withdrawn from the drug Halcion. There is a reasonable argument that the various difficulties under which he was labouring would have induced an abnormality of mind sufficient for a defence of diminished responsibility."
22.
This led the Commission to conclude as follows, in paragraph 10.14 of their report:
"In the Commission's view, there is evidence not previously adduced that Mr Sharp was at the time he killed Mrs Taylor, suffering from an abnormality of mind occasioned by depression, long standing personality disorder, drug and alcohol abuse and Halcion withdrawal. Associating this abnormality of mind together with the factual evidence about the breakdown of his relationship with Mrs Taylor and his obsessive and jealous conduct thereafter, the Commission also considers that there is evidence on which the Court of Appeal could properly conclude that Mr Sharp's responsibility for his actions may have been substantially impaired. This new evidence is provided primarily by Dr Sugarman, but the Commission also gives significance to Dr Scannell's evidence, albeit recognising that, as Dr Scannell is dead, his evidence is available only in written form."
23.
On behalf of the appellant further evidence has been adduced from Professor Oswald, who is a follow of the Royal College of Psychiatrists and Emeritus Professor of Psychiatry at the University of Edinburgh. His opinion, which we think we can put shortly, is summarised in a passage relied on in paragraph 11 of the skeleton argument of the appellant:
"In my opinion there is a substantial probability that those large doses of [Halcion] caused or contributed to cause Mr Sharp to suffer at the time of his offence from an abnormality of mind that would have substantially impaired his responsibility for his actions. Dr Sugarman has come to the same final conclusion, attributing a 'significant role for Halcion'... In my opinion the role was highly significant."
That therefore is an opinion that placed the abnormality of mind more firmly on Halcion alone rather than on Halcion impacting upon underlying psychopathic or other such tendencies.
24.
That is not the only evidence before us because the prosecution would seek to adduce the evidence of Dr Joseph who has examined the case on their behalf, and has also had the benefit of examining Mr Sharp himself. Dr Joseph is also a Fellow of the Royal College of Psychiatrists and a consultant forensic psychiatrist. We need to set out his conclusions in some detail because they are of importance. We should say by way of introduction that by scrutiny of the doctor's records Dr Joseph expressed some doubt as to whether the amount of Halcion available to and taken by Mr Sharp was as great as he had claimed. It is in order to refute that suspicion that part of Mr Sharp's witness statement was put forward. As we have said, we do not think that this is a live issue because it is quite clear that Dr Joseph rests his conclusions on matters other than the detailed amount of Halcion taken by Mr Sharp. Dr Joseph says this in paragraph 1 and following of his conclusions:
"Although I have not taken a detailed background history from Mr Sharp myself, I have read the comprehensive psychiatric report of Dr Scannell, and I agree with him that the defendant can be diagnosed as suffering from a psychopathic or anti-social personality disorder. A central feature of this disorder is an inability to take responsibility for one's behaviour and to offer plausible explanations to attempt to rationalise the anti-social behaviour and present the individual in a good light. On the basis of my interview with Mr Sharp, this feature is evident in the way he describes his previous relationship with Joy Taylor. For example, he denies previous violence towards her and denies any memory of making threats to her prior to her death. Mr Sharp's psychopathic personality disorder can be classified as an abnormality of mind arising from inherent cause, within the terms of
section 2 of the Homicide Act 1957
.
2. I also agree with Dr Scannell that Mr Sharp may have experienced some depressive symptoms in the months prior to the killing as evidenced by low mood, tearfulness and loss of weight. His depressive symptoms will have been precipitated by the end of his relationship with Joy Taylor, but his subsequent behaviour towards her which consisted of stalking, harassment and intimidation, are more likely to have been related to his abnormal personality rather than a depressive illness. Although Mr Sharp may have been experiencing some symptoms of depression at the material time, I note that he was able to socialise with his friends in the pub or clubs every evening, and was able to form a sexual relationship with another woman in the months prior to the killing. I do not believe that any symptoms of depression were of sufficient severity to amount to an abnormality of mind within the terms of
section 2 of the Homicide Act 1957
.
...
5. In his report dated 21st May 1992, Dr Burman specifically asked Mr Sharp whether he had experienced any mood changes or abnormal mental or behavioural effects whilst taking Halcion, and he also asked him about withdrawal effects, bearing in mind that Mr Sharp had told him that he had run out of his regular prescription of Halcion two days before he was arrested. Mr Sharp denied suffering any untoward effects at all whilst he was taking Halcion, and after stopping did not experience withdrawal effects during the day but his insomnia continued with frequent waking throughout the night with brief dreams. Furthermore, Mr Sharp told Dr Scannell about his 12 to 14 year dependency on Halcion, but there is no mention of any adverse effects. It is clear, in my opinion, from the report of Dr Burman in particular, that Mr Sharp's intake of Halcion is of no relevance to the killing.
6. Although Mr Sharp told Dr Burman that he could remember when he last took his Halcion and could remember seeing Joy Taylor the day before the killing, he now states to me that he has no memory of these events and no memory of any events for days prior to and including the killing. He claims to have no memory of running a defence at trial that he could remember struggling with Leslie Taylor and the gun going off by accident. Dr Burman concluded that Mr Sharp was malingering when he claimed to have no memory of the killing, and I concur with that view. Whether or not Mr Sharp can be considered to be a pathological liar, it is clear that he has changed his story regarding the events surrounding the killing, and I have to conclude that he is a most unreliable informant. This would be consistent with his psychopathic personality disorder.
In conclusion, I believe that Mr Sharp's personality disorder can be classified as an abnormality of mind within the terms of
section 2 of the Homicide Act 1957
. It is likely that he was suffering from this abnormality of mind at the time of the killing of Joy Taylor. He was not in my opinion suffering from any other abnormality of mind. Mr Sharp has not given sufficient details of the killing to enable any opinion to be formed as to whether his abnormality of mind substantially impaired his mental responsibility at the time of the killing. In my opinion, it is highly unlikely that a jury would have returned a verdict of manslaughter on the grounds of diminished responsibility if the abnormality of mind advanced had been psychopathic personality disorder and the facts of the case had been as set out in the prosecution summary. Mr Sharp was seen by two experienced psychiatrists prior to his trial who were both aware of his use of Halcion and Dr Burman in particular asked him about the effects of those tablets. Mr Sharp now appears to be claiming an adverse reaction to those tablets which he did not describe prior to his trial."
For the avoidance of doubt, we should say that we have reached the conclusions that we set out earlier in this judgment as to inability to rely upon Mr Sharp's testimony from the matters that we referred to at that part in the judgment, and have not relied on the opinion to the same effect expressed by Dr Joseph in paragraph 6 of that report.
25.
In considering whether in the court should address those matters and should allow the defence of diminished responsibility to be adduced now, when it was not adduced at the trial, there are two conflicting principles that we have to have in mind. The first is that facts establishing innocence should not be excluded because of a previous mistaken decision by the appellant or by his advisers. We were referred to authority on that point, the unreported case of
Richardson
which we have not further had before us, and secondly and more importantly the case of
R v Arnold
31 BMLR 24
, where Hobhouse LJ said, as quoted by the Commission:
"It is not fatal to an appellant's application that the court receive new evidence that the issue to which it is relevant was not raised at the trial; however, it remains a factor to be taken into consideration. Ultimately, the most important consideration must always be whether the proffered evidence may afford a ground for allowing the appeal. If it does not, it is unlikely to be necessary or expedient in the interests of justice that the evidence should be received. The evidence must provide a basis for a conclusion that the conviction of the appellant was unsafe."
The second principle however is that it is not open to appellants to choose not to run a defence at trial and then to go back on that decision at the appeal. That was very clearly stated by the then Lord Chief Justice, Lord Bingham, in
R v Campbell
[1997] 1 Cr.App.R 492
, where Lord Bingham said this:
"This Court has repeatedly underlined the necessity for defendants in criminal trials to advance their full defence before the jury and call any necessary evidence at that stage. It is not permissible to advance one defence before the jury and when that has failed, to devise a new defence, perhaps many years later, and then to seek to raise the defence on appeal."
26.
Here it is necessary therefore, in the light of Lord Bingham's guidance, to investigate why the defence of diminished responsibility was not run. We have made it clear that we conclude from all the material that it was not run because Mr Sharp had chosen to run a defence of accident in its place, that being inconsistent with the defence now adduced. The Commission said of that problem, immediately after they quoted Lord Bingham, at paragraph 10.15 of their Determination:
"As stated above the Commission has not approached Mr Sharp to provide an account of why he insisted on running the defence of accident. It was concluded that there would be no benefit in undertaking such a task as whatever reply he gave this would do little to assist his case. None of the reports have indicated that Mr Sharp's condition was such as to cause him to be a pathological liar."
We have to say that we are surprised to read that part of the Commission's findings. The Commission may wish to consider whether the view expressed there does in fact reflect its policy. As we understand it, it is not a reason for withholding from enquiry that the outcome of that enquiry may not be of benefit to the appellant. In this case it was plainly required in the light of the guidance given by Lord Bingham that there should be, in so far as it was possible and in so far as we have attempted to do in this court, a clear understanding of what happened at the trial, and why this defence was not adduced. Had those matters been pursued, we have to say that we think that this case may well have appeared to the Commission in a different light from that which they thought it to present.
27.
Secondly, and applying those conflicting principles, there is a substantial body of jurisprudence in this court that indicates how they are to be reconciled. Because the possibility of a defence of diminished responsibility was only formulated by the Commission itself, and apparently not contended for in Mr Sharp's new advisers' submissions, the authority on this very point does not appear to have been put to them. It is unfortunate that when, of its own motion, the Commission decided that the matter of diminished responsibility should be pursued, that authority was not drawn to the attention of the Commission by its legal staff.
28.
The relevant authorities can be shortly summarised. We did not in the end understand Mr Travers, who argues this case for Mr Sharp, to dissent from their effect, but it is important to set them out. First, guidance was given by Lord Taylor, Chief Justice, in the case of
Ahluwalia
96 Cr.App.R 133
at page 142. Lord Taylor said this in a passage quoted in
Arnold
:
"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences."
The court in
Arnold
31 BMLR 38
, distinguished
Ahluwalia
, as they realised they needed to do, by saying:
"... by the time the matter came to the Court of Appeal, the appellant had placed the relevant factual evidence before the Court of Appeal and given a frank explanation of why the relevant issue had not been raised at the trial."
We hardly need comment that that is not so in this case.
29.
Secondly, the earlier case of
Straw
[1995] 1 All.ER 187. It is sufficient to read the headnote:
"When the applicant was called on to consider her plea to a charge of murder she was sufficiently capable on the medical evidence of pleading, she had been fully advised as to her position with regard to a plea of manslaughter on the ground of diminished responsibility and she was therefore capable in law of taking a decision as to how her case should be put before the court. Accordingly, it would not be permissible for the applicant to change her mind following conviction on the murder charge and apply for leave to introduce a plea of diminished responsibility."
We comment there that the court placed weight on the fact that Miss Straw (as is the case with Mr Sharp) had been held to be fit to plead. Later authority, including the case of
Weekes
to which we shall come, does not regard that as being a necessary condition.
30.
We then go to the case in this court of
Borthwick
[1998] Crim.L.R 274. The fresh evidence in that case was admitted, but the court said this:
"The Court was alive to the fact that it must not admit the evidence simply in order to allow B to run a different defence in front of a second jury. But if there was overwhelming or clear evidence that a defence of diminished responsibility would have succeeded and that it was the mental illness itself that caused the defence not to be run, the interests of justice would seem to require the substitution of a manslaughter verdict, or at least a retrial."
31.
Most recently in
Weekes
[1999] 2 Cr.App.R 520 this court returned to this question, emphasising that each case turned on its own facts and also emphasising that a finding of fitness to plead was not necessarily dispositive. The court then said this at page 529D, after extensive quotation from the transcript in
Borthwick
:
"We respectfully endorse all that was said in Jones (Steven), Shah and Ahluwalia as to the crucial obligation of a defendant to advance his whole case before the jury. We draw attention to the fact that in the present case the evidence of diminished responsibility was both unanimous and accepted by the Crown. If it were disputed by the Crown it would no doubt be very unlikely that it would subsequently be in the interests of justice to admit it in this Court, with the consequence that a retrial became necessary. Further, in the present case there is evidence both plain and undisputed that the defendant's decision not to allow the issue of diminished responsibility to be canvassed was significantly affected by his mental illness. That does not appear to have been the situation as the Court understands the matter in Straw, though it was the case also in Borthwick. Lastly, although as Borthwick shows, an exceptional case may arise, we think it much less likely that it will be in the interests of justice to admit evidence of diminished responsibility which comes into existence only after the trial, rather than was unanimous and undisputed at the time of trial. The former case is, we think, likely to founder on the principle explained in Jones and (Steven) and Ahluwalia."
32.
We draw from those authorities the following guidance. First, we are not able to agree with the view that the Commission appears to have taken that the inhibition on running a different defence on appeal is limited to cases where the original decision was in some way dishonest or manipulative, or one purely of tactics. It is clear to us from the observations of Lord Bingham that he required an objective comparison to be made between the defence advanced at trial and that on appeal. Secondly, it is only going to be in very exceptional cases that a different defence can be adduced. Thirdly, that will normally only be the case, as Schiemann LJ indicates in
Weekes
, where the original evidence was indeed available at the trial. That is not this case. Fourthly, the criteria that will be looked for before an exceptional case can be accepted are (i) that the availability of the diminished responsibility defence is effectively unchallenged or at least certainly not controversial; and (ii) that there is an explanation in medical terms for any decision by the defendant not to run that diminished responsibility case at the trial. In this case, the question of whether Mr Sharp was suffering from diminished responsibility, either by reason of Halcion alone or by reason of the effect of Halcion on an underlying psychological or personality condition, is highly disputed by very distinguished psychiatrists. Further, the evidence cries out that it was Mr Sharp who decided that this case should not be run. It was available to him, whether through Halcion or whether through the observations about his general psychiatric situation that were made by Dr Scannell. It was he who decided not to run it. There is not a shred of evidence, and no attempt has been made to produce evidence, to suggest that that decision was caused by the underlying psychiatric problem. Nor, we are bound to say, in view of what we have been told of the effects of Halcion, would we find such evidence plausible if it were produced.
33.
We therefore have to say, looking at the authorities, that this case comes nowhere near being the sort of case in which the court would hear further evidence, or be minded to accede to a defence on the basis of that evidence. We are quite confident that had the Commission had its attention drawn to the authorities that we have set out in this judgment, which it does not appear to have had before it, it would have taken a very different view of Mr Sharp's application. In any event, the application having been made and the appeal brought, for the reasons given the appeal is dismissed. | ```yaml
citation: '[2003] EWCA Crim 3870'
date: '2003-12-18'
judges:
- LORD JUSTICE BUXTON
- MR JUSTICE GOLDRING
- MR JUSTICE MACKAY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200704186/D3
Neutral Citation Number:
[2008] EWCA Crim 3110
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Monday, 10th November 2008
B e f o r e
:
LORD JUSTICE THOMAS
MR JUSTICE MACDUFF
RECORDER OF CHESTER
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
AMER MUNIR
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr S Lawson-Rogers QC
appeared on behalf of the
Appellant
Mr R Wigglesworth QC & Miss C Hadfield
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE THOMAS: On 21st December 2006 the appellant was convicted of cheating Her Majesty's Revenue & Customs of approximately £6.5 million.
2.
The facts in relation to the way in which he cheated the Revenue can be shortly described. It is not necessary to set out the detail because they are not relevant for the purposes of the appeal. The appellant had formed a company called Talkland Telecom in March 2000 to buy and sell mobile telephones. It is not relevant, because he was not prosecuted in respect of the period prior to 1st September 2001, to say anything about the previous trading but very significant sums were involved.
3.
Between 1st September 2001 and 30th November 2001 the company sold over £40 million worth of mobile telephones, making a significant profit by not charging VAT. He completed at the end of that trading period a VAT return in which he fraudulently claimed various set-offs. The sum of approximately £6.5 million was lost to the Revenue.
4.
He told a defence, which on the jury's verdict, was a pack of lies. He was, as the judge described him to be, a cold and calculating criminal, and the nature of its offence and the grave economic damage it has done was marked by the sentence of 6 years' imprisonment for which the judge passed.
5.
There were also money laundering offences to which it may be necessary to refer just in a little detail. He was given a total of one further year on those offences of which he was convicted to make a total of 7 years in all.
6.
Confiscation proceedings followed. The parties agreed that the benefit of his criminal conduct was approximately £7.572 million, which included the time value of money. After a hearing before His Honour Judge Gee, the judge decided that the sum of approximately £5.6 million might be realised from the assets and made a confiscation order accordingly. He imposed a period of imprisonment of 7 years in default. Although that was over a year ago, the sum of only £170,000 has so far been recovered for the benefit of the public out of this dishonest cheating of the Revenue and the serious economic crime thereby committed.
7.
He was given permission to appeal to this court on one short point, which essentially amounts to whether the judge double counted some of the assets for the purpose of recovery. It is not necessary to describe the assets in detail. There was a schedule before the court. There was an Aston Martin, as it is accepted, that the appellant had engaged in an extravagant life-style, but it has rightly been pointed that the Bentley, the Porshe and the Aston Martin were not paid for in cash but paid for by documentation that can be traced. He also had assets which were sums in cash in various solicitors' bank accounts. He had also the assets included loans to others and property and certain other miscellaneous items. The properties concerned were properties which we will have to describe in a little more detail and to which I will refer in a moment.
8.
The fraud in which he was engaged were relatively simple, as we have set out. He would have, by reason of the trade in which he was engaged, a very, very significant sum by way of turnover. From his company called Talkland Telecom he withdrew in the period in question and with which this application is concerned cash in the sum of £1.914 million. It appears that what he did was to go with either with a briefcase or suitcase to a branch of the Royal Bank of Scotland with his father and removed that cash. He gave an explanation at trial as to the use that he was to make of it, namely he was to purchase telephones for others to sell. The jury by their verdict rejected that. There is no evidence whatsoever as to what he did with that cash.
9.
He gave, prior to the trial, instructions to an accountant, Mark Fairhurst BSC FCA MAE, who is described as a forensic partner in PKF UKLLP Accountants and Business Advisors of Liverpool. In the period after the trial and prior to the hearing before Judge Gee, the accountant carried out some work in relation to the assets and what had happened to the sums of money. He was told, and this is recorded in his report, that the money was used for certain specific purposes. When the report was completed, that report was no doubt placed before his advisors for a decision as to whether the report should be placed in that form before the court. We assume that because the report contained instructions as to the use of the money, at that stage either no decision was made, and that is what we were told by counsel today as to whether to call him, or that a decision had been provisionally made. However, at some stage a decision must have been made to decide not to call the appellant to give evidence. It is, we must say, a matter of considerable concern to us that a report was put before the courts based on instructions, when it was clear that at some stage, and we have not been told when, that this appellant would not be called. It seems to us that it should have been that it was the duty of those conducting the case on the appellant's behalf to have carefully considered in those circumstances whether it was proper to proceed with this report and certainly to have made very clear to the judge that any possible reliance on Mr Fairhurst's evidence as to what he had been told by the appellant was no longer relied upon.
10.
It is clear from the very careful judgment of Judge Gee that was not the case. He was at pains in the course of the judgment of this matter to make clear that he did not rely on parts of the report of the expert in those circumstances. We have been told by counsel today that the judge was in error. If he was in error, that was an error induced by the way in which, contrary to proper practice, a document was put before the court containing instructions at a time when it was clear that this appellant was not going to give evidence.
11.
We have commented on that because at the heart of this case there is one simple issue: it has been well-known for many years, and particularly must have been known to a man of the calculated dishonesty of this appellant, that the one way to break the chain in tracing money was to remove the money from either in a briefcase or a suitcase from one bank and take it somewhere else. There was in this case plain evidence of the removal but there was, as we have already indicated, no evidence at all as to where that money was placed because the appellant had decided to produce himself no account, nor to cause the companies, if in truth he had put the money into companies, to give evidence in relation to where he had dealt with the money. It is therefore, in our view, in a case of this kind, it was quite wrong to have put before the court on what was the central issue in relation to cash, instructions of an appellant whom it was clear at some stage there was no intention to call.
12.
We therefore, against that observation, shall return to the position of this accountant in due course. The issue that is before the court. It is clear that there were three properties, one being a development at Botham Hall, another at Rappax Road and two flats at Deansgate, where it is said that cash that had been taken from the account for Talkland Telecom had it is said on the appellant's part been used to acquire these properties. As it is said that the judge and, as is clear from the asset schedule, took into account in reaching the figure to which we have referred the value of the three properties, it is said that there was double counting because the cash had been used to acquire them. If that proposition was correct, it would follow that there had been an element of double counting.
13.
The case that was principally put forward to us today is was that if we carried out what I regret to have to refer to as "a minute syntactical analysis" of the judge's summing-up and of counsel for the Crown's opening, we could see, through a construction of the phrases used therein, a case being put forward by the Crown that the money had been so used. It was clear to us that there was no other way in which anyone could begin to argue such an appeal. It is clear from what we have already said that there is no account of the sums abstracted from Talkland Telecom and no documentation which shows, as we shall explain in a little more detail, how sums came to be paid into the companies which companies were used as part of the complicated process of transferring the funds ultimately used to buy the houses. As those companies that were the initial source of some of the funds could have produced their money in all kinds of different ways, it was inevitable and the clearest possible inference that the judge should have followed, as he did in this case, that there was no evidence to consider or begin to consider any issue of double counting. So, what we have endeavoured to do is to look and see the way in which the Crown's case was put to see if there is any foundation for the argument.
14.
We first take the two properties in Deansgate. In respect of those two properties what happened broadly was as follows. On 1st November 2001 deposits of £29,500 were paid in respect of each of the flats. There was then transferred on 28th November 2001, a sum of £630,000 from a company called Spiral Technology. That was paid into an account of a solicitors called Buss Murton.
15.
The question arises, before we explain what happened to that sum, as to how the £630,000 paid by Spiral Technology could be attributed to the cash generated in Talkland Telecom. There was no evidence. The appellant here had taken the deliberate decision to say and do nothing to procure the documentation which, if his account was true, would have shown where the money came from.
16.
However, looking at the evidence when the case was put before the jury, it was suggested that the money that was paid by Spiral to the client account was taken from the cash paid into Spiral, in order that two further sums could be paid in respect of a flat in Deansgate. Those two further sums were a sum of £296,000 and £48,000 which were paid in April 2002. At first sight it might seem that bearing in mind the fact that the transfer had been made in November 2001 from Spiral to Buss Murton and the subsequent transfers were not made until April the following year, that there would be no necessary correlation between the payment from Spiral to the Buss Murton client account and the flats. However, it seems to us that it was a reasonable case for the Crown to put before the jury that the sums were related because the deposits on the flats were both, as we have said, paid in November and it could be suggested that the sum of £630,000 paid later in November was referable to that.
17.
As that case was in respect of those flats advanced in that way to the jury and on the basis of the evidence that we have endeavoured to outline, it could be seen to be a proper inference from the whole of the evidence before the case and the way in which the jury returned their verdict, that they had accepted the case that the money was cash taken from Talkland, transferred into Spiral and used to buy the two flats at Deansgate for the completion of the purchase in April 2002.
18.
In the circumstances, as it is the duty of the judge in a subsequent confiscation hearing obviously to have regard to the whole of the evidence in the case and to the verdict of the jury, it seems to us looking at the matter entirely afresh, that there could well be the risk of some double counting. The sum involved, in our view, is £48,000 in respect of one of flats and the sum of £296,000 less £147,977 in respect of the other. We say "less" the sum of £147,977 in respect of the other because the second of the flats was mortgaged to the Cheltenham & Gloucester Building Society and £147,977 returned into a client account of the solicitors who had become mixed up in this fraudulent activity and there is no account as to what happened to that. We therefore consider that there may have been in respect of the Deansgate properties a total sum of £196,023 in respect of one and £148,023 in respect of one and £48,000 in respect of the other, making a total of £196,023 in all. So to that extent, having looked at the whole of the evidence, and set out the coincidence of timings and what was put to the jury, we think that on the evidence that there may well have been an element of double counting. But that is as far as we shall go. It would be charitable, I think, to describe the way in which the accountant sought to put forward an argument in respect of the other properties as building castles in the air.
19.
An accountant is expected, when assisting this court in a matter of this kind to help the court and bring to bear as a professional man his experience and expertise. We would expect an accountant, first of all, in a case where a defendant had said one thing to the jury and was now putting forward a different account, as set out in the accountant's reports, to draw to the court's attention that in cases of this kind there must be banking evidence. There must be documentation and to weigh up in an honest and proper manner the value of anything put forward because, as we have endeavoured to explain, the trick of transferring sums in cash is a well established means of breaking the chain of money transfers. But monies can only be paid into accounts where above certain amounts with an explanation, and in all cases can only be paid into accounts by evidence of documentation. That is something that, first of all, we think should have been pointed out. Secondly, and we have already referred to this, we are surprised that the report was put forward when, as it was, when it was known the defendant was not going to give evidence. Thirdly, it is what we have described as castles in the air. We have carefully considered the report of Mr Fairhurst and all he is seen to do, in our respectful view, is to take one sum amounts that appear to support the instructions given to him in respect of trying to putting together an account to the court which might suggest that the cash taken from Talkland Telecom was used to buy the properties. We comment in those terms because what has happened in this case, we hope will not happen again.
20.
We will now turn to examine what the documents actually show. The two properties in question, Botham Hall and Rappax Road, were purchased inter alia by sums of £800,000 and £400,000 transferred from a company called Vista Assistance SA. We understand that to be a Spanish company. The company concerned had received a sum of £500,000 in June 2003 from an Isle of Mann company which was one of the fraudulent vehicles used by the appellant, a British Virgin Island operating in the Isle of Mann, one of the companies used by the appellant for money laundering. That company had received by telegraphic transfer, which are evidenced, the sum of £725,337 from Talkland during October 2001.
21.
There had also been transferred into Tyron Consulting sums from Lets Talk Communications Limited of £375,000 on the 23rd May and Lets Talk had transferred £433,000 on 30th May. The second sum had gone into a client account of another solicitor.
22.
It seems to us that when one tries to analyse out by the help of the money flow document as provided to us, it is quite clear, and we accept, that sums by way of telegraphic transfer, not by way of cash, came into to Tyron and were paid into the Spanish company. Those funds may well have been used to purchase the properties at Rappax Road and Botham Hall. There would be no double counting in that respect. The question is
:
can it be shown if cash came?
23.
We have set out a reference to the transfers upon which the accountant relied. But we would express this real concern. Nothing is known about Spiral Technology, Lets Talk or Vista, save that each was engaged in some form of trading. It may well be it is the position that those companies could have received some cash. We know not. But they could have used that cash to carry out further fraudulent activities or to engage in some form of legitimate trading. But there is absolutely nothing to show that Spiral Technology or Lets Talk passed any sums that came by way of cash that can be directly traced to the sums that came by way of cash and Talkland Telecom.
24.
That conclusion is heavily reinforced by what was contained in the document before the jury. This was an attendance note of a solicitor who had sought instructions from the appellant as to the way in which Vista had operated. That note made it quite clear that Vista was engaged in some form of trading in relation to telephones. Whence that document became available, it seems to us very, very difficult indeed to see how any person could have put forward a suggestion to this court or to the trial court that somehow, by weighing up numbers here and numbers there, that somehow the cash could be referable to the cash taken from Talkland Telecom. We are bound to say that we find it very troubling that a professional man should put forward a report to the court in those circumstances. We have today asked about the explanations as to how this came to happen. Before we decide to take any further action, we would ask that the professional man concerned provides observations to us, because it is the duty of these courts to ensure that experts, particularly in complex financial cases of this kind, behave with singular integrity in the discharge of their duties to this court. It may well be that there is an explanation for what happened. We know not. But we would invite, before deciding to take any further action, observations from the accountant concerned.
25.
It seems to us that once it became apparent as to what Spiral Technology, Lets Talk and Vista Assistance were actually engaged in, that no documents had been provided by the defendant. The defendant had chosen the route of using a professional advisor to get his case across rather than giving evidence and the inherent improbability of someone who by this stage was subject to Her Majesty's Customs and Excise investigation starting to put money back into operation into property that could be traced, that there was any real basis upon which it could be argued that there was double counting in respect of those two properties.
26.
We have carefully examined the other evidence and what the judge said. Whether it could be inferred that the jury might have taken a view which the judge had taken into account when he came to make findings of fact. But on an analysis, even an analysis that does not need to descend into minute syntactical considerations, there is absolutely no warrant whatsoever for suggesting that either the judge or the Crown suggested to the jury that the sums used for Botham Hall or Rappax Road originated from the cash removed from Talkland Telecom. In respect of those two properties, therefore, there was no double counting.
27.
We therefore have come to the view that the amount that the judge certified must be reduced by £196,023 for the reasons we have set out. The judge imposed a term of imprisonment of 7 years in default. People who engage in these serious economic crimes and make no effort whatsoever to assist in the restoration of the deprivations they have made upon the public can expect no mercy. We intend to reduce the sentence by not one day.
28.
LORD JUSTICE THOMAS: As to the costs of this matter, we will hear counsel. We have obviously thought about what we should do about costs. As you have substantially won the appeal, we would make almost certainly an order in respect of costs but we wonder whether the justice of the matter should be dealt with -- the appellant has succeeded to some limited extent -- and whether the best course to follow would be to make no order as to costs?
29.
MR WIGGLESWORTH: Can I take instructions? (Pause) His assets are all restrained and we think probably the best course is no order as to costs.
30.
LORD JUSTICE THOMAS: Do you have any observations?
31.
MR LAWSON-ROGERS: No, I do not my Lord. Could I seek some guidance as to the future so far as the accountant is concerned. Does the court intend to send a letter pending the decision?
32.
LORD JUSTICE THOMAS: We shall send a copy of our judgment to him and a letter asking whether there are any observations as to whether we should take the matter further by a reference to the Disciplinary Committee of the Institute of Chartered Accountants.
33.
MR LAWSON-ROGERS: Normally I will, because those who instructed on the confiscation proceedings are interested in the outcome of today, normally I would contact them and explain what had happened. The issue will obviously arise, if I do that, and I think I normally would, unless you direct that I should not, it may well be that they might suggest that they inform Mr Fairhurst and he speaks to me. I can see that might be a course which you would not approve of.
34.
LORD JUSTICE THOMAS: We can see absolutely no reason at all.
35.
MR LAWSON-ROGERS: I can explain to Mr Fairhurst.
36.
LORD JUSTICE THOMAS: I think it would be better if you receive a copy of our transcript. I cannot tell you how long that will be. I would hope you would have it by the end of the month.
37.
I am concerned about your own personal position as regards to your payment. We would leave that for you to pursue. We cannot do anything because although the order we have made as to costs is inter partes there is your own personal position. Please, if you can get him to fill in a form then obviously we will consider the matter, because there is no reason why, if you satisfy, we should not properly consider that. We would obviously wish to be told by the solicitors the amount of the accountancy fees in this case.
38.
MR LAWSON-ROGERS: I appreciate that. I will ask for that. | ```yaml
citation: '[2008] EWCA Crim 3110'
date: '2008-11-10'
judges:
- LORD JUSTICE THOMAS
- MR JUSTICE MACDUFF
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2024] EWCA Crim 340
Case No:
202303577 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
His Honour Judge Murray
T20217184
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/04/2024
Before :
LORD JUSTICE EDIS
MRS JUSTICE FARBEY
and
THE RECORDER OF SHEFFIELD
His Honour Judge Richardson KC, Sitting as a judge of the Court of Appeal Criminal Division
- - - - - - - - - - - - - - - - - - - - -
Between :
THE KING
Appellant
- and -
BRADLEY LUXTON
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
David Perry KC
and
Alex Langhorn
(who did not appear below) (instructed by
CPS Proceeds of Crime Division
) for the
Appellant
Nathaniel Rudolf KC
(who did not appear below) and
Barnaby Hone
(
assigned by the Registrar
) for the
Respondent
Hearing dates : 15 March 2024
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
This judgment was handed down remotely at 10.30am on 16 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
Lord Justice Edis :
1.
This is the fifth case in a series of appeals by the prosecution under section 31 of the Proceeds of Crime Act 2002, “the 2002 Act”. Where a section number is given in this judgment without specifying the Act from which it comes, it is a section of the 2002 Act. Under s.31(2), if the Crown Court decides not to make a confiscation order the prosecutor may appeal to the Court of Appeal. The Court of Appeal may confirm the decision or if it believes the decision was wrong may itself proceed under section 6 or direct the Crown Court to proceed afresh under section 6, see section 32(2).
2.
The first four cases are the subject of our judgment (“the main judgment”) handed down immediately before this judgment, neutral citation number [2024] EWCA Crim 344. These two judgments should be read together. We adopt our summary conclusions in paragraphs [4]-[11] of the main judgment, our analysis of the authorities at [12]-[14] and the fuller reasoning on common principles at [24]-[34]. We shall refer to the authorities, where necessary, by reference to the abbreviations in the Table in paragraph [12]. There are additional authorities referred to in this judgment and these are identified here:-
Title
Reference
Level
Abbreviation in this judgment
R v. Grice
66 Cr App R 167
CACD
“Grice”
R v. Menocal
[1980] AC 598
HLE
“Menocal”
R v. Reilly
[1982] QB 1208
CACD
“Reilly”
R v. Miller
(1992) Cr App R 19
CACD
“Miller”
R v. Neish
[2010] EWCA Crim 1011; [2010] 1 WLR 2395
CACD
“Neish”
R v. Warren
[2017] EWCA Crim 226
CACD
“Warren”
R v. White (Horace)
[2021] EWCA Crim 1511; [2022] 4 WLR 10
CACD
“White (Horace)”
3.
The application for leave to appeal was referred directly to the Full Court by the Registrar with the cases that are the subject of the main judgment. The reason why this case was heard separately and why we are giving a separate judgment is that it raises three further issues beyond those which were settled in the main judgment. It is not without its complexity. These issues are:-
i)
Is a decision to refuse an application under section 385 of the Sentencing Act 2020 (often called “the slip rule”, but see below) to rescind a decision not to make a confiscation order and to refuse to set aside a financial order made in place of a confiscation order a “decision to refuse to make a confiscation order”, giving rise to a right of appeal under section 31(2) of the 2002 Act?
ii)
If not, what is the effect of the making of a financial order in breach of section 15(2) of the 2002 Act on the jurisdiction of the Crown Court to proceed under section 6?
iii)
In any event, was the decision of His Honour Judge Murray on 27 July 2023 a “decision not to make a confiscation order” giving rise to a right of appeal under section 31(2)? If so, should that appeal be entertained where the prosecution withdrew the proceedings, having been confronted with the wrongly decided case of
Iqbal
?
The facts of the confiscation proceedings
4.
The respondent’s involvement in the higher echelons of drug dealing across the UK was discovered as part of Operation Venetic, the police operation into encrypted telecommunications known as ‘Encrochat’. Between March and June 2020, the respondent had arranged multiple transactions of kilos of Class A and Class B drugs worth thousands of pounds. He was arranging the delivery of drugs all over the country including locations as far from his home in the Wirral as Cornwall, Bournemouth and Tyneside. The profits were ploughed into building and renovating his home.
5.
He pleaded guilty to six counts of conspiracy on 23 April 2021. These were 5 counts of conspiracy to supply controlled drugs (being a count for each type of drug supplied) and 1 count of conspiracy to convert criminal property. He was sentenced to a total of 16 years’ imprisonment on 6 August 2021. On that day His Honour Judge Aubrey KC decided to postpone determination of the confiscation proceedings and set a timetable. The two year permitted period would have expired on 22 April 2023 had it not been, as the judge later found it was, extended by Mr. Recorder Waldron KC on 4 November 2022.
i)
On 22 November 2021, a ‘section 18 Statement of Means’ was served by solicitors acting for the respondent.
ii)
On 17 December 2021 and 31 January 2022 the timetable was varied. No date for the final hearing was set, and a Review Hearing was fixed for 2 May 2022 following the anticipated completion of the service of evidence under the statutory scheme.
iii)
On 8 March 2022, a ‘section 16 Statement of Information’ was served by the prosecution. This was in time. It valued the drugs which the respondent had supplied at £1,293,095. It suggested that this was a criminal lifestyle case, and gave an account of a number of complex property transactions resulting in a benefit figure of £2,136,183.70 and an available amount of £393,570.64. The property transactions involved the respondent’s father, Garry Luxton, and he occupied a property with his partner, Samantha Newton. Including Appendices, this document contained over 2,000 pages and represented a great deal of work. The police and prosecution had acted with diligence and reasonable expedition in its preparation. Time for a response was extended by the court until 22 July 2022 by order of 22 April 2022.
iv)
On 4 September 2022, after a series of extensions of time, a preliminary ‘section 17 Response’ was served on behalf of the respondent. It contended for a somewhat lower benefit figure and a lower available amount figure and included this:-
“As the crown will be inviting the court to make a determination pursuant to s10A POCA 2002 as to the extent of the defendant’s interest in the above referred to properties, it is submitted that Samantha Newton and Garry Luxton should be notified of this by the crown and invited to the mention hearing to make representations.”
v)
On 16 September 2022, a ‘section 16 Response in Reply’ was served by the prosecution. This was in time according to the revised timetable.
vi)
On 1
November 2022, Sonn Macmillan Walker Solicitors indicated to the Court that they were instructed for interested parties under s10A of the 2002 Act, namely Garry Luxton and Samantha Newton.
vii)
On 4 November 2022 a hearing took place before Mr. Recorder Waldron KC at which the prosecution, the respondent and the interested parties were represented. After re-setting the timetable to allow the interested parties 8 weeks to serve their evidence and the prosecution a further 8 weeks to reply, Mr. Recorder Waldron said this:-
“The case will be listed for a mention on 24
th
March and this matter is set for a hearing with an estimated length of two days on 27
th
July 2023.”
In making this order, Mr. Recorder Waldron was fixing a hearing date outside the permitted period, which had not been extended. He did this because everyone present had made an error in assuming that the two year period ran from 6 August 2021. This was what was said in the prosecution section 16 statement, and it was an error. The interested parties could not check against the DCS, because they had not been granted access at that date. The date of conviction was there in the side bar for those who did have access to check. The judge did not consider whether there were exceptional circumstances for this reason. During the hearing the clerk of the court first suggested fixing the hearing for 17 May 2023, but this was not convenient to a witness. The next date offered by the court was the 27 July 2023, which was agreed. We can find no reference to this hearing in a widely shared comment in the side bar of the Digital Case System (DCS), or in the Memoranda section (which is used by the judges at this court), or anywhere else. A transcript was obtained in August 2023 at the prosecution request and we infer that there is a note on the prosecution file which caused them to make that request. There is a record on the Xhibit system on which the court clerk makes a record of hearings, but the parties do not have access to this. Matters would have proceeded much more smoothly in this case if prosecuting counsel then appearing had accurately informed the judge about the expiry of the permitted period, and if someone had made an accurate note of the order which was made as a widely shared comment on the DCS. Neither of these things were difficult to do. The date of conviction is clearly visible as a widely shared comment on the DCS.
viii)
On 9 January 2023, the interested parties lodged their witness statements and evidence.
ix)
On 24 March 2023 the mention hearing resulted in directions, see below.
x)
On 22
April 2023, the period of postponement expired.
xi)
On 29 April 2023, solicitors for the respondent wrote in these terms to the CPS:-
“The above referred to case was last heard before Liverpool Crown Court on 24 March 2023 where the following directions were made:
Skeleton and evidence by 5 May
Prosecution response by 16 June
Final bundle 30 June
We have had difficulties in instructing Counsel in this matter but have now instructed Mr Baki to represent Mr Luxton. He will be preparing the skeleton argument but will need time to get to grips with the case and a legal visit is also booked with Mr Luxton for 12 June in which it is hoped Mr Baki can attend. Given this we write to ask whether you have any objections to the following extension request which will not impact on the contested hearing date:
Skeleton and evidence by 16 June
Prosecution response by 14 July
Final bundle 21 July”
xii)
The revised timetable appears to have been adopted. Evidence gathering continued, as shown by the dates of some valuations which were provided to the court. On the day before the hearing of 27 July the solicitors for the interested parties wrote complaining that the hearing could not fairly proceed because of late service of material by the CPS.
The hearing of 27 July 2023
6.
On 27 July 2023, the matter was listed before His Honour Judge Murray. By this stage a very considerable quantity of material had been placed before the court, and counsel appeared for the prosecution, for the respondent and for the interested parties. The case was listed for a two day contested hearing. There had been very extensive correspondence between the various parties and the case had been case-managed by the Crown Court which exercised control over the timetable in a complex case. Neither the court nor any party had appreciated that the permitted period expired on 22 April 2023.
7.
The prosecution indicated to the court that there had been discussions between all parties (prosecution, defence and interested parties) all morning but they had not yet proved fruitful. An adjournment was granted to the afternoon.
8.
Counsel who then appeared for the prosecution describes what then happened in his witness statement, which is consistent with the transcript:-
“6.
When we were called back on, I indicated that we had not been able to reach a settlement on an offer put forward by the defence. I indicated that we were ready to proceed to a final hearing.
7.
HHJ Murray then raised an issue of whether there had been an application to extend the period of postponement. I had been instructed the prosecution had applied for the permitted period which ended in April 2023 to be extended. My instructions were to apply for a further extension in the event of adjournment.
8.
In light of HHJ Murray’s observations I checked my hearing record sheet and the DCS sidebar. I could see nothing to indicate the period had been extended. I did not consider whether the Court had extended the period of postponement of its own motion because I saw nothing to suggest it had. Whilst the Court had adjourned the last hearing, there had been no application to extend the period for exceptional circumstances and I was of the view it had not been addressed. This is clearly the point that HHJ had in mind.
9.
HHJ Murray had obviously considered the provision in the statute that any application to extend must be made within the permitted period.
10.
A discussion took place between all three Counsel. Mr Hone provided the case of
Iqbal
(2010). I was of the view the appellate court's very clear decision was fatal to this case. I thought the only option was to withdraw the confiscation proceedings.
11.
We were called back on. HHJ Murray asked what I wanted him to do. I responded that he should dismiss the POCA proceedings. HHJ Murray asked “are you withdrawing” to which I responded “yes”. I did not have instructions to withdraw but took the decision in the belief
Iqbal
was fatal to the Crown’s application to extend the period of postponement. I could see no other option for the Crown.
12.
It was clear that HHJ Murray had in mind that same view of fatality, hence why he raised it. Even if I had made an application at that stage to extend so that we could proceed to the final hearing at some future date, it would not have succeeded.”
9.
The judge’s note on the side bar said:-
“BRADLEY LUXTON
Listed for POCA final hearing
Prosecution withdraw proceeds of crime application
Surcharge and collection order
No order as to exhibits”
10.
It is true that the prosecution did withdraw its application, but the judge knew why they were doing this. Counsel had been instructed that time had been extended until the day of the hearing, but neither he nor the judge could find any evidence of any application ever having been made. Both of them seem to have been aware of the order of 4 November 2022. That may be what counsel is referring to in paragraph 8 of his witness statement, above, as “the last hearing”. The transcript reads, in part:-
JUDGE MURRAY: All right. Has there ever been in this case an application to extend time?
COUNSEL FOR PROSECUTION: Yes, it was extended until today.
JUDGE MURRAY: Says who? Can you show me an application to extend time? (Pause)
COUNSEL FOR PROSECUTION: I cannot readily see one on the system.
JUDGE MURRAY: That is why I am asking you to show it to me.
COUNSEL FOR PROSECUTION: Yes.
JUDGE MURRAY: Do you want to go and take some more instructions about this settlement?
COUNSEL FOR PROSECUTION: On that, yes.
JUDGE MURRAY: I tried to give you a hint before.
COUNSEL FOR PROSECUTION: Yes. No, I took the hint, believe you me, I took the hint, but I have not----
JUDGE MURRAY: I am ready to start this. I will give you some more time if you want to take instructions about settlement.
COUNSEL FOR PROSECUTION: Well, I do need to find out about the extension, whether that has actually been granted. Because if it has not we are outside the period, because the conviction date was April 2021.
11.
There was then a short break after which the court convened again and this occurred:-
PROSECUTION COUNSEL: Your Honour, thank you once again for the time and can I thank your Honour for spotting probably what is the most blindingly obvious starting point for this confiscation application, which is the application within the permitted time. Mr Luxton was convicted in April 2021, therefore----
JUDGE MURRAY: I took the pleas.
PROSECUTION COUNSEL: ----and your Honour took the pleas, that is right. So the two year confiscation period expired in April 2023. Having checked all the hearing record sheets and the file, there is no evidence that an application to extend the permitted period beyond April exists. So no application has ever been made to the court or one that the defence have ever responded to and the period has lapsed in April. The position is from case law -- and I am grateful to my learned friend -- I have not read the case in full myself but I have seen the commentary of it, the case of
R v. Iqbal
, the Court of Appeal held that an application to extend must be made before the expiry of the permitted period and it seems to us that that brings this to an end because no application has ever been made.
JUDGE MURRAY: So what are you doing?
PROSECUTION COUNSEL: Well, I invite the court to dismiss the application.
JUDGE MURRAY: So the prosecution are withdrawing this application, are they?
PROSECUTION COUNSEL: Yes.
JUDGE MURRAY: Okay, prosecution withdraw Proceeds of Crime Act application.
12.
In his later judgment on 15 September dealing with the application under section 385 to vary or rescind his order of 27 July the judge recorded that he had accessed the Xhibit log of the hearing of 4 November 2022 on 27 July 2023. This passage of that judgment said:-
“……prosecuting counsel told the Recorder that the 2 year period expired in the middle of August 2023. After that information was given – the date of 27
th
July 2023 was given for the final hearing. It looked to me as if the hearing date of 27
th
July 2023 was given as a result of the court being told that the 2 year limit ran out in mid-August 2023 – when it in fact ran out on 22
nd
April 2023. That was of concern to me, as I couldn’t see that the issue of postponing beyond the 2 year period and the issue of exceptional circumstances had been addressed.”
13.
This information was not shared with counsel on 27 July 2023 and so they made no submissions about it. It seems from paragraph 8 of his witness statement that prosecuting counsel entertained some similar thoughts, but he said nothing about that on the transcript.
14.
The judge recorded the decision of the prosecution to withdraw proceedings knowing that it was made in the belief that no postponement of the proceedings to 27 July 2023 had taken place, and knowing that the prosecution believed, as a matter of law, that no application could be made for a postponement after the expiry of the permitted period. He also knew that the decision had been made by counsel on the basis of an authority which he had not read “in full”. Alarm bells about the reliability of the decision in
Iqbal
had been sounded in
T
and very loudly indeed in
Guraj.
It is perhaps a little disappointing that no-one brought those decisions to the attention of the court. It was suggested to us that
T
was a decision where the court had cited
Iqbal
without criticising it, but that is unsustainable. Lord Justice Laws said in
T
at [13]:-
“In our judgment HHJ Ambrose should not have been inhibited, as he was, by Hooper LJ’s observation in
Iqbal
so as to conclude that there was no jurisdiction here to entertain the confiscation proceedings.”
15.
The court there simply asserted that a judge should not have been inhibited by an “observation” which was on the face of it binding on him. That may have left the matter uncertain, but the Crown Court should have had both authorities, if it was to be influenced by either. In any event,
Guraj
is very explicit in expressing doubts about the correctness of
Iqbal
.
16.
Finally, the judge did not know whether prosecuting counsel was aware that the 27 July 2023 hearing date had been fixed by a judge at a hearing on 4 November 2022. No mention of that event was made by anyone.
The application under section 385 Sentencing Act 2020
17.
The CPS quickly appreciated that an error had been made. On 4 August 2023 an application was made under section 385 of the Sentencing Act 2020 to rescind the surcharge order and the “order that there would be no confiscation order in these proceedings.” This was supported by a lengthy skeleton argument by Mr. Perry KC and Mr. Langhorn, which set out the chronology in detail and examined the relevant authorities relating to section 385 and also the line of authority starting with
Soneji
which we identify in our first judgment. The submissions were summarised as follows:-
“i.
The earlier Confiscation Proceedings were withdrawn by Counsel for the Prosecution on the basis of a series of errors of fact and law, namely that:
a.
There had not been a valid extension of the period of postponement;
b.
The failure to apply for such an extension of the period of postponement was fatal to the application for a Confiscation Order in that it removed the jurisdiction of the Court to make such an Order;
c.
There was no means of remedying the position by asking the Court to retrospectively approve the extension of the period of postponement beyond the permitted period; and
d.
The Court would in any event be bound to refuse the application because of failings (if they were material failings) by the Prosecution to serve a bundle on the Interested Third Parties (who had in fact only served a detailed skeleton argument raising matters of fact and law on 17 May 2023). (The correct position is that the Court was not required to look simply at the compliance of the Prosecution with the Orders made following the hearing on 24 March 2023, but the conduct of all parties throughout the proceedings, per
Regina v. Halim
[2017] EWCA Crim 33 {5B-41, at 1099}. This was particularly important given the delays occasioned by both the conduct of the Defendant (his failure to comply with earlier Orders) and the Interested Third Parties, who had been ordered to serve their skeleton argument and supporting material by 5 May 2023. In all the circumstances, if there was any prejudice caused by delay (which there was not) the cure would have been an Order for the costs of the hearing on 27 July 2023 rather than refusing any extension of the permitted period and period of postponement).
ii.
The Court erred in not considering whether it should, of its own motion, impose a Confiscation Order given the duty to do so contained within section 6(3) POCA 2002;
iii.
It is open to the Court under section 385 SA 2020 to vary the sentence imposed by making an Order which was not made (or applied for) when sentence was imposed, per
Regina v. Menocal [1980] A.C. 598
,
Regina v. Reilly
[1982] Q.B. 1208 and
Regina v. Miller
(1991) 92 Cr. App. R. 191;
iv.
It would be in the interests of Justice to rescind the earlier orders and to proceed under section 6 POCA 2002 and impose a Confiscation Order; and
v.
The Defendant would, otherwise, obtain a windfall benefit as a result of the Prosecution and the Court’s error as to the extent of its jurisdiction to make a Confiscation Order.”
18.
This document was further refined, and shortened, in a skeleton argument dated 16 August 2023. Citations from
Soneji, Johal, Guraj
and
Ahmed
were set out. It is not necessary to deal with those, in view of our conclusions in the main judgment. The hearing on 4 November 2022 was accorded somewhat greater prominence in this document, probably because the transcript of it had been obtained, along with a citation from
Neish
at [11]:-
“Whether it was described as an adjournment or a relisting, in our judgment a decision to put the hearing back to a later date constituted a postponement.”
19.
The following passage from Lord Steyn in
Soneji
at [27] was also not set out:-
“First, lower courts have accepted that, in parallel to the statutory confiscation postponement proceedings, there exists a common law jurisdiction to adjourn confiscation proceedings. In my view section 72A(3) [the predecessor to the “exceptional circumstances” provision in section 14 of the 2002 Act] rules out such co-existing powers. I would rule that there is no such common law jurisdiction.”
Section 385 Ruling
20.
We pay tribute to the care and skill with which the judge addressed the position at the hearing under section 385 of the Sentencing Act 2020. He did not, of course, have the benefit of the main judgment we hand down today.
21.
The Judge recorded that he was not deciding whether to make a Confiscation Order under the 2002 Act, nor whether there were grounds to extend the period of postponement of the confiscation proceedings beyond the 2 year limit under section 14. The judge then explained that he had had little time to prepare for the hearing on 27 July, but had considered the Xhibit log for 4 November 2022 and the decision in
Johal
while doing so. He expresses surprise that prosecuting counsel said in his witness statement that he had been instructed to apply for a further postponement if the case were not dealt with on that day. In fact, according to the transcript, prosecuting counsel had told the judge that there had been an extension of the permitted period to the hearing on 27 and 28 July, see paragraph 7 of the witness statement at [8] above, and the passage from the transcript at [10].
22.
The judge recorded that he had not chosen
not
to make a Confiscation Order, because the prosecution had withdrawn that application, so the only order he could now be asked to vary was the Surcharge Order. The Surcharge Order was not wrong in principle so he refused to vary that order.
23.
The Judge gave further reasoning for his decision, in case “others take a different view” of the reasoning whereby he reached his decision. The prosecution appeared to argue that the prosecution cannot withdraw confiscation proceedings and a Judge was under a duty to continue the confiscation proceedings, based on section 6 of the 2002 Act. The judge did not accept this interpretation of the section. He found that the court was only under a duty to proceed under section 6 of the 2002 Act if the prosecution was asking the Court to make such a determination. If, in every such case, the court was under a duty to decide whether the defendant had a criminal lifestyle and whether he had benefitted, in what sum and to decide the recoverable amount, just in order to check whether the prosecution had made the correct decision, that would take up a vast amount of resources and surely could not have been what the Act intended.
24.
Having considered
Miller
and
Warren
, the Judge was not persuaded that he had made an error, of law or fact, on 27 July 2023 and therefore, section 385 of the Sentencing Act 2020 did not apply. The prosecution had the power to withdraw confiscation proceedings and did so in this case; the court did not make a decision not to make a confiscation order. There was no clear and obvious error to remedy under the slip rule.
25.
The judge held that it could not be said that all parties knew that the final hearing was being postponed to beyond the 2 year limit or that all parties were implicitly agreeing that there were exceptional circumstances that necessitated postponement beyond the 2 year limit. The prosecution misled the court as to the relevant dates in November 2022. No care had been taken at all to comply with the 2 year period, no application was made to ask the court to consider exceptional circumstances and this appeared to be the result of a systemic failure, rather than one-off mistake.
Johal
allowed a Judge to consider whether exceptional circumstances existed retrospectively, but here, as a result of the actions of the Crown Prosecution Service, there were no exceptional circumstances. Moreover, he held that the Recorder, if correctly informed on 4 November 2022 that the permitted period expired on 22 April 2023 would not have considered that there were exceptional circumstances. He would instead have fixed the final hearing for a date before 22 April 2023. The fact that the parties were not in fact ready by then was immaterial because people often take longer to do things if the timetable of the case allows. The judge did not therefore decide whether there were, as of 4 November 2022, exceptional circumstances to justify a postponement to 27 July.
26.
The judge did not deal head on with the proposition that the proceedings had in fact been postponed to 27 July 2023, because he held that the judge who did that had been misled by the prosecution about the end date of the permitted period and thought that he was choosing a date within it. Neither did he deal with section 14(8) of the 2002 Act and the decision in
Soneji
that matters of this kind do not, in any event, go to the jurisdiction of the court.
Grounds Of Appeal
27.
The prosecution applies pursuant to section 31(2) of the 2002 Act for leave to appeal against the decision made on 15 September 2023 to refuse the application, dated 4 August 2023, made under section 385 of the Sentencing Act 2020 to rescind the order made imposing the Statutory Surcharge; and vary sentence so as to make a confiscation order in the proceedings, on these grounds:-
i)
It is submitted that the refusal of the application amounts to a decision not to make a confiscation order, thus conferring jurisdiction on the Court of Appeal;
ii)
The judge erred in refusing the application by:
a)
reading into the guidance given by the Court of Appeal in
R v Warren
[2017] EWCA Crim 226 in relation to applications under section 385 of the Sentencing Act a caveat that it applied only where the Court had made a material error of law and/or fact; and,
b)
adopting too narrow an approach to the question of whether there were exceptional circumstances in this case such as would permit the extension of the period of postponement beyond the permitted period.
iii)
There were exceptional circumstances in this case which permitted the extension of the period of postponement beyond the permitted period;
iv)
Instead, a technical error has been permitted to frustrate the statutory intent of Parliament that offenders be deprived of the proceeds of crime in circumstances where there was no prejudice to the defendant. Permission to appeal should be granted, the appeal allowed and the case remitted under section 32(2)(b) to the Crown Court with a direction that it proceed afresh under section 6 of the 2002 Act.
Respondent’s Grounds Of Opposition
28.
The respondent contends that:
i)
The decision of the judge was not a decision
not
to make a Confiscation Order. Therefore, the prosecution have no right of appeal under s31(2) of the 2002 Act. The refusal to rescind the Surcharge Order under the ‘slip rule’ is not appealable under section 31 of the 2002 Act;
ii)
The Judge took the right approach to the test under the ‘slip rule’;
iii)
The Judge adopted the correct approach to deciding whether there were exceptional circumstances. As set out in his judgment, he considered the relevant authorities. Had the court known of the correct expiry date for the postponement period, an appropriate final hearing date within that period would have been found. The delay was due to the prosecution, with no explanation. The decision was a matter of judicial discretion considering the position as a whole. Nothing exceptional was shown and the Judge made the correct decision not extend the period in the circumstances.
29.
We heard very able submissions from Mr. Perry KC for the prosecution and Mr. Rudolf KC and Mr. Hone, following, on behalf of the respondent.
Discussion and decision
30.
In our judgment it is necessary first to examine the judge’s principal reasoning for his decision on 15 September not to rescind his decision of 27 July not to make a confiscation order. This was that he had not in fact made such a decision. As he put it, he “had no decision to make”. He held that the only decision which had been made was that of the prosecution in withdrawing the proceedings. The only decision which the judge had made was the imposition of the statutory surcharge which was obligatory in the circumstances. He could not therefore vary or rescind anything and the application failed. The rest of his reasoning was intended to deal with various submissions the prosecution had made and explained why, if they had required a decision, he would have rejected them.
31.
This was a very narrow approach to the power he had under section 385 of the Sentencing Act 2020. A miscarriage of justice had occurred on 27 July 2023. No confiscation order was made in a case which was listed for hearing and in which it was agreed that a confiscation order in six figures was appropriate. The dispute was about whether that should have been in the region of £100,000 or £300,000. This was a dispute about the available amount, it being agreed that the benefit figure was very much larger than that. The judge’s conclusion on section 385 was that the court had no power to correct this miscarriage of justice because the author of it was prosecuting counsel on that day, abetted by the failure of the CPS to evidence the postponement which had been granted on 4 November 2022.
32.
Whereas an appeal only lies to this court under section 31 of the 2002 Act from a decision not to make a confiscation order, section 385 of the Sentencing Act is not in such limited terms. It reads as follows:-
385 Alteration of Crown Court sentence
(1)
Subsection (2) applies where the Crown Court has imposed a sentence when dealing with an offender.
(2)
The Crown Court may vary or rescind the sentence at any time within the period of 56 days beginning with the day on which the sentence was imposed. This subsection is subject to subsections (3) and (4).
(3)
Subsection (2) does not apply where an appeal, or an application for leave to appeal, against that sentence has been determined.
(4)
The power in subsection (2) may be exercised only by—
(a)
the court constituted as it was when the sentence was imposed, or
(b)
where that court comprised one or more justices of the peace, a court so constituted except for the omission of any one or more of those justices.
(5)
Where a sentence is varied under this section, the sentence, as so varied, is to take effect from the beginning of the day on which it was originally imposed, unless the court directs otherwise. This is subject to subsection (6).
…….
33.
It is common ground that the conduct of confiscation proceedings is part of the sentencing process for this purpose.
34.
It is to be noted that the 2020 Act does not require some error of law or fact as a condition precedent of the exercise of the power. Specifically, it does not provide that if an error has occurred, there is no power to correct it because the error was that of the prosecutor. It is possible that the phrase “slip rule” suggests a more restrictive approach than the Act requires. The power was first introduced by statute on the creation of the Crown Court by section 11(2) of the Courts Act 1971. The common law power which had previously existed to vary or rescind sentences passed in the Assizes and Quarter Sessions is described in
Menocal
. Lord Edmund-Davies rejected a restrictive interpretation of the new power advanced by Waller LJ in
Grice
see page 611G-E and 612H-613A, saying:-
“My Lords, giving section 11(2) the wide interpretation which I consider should be accorded to it (and with respect, not restricted to mere ‘slips of the tongue or slips of memory’), the action of the trial judge in this case would, as I think, have been entirely proper had it been done timeously. But it was not…”
35.
The later decisions on this power are very often concerned with pointing out what the power should not be used for, rather than providing a gloss on the statute to define comprehensively the circumstances in which it may be used. Nothing we say here casts any doubt on any of those decisions, but they should all be read with that observation in mind.
36.
That the power exists in relation to financial orders ancillary to sentence, and that the time limit is strict, was established in
Menocal, Miller
and
Reilly
. Those jurisdictional requirements were satisfied in this case.
37.
That the power includes a power to increase as well as to reduce sentence was recognised in
Menocal
(see 612E-G per Lord Edmund-Davies) and
Warren
. In
Warren
the court examined earlier authority and elicited 6 propositions at paragraph [22]. None of those propositions state that the power cannot be used to correct an error made by the prosecution which caused the court to act otherwise than as it should. Proposition 2 starts:-
“A judge should not use the slip rule simply because there is a change of mind about the nature or length of sentence but the slip rule is available where the judge is persuaded that he had made a material error in the sentencing process whether of fact or law….”
38.
In our judgment this restriction is a matter of practice not jurisdiction. In restricting the availability of the power to cases where there has been an error, it appears to be in conflict with the wider interpretation favoured by Lord Edmund-Davies in
Menocal
, which does not appear to have been cited. It reflects good sentencing practice. There must be some finality to decision making and a judge should avoid revisiting reasonable decisions. Judges are busy people and do not have time to do every case twice. It is unkind to victims, defendants and others involved in the proceedings and disruptive to the conduct of other cases to convene post-sentencing hearings where they are unnecessary. Where, however, a judge considers that a sentence was, on reflection, wrong (not necessarily in the sense of the tests which the Court of Appeal would apply on an appeal or a reference of an unduly lenient sentence) there is no statutory limit on the freedom to change it. Particular care should be exercised before deciding that a sentence should have been more severe than it was and, in general, a judge would only do so where there was some objective basis for reaching that conclusion. That is a conclusion based on fairness and humanity, rather than on some limit to the power to be found in statute.
39.
The judge also cited
White (Horace)
at paragraph [51]
in which the Court of Appeal made some observations about the proper use of section 385 in a case where the CPS had attempted to persuade the sentencing judge to use it to impose a more severe sentence on an offender. The CPS had written a letter to the court complaining that the sentencing judge had failed to follow the proper procedure and to apply a number of authorities. The judge decided not to increase the sentence, and the scope of the section 385 power was not therefore in issue before the Court of Appeal. The observations of the court about it were entirely appropriate and designed to ensure that “such an attempt to exert pressure on a sentencing judge should not be allowed to occur again.” We echo that. However, the court did not purport to construe section 385 but was, in the passage quoted by the judge, describing how the prosecution might properly invoke it. That was to illustrate the improper approach which it had taken in that case.
40.
At all events, in this case, as we have seen, there clearly were errors of both fact and law which had affected the outcome of the hearing on 27 July.
41.
Prosecuting counsel referred only to
Iqbal
which he had just been shown, and had not fully read, as he told the judge. The judgment in
Iqbal
occupies 5 pages and has 28 paragraphs. It was 13 years old at 27 July 2023 and it would be a reasonable enquiry first to take the necessary 15 minutes to read it, and then to establish whether it had been doubted or followed in the meantime. A search would quickly produce
T, Johal
and
Guraj
. The “tension” between
Iqbal
and
Soneji
referred to in
Johal
and developed in
Guraj
is the subject of this observation in Blackstone’s Criminal Practice at E19.69:-
“Secondly, in
Guraj
[2016] UKSC 65, the Supreme Court agreed (at [37]) that 'the courts will not wish to see the intention of Parliament defeated by technical points taken to stave off meritorious confiscation orders'. The decision in
Guraj
itself followed
Knights
[2005] UKHL 50, where the House of Lords held that flaws in the postponement procedure under the CJA 1988 would not invalidate a subsequent confiscation order if the judge has acted in good faith (see also
Ashton
[2006] EWCA Crim 794). Subsequently, in
Iqbal
[2010] EWCA Crim 376, the Court of Appeal held that, where there had been an order for postponement but no return date set and the confiscation application was not then revived until after the expiry of the permitted two-year period, there was no jurisdiction to proceed. The decision in
Iqbal
was doubted in
T
[2010] EWCA Crim 2703 and does not survive the decision of the Supreme Court in
Guraj
.”
42.
Unlike prosecuting counsel, the judge had an awareness of the authorities and says in his judgment of 15 September that he had considered
Johal
prior to the hearing on 27 July. He also consulted Archbold where there is no equivalent observation to that in Blackstone, cited above. But in paragraph [35] of
Johal
Irwin J notes that “it is possible that there is some tension between the approach taken in
R v. Iqbal
and the approach of their Lordships in
Soneji
.” The court then distinguishes
Iqbal
on the facts and does not apply the principle to be found in it to the facts of the case before it, citing
T
in support of that approach. In our judgment, the judge was aware that the legal position was not as simple as prosecuting counsel appeared to think, and it was apparent that prosecuting counsel was not fully aware of the law. There was a risk that the public interest would be damaged if he was allowed to proceed without properly considering the matter. That was a risk which the judge could have avoided by declining to permit the withdrawal of the proceedings and requiring full argument on the point after counsel had had time to research the law.
43.
Prosecuting counsel was not only wrong about the law, he was also not fully informed about the facts. He correctly told the court at the hearing on 27 July that the permitted period had been extended to 27 July 2023, but was unable to substantiate this when the judge asked whether there had been an application. There does not appear to have been an application, but none is necessary. The court can postpone or extend a postponement of its own motion, see section 14(7)(c) of the 2002 Act. It may be done without a hearing: CrimPR 33.13(12)(c). The order made by Mr. Recorder Waldron KC on 4 November 2022 was, as the judge correctly held on the 15 September 2023, a valid postponement of the permitted period. Mr. Recorder Waldron did not appreciate that this was what he was doing, because he had been misinformed by a different prosecuting counsel about the date when the original permitted period was to expire. Nonetheless, he made an order fixing the hearing for a date after the expiry of the permitted period, and this can only have been a postponement, see
Neish
and
Soneji
at [18] and [19] above. He did that without considering whether there were exceptional circumstances, but that was remediable, see
Johal,
and not in any event a failure which would deprive the court of jurisdiction.
The judge, unlike counsel, had seen the Xhibit note of the hearing of the 4 November 2022, in the absence of anything on the side bar in the DCS or any memorandum or other record of the order. He had some concerns about it, which he did not share with counsel on 27 July, but which he recorded in his judgment on 15 September 2023. The matter is rendered a little unclear in retrospect by counsel’s witness statement, but on the day of the hearing it appeared that the decision of prosecuting counsel to withdraw proceedings on 27 July was taken on the basis that there had in fact been no postponement to 27/28 July 2023. Again, the position was not as clear as this and the court should not have allowed proceedings to be “withdrawn” until it had been sorted out.
44.
“Withdrawal” of proceedings by the prosecution does not bring them to an end. That only occurs when the court decides not to make a confiscation order. This is the plain meaning of section 6 of the 2002 Act, and is a consequence of the duty being placed on the court. Confiscation proceedings are not civil litigation brought for the benefit of the person making the claim. They are driven by the court, acting in the public interest further to its statutory duty under section 6. Once that duty arises, there is nothing in the Act which says that it ceases if the prosecution purports to withdraw the proceedings. Of course, the court will rely heavily on the prosecution in deciding whether to make a confiscation order and in what terms it should be made, but the final responsibility is that of the court. We do not accept that Crown Court judges face an impossible burden in discharging that responsibility. It will often be entirely reasonable to rely on the prosecution. If the prosecutor decides that the continuation of confiscation proceedings is no longer justified by the evidence or the public interest, they should be able to explain why that is so quite succinctly. Where the explanation reveals that proper thought has been given and the outcome is sensible, the court will act on it and will decide not to make a confiscation order. The decision not to make a confiscation order once the court has decided to act in accordance with section 6 is always one for the court. In this case, the judge did not make a confiscation order on 27 July because he wrongly held that the withdrawal of the proceedings by the prosecution, without more, brought them to an end. That is wrong as a matter of law. In the circumstances that misdirection was a decision not to make a confiscation order.
45.
On the facts of this case, the explanation given by the prosecutor for the decision to withdraw the proceedings was manifestly flawed as a matter of fact and law as we have explained. The judge should have refused to act in accordance with it and heard submissions from all sides. If he was satisfied that the proceedings had been postponed on 4 November 2022 to a two day hearing starting on 27 July 2023 he should have established whether that order was challenged on the basis that the Recorder who made it had not decided whether there were exceptional circumstances to justify the postponement after the two year permitted period. He should then have decided whether it was arguable that this failure deprived the court of jurisdiction unless remedied. If so, the judge should have applied
Johal
and the broad view of “exceptional circumstances” required by
Soneji
, see the main judgment. The late arrival into already complex proceedings of two third parties whose fair trial rights had to be protected by the court when proceeding under section 10A of the 2002 Act was an exceptional circumstance. In fact, Mr. Recorder Waldron fixed the first date for the hearing which the court offered which was convenient to the parties. It is well known that waiting times in the Crown Court for 2 day fixtures where custody time limits do not apply are very long, given the exceptional circumstances which have contributed to the current backlog. As events were to show, the preparation for hearings of this kind takes longer than perhaps it should, see the respondent’s application for an extension of time made on 29 April 2023 at [5](xi) above. For all these reasons there clearly were exceptional circumstances which justified fixing the hearing for 27/28 July 2023 and granting the necessary extended postponement. The judge was plainly wrong to find otherwise. He was exercised by various failures by the prosecution, but none of these was the cause of the decision of the court in November 2022 to fix the hearing for 27 July 2023.
46.
On 15 September the judge had knowledge of all relevant facts and significant assistance from new counsel to deal with the law. He should have concluded that his decision (for that is what it was) not to make a confiscation order on 27 July should be rescinded and he should have granted a further postponement to a fixed hearing date, and given any necessary directions.
47.
However, the matter does not end quite there. This is a prosecutor’s appeal under section 31(2) of the 2002 Act. Such an appeal only lies against a decision not to make a confiscation order. That decision was taken on 27 July and not 15 September. We do not consider that section 31(2) gives the prosecutor a right of appeal against a decision under section 385 of the Sentencing Act 2020. Accordingly, the appeal as advanced cannot succeed. In a footnote to the Application for Permission to Appeal, the prosecution contemplated this possibility. They said:-
“If the Court of Appeal concludes the Learned Judge erred, and had decided not to make a confiscation order on 27 July 2023 an application is made to extend the time permitted for the lodging of this application. The reason it has been served at this time is the Prosecution first invited the Court to reconsider the matter pursuant to
section 385 SA 2020
(the
“slip rule”
) as it considered that was the appropriate course where the reason no order was made was because the Court was in error as to whether there had been a valid extension of the period of postponement which could then be corrected by a finding of exceptional circumstances.”
48.
The court floated in argument the possibility of allowing an amendment to the appeal to challenge the decision of 27 July 2023 and Mr. Perry KC said that he would seek to proceed that way if we decided in the way explained in this paragraph, and relied on this footnote. This would require an extension of time. It was common ground that he usual principles for the grant of such extensions apply. In this case, the appeal as so formulated has strong merits and allowing it to be advanced out of time would cause no prejudice to the respondent or the interested parties. The issues have been fully argued before us and no further delay is involved. Whether the judge took a decision on 27 July and, if so, whether that decision was obviously wrong, are questions which have been central to the appeal as formulated and we have received full submissions on them from both parties to the appeal.
49.
It would not be in the interests of justice for the prosecution to fail in its appeal because of the way it formulated its challenge when the substance of that challenge is meritorious. A great deal of public time and money has been invested in these proceedings and it is in the public interest that they should be brought to a conclusion on the merits.
50.
It would have been prudent for the prosecution to appeal against the decision of the 27 July as well as making its application under section 385. That application should, as we have held, succeeded and if so it would have rendered pursuit of the appeal unnecessary. If it had failed, as it did, then a further challenge could have been added to the appeal at that stage, if so advised.
51.
Accordingly, we grant:-
i)
leave to amend the Notice of Appeal to challenge the decision not to make a confiscation order made on 27 July 2023;
ii)
the necessary extension of time;
iii)
leave to appeal in respect of the new challenge now permitted.
52.
For the reasons which we have set out in full above, we are satisfied that the judge erred in principle and on the particular facts of the case in deciding that because the prosecution withdrew the proceedings he “had no decision to make”. This conclusion was a decision not to make a confiscation order and the appeal as now formulated is allowed. The Crown Court will be directed to proceed afresh, which in this case means that there should be a review hearing in which the court will proceed as the judge should have done on either 27 July or 15 September 2023. This must be fixed within 28 days of the handing down of this judgment. A hearing date will then be fixed, an extension of the permitted period will be granted to that date, and any further necessary directions will be given. Whether or not the circumstances of this case were exceptional before, they certainly are now.
53.
We have no jurisdiction to set aside the statutory surcharge order made on 27 July 2023. The judge should have done that on 15 September but no appeal lies against that decision. There has been no appeal against the surcharge by the respondent. It ought not to have been made in the first place because of section 15(2)(ca) of the 2002 Act. Its continued existence does not obstruct the continuation of the confiscation proceedings. Blackstone at E19.68 deals with the matter in this way:-
“….a postponed confiscation order is not invalidated simply by the making of such orders beforehand (
Guraj
[2016] UKSC 65, and see
Sachan
[2018] EWCA Crim 2592, where the order erroneously imposed during the period of postponement was a compensation order which did not invalidate the subsequent confiscation order, and likewise
Bristowe
[2019] EWCA Crim 2005, which concerned a 'victim surcharge').”
54.
The significance of the making of a financial order within section 15(2) of the 2002 Act before the confiscation order is made is that section 14(11) is disapplied by section 14(12) of the Act. The impact of that is explained by
Guraj
which on this issue is binding on us. A confiscation order made after the Crown Court proceeds afresh in compliance with the directions of this court will not be liable to be quashed because of any defect or omission in the procedure connected with the application for or the granting of a postponement. | ```yaml
citation: '[2024] EWCA Crim 340'
date: '2024-04-16'
judges:
- LORD JUSTICE EDIS
- His Honour Judge Richardson KC, Sitting as a judge of the Court of Appeal Criminal
Division
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| NCN: [2019] EWCA Crim 1633
No:
201902837 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 3 September 2019
B e f o r e
:
LORD JUSTICE SIMON
MRS JUSTICE McGOWAN DBE
MR JUSTICE FREEDMAN
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
R E G I N A
v
KAYLEIGH WOOD
Mr S Lloyd
appeared on behalf of the
Attorney General
Mr S Parry
appeared on behalf of the
Offender
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd, Lower Ground, 18-22
Furnival Street, London, EC4A 1JS, Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
J U D G M E N T
LORD JUSTICE SIMON:
1.
The Solicitor General seeks leave to refer a sentence passed on Kayleigh Wood (aged 25),
under section 36 of the Criminal Justice Act 1988, as being unduly lenient.
2.
The sentencing judge was His Honour Judge Berkson and the sentence was imposed at the Crown Court sitting at Chester on 4 July 2019, following the offender's plea to count 2 on an indictment, an offence of encouraging or assisting the commission of an offence,
believing that it would be committed contrary to section 45 of the Serious Crime Act 2007.
3.
A co-defendant, Jack Robinson, had also pleaded guilty (in his case to count 1), the offence which the offender had encouraged or assisted. This count charged arson with intent to endanger life, contrary to section 1(2) and (3) of the Criminal Damage Act 1971, having
deliberately set a fire at a block of flats at Pennine Court, Macclesfield.
4.
The offender was initially charged on both counts but at a plea and trial preparation hearing on 15 March she pleaded not guilty to count 1 and guilty to count 2, and that plea was accepted by the prosecution and no evidence was offered on count 1. On 4 July Robinson was sentenced to a 12 year extended sentence of imprisonment, consisting of a custodial term of 8 years and a 4 year extended licensed period. The offender was sentenced to a term of 2 years' imprisonment suspended for 18 months. She was also ordered to carry out 200 hours of unpaid work and to pay a victim surcharge.
5.
Since the crimes of the two defendants are closely linked it is necessary to refer to Robinson's offence, although his sentence is not the subject of a reference - a point made
by Mr Parry who appears on behalf of the offender.
6.
Jack Robinson had previously been in a relationship with Katie Burness, who lived in a high rise tower block (Pennine Court, Carisbrook Avenue, Macclesfield). This consisted of 15 floors and 92 flats (all of which were occupied) and which housed around 246 people, including vulnerable people, some of whom had mobility issues. There were two secure
communal doors for access.
7.
On the day before the offence Robinson had been sending Ms Burness text messages from about 8.45 pm on 11 February into the early hours of the 12 February 2019. He sent a series of messages threatening to set fire to the flats. He accused her of "shagging someone else" and stated that she never loved him. He said he was going to kill her and burn her alive. During that time Robinson also made it clear in text messages to the offender (with whom he was in a relationship) that he was going to set someone's home on fire. She replied: "No you're not, I'm on my way". Robinson responded "I am. Leave it Kayleigh". The messages indicated that he was initially trying to put her off. He messaged: "Don't come, I'm going to kill this kid. Watch." He later said: "If you love me
you'll take me to do this."
8.
At 3.26 am on 12 February the offender's car was seen at a Shell petrol station. The offender was driving and Robinson was in the passenger seat. Robinson purchased £7 of petrol and a canister containing the same. He paid using the offender's card. At about 3.45 am
Robinson poured petrol over and around the front entrance communal doors to the flats.
He set it alight and then fled. In doing so he intended to endanger the lives of the occupants.
9.
Having driven him to the scene the offender waited for Robinson and then drove him away.
Immediately following the setting of the fire, Robinson sent a text message to Katie Burness telling her to look outside the flat. At 4.20 am he sent another text message telling her that she got what was coming to her. Fortunately the fire did not take hold. It
went out once the fuel was spent.
10.
A fire officer of the Peaks and Plains Housing Department explained that the tower block had a fire alarm system, it was cladded in non-combustible material with fire rated paint on the walls. She confirmed that damage was caused to the front entrance door and that the surrounding areas were charred. Had the fire spread beyond the entrance the outcome
could have been catastrophic.
11.
In her police interview the offender made admissions as to her involvement but claimed that she was acting under threat of physical violence from Robinson. She said she had driven to meet him with a view to calming him down. They drove to the forecourt of the petrol station where he bought the fuel although she said that she tried to stop him. She drove him to the scene knowing that he was going to set a fire outside the flat. She drove him away from the scene to the home of one of his friends. It was put to her that there were messages on her phone the next day revealing that she was offering to hide him from the police at her home, and she then commented that she felt controlled by him but she also
wanted to be with him. The offender had no previous convictions.
12.
A pre-sentence report was prepared. It noted that the offender had been in a number of abusive relationships and it was her intimate relationship with Robinson that linked her to the offending behaviour. The exact cause of her fixation and attachment when entering into new relationships was unclear. Being a victim of domestic abuse would have been a traumatic experience and while Robinson was not physically violent towards her, he made repeated threats to punch her during the commission of the offence. In her circumstances it was understandable that the offender may have believed he would carry out these threats
especially when considering his erratic and aggressive behaviour.
13.
The author of the report noted that her infatuation with Robinson appeared to have underpinned her willingness to comply with his demand. She did not seek to justify her actions because of the level of coercion Robinson placed on her. She was assessed as a
low risk of re-offending and a low risk of causing serious harm in the future.
14.
The report noted that she was a single parent to an 8-year-old daughter and her primary concern was for her daughter and the impact on them being separated. Although she confirmed that her mother would be able to care for her daughter, the report observed that custody would have a detrimental effect on the offender and her daughter. Her risk of
re-offending and the risk of serious harm could be managed effectively in the community.
15.
Katie Burness had declined the opportunity to provide a victim personal statement.
16.
A business impact statement was provided on behalf of Peaks and Plains Housing Department. Immediately following the fire the incident was discussed on social media by residents and local neighbours, emotions were running high and the office received calls from concerned residents of the tower block. At that stage the suspect was unknown and staff had to reassure residents, most of whom were elderly and vulnerable including people with mobility issues. As a result a security firm were hired at extra cost during the night-time periods (costing over £1,000 over a period of three nights). Police uniformed patrols were asked to assist in reassuring the community. None of the residents witnessed the fire while it was alight but the impact afterwards was described as "huge". If the fire had caught and the building ignited there would have been loss of life and damage to
property. A new main door had been installed at a cost of over £1,000.
17.
At the sentencing hearing the prosecution referred the judge to the case of
R v Myrie
and the suggested starting point of 8 - 10 years for an offence of arson with intent to endanger life. The prosecution identified that the arson offence was motivated by animosity on the part of Robinson towards Ms Burness and was an act of vengeance. The offence was
planned; and he had also involved the offender. The use of fuel as an accelerant was itself an aggravating feature in relation to the arson. The building targeted was substantial and had the potential for a large number of vulnerable victims. Furthermore, the prosecution observed that Robinson's antecedent history aggravated the offence: he had 11 previous convictions for 22 offences, including robbery in 2008, 2012 and 2016, and he was on licence in relation to the 2016 robbery at the time of the offence. It was also noted that
alcohol played its part so far as he was concerned.
18.
In terms of mitigation, the prosecution observed that the fire did not take hold and damage was limited.
19.
In relation to the offender the prosecution highlighted that a person convicted of an offence contrary to section 45 of the Serious Crime Act 2007 was liable to any penalty for which he or she would be liable on conviction of the anticipated or reference offence. The judge
remarked that he was required to "scale down" the sentence depending upon the
encouragement and assistance given whilst having "some reference" to the main offence.
20.
During the hearing Robinson said to the judge "she was forced to do it"; and the offender relied on his wider coercive behaviour in mitigation. The prosecution observed that the offender had chosen to participate and had chosen to travel to meet Robinson, although he had made it clear to her what he was planning to do. The prosecution accepted that "to a certain degree she was in his thrall" and that "perhaps there were elements that were
threatening in relation to Robinson's behaviour".
21.
Counsel for the offender (then as now) Mr Parry relied on the pre-sentence report and the references from family members. He submitted that her role was limited to assisting Robinson to get to the petrol station to obtain the petrol, to driving him to the scene of the
incident and then driving away afterwards. She had initially gone to try and calm Robinson down. At the petrol station Robinson had told her to get out, fill the canister and pay for it. She refused. She was crying and hysterical and continued to plead with him not to do it. Threats were made. There was no actual violence but she was frightened and
through that fear she drove him onto the address feeling that she had no choice.
22.
The offender had, since the incident, sought out Ms Burness to apologise to her for the part she had played in the offending and that apology had been accepted. Counsel observed
that the offender had for a number of years suffered with anxiety and depression, and had been receiving counselling. She had been in previous abusive relationships. She came from a close and supportive family. The impact on her daughter of imprisonment would be enormous. The crime was entirely out of character. She set out to try to do the right thing but under pressure became involved to a limited degree and had expressed genuine
remorse.
23.
In passing sentence the judge noted that the prosecution had recognised by accepting the plea to count 2 that the offender had not been jointly involved in the arson with intent to endanger life. But nevertheless it was a serious case of assisting in a serious crime.
Counsel for the offender acknowledged that it passed the custody threshold.
24.
The judge gave full credit to pleas of guilty. The offender was aware of what Robinson was threatening to do and was concerned by it. Nevertheless she drove him to a petrol station, then to the scene and then away again after the offence. Robinson had put at risk
the lives of every occupant of the flats.
25.
The judge took account of the fact that the offender had no previous convictions and the letters written in support. He noted that in contrast Robinson had a number of previous convictions including robbery with weapons. At the time of the index offence he was on licence for a robbery committed in 2016. He noted that Robinson felt guilty about getting the offender involved and had shown remorse. The judge recognised substantial mitigation in the case of the offender. He took account of both culpability and harm in reaching sentences. He found that Robinson's crime was aggravated by the fact that he had, in his
own words, "forced" the offender to become involved.
26.
In relation to the offender, the judge observed that he must have regard to the main offence in assessing her culpability and the harm caused. It had been accepted by the prosecution she did not have the same motivation as the co-defendant and that she was somewhat in his
thrall at the time.
27.
The judge also had regard to the impact of any sentence upon the offender's young child for
whom she was the primary carer. The judge then passed the extended sentence of imprisonment on Robinson. In relation to the offender the judge observed that her offending crossed the custody threshold "by some margin", particularly in view of the serious nature of Robinson's crime. Having taken account of the mitigation, the appropriate custodial term after a trial would have been a term of 3 years. That was reduced by one-third to reflect the plea of guilty. Due to her exceptional mitigation and the significant impact on others by an immediate sentence the judge suspended the sentence for a period of 18 months. He attached a community order of 12 months with an order that
she carry out 200 hours of unpaid work.
28.
For the Solicitor General Mr Lloyd drew attention to the aggravating features of Robinson's crime: it was an act of vengeance; preplanned; fuel was used as an accelerant; the property was targeted and was substantial; the premises were occupied at the time and the crime endangered a large number of victims; he had involved the offender; his conduct was affected by substance misuse; he had a bad antecedent history and he was on licence at the
time.
29.
These points are significant so far as the sentencing of the offender is concerned. First, to the extent that the sentence for assisting the offence must bear a relationship to the sentence for the offence which was assisted or encouraged many of these aggravating features: previous offences; substance misuse and offending while on licence did not apply to the offender. Second, one of the aggravating factors identified by the Solicitor General (involving the offender) is a matter that favours the offender so far as the seriousness of
her criminality is concerned.
30.
The Solicitor General also identified those factors which reduced the seriousness of Robinson's offending: whatever his intentions the fire in fact did not take hold and the
damage was limited.
31.
So far as the offender is concerned, it is submitted on the Solicitor General's behalf that the serious nature and characteristics of the reference offence (arson with intent) made the encouraging or assisting offence more serious. Against this it is acknowledged that there was substantial mitigation. A degree of coercion falling short of duress, previous good character, her remorse, the impact of an immediate sentence of custody on her 8-year-old
daughter for whom she was the primary carer.
32.
The Solicitor General has referred the court to a number of authorities on sentencing for the offence of arson with intent:
Attorney General's Reference No 68 of 2008 (R v Myrie)
[2009] Cr App R(S) 48;
R v Trickett
[2016] EWCA Crim 1604
;
R v Young
[2016] EWCA Crim 678
and
R v McKay
[2018] 1 Cr App R(S) 26. Those cases throw light on the appropriate sentence for the Reference offence but, as we have noted, no complaint is
made about the sentence passed on Robinson - a term of 8 years with a starting point of 12
years.
33.
More directly in point Mr Lloyd submitted that the offence of encouraging or assisting, contrary to section 45 of the 2007 Act, carries by reason of section 58(3) the same maximum sentence as the anticipated or reference offence. It was for this reason that this court in a number of cases has said that it is relevant to consider the potential scale of the anticipated or reference offence (see
Watling (Mark
)
[2013] 2 Cr App R(S) 37 at paragraph 13;
R v
Hall
[2013] EWCA Crim 2499
at paragraph 29 and
R v Woodford (Anthony)
[2014] 1 Cr App R(S) 32
, at paragraphs 12 - 13).
34.
Mr Lloyd submitted that the sentence imposed on the offender was unduly lenient. The index offence of arson with intent was a preplanned act of vengeance by Robinson
knowingly assisted by the offender. A fire was started at the entrance to a large residential block which housed a number of vulnerable people. Although it did not catch or spread, the consequences of a fire could have been catastrophic. Significant custodial sentences were required in relation to both Robinson and the offender. As the authorities indicate the judge was required to have regard to any guidance in relation to the reference offence (in this case the index offence of arson with intent). Robinson's starting point was identified as 12 years' imprisonment had there been a trial. However, the judge did not appear to have any regard to the relevant guidance (
Myrie
) in considering the offender's sentence, nor any regard to Robinson's identified starting point of 12 years' imprisonment. He ought to have considered the sentence the offender might have received had she had been convicted of the index offence herself. Given the nature of the building and the other circumstances to which our attention has been drawn, he should have identified as a starting point a sentence in the region of at least 9 years' imprisonment. The sentence would then have had to be reduced to reflect the offender's mitigation which of course included a degree of coercion, previous good character and the fact that she was the primary carer for her 8-year-old daughter. The sentence would then also fall to be adjusted by virtue of the fact that she was convicted of the offence of encouraging and assisting as opposed to the reference offence of arson with intent. Taking all these matters into account, the judge ought to have arrived at an overall sentence of no less than 6 years' imprisonment and, with full credit for plea, the sentence ought to have been no less than 4
years' imprisonment.
35.
For the offender, Mr Parry has submitted today that the judge plainly had in mind the sentence for the reference offence, as is clear from the discussion during the sentencing hearing. He notes that Robinson's sentence of 8 years has not been referenced, and points to the distinction between Robinson's case and that of the offender. The offending by Robinson was very much more serious, and this was properly reflected in the different sentences. He draws attention to the fact that the offender was pressurised by Robinson, that she was of good character, she had been isolated and it was an abusive relationship.
There was her remorse, she was in employment and she cared for her young daughter.
These matters were strong personal mitigation bore materially on the sentence. In contrast, Robinson was on licence at the time, he was of bad character and he was a dangerous offender. Mr Parry submitted that it was an exceptional case and the sentence, although merciful, was justified by the circumstances. He also informed us that by the end of today the offender would have completed 63.5 hours of work that the sentence required of her.
36.
We have considered these submissions. The seriousness of the offence under section 45 of the Serious Crime Act 2007 will depend, as is clear from the cases of
Watling
,
Hall
and
Woodford
, on the seriousness or potential scale of the anticipated or reference offence. This is because as the court explained in
Woodford
at paragraph 12, where the offending is charged under section 45 the essential element of the offence, unlike that under section 44, is that the offender believed that the full offence would be committed and that his or her
action would encourage or assist its commission.
37.
In the present case we are satisfied that the judge did have regard to the case of
Myrie
. However, the seriousness and potential scale of the reference offence is only part of the enquiry. It is also important to assess the degree of the assistance or encouragement. The difference in degree of such assistance or encouragement may be marked: on the one hand, there may be assistance which is close to participation in or conspiracy to commit the Reference offence. In such cases the sentence for section 45 offending maybe close to the sentence for the reference offence
. Watling
and
Woodford
were examples of such cases, importing or supplying cutting agents for the use in the supply of Class A drugs. As the court expressed the point in
Watling
at paragraph 13, the appellant's "culpability was high and his role was pivotal". However, a defendant’s role may not be pivotal and it will be necessary in any event in forming a view about the seriousness of the offending to assess the degree of assistance or encouragement provided. This is what the judge meant when he referred to "scaling down" the sentence depending on the degree of assistance or
encouragement provided, while having regard to the reference offence.
38.
In the present case there was assistance, much of it unwilling but little, if any, encouragement. Rather the contrary. Robinson told the judge that he had "forced" the offender to become involved. The judge himself noted that she was somewhat in "thrall" to Robinson at the time and the Solicitor General acknowledges there was "a degree of
coercion falling short of duress".
39.
Of course she should not have assisted Robinson and in becoming involved in the way she did she committed a serious crime which fully justified a custodial sentence. However, we do not accept the Solicitor General's submission as to the way in which the sentencing should have proceeded. The seriousness of the offending was not simply to be measured
by reference to Robinson's much more serious offending.
40.
In our view, the judge carefully reflected on this sentence and his approach both accorded with principle and resulted in a just and merciful sentence. Although we grant leave, we decline to interfere with this sentence. | ```yaml
citation: '[2019] EWCA Crim 1633'
date: '2019-09-03'
judges:
- LORD JUSTICE SIMON
- MRS JUSTICE McGOWAN DBE
- MR JUSTICE FREEDMAN
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
2008/6571/A6
Neutral Citation Number:
[2009] EWCA Crim 893
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 7 April 2009
B e f o r e
:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE KING
HIS HONOUR JUDGE RADFORD
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 72 OF 2008
- - - - - - - - - - - - - - -
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 G Patterson
appeared on behalf of the
Attorney General
Mr A Khan
appeared on behalf of the
Offender
- - - - - - - - - - - - - - -
J U D G M E N T
1.
THE VICE PRESIDENT: Her Majesty's Attorney General seeks leave to refer under
section 36 of the Criminal Justice Act 1988
a sentence of two years' imprisonment imposed for an offence of robbery. We give leave.
2.
The offender had a dispute of some kind with a man called Clarke. It may have been, as the offender suggests, over a small amount of money, claimed by Clarke and disputed by the offender, connected with the supply of cannabis. It may have more to it. We simply do not know and make no assumptions about where the merits of any dispute may have lain.
3.
Mr Clarke had a girlfriend with whom he sometimes lived and with whom he had a small daughter, two years old. She had two elder children also, aged 11 and 6 at the material time. Her home, whether or not it was sometimes occupied also by Mr Clarke, was the home of herself and those three children.
4.
The robbery which the offender eventually admitted was of her in her home and it was clearly in pursuit in some manner of the dispute between the offender and Clarke. It was carried out however when Clarke was not in the house and was known not to be in the house. The occupants of the house were the woman and the three children.
5.
The offender had been to the house two previous times that day. He had first gone there in the middle afternoon. He had seen the complainant lady. He had demanded to see Mr Clarke and had been told that he was not there. The complainant told the offender to go away. Eventually he did but only after he had banged repeatedly on the door to make his point. A little later that afternoon he came again and turned up in the back garden. This time the complainant spoke to him from an upstairs rear window, told him in no uncertain terms to go away and although she had not in fact telephoned the police she told him that she had. He left. Neither of those encounters however deterred him from what then ensued.
6.
Just after 7 o'clock that evening, by which time it was dark, the complainant was at home with all three of her children. The offender came back. This time he had brought with him two other men as "frighteners". The other two smashed their way into the house through the front door whilst the offender attracted the attention of the complainant householder by knocking on the back door. The two unknown assistants to the offender were disguised by masks of some kind covering part of their faces and one of them had in his hand a 12-inch crowbar which no doubt had been used to force entry but remained in his hand as he marched into the house and confronted the occupants.
7.
The complainant householder and her children were faced with these three intruders, two of them masked and one of them carrying a crowbar. They were faced with demands for money and the intruders set about searching through the drawers in the kitchen. The complainant did her best to say that there was no money and eventually that there was at least some loose change in the living room and she told them where they could find her mobile telephone to take away. Eventually the intruders left, reinforcing as they went the demand that the police should not be told. They had contrived to steal not a great deal but two mobile telephones and two bank cards. They left behind disturbed furniture: drawers pulled out, cupboards ransacked and of course the damage to the front door.
8.
The children had been present throughout the whole of this. The eldest boy, 11 at the time, had seen and recognised the offender and accordingly it was necessary for him to be interviewed under the Achieving Best Evidence procedure and he remained until the morning of the trial a potential witness in the Crown Court. His recorded account of the incident demonstrates that the robbers were making remarks such as "If I don't get some money I'm going to get vexed." It is not difficult to imagine how frightening this noisy and potentially violent intrusion must have been to the complainant and each of her children. Certainly the 11-year-old frankly said that he was very scared by what had happened and after the event the complainant recorded that the incident had left a significant mark on the children. They were over-cautious and over-anxious if the door should be knocked, one of them was no longer willing to go to nursery and the elder boy needed an escort to and from school. These are the kinds of real impacts which offences of this kind are apt to have on those who are the targets.
9.
Whatever may have been the dispute between the offender and Clarke, and whatever may have been the faults of either or both of them, the victim of this offence was not Mr Clarke but his partner and children. The impact of the offences can only have been reinforced by the fact that in the evening after it had taken place and, on the following day the offender used one of the stolen telephones to telephone the complainant's mother and made it clear that if he did not get to speak to Mr Clarke he would be back. So although it is right to say that no physical violence was used directly on any of the occupants of the house and although it is right to say that there were no overt threats beyond what was implicit in what the robbers were doing, this was a noisy, violent and thoroughly threatening intrusion and the threat was reinforced by what the offender chose to say on the telephone in the aftermath.
10.
The offender is 23 years of age. This was not his first conviction. Leaving aside some earlier minor offences, on 19th November 2004 he was sentenced in the Crown Court for two offences of robbery. They were group offences (as was this one), they were street robbery offences in fact committed on a bus - on two occasions on the same day with three or four others in each case. The offences had been committed on 5th May 2003. It was not until November 2004, for some reason, that sentence was passed, but the total sentence was one of 21 months. The offender was, as we understand it, released from that previous sentence in August 2005. Between then and this offence (which was in October 2007) that is to say for a period of a little more than two years, he had not offended seriously - there had been a caution for some kind of battery but that was all - and it is right to say that he had, despite a rather mixed relationship with his family, got himself a series of proper jobs and had begun to demonstrate that he was capable of earning an honest living. All that said, it follows that the court had to deal with a man whose first offence this was not and who had in his background a very relevant conviction for rather similar offences of robbery.
11.
This court has considered the appropriate general level of sentencing for robberies committed in the home in two cases in particular. They are
Attorney General's Reference Nos 38 to 40 of 2007 (Crummack)
[2008] 1 Cr.App.R (S) 56
at 319 and
Attorney General's Reference No 124 of 2008 (Doran)
[2008] EWCA Crim. 2820
. It is not necessary to recite the analysis of which the genesis is to be found in
Crummack
and a briefer re-statement in
Doran
. Some sensible relationship needs to be had in relation to offences of this kind with the kind of street robbery or robbery of small business premises which are dealt with specifically by the Sentencing Council Guidelines, but even absent the kind of very serious robbery in one's own home with serious violence, which would attract sentences comfortably into double figures, those cases demonstrate that the intrusion into a complainant's home significantly raises the level of sentence beyond that of a street robbery, all other matters being equal. In the present case there is the additional factor that the victim was known to be a woman and children and the offender had recruited intimidating assistance and had a previous conviction for robbery.
12.
The offender pleaded guilty but at a late stage. The case was listed for trial. His plea was entered on the first day of the trial. We accept from Mr Khan that a few days beforehand when the case had been listed for pretrial review it had been possible for Mr Khan to give an indication to the Crown that a plea might be forthcoming and it may be that in consequence witnesses, particularly the (by then) 12-year-old, may not have had to come to court on the day of the trial. It does not alter the fact of course that the child would have lived for some months with the expectation that he was going to have to and may have had to visit court on an earlier occasion to see the sort of place in which he would be expected to give evidence. In those circumstances limited reduction would be possible for the plea of guilty, but certainly nowhere near the kind of one-third reduction which it is possible and right to give to those who frankly admit their guilt at an early stage and enable, amongst other things, the complainants to know that their evidence will not be contested.
13.
In all the circumstances, we have no doubt that the sentence passed of two years was not only lenient but was unduly lenient. Had there been a trial this offence would, as it seems to us, have called for a sentence in the very general region of seven years. Given the plea and the circumstances in which it was tendered, and making such limited allowance as it is right to make for the fact that the offender is being sentenced for a second time, we quash the sentence of two years' imprisonment and we substitute for it a sentence of five-and-a-half years. Time in custody of 161 days will count towards that sentence in the usual way. | ```yaml
citation: '[2009] EWCA Crim 893'
date: '2009-04-07'
judges:
- MR JUSTICE KING
- HIS HONOUR JUDGE RADFORD
- S.36 OF THE CRIMINAL JUSTICE ACT 1988
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No: 201401659 C4, 201401814 C4, 201602628 C1, 201602631 C1, 201701474 C1, 201701476 C1, 201702315 C1, 201702318 C1
Neutral Citation Number:
[2017] EWCA Crim 1228
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT AND THE CROWN COURT AT LIVERPOOL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
11/08/2017
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LADY JUSTICE HALLETT
Vice President of the Court of Appeal Criminal Division
and
MR JUSTICE GOSS
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Respondent
- and -
Janhelle Grant-Murray and Alex Henry
Applicants
Regina
Respondent
- and -
Joseph McGill, Corey Hewitt and Andrew Hewitt
Applicants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Sallie Bennett-Jenkins QC
for the
Applicant Grant-Murray
David Bentley QC
and
Peter Marshall
for the
Applicant Henry
Jacob Hallam QC
for the
Respondent in the first application
Henry Blaxland QC
and
Shahida Begum
for the
Applicant McGill
Joel Bennathan QC
and
Joanne Cecil
for the
Applicant Andrew Hewitt
Mr Tim Moloney QC
and
Jude Bunting
for the
Applicant Corey Hewitt
NR Johnson QC
and
Anya Horwood
for the
Respondent in the second application
Hugh Southey QC
for the
Intervener in the second application, The Equality and Human Rights Commission
Tom Hickman
for the
Ministry of Justice
in the application on sentence in the second application
Hearing dates: 14 and 15 June and 11 and 12 July 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Thomas of Cwmgiedd, CJ:
This is the judgment of the court to which we have all contributed
1.
These two renewed applications for leave to appeal, (1) R v Grant-Murray and Henry and (2) R v McGill, Corey Hewitt and Andrew Hewitt, were heard together as the grounds raised related to the decision of the Supreme Court in
R v Jogee
[2016] UKSC 8
.
In addition, the second application raised issues relating to the trial of young defendants in the Crown Court.
THE APPLICATIONS OF GRANT-MURRAY AND HENRY
2.
On 12 March 2014 at the Central Criminal Court before HH Judge William Kennedy and a jury, the applicants Grant-Murray and Henry were convicted of the murder of Taqui Khezihi (the deceased) and the wounding of his brother Bourhane Khezihi with a knife contrary to s.18 of the Offences Against the Person Act 1861. Their co-accused, Cameron Ferguson, changed his plea to guilty on both counts. A further co-accused, Younis Tayyib, was acquitted. Henry was sentenced to life imprisonment with a minimum term of 19 years, less time on remand.
3.
The applicants renew their application for leave to appeal after the Single Judge refused their application. The grounds are:
i)
The judge erred in his rulings relating to the admission of bad character evidence; and
ii)
The judge misdirected the jury on joint enterprise following the change in the law in
R v Jogee
[2016] UKSC 8
; an extension of time is needed for this ground of appeal. It is contended there would be a substantial injustice if the conviction was not quashed.
iii)
Fresh evidence has become available evidence of Henry’s subsequent diagnosis of autism; he makes an application under s.23 of the Criminal Appeal Act 1968 (the 1968 Act) to call medical evidence.
iv)
‘Fresh evidence’ emerged at the sentencing hearing of Ferguson when Ferguson’s counsel admitted on his behalf that he had inflicted the fatal wound to the deceased and the wound to his brother. Grant-Murray makes an application under s.23 of the 1968 Act to call evidence of counsel’s submissions.
Factual background
4.
Shortly before 3 p.m. on the afternoon of 6 August 2013 the four defendants, who knew each other well, were together at the Arcadia shopping centre in Ealing Broadway. Grant-Murray and Tayyib left together and headed along the Mall, Ealing towards the latter’s home in Northcote Avenue, a street which ran south from the Mall. Henry and Ferguson remained at the shopping centre for a while.
5.
The deceased, his brother, Bourhane, and two friends, Thompson and Tijani went in Tijani’s car to the
Costcutter
supermarket which is on the corner of Northcote Avenue and the Mall. When they arrived the deceased’s brother Bourhane and two of the others went into the
Costcutter
supermarket.
6.
As Grant-Murray was walking down Northcote Avenue, he encountered the deceased and his friends on Northcote Road, where they were standing by their car. A spontaneous confrontation occurred between Grant-Murray and the deceased and his brother Bourhane; it is not clear why the confrontation took place, but it may have been triggered by a stare. Tayyib arrived and attempted to act as a peacemaker.
7.
Grant-Murray walked away, but he was followed by the deceased and his friends. The confrontation continued and steadily escalated. At about 3.09 p.m. Grant-Murray went into
Costcutter
and took a bottle of wine. He then returned to confront the group with it. Bourhane took off his belt and held it ready to use as a weapon if necessary. A CCTV camera showed them in Northcote Avenue at about 3.09 p.m.
8.
At about 3.10 p.m. Grant-Murray used his phone to make a call to a friend who was not one of the defendants. Bourhane gave evidence that Grant-Murray said “bring the nank” which he understood as a request that a knife be brought to the scene. Grant-Murray denied saying this. Grant-Murray also made two calls to Ferguson. It was accepted by the prosecution that the calls did not connect and therefore nothing was said to Ferguson.
9.
The deceased and Bourhane crossed the Mall into a side road, Hamilton Road, that ran in the opposite direction to Northcote Avenue. Grant-Murray and Tayyib followed them, Grant-Murray holding the bottle.
10.
Henry and Ferguson by this time had left the shopping centre and were walking along the Mall towards the junction with Northcote Avenue. At 3.12 p.m. CCTV showed them on the Mall. A witness described hearing Grant-Murray shout “hurry up come on”. As they approached they ran across the Mall to join Grant-Murray and Tayyib who were on the other side of the Mall.
11.
Bourhane heard Grant-Murray shout that he and his brother were “fucked now”. A violent confrontation took place a short way into Hamilton Road after its junction with the Mall. It was observed by numerous witnesses; none of these saw knives used. Bourhane claimed he saw Ferguson and Henry with a knife. The deceased and Bourhane were both stabbed in the back. This part of the incident was not captured on CCTV, but the police subsequently found the bottle of wine taken by Grant-Murray discarded in some bushes just off Hamilton Road.
12.
At 3.13 p.m. CCTV recorded Ferguson crossing the Mall and then running up Northcote Avenue. He can be seen carrying a belt which came from the deceased and Ferguson’s bloodstained polo neck shirt was found discarded in an adjoining street. Ferguson, Grant-Murray, Henry and Tayyib met up later in Ealing.
13.
It was Henry’s evidence that Ferguson confessed to stabbing the deceased and his brother.
The trial
The respective cases of the prosecution, Henry and Grant-Murray
14.
The prosecution case was that after the confrontation began, Grant-Murray called one of his friends to ask him to bring a knife, although it was accepted in the course of the trial, as we have set out, that Grant-Murray did not ask Ferguson to bring a knife as the call did not connect. However, when Grant-Murray saw Ferguson and Henry had arrived in the Mall after he had crossed the road in pursuit of the deceased and his brother, he called for their assistance knowing they would be armed, as was their habit, with knives. All four men were involved in a joint attack on the two brothers. It was the prosecution case that the persons who stabbed were Ferguson and Henry.
15.
Grant-Murray and Henry both said that that they had no knowledge that Ferguson or any other co-accused was in possession of a knife.
Ferguson’s plea
16.
On the sixth day of the trial Ferguson pleaded guilty to both counts. The prosecution case following this plea was that there was adequate evidence to show that Henry also stabbed the deceased. Alternatively, the prosecution contended he was guilty on the basis of secondary liability, as were Grant-Murray and Tayyib.
17.
After Ferguson’s plea there was discussion regarding the precise basis upon which he had pleaded as it was contended by the other defendants that it was relevant to the trial as a whole. Ferguson’s legal team said that Ferguson was unwilling to see Henry’s legal team. His counsel said:
“[Henry’s] solicitor has no right to see my client. Advantage is being taken of the fact that he is at the Central Criminal Court and he would not be able to be seen in Belmarsh.”
Further legal argument followed. Counsel for the others expressed concern that if there was no clarity about the basis of plea, and particularly whether Ferguson accepted responsibility as a principal, they would be unable to address a jury with certainty and clarity regarding the positions of their own clients. However, the judge concluded that the position of the other defendants was largely unaffected by the plea. They were entitled to address the jury on the basis that Ferguson was a principal, and whether the evidence supported that contention was a matter for the jury.
18.
The judge’s direction to the jury in his summing up was that Henry could either be convicted on the basis of primary or secondary liability. He further directed that Ferguson’s plea could not by itself prove anything except the murder of the deceased and the offence against Bourhane and Ferguson’s participation in the commission of each offence.
19.
Following the conviction of Henry and Grant-Murray it became clear during sentencing that Ferguson’s basis of plea was that he had stabbed both the deceased and Bourhane.
20.
We turn to the grounds of appeal.
Ground I: There would be a substantial injustice as the directions given did not accord with the law as established in the decision in
R v Jogee
21.
The ground relating to
R v Jogee
, was not before the single judge as his decision was made before the judgment of the Supreme Court. As the application was made out of time and in respect of a change in the law, both Grant-Murry and Henry had to establish that substantial injustice would arise if their appeal was not allowed: see
R v Johnson and others
[2016] EWCA Crim 1613
.
22.
The direction of the judge made clear to the jury that before they could convict either Grant-Murray or Henry as a secondary party, they had to be sure that he:
i)
knew that a knife had been taken to the scene by another; the judge emphasised the need for proof of knowledge of the knife, as distinct from belief or suspicion.
ii)
anticipated (or realised) that that other person would or might use that knife intentionally to kill or to cause grievous bodily harm and
iii)
participated in the stabbing by intentionally encouraging another or intentionally assisting it to happen; they had to be sure that his intention by his actions or words when present at the scene was to encourage or to assist the stabbing.
23.
Thus it must be clear that the jury concluded, if they convicted Henry on the basis of secondary liability and Ferguson on that basis, that each knew Ferguson had a knife and participated in the attack with that knowledge. It would have been a ready inference that each knew Grant-Murray would or might intentionally use the knife to kill or cause really serious bodily injury. As regards Grant-Murray, his shouting out “you’re fucked now” after the arrival of Henry and Ferguson was powerful evidence that he appreciated that they were armed and would use the knives to kill or cause really serious bodily injury. There is therefore no basis for contending that if the jury had been directed in accordance with the law as set out in
Jogee
it would have reached a different conclusion on the evidence before them. There is therefore no ground upon which it can be contended that substantial injustice would arise.
24.
Henry, however, further contended that, if we admitted the fresh evidence relating to his autism, we should approach the issue on the basis of the law as set out in
Jogee
and not the former law. We defer considering that issue until we have determined the admissibility of the evidence of autism – the third ground of the application.
Ground II: The admission of bad character evidence
25.
This ground is advanced by both Grant-Murray and Henry. It is necessary briefly to set out the background.
Application to adduce bad character evidence of Bourhane
26.
Bourhane gave evidence in which he stated that neither he nor his brother were aggressive people, and that they had seen nothing like the present circumstances since they were aged about 11 or 12. Defence counsel sought to adduce bad character evidence going to the aggression and credibility of both Bourhane and the deceased; each had convictions for offences of violence.
27.
The judge gave a preliminary ruling indicating that if such bad character evidence were adduced, it would entitle the prosecution to adduce the previous convictions of the accused. The application was withdrawn following this preliminary ruling.
The previous convictions of Grant-Murray, Henry and the other defendants
28.
Grant Murray had a number of previous convictions. Three related to knives:
i)
His conviction on 21 September 2010 of possessing a bladed article in a public place. Police officers had seen him in a group; when they approached, he ran away and was seen to throw an object into some bushes. In the bushes the police found a small, silver coloured lock knife.
ii)
His conviction on 9 December 2011 of harassment and possession of a knife. He had been among a group which included Tayyib who were threatening another young man. Grant-Murray and Tayyib were part of the group that was in joint possession of a knife.
iii)
His conviction on 8 April 2013 of possession of a knife. He had been stopped on 5 April 2013 in Home Farm Road, Ealing and found to have a small silver coloured lock knife in his trousers. The blade was approximately 5cm long and the width approximately 2cm at its widest point. The handle of the knife was approximately 7cm long; it was fitted with a clip.
29.
Henry also had a number of previous convictions dating from June 2007 for assault and other offences. He had a conviction for possession of a bladed article in a public place. This conviction was on the same day (8 April 2013) and at the same court as Grant-Murray, though the offence related to a different incident. Henry was seen by police officers in Osterley Park Road in Southall. He had pulled an item from his trousers and discarded it. It was seized and found to be a small silver coloured lock knife; the blade was approximately 5cm long and the width approximately 2cm at its widest point. The handle of the knife was approximately 7cm long; it was fitted with a clip.
30.
Tayyib and Ferguson each had one conviction for possessing a knife, respectively on 9 December 2011 and 17 May 2012.
Admission of bad character evidence
31.
The prosecution subsequently applied to adduce the convictions of Henry, Grant-Murray and Tayyib under s.101(1)(d) of the Criminal Justice Act 2003 (CJA 2003) and that of Ferguson under s.101(1)(b). It was submitted that the convictions were admissible as evidence as it was significant evidence showing that each knew that it was likely that the others were carrying a knife that day.
32.
All the defendants argued that previous convictions for possession of a knife could not, in the context of a spontaneous and unplanned confrontation, be relevant to the question of knowledge that Ferguson (and/or Henry) were armed with a knife. Moreover, although the prosecution presented their submission as a matter in issue between the prosecution and the defence, they were in fact making an argument about propensity. This was logically flawed; there was no evidence to support knowledge of a knife prior to the spontaneous explosion of violence.
33.
The judge held that the convictions demonstrated a familiarity with the possession, production and use of knives in violent encounters in public places, and so met the test of relevance and admissibility under the CJA 2003.
The submission on the appeal
34.
It was initially submitted on behalf of Grant-Murray that the judge had been wrong in both his rulings; the application in respect of the first ruling was abandoned before us. The point pursued before the single judge and us by both Grant-Murray and Henry was that the judge had been wrong in his second ruling because the convictions could not be relevant to the issue as to whether the defendants knew it was likely that the others would carry a knife.
35.
In a short but characteristically succinct decision, the single judge rejected this ground of appeal as unarguable. The previous convictions for possession of knives were relevant and admissible as they made it far more likely that Grant-Murray did call for a knife over the phone, that Ferguson and Henry came to the scene themselves carrying knives, that Ferguson and Henry each knew that the other was carrying a knife and when Grant-Murray said upon arrival of Ferguson and Henry to the other group that they were “fucked now”, he did so because he knew that Ferguson and Henry arrived armed with knives.
36.
In our view, the single judge was unarguably right and we therefore refuse the renewed application. It is not necessary for us to say more as the reasoning of the single judge was as full as the point deserved. No arguments of any different kind were advanced before us.
Ground III: Application to adduce fresh evidence relating to Henry’s autism
The background to the application
37.
It was clear from the materials placed before us that Henry had a significant history in relation to behavioural problems which originated at least from 2002; he was assessed on several occasions to ascertain if he had any mental illness.
38.
No reliance whatsoever was placed on his having any mental illness during the trial.
39.
After his conviction his mother, Dr Halsall, sought evidence of Henry’s mental illness. She, apparently, has some kind of medical training as a clinical psychologist, although no proper information was made available to us about her medical specialism. We understand that in 2014 she was employed as a clinical trials manager of the psychology Department of the Institute of Psychiatry in London.
40.
She provided a statement to the court in support of the application to adduce fresh evidence from Professor Baron-Cohen. We heard
de bene esse
the evidence of Professor Baron-Cohen, Professor of Developmental Psychology at the University of Cambridge and Director of the Autism Research Centre at Cambridge University. We then suggested a waiver of privilege and the production of all documents relating to Henry’s medical history, as neither Professor Baron-Cohen nor those instructing him had sought to obtain such a history before he arrived at his assessment of Henry having autism.
Henry’s medical history and the position at trial
41.
Pursuant to the order we made, some material was produced. It is necessary to set it out in some detail as the prosecution relied on it in support of their submission that the evidence of Professor Baron-Cohen should not be received under s.23 of the 1968 Act:
i)
Henry was born on 3 December 1992. His parents separated in 2000 and went through an acrimonious separation and divorce.
ii)
He was first referred to the Child and Adolescent Mental Health Service for assessment in February 2001 when he was 8 on the basis of his disruptive behaviour. Although the family was offered two appointments, they did not attend. He was referred again in August 2002 when he was 9. As the report of Dr Ndukwe of the neurodevelopmental team at Windmill Lodge, Southall (a unit of the Child and Adolescent Mental Health Service (CAMHS) run by the West London Mental Health Trust) set out, no evidence of mental illness could be diagnosed. The assessment showed he was a very anxious child who probably felt overwhelmed by the hostility between his parents after an acrimonious separation. There was the possibility of mild depression. Thereafter there were frequent reviews of his progress and condition; reports showed he had friends and enjoyed being the centre of attention.
iii)
In May 2006, he was assessed by Ms A Hilton, a consultant family therapist at Windmill Lodge, after his exclusion from school in March 2006. He was placed on a treatment waiting list. He was again assessed by a senior social worker in September 2006; this showed his home life did not provide boundaries for behaviour appropriate to his age. The medical notes disclose continued supervision. His mother, Dr Halsall, asked whether a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) or Autism Spectrum Disorder was being considered, though she had only seen him once a week since 2002 as she found him difficult to control. Henry described his activities as including football, Sudoku, bike rides and socialising or hanging out with friends.
iv)
On 21 November 2006, he was assessed by Dr Rebecca Martyn, a clinical psychologist at Windmill Lodge, as the school from which he had been expelled thought he might have ADHD. His previous history was reviewed. The doctor concluded that his behavioural problems stemmed from his parents’ acrimonious divorce and the large amount of unsupervised time outside the home.
v)
In May 2007, Henry and a co-defendant assaulted two males; he punched them in the groin. A Youth Offender Panel assessment recorded that he was said by his father to be a member of a gang; he told the panel he had about 20 friends whom he preferred to be with. The report noted he appeared to have a large friendship group.
vi)
In June 2007, when he was 14, he was assessed by two educational psychologists employed by Ealing Borough Council who produced a report dated 7 July 2007. By that time he was living with his father, but out a lot on his own and involved with the MDP gang; he had been permanently excluded form school. His mother considered he had characteristics of ADHD, Obsessive Conduct Disorder and Conduct Disorder. Various recommendations were made as to his future, but there was no diagnosis of any mental illness.
vii)
In the autumn of 2007, Henry’s mother wrote expressing her concerns as to the risks posed by Henry to himself and others; in her view there were signs of obsessive compulsive disorder. She asked for therapeutic intervention to prevent this. In the autumn of 2007 and early 2008 there were extensive meetings of experts responsible for his behaviour, including the youth offending team, as he continued to commit criminal offences and to be member of the MDP gang and heavily involved in its activities. It was agreed during these meetings that there were no symptoms to do with ADHD or autistic spectrum disorder. He was noted as being a bright 15 year old who was articulate and charismatic.
viii)
On 21 June 2008 Dr Dee Arnand, a chartered psychologist with very extensive experience, produced a report for the Acton Youth Court in respect of a serious case of assault and false imprisonment Henry committed with 9 others. The lengthy and thorough report set out a detailed analysis of Henry’s history, a record of the interview with Henry and his father, the assessment of Henry. The report noted that there was not enough evidence to make a diagnosis of Conduct Disorder, though he exhibited some of its traits. He may have exhibited some symptoms of predominantly Hyper-active type ADHD. There was no suggestion of autism. The report recorded that Henry saw his mother for an hour once a fortnight and his association with others in criminal activity had had a significant impact on his behaviour.
ix)
In April 2009, he was charged with using threatening and insulting words or behaviour with a group of 4 other boys; the Youth Offender panel report recorded that he had a large group of friends with whom he was besotted; he was progressing on a Prince’s Trust Course. He was made subject to an anti-social behaviour order.
x)
Later in 2009, he lived with his mother in Aylesbury for 9 months as part of his conditions, but this terminated when she handed him back to the Ealing Youth Offender Service in December 2009. A report in March 2010 recorded he had been mixing with a different group in Aylesbury and was doing well; when he moved back to live with his father he resumed contact with his associates in Ealing.
42.
Although he was represented by Mr McCorry, a solicitor on several occasions, Mr McCorry was never informed and never perceived that Henry suffered from any form of mental illness or disability.
The reports and evidence of Professor Baron-Cohen
43.
Henry’s mother approached Professor Simon Baron-Cohen in April 2015 and the Professor agreed to assist him
pro bono
. Professor Baron-Cohen runs a clinic for people “seeking a diagnosis of autism”.
44.
He first examined Henry in June 2015 for two hours at the prison at which Henry was held. He thereafter received an anonymous letter stating that Henry was ‘pulling the wool over his eyes’. He therefore examined him again on 17 December 2015 in the same prison.
45.
The only previous medical history of which the Professor had knowledge at the time he made his reports and gave evidence to us was the report of two educational psychologists employed by Ealing Borough Council and dated 4 July 2007 to which we have referred at paragraph 41(vi). As Professor Baron-Cohen explained to us, he had received information from Henry’s mother relating to Henry’s background; he considered he could reach a diagnosis without any knowledge of the medical history beyond the one report to which we have referred. He said he took into account the mother’s motivation in wanting to prove her son had autism.
46.
In his reports and in his oral evidence to us Professor Baron-Cohen gave his diagnosis that Henry had autism at the time of the murder of the deceased. It was a neurodevelopmental condition which meant that the brain developed differently. It had two principal effects: first it affected social development and communication; second it produced narrow interest obsessions, a difficulty in adjusting to social change and sensory hypersensitivity.
47.
From what he had been told by Henry’s mother and from Henry’s own account to him, Henry had shown both of these characteristics. There was no doubt he had autism at the time of the murder. It was not uncommon for the diagnosis to be overlooked, as autism was sometimes described as an “invisible disability”.
48.
His autism would have had two principal effects:
i)
Difficulty in properly processing in his mind the circumstances as they presented themselves to him on the day of the murder and therefore making any decision in relation to the attack on the deceased. His autism may have led him to believe in a black and white morality requiring him to protect his friend; as the incident in which Henry was involved lasted so short a time, his autism would have given rise to sensory overload and therefore may have made it difficult to assess the consequences of his actions. This could go to his “no comment” interview and to his comprehension of Ferguson’s intention to use the knife. Without an awareness of Henry’s autism the jury would not have known how Henry’s mind and brain worked and how it might affect his behaviour, particularly when under stress; common sense inferences would not necessarily be drawn.
ii)
Difficulty in communicating. Although Henry was capable of effective participation at the trial and giving a coherent logical account, his autism would have been relevant to the jury’s assessment of his credibility, as autism affected both verbal and non-verbal communication skills. If advised to make a no comment interview, he might just rigidly apply that advice, though he had of course not done many things he had been told to do. Knowing he had autism might affect the way in which the jury interpreted his answers.
49.
Professor Baron-Cohen also considered that autism would have been relevant to his previous convictions, as being aggressive can be part of autism.
50.
The prosecution in cross-examination challenged the diagnosis on the basis that Professor Baron-Cohen had not obtained Henry’s full medical history and had relied on the account of Henry’s mother which was self-serving. She had, for example, provided evidence of Henry’s obsessions; of his lack of friends; and saying he could not travel on his own when he clearly could. Professor Baron-Cohen did not know of other material matters such as Henry’s fondness for football and playing it with friends and his visits to youth clubs.
51.
On being shown the transcript of the evidence given at trial by Henry in relation to his reaction when he arrived at the scene, he accepted that someone with autism would be able to interpret who was being confronted and how that person might have felt if confronted; it was quite a simple emotional situation. He accepted that Henry was able to give a coherent account of what he and other people did; he re-phrased his view to say that as those with autism might have sensory overload, “it may mean that his decision making during the incident was not optimal”.
52.
After seeing the additional material which we have summarised at paragraph 41, Professor Baron-Cohen stated in a report dated 11 July 2017 that the reports of Henry’s assessments of August 2002 and July 2007 set out symptoms consistent with a developmental history of an autism spectrum condition which was not diagnosed. His report did not contain the kind of analysis of a defendant’s history that the court ordinarily would expect in a case of this seriousness, though the members of the court have noted other occasions when some psychologists have given an opinion without obtaining the full medical history or providing an analysis of it.
The submissions
53.
It was argued on behalf of Henry that the evidence of Professor Baron-Cohen should be accepted as showing that Henry had autism at the time of the murder of the deceased. This was fresh evidence which could now have been called at trial, as despite all the referrals made in respect of Henry, autism was never diagnosed. Knowledge of autism would be relevant to the assessment of the state of mind of Henry at the time of the incident and to his credibility. It would therefore be important for the jury to know of the diagnosis just as knowledge of Asperger’s syndrome was found by this court to be similarly relevant and of assistance to the jury in
R v Thompson
[2014] EWCA Crim 836
at paragraphs 30 to 34. We do not think that case is of any real assistance, as it is the duty of the court to consider in each case the relevance of such evidence to the issues in the case; a court is not assisted by cases that may, as
Thompson
did, turn on their own facts.
54.
It was submitted that the court should consider the new evidence in relation to the law as set out in
Jogee
as what was not required was a conditional intent; his autism would be relevant to determining whether he had that conditional intent.
55.
It was also submitted on his behalf that if we accepted that the fresh evidence should be admitted, we should substitute a conviction for manslaughter rather than order a re-trial.
56.
The prosecution submitted that the court could not be sure that Professor Baron-Cohen’s evidence was capable of belief as no disclosure had been made of the medical history and privilege had not been waived. After the prosecution had received the medical history we have set out, they contended that the evidence of Professor Baron-Cohen was not capable of belief as the account given by Henry and his mother on which Professor Baron-Cohen had based his opinion was at variance with what the reports disclosed – particularly:
i)
Those who had examined him over the years who had obtained information from a wide variety of sources had found he was not suffering from autism spectrum disorder.
ii)
Henry was out-going, had many friends and was capable of presenting himself in many guises.
iii)
For the greater part of the time between 2002 and the murder in 2013, he had been residing at his father’s home; he was only with his mother for limited periods and she could not therefore give the necessary information to Professor Baron-Cohen
57.
There was nothing to show that there was a reasonable explanation for the failure to adduce the evidence at the trial. In any event the prosecution submitted that there was no basis for saying that Henry’s autism as described by Professor Baron-Cohen could be relevant to the decision of Henry to participate in the attack on the deceased and his brother. It could only go to the ability to explain himself.
Our conclusion
58.
This court made clear in
R v Erskine
[2010] 1 WLR 183
,
[2009] 2 Cr App R 29
the approach that should be adopted to the receipt of fresh evidence under s.23 of the 1968 Act.
“Virtually by definition, the decision whether to admit fresh evidence is case- and fact-specific. The discretion to receive fresh evidence is a wide one focussing on the interests of justice. The considerations listed in
subsection (2)(a) to (d)
are neither exhaustive nor conclusive, but they require specific attention. The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted. Therefore if they were not deployed when they were available to be deployed, or the issues could have been but were not raised at trial, it is clear from the statutory structure, as explained in the authorities, that unless a reasonable and persuasive explanation for one or other of these omissions is offered, it is highly unlikely that the “interests of justice” test will be satisfied.”
59.
In determining the interests of justice we have therefore looked particularly at the information provided to Professor Baron-Cohen, his evidence and his reports, the circumstances in which the trial took place and what must have been known to those representing him and the effect such evidence would have had if it had been before the trial court. We have also taken into account the well-known test in
Pendleton
[2001] 1 WLR 72
namely, whether, if such evidence had been before the jury whether it might reasonably have affected the decision of the jury to convict. Ultimately, we have to determine whether to admit the evidence by taking into account these factors in considering whether it is in the interests of justice that the evidence be admitted.
60.
We have no doubt about the expertise and integrity of Professor Baron-Cohen. However, in assessing his evidence, we have taken account of the fact that he expressed his views without obtaining the full history of Henry, considering it and analysing it for the benefit of the court. It is in our view insufficient simply to say that the diagnosis of autism is often missed without, in a case such as this, carefully analysing and explaining why over a 10 year period, despite protestation by Dr Halsall to the professionals involved, those who had examined him and worked to try and help Henry had been so wrong. Furthermore, although Professor Baron-Cohen told us that he had discounted Dr Halsall’s motivation, the information provided to him was limited by the fact that Henry had only lived part of his time with her; the much more significant material was that to be found by a careful and critical examination and detailed analysis of the information relating to the time he had spent with his father, as set out in the extensive history. Even when Henry had spent time with his mother at Aylesbury in 2009, a report shows he had friends; those friends and a change of location had led to a considerable improvement in his behaviour. This was in contradistinction to his behaviour when he was with the friends and gangs with whom he associated in Ealing when living with his father who provided little, if any, supervision or structure to his life. Henry was not a person on the materials before us who was of the type described by his mother as socially isolated or as someone who spent time in his room on his own.
61.
Furthermore, in the light of the detailed history we have set out, we would have expected a detailed explanation from the lawyers who accepted they had acted for him for sometime as to why no one had obtained a medical report for the trial. We have had no such proper explanation.
62.
Finally, we have assessed the two ways in which it is said that knowledge of the autism might have had an effect. It seems to us, having regard to all the evidence, that it can have had no effect on the issue of Henry’s thinking process at the time of the murder in the respects identified by Professor Baron-Cohen. Henry’s own evidence did not show he had any such difficulty; he explained he went to the aid of a friend and acted as he did to protect his friend and himself. Even Professor Baron-Cohen accepted, as we have set out at paragraph 51, the autism which the Professor diagnosed “may mean that his decision making during the incident was not optimal”.
63.
Nor in our judgment would knowledge of autism (on the assumption that Professor Baron-Cohen’s evidence was accepted by the jury) have had any material effect on the assessment of his credibility, taking into account the very significant amount of additional information about his background and his association with gangs and his long history of criminality that would have had to have been put before the jury.
64.
Therefore taking into account all these factors in reaching our judgement in the interests of justice under s.23 of the 1968 Act, we decline to receive the evidence. This ground of appeal therefore fails.
The position of Grant-Murray
65.
Although this ground of appeal relates primarily to Henry, it was also relied upon by Grant-Murray. It was submitted that if the court concluded that if the jury had known of Henry’s autism and this might have made a difference to the decision of the jury on Henry’s credibility, then this would also have had an impact on the position of Grant-Murray.
66.
We would not have accepted this submission, even if we had admitted the evidence of Professor Baron-Cohen. The judge carefully directed the jury to consider the position of each defendant separately and carefully summed up the evidence against each. They would therefore have assessed the
mens rea
of each and the credibility of each. There is no basis for saying that if fresh evidence had been admitted in relation to Henry, it could have any effect on the safety of the conviction of Grant-Murray.
Ground IV: The effect of Ferguson’s plea
67.
Grant-Murray sought to adduce Ferguson’s basis of plea as advanced by his counsel in his submissions as fresh evidence. Henry had initially also sought to rely on this ground, but abandoned it at the hearing of the appeal.
68.
The single judge refused leave for a number of reasons. Each was sufficient in itself to make this ground of appeal unarguable. Following his plea Ferguson was competent and compellable at the trial. If his evidence was to be relied on, as appears to be the case for this argument to have been pursued on appeal, it is impossible to discern a reasonable explanation for the failure to adduce the evidence at trial. Even if he were not a cooperative witness; that was the time at which to call him, not on an appeal. It was therefore not fresh evidence. Moreover, there was no statement from Ferguson; it was therefore difficult to understand what ‘fresh’ evidence exists that could be admitted at a new trial. Even if there had been, that would not have obviated the need to call him at a trial.
69.
This ground of appeal is hopeless.
The application for leave to appeal against sentence
70.
It was submitted that in the event we dismissed the renewed application in respect of conviction, we should review the sentence passed on Henry as his autism was a mental disability and was therefore a mitigating factor under paragraph 11(c) of Schedule 21 to the CJA 2003.
71.
For the reasons already given, we do not accept that the evidence of Professor Baron-Cohen and his diagnosis of autism, provides any significant mitigation for the offence. At worst Henry suffered from mild mental illness that was immaterial to his culpability for murder. It is not therefore a factor to which the trial judge would have given much, if any, weight in assessing the length of the minimum term, if he had been informed about it. The trial judge fully and fairly reflected all the relevant aggravating and mitigating factors in the sentence imposed. Accordingly, the application for leave to appeal against sentence must fail.
THE APPLICATIONS OF MCGILL, ANDREW HEWITT and COREY HEWITT
72.
The applicants McGill, Andrew Hewitt and Corey Hewitt were convicted of the murder of Sean McHugh (the deceased) at the Crown Court at Liverpool before the Recorder of Liverpool, HH Judge Goldstone QC, and a jury on 7 May 2014. Their co-accused at trial, Reece O’Shaughnessy and Keyfer Dykstra, were also convicted of murder. A further co-accused, Francis Lowe, was acquitted of both murder and manslaughter. McGill, Andrew Hewitt and Corey Hewitt were all sentenced on 9 July 2017 to be detained at Her Majesty’s Pleasure, with minimum terms of 9 years for McGill, 9 years for Andrew Hewitt and 6 years for Corey Hewitt, less time on remand.
73.
Each applicant applies for an extension of time of between 2 to 3 years in which to make applications for leave to appeal against conviction and sentence. The reasons advanced for the grant of the extensions of time is that none of the applicants’ instructed trial counsel lodged grounds of appeal; fresh counsel have been instructed and the applicants would suffer substantial injustice if time were not extended. All applications, including applications to rely on fresh evidence have been referred to the Full Court by the Registrar.
Factual background
74.
The facts relating to the murder and respective cases for the prosecution and defence can be summarised shortly.
75.
The evidence before the court was that the defendants at the trial were members of a gang known as the Laneheads; they met at a cinder path near to a laundrette in Priory Road, Anfield, Liverpool where they kept their weapons. The deceased was from Walton, Liverpool. It was believed he had been a member of a gang known as the Walton Village Heads which was involved in a fight with the Laneheads gang. Dykstra, a member of the Laneheads, had been stabbed in July 2013. The gang had shouted they were going to kill the deceased.
76.
On 30 September 2013 the deceased, aged 19, and a friend, Josh Williams, went to the Liver Laundrette to wash his clothes. A dispute arose and he ran back into the laundrette at 7.03 p.m. He was followed two seconds later by Keyfer Dykstra (then aged 14), and a second after that by McGill (then aged 13). The deceased threw his phone to the proprietor, Collette O’Donoghue, and asked her to call the police. She did so. He barricaded himself inside a small room at the back of the laundrette. Dykstra was at that time unable to open the door leading into the back and left the laundrette followed by McGill. Dykstra, who had a knife in his hand, pursued the deceased’s friend, Josh Williams, who had fled from the laundrette.
77.
The main room was covered by a CCTV camera; the back room was not. McGill returned to the laundrette and kicked at the door to the back room where the deceased was hiding; he then spread liquid detergent on the floor outside the door. Within 4 seconds Andrew Hewitt (then aged 14) and Corey Hewitt (then aged 13) arrived with other youths. Efforts to open the door failed. They left.
78.
Forty five seconds later McGill returned, followed 25 seconds later by Andrew Hewitt, Corey Hewitt and by O’Shaughnessy (then aged 19) who carried a sheathed swordstick. Within 7 seconds they had been joined by Dykstra. The youths made several efforts to force the door open. Corey Hewitt threw a bottle of detergent against the door. They all left.
79.
After another 45 seconds McGill, Corey Hewitt and Andrew Hewitt, returned. Further efforts were made to force the door. Next to appear was Keyfer Dykstra. Five minutes and 8 seconds after the deceased had first closed the door on his pursuers it was forced open by Dykstra and Andrew Hewitt.
80.
No sooner had they gone in than Corey Hewitt and McGill ran through the launderette towards the back, together with a hooded youth, alleged by the prosecution to be Francis Lowe. McGill was in the back room for 8 seconds. As McGill emerged from the back room Reece O’Shaughnessy ran through carrying the swordstick. Within seconds of his going in, Andrew Hewitt ran out. The first to emerge after Andrew Hewitt was the hooded youth, then 26 seconds after he had gone in, O’Shaughnessy, this time holding the sheath of the swordstick. Twenty five seconds after him, Dykstra ran out, followed 4 seconds later by Corey Hewitt carrying the blade of the swordstick.
81.
In the 6½ minutes or so after the deceased had first run into the laundrette and shut himself in behind the door leading to the back, he had been fatally stabbed by the swordstick, either inside the room or outside in the alley. A black-handled knife in two parts bearing DNA which matched Dykstra, but none of the other defendants, was left on the floor of the back room.
82.
The deceased left the premises, bleeding, and died of his wounds a few days later. No injuries were caused to anyone else. The evidence of the pathologist was that the fatal injury was consistent with having been caused by a sword.
83.
The evidence of three of the other witnesses was significant:
i)
The manageress of the laundrette was in the back room when the deceased, who was panicky and scared, ran back in. She heard the door being kicked and banged. She could hear shouting, words to the effect of “We’re going to get you. We’re going to hurt you. We’re going to fucking kill you.” After she had called for the police on the deceased’s mobile phone, she went outside at the back of the premises. The banging on the door stopped momentarily. She heard more banging and shouting. Suddenly someone was on the floor with more than one person standing over him. She heard more than one person shout, “We’re going to fucking kill you” whilst the deceased was on the ground.
ii)
Philip Seery, who was in the vicinity saw the chase back to the laundrette and the attempts by the youths to open the back door. They appeared to be encouraging each other. He was told by the group that the man in the laundrette had “stabbed one of our mates”.
iii)
Sara Overend, a teaching assistant at Joseph McGill’s school said that on 1 October 2013 he had told her that he would not be in school the following day. He had been carrying a knife and his friend had used it. The comments were made to her in a fitness class and repeated in a maths class, adding ‘something about a laundrette’.
The prosecution case at trial
84.
The prosecution case was that the behaviour of the applicants and their co-accused bore the hallmarks of a gang, calling themselves ‘the Laneheads’, and what they had in mind when they went after the deceased was to take part in or watch a revenge attack for an earlier stabbing of Dykstra. The gang had a regular meeting place nearby on a cinder path where they kept and replaced weapons for their use whenever the need arose. Although the jury might not be able to be sure who delivered the fatal stab wound to the deceased, they could be sure that they were separately and together lending themselves to an attack to which they knew a blade or blades would be taken and would be used or there was a real risk that they would be used.
85.
As against each of the applicants the prosecution case was:
i)
McGill had admitted in interviews that he was a gang member, had a connection to the cinder path used by the gang and had been there with Dykstra, Corey Hewitt and Andrew Hewitt earlier in the evening. He joined the chase of the deceased because he was told to by a boy on a bicycle whom he would not name but was admitted to be Dykstra. He followed the deceased into the laundrette. Dykstra kicked at the backroom door, as did he. Dykstra eventually kicked through the door and pulled a knife, which he later described as a ‘little machete’, out of his waistband. He said he left as he did not wish to become involved and that he did not know any of those chasing was armed with a weapon. He thought the group would chase the deceased, give him a beating and then let him go. He sprayed the detergent on the floor to make the chasing group slip up and not to hinder the deceased. The prosecution also relied on the CCTV recording of his behaviour by spraying liquid detergent on the floor, and spreading it around, kicking the door and poking at a letterbox in the door, and the evidence of Sara Overend, the teaching assistant, said the he had a knife and his friend had used it. He did not give evidence.
ii)
Corey Hewitt, in interview, admitted being present but initially said he did not see any weapon and was not aware of any swordstick. In his fourth interview, he said O’Shaughnessy had stabbed the deceased, poking him in the thigh more than once; he picked up the knife that had been thrown down by O’Shaughnessy, to provide cover for him. In evidence, he said he followed others into the back room in order to watch the fight. He saw the swordstick, which was pulled from its sheath by O’Shaughnessy, who prodded the deceased to his leg with it. The deceased went out of the back door to the alleyway. He followed Dykstra back through the laundrette picking up the sword from the floor, in order to protect O’Shaughnessy.
iii)
Andrew Hewitt had said in interview that the deceased had threatened to kill him that night. He admitted that he had tried to kick open the door but had no intention of doing anything once he got through the door. He was hit by something and ran out of the back room. He did not hear any threats to kill. In his third interview he said he had seen a “big knife” being pulled out by Reece O’Shaughnessy but he had not seen the stabbing. He did not give evidence.
The defence case made by the applicants at trial
86.
The case made by each of the applicants can be summarised:
i)
McGill’s case was that what he had said in interview was the truth. He was only in the back room for less than 8 seconds. There was no reliable evidence to demonstrate that he knew about the presence of a knife, far less that he intended or foresaw that it would be used. He left before the swordstick arrived into the backroom. Sara Overend was unreliable, his DNA was not found on the knife and his remarks were misunderstood.
ii)
Corey Hewitt’s case was that he lacked the foresight to be part of a joint enterprise.
iii)
Andrew Hewitt’s case was that he was not part of a gang and met the others by coincidence. The swordstick was produced shortly before he left the room; he would have had little time to see it and was not in the vicinity by the time it was used. He had no intention to kill or cause serious injury.
The grounds of the applications for leave to appeal
87.
As we have said, the renewed applications were made two to three years after the trial by freshly instructed counsel and not by those who had represented the defendants at trial; McGill’s application was made on 20 May 2016, Corey Hewitt’s was made on 30 March 2017 and Andrew Hewitt’s on 22 May 2017. Each of the applicants therefore required a significant extension of time for their applications for leave to appeal and to satisfy the court that they met the threshold.
88.
The grounds for the applications contained initially many more grounds than were relied on by the end of the application before the court. The bases on which the applications were advanced by that time were the following:
i)
All three applicants rely on grounds relating to misdirection on joint enterprise following
R v Jogee
[2016] UKSC 8
, and regarding the personal characteristics of the applicants.
ii)
Each applicant contends that he was unable properly to participate in the trial and therefore his right to a fair trial was breached.
a)
McGill who was born on 5 October 1999 was aged 13 at the time of the murder (though within a few days of his 14
th
birthday). He was 14 at the time of the trial. It was contended that because he was not properly able to participate in the trial in accordance with procedures applicable to persons of his age he had been denied a right to a fair trial. No application was made by his trial counsel, Stuart Driver QC and Miss L Birkett, for him to sit outside the dock. Even if no application had been made the judge should have ordered him to sit outside the dock or given reasons for not so ordering. As he had sat within the dock, he was unable to participate effectively in the trial; he had not given evidence because of the pressure he had been under from his co-accused whilst sitting in the dock. In support of this ground, an application was made under s.23 of the 1968 Act to admit the fresh evidence of Dr Enys Delmage, a Consultant in Adolescent Forensic Psychiatry at St Andrews Hospital, Northampton. We heard that evidence over a video link
de bene esse
.
b)
Corey Hewitt who was born on 7 October 1999 was at the time of the murder aged 13 (though within a few days of his 14
th
birthday). He was 14 at the time of the trial. It was contended that because he was not properly able to participate in the trial in accordance with procedures applicable to persons of his age he had been denied a right to a fair trial. Like McGill, he relied on the fact that no application was made by his trial counsel, Andrew Fisher QC and Alaric Walmsley, for him to sit outside the dock and the judge had not ordered this. He had given evidence, but the judge did not control the cross-examination by the prosecution so that it properly followed the procedures applicable to young persons.
c)
Andrew Hewitt who was born on 17 October 1998 was at the time of the murder aged 14 (though within a few days of his 15
th
birthday). He was 15 at the time of the trial. It was contended that he was unable to participate effectively in the trial as he had no intermediary for the conferences with his legal advisers, John McDermott QC and Michael O’Brien, in the period prior to the trial. He had therefore been denied his right to a fair trial. He did not give evidence.
iii)
All three applicants further contend that their mandatory sentences of detention at Her Majesty’s Pleasure are arbitrary and incompatible with Articles 3 and 5 of the ECHR.
iv)
The minimum terms imposed were manifestly excessive.
Ground I: The directions of the jury on joint enterprise under the law before the decision in
R v Jogee
and tailoring the directions for young defendants
89.
All the applicants advanced the ground of appeal that, after the decision of the Supreme Court in
R v
Jogee
,
the judge erred in directing the jury that foresight of at least really serious harm was sufficient to give rise to liability as a secondary party, though their respective grounds express the submission in slightly differing terms.
90.
McGill seeks leave on two further bases, first that there was failure to direct the jury to consider his age, immaturity, cognitive ability and Attention Deficit Hyperactivity Disorder (ADHD) in relation to the issue of his foresight of the commission of the crime and his actions in withdrawing from the incident and, second, that the legal directions as to joint enterprise ought to have been tailored to consider his youth, development, maturity and intellectual ability. Corey Hewitt also complains that the judge erred in failing to tailor the directions on joint enterprise to consider his age, developmental maturity and cognitive disability.
91.
After summarising the respective arguments and the background to the events in the laundrette, the judge gave an introductory direction in relation to joint enterprise that accorded with the conventional direction pre
Jogee
and the fact they did not need to be sure who stabbed the deceased before they could convict a defendant of murder. At the conclusion of his summing-up, he provided the jury with a written ‘route to verdict’ through a series of questions they should ask themselves which he proceeded to go through with them.
“
Question 1
:
Am I sure that SM, Sean McHugh, was deliberately stabbed?
If the answer is ‘no’, verdict for all, not guilty.
If the answer is ‘yes’, consider question 2.
Question 2
:
Am I sure that X, that is the defendant whose case I am considering, deliberately stabbed Sean McHugh?
If the answer is ‘yes’, consider question 3.
If the answer is ‘no’, consider question 4.
[So we will consider question 3 first.]
Question 3:
Am I sure that when he deliberately stabbed Sean McHugh X intended either to kill him or to cause him really serious injury, that is a murderous intent?
If the answer is ‘yes’, your verdict in relation to the stabber will be guilty of murder.
If the answer is ‘no’, your verdict in relation to the stabber will be not guilty of murder, guilty of manslaughter.
Question 4
:
Am I sure that X knew, before the stabbing occurred, that a sword or other bladed instrument had been brought to the fight?
If the answer is ‘no’, your verdict is not guilty.
If the answer is ‘yes’, you will consider question 5.
Question 5:
Am I sure that X took part by active involvement, that is by means of actions, words or encouragement in the fight as opposed to being a mere bystander?
If the answer is ‘no’, your verdict will be not guilty.
If the answer is ‘yes’, consider question 6.
Question 6:
Am I sure that X who (a) knew before the stabbing occurred that a sword or other bladed instrument had been brought to the fight, and (b) took part in the fight with SM, Sean McHugh, (took part that is as defined in question 5), either intended that the sword or other bladed instrument was to be used, or saw a real risk that it might be used?
If the answer is ‘no’, your verdict will be not guilty.
If the answer is ‘yes’, then you will go on to consider question 7.
Question 7
:
Am I sure that X who (a) knew before the stabbing occurred that a sword or other bladed instrument had been brought to the fight, and (b) took part in the fight either intending that the sword or other bladed instrument was to be used, or, seeing a real risk that it might be used, had not withdrawn from the joint enterprise at the time of the stabbing?
If the answer is ‘no’, your verdict will be not guilty.
If your answer is ‘yes’, you will then go on to consider question 8.
Question 8:
Am I sure that X, who, (a) knew before the stabbing occurred that a sword or other bladed instrument had been brought to the fight, and (b) took part in the fight, either intending that the sword or other bladed instrument was to be used or saw a real risk that it might be used, and, (c) either intended that the sword or other bladed instrument was to be used, and (d) had not withdrawn from the joint enterprise at the time of the stabbing, either intended that the sword or other bladed instrument was to be used with murderous intent (for which go back to question 2)?
If the answer is ‘yes’, your verdict will be guilty.
If the answer is ‘no’, your verdict will be not guilty of murder but guilty of manslaughter.
Our conclusion
92.
Consistent with the approach adopted by this court in
Johnson
[2016] EWCA Crim 1613
, we consider the strength of the case that the applicants would not have been convicted of murder if the jury had been directed in accordance with the law as set out in
Jogee
.
93.
By their verdicts, we infer that the jury made the following findings of fact:
i)
This was an attack to which each of the applicants, together with Dykstra and O’Shaughnessy, were involved. The participants chased and/or knew that the deceased was trapped in a room. There was a common purpose to ‘get’ the deceased and cause him serious bodily harm.
ii)
Each of the participants had agreed to carry out the venture of attacking the deceased and was liable for the acts to which they expressly or impliedly assented, namely the infliction of really serious bodily injury or the stabbing of the deceased.
iii)
Each of them knew of the sword and/or knife and the intention for it to be used.
94.
Accordingly, given the jury’s findings of fact, putting on one side the individual additional grounds advanced on behalf of McGill and Corey Hewitt, their verdicts post
Jogee
would have been no different. We are satisfied that there has been no injustice, let alone substantial injustice.
Submissions on tailoring the directions
95.
Turning to those discrete grounds, it is argued that it was wrong to have directed the jury
in standard terms and in terms applicable to all defendants. There was no modification to take into account:
i)
the age of individual defendants and no direction to the jury as to how properly to assess the reaction and response of a 13 year old child with difficulties;
ii)
in the case of McGill his cognitive ability was in the bottom 5% for children of his age and he had been diagnosed with ADHD so that he could become distractible and physically agitated, as demonstrated in his police interviews. In the case of Corey Hewitt, he had an IQ of 69 and overall was operating at the second percentile.
These matters were relevant to the jury’s consideration of foresight and intent and more generally principles of secondary liability.
96.
It was submitted that children are ‘doubly vulnerable’ because of their young age and developmental immaturity, their needs, including learning disabilities, mental health problems and communication difficulties. These vulnerabilities serve, in addition to developmental immaturity, to constrain the ability to act freely and maturely, raising further questions about culpability. (See further the
Independent Parliamentarians’ Inquiry into the Operation and Effectiveness of the Youth Court
, chaired by Lord Carlile of Berriew QC, June 2014).
97.
Furthermore, it was submitted that there is ‘a strong base of emerging evidence highlighting consistent and universal differences in the judgment and consequential thinking processes between children and young people and adults’. The science has significant implications for traditional formulations of culpability. Adolescents, by virtue of their inherent psychological and neurobiological immaturity, are not as responsible for their behaviour as adults.
Roper v Simmons 543 U.S. 551 (2005), Graham v. Florida 130 S. Ct. 2011 (2010), Miller v Alabama, 132 S. Ct. 2455, 2460 (2012)
.
98.
It was submitted that the issues are compounded when the profile of young offenders is considered, for example socio-economic factors, development, needs, vulnerabilities, history of trauma and abuse and the presence of quite separate mental health and neurodevelopmental disorders. In recognition of the developing science and consequences in the criminal justice system, the Law Commission has recommended discussion of a defence relating to developmental immaturity and capacity.
99.
This research, it was submitted, had implications for the approach to be taken to cases involving children and principles of secondary liability. The science went directly to issues of decision making, foresight and consequential thinking. This extended to the directions given to juries which require tailoring to take such matters into account. It was insufficient to provide a jury with the same directions for children in such cases as adult offenders or for children to be judged by the same standards as those applicable to adults.
Our conclusion on tailoring the directions
100.
McGill’s case was that he appreciated what might unfold and took steps to extricate himself. The jury were aware of his youth and deficits and will have some knowledge of adolescent behaviour; directions tailored to those specific aspects were inconsistent with his case and could not have materially altered or affected the approach of the jury.
101.
Similar considerations apply in the case of Corey Hewitt. His case at trial revealed consequential thinking in relation to his removal of the sword-stick. His trial counsel sought a direction in relation to assisting an offender. The jury rejected the defence case.
102.
It is also of relevance, though not determinative of the grounds now relied on in the cases of both these applicants, that experienced trial counsel, including leading counsel, did not consider that any specially tailored directions were appropriate. We are quite satisfied that even if such directions had been given in their cases, they could have had no material effect on the jury’s approach to its decision-making.
103.
Accordingly, the applications in the cases of Joseph McGill and Corey Hewitt for leave to appeal on these further grounds are without merit.
Ground II: The inability of each applicant to participate in the trial and the breach of their right to a fair trial
104.
Although each applicant had a different and particular basis for advancing this ground of application for leave to appeal, the common thread was that the trial had not been conducted either by the applicants’ then legal advisers or the judge in accordance with the procedures applicable to the trial for young persons of their age. It is convenient first to summarise those procedures.
(1)
Criminal Procedure as applied to those under 18
The material provisions
105.
Under s.44(1) of the Children and Young Persons Act 1933,
“Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.”
106.
Article 3 (1) of the United Nations Convention on the Rights of the Child 1989 provides that the best interests of the child shall be a primary consideration.
107.
In
T and V v UK
[2000] 30 EHRR 121
, the Strasbourg court required adaptations to the procedure in criminal trials for young persons so that they could effectively participate in the trial process.
The Practice Direction on the trial of young persons
108.
As a result the then Lord Chief Justice, Lord Bingham CJ, issued a practice direction in respect of the trial of young persons
to ensure compliance with a young person’s right to a fair trial. This required significant adaptations and minimum standards of practice to guarantee a child’s effective participation.
109.
This practice direction has been modified over the years, in the light of the increased appreciation of the issues judges face when trying children. In 2013, children were recognised as “vulnerable people in court” and a section on intermediaries was introduced. The current
Criminal Practice Directions 2015
[2015] EWCA Crim 1567
consolidated with A
mendment no. 2
[2016] EWCA Crim 17
,
direct a trial judge to consider a number of supporting measures for vulnerable defendants in accordance with the judge’s duty to “take every reasonable step to encourage and facilitate the participation of vulnerable defendants (CrimPR 3.9(3)(a) and (b)) so that they may give their best evidence, comprehend the proceedings and engage fully with his or her defence. The pre-trial and trial process should, so far as necessary, be adapted to meet those ends. Regard should be had to the welfare of a young defendant as required by section 44 of the Children and Young Persons Act 1933, and generally to Parts 1 and 3 of the Criminal Procedure Rules (the overriding objective and the court’s powers of case management).
110.
The measures include:
i)
There should be the provision of an intermediary for the purposes of preparation for the trial and during the trial and a pre -trial visit arranged where appropriate.
ii)
Subject to the need for appropriate security arrangements, and if practicable, the trial should be held in a courtroom in which all the participants are on the same or almost the same level and a vulnerable defendant, especially if young, should normally, if he wishes, be free to sit with members of his family or others in a like relationship, and with some other suitable supporting adult such as a social worker, and in a place which permits easy, informal communication with his legal representatives.
iii)
The wearing of robes and wigs should take account of the wishes of a vulnerable defendant.
iv)
The conduct of the trial should be according to a timetable which takes full account of a vulnerable defendant’s ability to concentrate with frequent and regular breaks, if necessary.
v)
The trial judge should ensure, so far as practicable, that the whole trial is conducted in clear language that the defendant can understand and that evidence in chief and cross-examination are conducted using questions that are short and clear. The conclusions of the ‘ground rules’ hearing should be followed, and advocates should use and follow the advocates’ ‘toolkits’.
The use of an intermediary
111.
The provision of intermediaries for defendants was developed by the court under its inherent jurisdiction. The circumstances where an intermediary is required were explained in
OP v Secretary of State for Justice
[2015] Cr App R 7
at paragraphs 34 and 35 and in
R v Rashid
[2017] 1 WLR 2449
[2017] 1 Cr App R 25
, [2017] Crim LR 418 and are set out at paragraphs 3F.11 to 16 of the current Criminal Practice Direction.
Ground rules hearings
112.
In several judgments of this court, guidance has been given on the need for ground rules hearing and for a proper approach to asking questions of young persons and other vulnerable witnesses, including defendants. In
R v Lubemba
[2015] 1 WLR 1579
[2014] EWCA Crim 2064
where, having considered the effect of
R v Barker
[2010] EWCA Crim 4
, the court stated:
“39. In
R v Wills
[2011] EWCA Crim 1938
,
[2012] 1 Cr App R 2
, the court endorsed the
Barker
approach and the approach of the Advocacy Training Council (the "ATC") as set out in their report entitled "
Raising the Bar: the Handling of Vulnerable Witnesses, Victims and Defendants in Court
".
40. Experts in the field responded to the ATC's recommendations and produced Toolkits on how to treat vulnerable witnesses fairly and to get the best from them, without undermining the accused's right to a fair trial. The Toolkits may be downloaded at no cost from the Advocates Gateway Website. They provide excellent practical guides and are to be commended. They have been endorsed by the Lord Chief Justice in the Criminal Practice Directions Amendment No. 2 as best practice. The Directions include at 3E.4 the following:
"All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can. In relation to young and/or vulnerable people, this may mean departing radically from traditional cross-examination. The form and extent of appropriate cross-examination will vary from case to case. For adult non vulnerable witnesses an advocate will usually put his case so that the witness will have the opportunity of commenting upon it and/or answering it. When the witness is young or otherwise vulnerable, the court may dispense with the normal practice and impose restrictions on the advocate 'putting his case' where there is a risk of a young or otherwise vulnerable witness failing to understand, becoming distressed or acquiescing to leading questions. Where limitations on questioning are necessary and appropriate, they must be clearly defined. The judge has a duty to ensure that they are complied with and should explain them to the jury and the reasons for them. If the advocate fails to comply with the limitations, the judge should give relevant directions to the jury when that occurs and prevent further questioning that does not comply with the ground rules settled upon in advance. Instead of commenting on inconsistencies during cross-examination, following discussion between the judge and the advocates, the advocate or judge may point out important inconsistencies after (instead of during) the witness's evidence. The judge should also remind the jury of these during summing up. The judge should be alert to alleged inconsistencies that are not in fact inconsistent, or are trivial."
41. Further, considerable progress has been made in terms of the provision of training for judges and advocates. The aim of the training, which all judges who try cases involving vulnerable witness are expected to undergo, echoes the aim of the Toolkits.
42. The court is required to take every reasonable step to encourage and facilitate the attendance of vulnerable witnesses and their participation in the trial process. To that end, judges are taught, in accordance with the Criminal Practice Directions, that it is best practice to hold hearings in advance of the trial to ensure the smooth running of the trial, to give any special measures directions and to set the ground rules for the treatment of a vulnerable witness. We would expect a ground rules hearing in every case involving a vulnerable witness, save in very exceptional circumstances. If there are any doubts on how to proceed, guidance should be sought from those who have the responsibility for looking after the witness and or an expert.”
113.
It is important to emphasise that these observations apply to defendants as much as to other witnesses. More detail of the conduct of ground rules hearings are set out in Criminal Practice Direction 3E.1 to 3E.6 and Rule 3.9(6) and (7) of the Criminal Procedure Rules. They are also dealt with in the Advocate’s Gateway Toolkits which are mandated as best practice by Criminal Practice Direction 3D.7.
Tagged questions
114.
It is particularly important for tag questions to be avoided – an issue which arose in relation to the application of Corey Hewitt as we set out at paragraphs 175
-176 and 188-194 below. Tag questions are defined as making a statement with the addition of a short question inviting confirmation, for example, ‘John didn’t touch you, did he?’ or ‘John didn’t touch you, right?’. Questions of this kind are “powerfully suggestive and linguistically complex”. This form of question should be avoided with children. The direct question should be put instead, e.g. ‘Did John touch you?’; ‘How did John touch you?’
115.
Although they should be avoided, this does not mean that all tag questions have an adverse effect, as we explain at paragraph 194 below.
(2)
The course of the trial
The pre-trial timetable
116.
The first hearing in the Crown Court was on 16 October 2013, just over two weeks after the murder of the deceased. A plea and case management hearing was fixed for 17 January 2014 (when it in fact took place) and a trial date was fixed for 3 March 2014 (when it in fact began).
The facts relating to sitting outside the dock
117.
No record appeared in the papers before this court which indicated any consideration had been given as to whether the defendants should sit in the dock. Certainly there is no record of any application being made to the judge during the trial and the judge has confirmed to this court that to the best of his recollection no such application was made. Counsel have all confirmed they made no such application. The transcripts indicate that, despite the clear provisions of the CPR and the Practice Direction, the issue of where the child defendants should sit was never addressed in open court. The judge was never asked to rule on where they should sit. As a result they were all placed in a secure dock.
118.
At the PCMH on 17 January 2014, the judge discussed with counsel a number of preliminary issues including special measures such as the use of intermediaries and regular breaks.
119.
It was the joint request of all defence counsel that wigs and gowns be worn.
The taking of breaks during the day
120.
On 4 March 2014, the second day of the trial, the judge discussed with counsel the breaks that should be taken; the proposal made by the judge was agreed by counsel for all. For the most part, during the trial 20 minute breaks were taken at hourly intervals.
Intermediaries and ground rules hearing
121.
At the PCMH on 17 January 2014, the judge made clear that he would consider any application for an intermediary to assist any defendant who needed one; such applications to be served within 28 days. We deal, when considering the case of each applicant, with the specific course taken in respect of the provision of an intermediary for each.
122.
On 18 March 2014 the judge directed that a ground rules hearing take place before the defendants gave their evidence; he suggested 20 March 2014. He asked that there be an intermediary assessment. We deal with this in greater detail in respect of McGill (who in the event did not give evidence) at paragraphs 139-141 and following below and in respect of Corey Hewitt (who gave evidence) at paragraphs 173 and following below.
The subsequent course of the trial
123.
The prosecution closed its case on 20 March 2014.
124.
The judge summed up the case between 28 and 30 April 2014.
(3)
The failure to make proper inquiries criticism of the previous legal teams
125.
It is clear from what we have already said that this ground of appeal involved substantial implicit criticism of trial counsel representing McGill and Corey Hewitt.
126.
As we have noted, the application in respect of Andrew Hewitt was only made on 22 May 2017. Mr Moloney QC sought the trial documents immediately. It was made clear by Mr Moloney to the trial team on 23 May 2017 that he made no criticism of them. It is evident that every possible step was thereafter made to obtain the account of trial counsel and the documents that explained how the defence had been conducted. When these were obtained, the submissions made to us were significantly narrowed.
127.
In
McCook
[2014] EWCA Crim 734
, [2016] Crim App R 30, [2015] Crim LR 350
this court set out the duty of an advocate instructed by an applicant or appellant on an appeal where the advocate had not been the advocate at trial, irrespective of whether there was any criticism of the trial advocate. The court said:
“In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare.”
128.
Unfortunately, this did not happen in the present appeal, as far as all the applicants are concerned. By the time of the first hearing of the appeal on 15 June 2017, those now instructed by the applicants (McGill and Corey Hewitt) had made some, but inadequate, enquiries of the legal team at trial. One of the teams on the application made a few enquires of trial counsel and then sent them a 39 page draft setting out the grounds of appeal followed by a 28 page finalised grounds.
129.
We directed that proper enquires be made and full disclosure given before the resumed hearing on 11 and 12 July 2017. Even then, the enquires were not adequate. We directed that further specific questions which we drafted be put to the previous legal teams.
130.
Although applications for leave to appeal which involve either express or implicit criticism of the lawyers at trial, or where the information available to the new advocate is incomplete (for example where an application is made to adduce fresh evidence) ought to be few and far between, we have noted an increase in such cases. There seems to be an assumption that inquiries are only necessary where criticism is made of the trial representatives. That is not the case.
131.
For the avoidance of doubt, new advocates instructed in a case, whether or not they believe the grounds involve criticism of the trial representatives, must make all proper and diligent enquires of previous counsel, advocates and solicitors, so that they have all the information properly to understand what took place prior to and during the trial. This will also be necessary in every case involving an application to call fresh evidence. They must then expressly certify in the grounds of application for leave to appeal submitted to the court on form NG that that has been done. The court will not entertain an application without such a certification.
132.
As the present applications have shown, a failure to make proper inquires before the application is made can result in very significant extra time and cost being expended and grounds being pursued which are found to be unsustainable.
133.
We would emphasise that it is a wholly inadequate compliance with this duty to send the lawyers instructed at the trial the grounds of appeal and to ask for comments. Inevitably the application will be made sometime after the trial and those representing the applicant at the trial must have identified for them the issues that relate to the conduct of the trial which are relevant to the appeal. Specific questions must be formulated and specifically put. Some questions will simply be for information that is not apparent from the papers. In other cases there will be implicit criticism; in such a case there can be no shying away from putting fairly and squarely the implicit criticism of those then acting for the applicant at the trial so that the appellate court has all the information before it when it commences the consideration of the application. The fact that a trial lawyer might have retired or left the profession to take up office or for some other reason does not excuse the newly instructed advocate from pursuing such inquiries with that person.
(4)
The specific grounds of the application made by McGill in relation to his ability to participate in the trial and the denial of a fair trial.
The initial position in relation to the provision of an intermediary for McGill
134.
In January 2012 McGill had been the subject of psychiatric reports by Dr Kingsley, a consultant child and adolescent psychiatrist at the Cheadle Royal Hospital, following an accident in May 2011 that required the amputation of his finger tip. Dr Kingsley concluded that McGill’s overall symptoms at that time met the criteria for post traumatic stress disorder. Moreover, he recommended that, although it was not related to the accident, McGill would benefit from a trial of medication to combat symptoms of ADHD. However, there was no clear evidence that would support a diagnosis of Autistic Spectrum Disorder. In a further report in March 2013, Dr Kingsley noted a significant improvement.
135.
At the PCMH on 17 January 2014 (to which we referred at paragraph 121), Mr Driver QC, McGill’s trial counsel, told the judge that he had asked for a psychologist’s assessment with a view to an intermediary being instructed.
136.
The assessment was carried out by Dr Ben Harper, a principal clinical psychologist working within local authority and National Health Service mental health teams, who saw McGill on 31 January 2014 and 3 February 2014; he also carried out a parental interview on 3 February 2014.
137.
In his report dated 17 February 2014, he concluded that McGill was an emotionally immature young person with limited intellectual functioning; his overall cognitive ability fell within the 4
th
Percentile Rank, placing his overall ability within the ‘Borderline’ range of functioning for children of his age. He had a poor attention span; during prolonged periods of time he would become distractible (physically agitated) and find it difficult to attend to information. Due to his learning needs and his psychiatric diagnosis of ADHD, he would benefit from a Registered Intermediary to enhance his existing comprehension of the court process. He would also benefit from receiving information that had been ‘chunked’ into basic language appropriate for a 10-11 year old child. However, he had a clear understanding of the approaching trial, including the charge, his plea, and the roles of judge, jurors and prosecution team; he had the ability to make an informed decision on plea.
138.
During the trial the judge directed that an intermediary would be authorised to assist McGill (and others), but only with giving evidence.
The assessment by Paula Backen during the trial
139.
Paula Backen who then worked at Communicourt attended for an intermediary assessment on 19 March 2014 following the judge’s direction to which we have referred at paragraph 122. She was asked to provide an oral report on McGill; she did not do so, but instead was asked to assist on 20 March 2014 in respect of the ground rules to be applied to Corey Hewitt.
140.
She was then asked to submit a written report on McGill which she did on 26 March 2014. She saw Dr Harper’s report and interviewed McGill in the court cells. She concluded that he coped well with instructing his counsel and had good insight into the court process and his part in the trial. Although there were difficulties with his medication, he coped well with understanding (even without medication). She concluded that there was no need for the presence of an intermediary during his appearance as a witness if basic ground rules (in particular adherence to Toolbox 6 of the Advocates’ Gateway) were set and followed. She recommended continued adherence to the practice of breaks and that counsel should encourage him to take his medicine.
141.
On 27 March 2014, counsel informed the court that McGill would not give evidence.
142.
In addition to her report, Paula Backen provided a written statement; although she was called to give evidence before us in relation to the application by Corey Hewitt (see paragraphs 175 and following), she was also asked some questions by Mr Blaxland QC on behalf of McGill, but nothing emerged which was not covered in her report or her statement.
The report by Dr Harper prior to sentencing
143.
On 27 May 2014, following conviction, but prior to sentencing, Dr Harper prepared a second report commenting upon McGill’s maturity and intellectual capacity. He stressed that McGill had poor emotion-regulation skills, struggled to learn and internalise new behaviour and would benefit from future offending behaviour programmes that were short and repetitive.
The reports and evidence of Dr Delmage
144.
Nearly 18 months after the conviction, Dr Delmage, a consultant in adolescent forensic psychiatry, interviewed McGill in November 2015 for 2½ hours, when he was 16. Dr Delmage spoke to his mother on 22 December 2016. He provided a report dated 20 April 2016 (based on the interview and prior psychiatric reports) on McGill’s ability to engage meaningfully with the trial process.
145.
He recounted in his report how McGill, despite being told that he and his co-defendants would have a break every hour, said he was often in court from 9 a.m. to 1 p.m. with no breaks. He reported being unable to understand much of the language in court, that the process was not explained to him; that he had not understood that he could ask questions to clarify what he had heard. Additionally, he was not compliant during the trial with medication to manage his ADHD.
146.
Dr Delmage concluded in his report that at the time of trial McGill was fit to plead. However, he was “only partially able to give evidence in his defence and did not have a good understanding of some possible types of defence such as duress”. Duress would not have been a defence and in his evidence to us Dr Delmage explained the reference should have been to the defence of loss of control. He thought that McGill would have struggled in a court setting and that might have affected his fitness to plead; when his evidence on fitness to plead was challenged in cross-examination, he was evasive and did not answer the questions put. McGill’s lack of understanding was said to be due to his low cognitive functioning and inadequately treated ADHD. Few attempts were made in the Crown Court to promote his ability to understand and participate in the proceedings. Little account was taken of his age, level of maturity, intellectual capacity, or his additional difficulties related to his Hyperkinetic Disorder.
147.
At trial Dr Delmage would have recommended:
“That [McGill] not be kept in the dock with his co-defendants but instead be placed with a family member or other support, be given regular breaks every 30 minutes as recommended in both Dr Harper and Paula Backen’s reports not just for legal aid but to relax and process his thoughts, that the formalities of the court including wigs and gowns be dispensed with, that he have a Registered Intermediary to support him, that simple language be used, that regular checks be made on his level of understanding, and that he be given dynamic means of passing on comments or questions in a formal and timely fashion.”
148.
Dr Delmage concluded that McGill was unable effectively to participate in the proceedings. If the steps above had been taken, he may have been able to give salient evidence in his defence.
149.
On 19 April 2017 Dr Delmage provided a short supplementary report expanding on how adolescent brain development can affect behaviour at trial, including an increased likelihood to waive their rights, accept plea agreements and make false confessions.
150.
In evidence to us Dr Delmage said he did not doubt Dr Harper’s conclusions. He also told us that he had reached these conclusions without ascertaining what instructions McGill had given to his solicitor during the trial and in his statement. He did not ask for information from the legal team which had represented McGill at trial. He also accepted the conclusions of Paula Backen to which we have referred at paragraph 139-140 above but was surprised at her conclusion that she did not recommend the use of an intermediary.
The submissions made on behalf of McGill
151.
Mr Blaxland QC, counsel for McGill on the application before us, submitted that the judge had failed to comply with the Practice Direction relating to the conduct of trials of young defendants; McGill should have been allowed to sit with a member of his family or appropriate adult outside the dock. If that had been done, McGill would have been able properly to participate in his trial and would not have been subject to pressure from the other defendants in the dock which resulted in him not giving evidence; these were fellow members of the gang. His youth and his ADHD and other circumstances set out in the report of Dr Harper made it even more important that he did so.
152.
During the course of the trial, the defendants had misbehaved in the dock. This would have been avoided for McGill had he not been placed in the dock; furthermore his behaviour in the dock would not have led to him being remanded into custody during the course of the trial.
153.
If he had given evidence he could have provided evidence in relation to the evidence given by his school teacher (which we summarised at paragraph iii) above) to the effect that he had told the teacher that he had given Dykstra the knife (which was found in the room at the back of the laundrette where the deceased had been attacked and on which Dykstra’s DNA was present).
154.
It was initially submitted that there had been a failure to consider providing him with an intermediary until three weeks into the trial, but in the light of the information provided by trial counsel this ground was abandoned.
The account of trial counsel
155.
Trial counsel made clear:
i)
That McGill was streetwise; his mother had expressed no concern. There was no issue about his ability to understand, only about his ability to concentrate.
ii)
The judge took regular breaks, as agreed, and all parties were alert to the need to take a break. If the judge failed to take breaks at the appropriate time, he was reminded by counsel to do so.
iii)
McGill was seen at every break in the proceedings by either junior or leading counsel or both to ensure he understood the proceedings. No-one, his legal team, his mother (with whom counsel discussed the conduct of the trial) or McGill himself raised any concern about a lack of understanding.
iv)
The decision that he would not give evidence had been discussed for some time. The considerations were recorded by Mr Driver QC in a memorandum dated 26 March 2014. McGill had said in interview to the police that he saw Dykstra produce a knife; he then left the room. In instructions given to counsel, McGill said that he saw someone grab a knife and tried to stab the deceased in the neck twice, breaking the knife. On 18 March 2014, he told his counsel that he saw Dykstra punching the deceased. He said he had lied in interview when he said Dykstra had a knife; he was told of the difficulty that would cause, and said he would stick by what he said in interview. This third version of events caused counsel to have grave doubts about calling McGill. Prior to the decision made on 25 March not to give evidence, McGill had for some weeks been telling counsel and his mother he did not want to give evidence.
v)
He took his medication inconsistently. This was discussed, raised and addressed repeatedly by the judge; on one occasion special arrangements were made for his medication to be taken at court.
vi)
He was capable of acting in a single-minded way outside the influence of his co-accused.
vii)
In addition there were substantial problems with his behaviour which did not arise from peer pressure and which led to him being remanded into custody. Some of these included having a mobile phone in breach of his bail conditions, being abusive to the social worker accompanying him at lunch time, running out of the room allocated for him to use during breaks so that he had to be apprehended by the police, expressing the intention to use the internet to trace a witness subject to special measures. Save for the last, these incidents all happened outside of the dock where he was not subject to peer pressure.
Our conclusion on whether to receive the evidence of Dr Delmage
156.
As we have set out, we heard his evidence
de bene esse.
We have set out at paragraphs 58-59 of this judgment the considerations that a court should take into account under s.23 of the 1968 Act. We do not admit the evidence. Mr Blaxland QC accepted it was of limited assistance. It is therefore not necessary for us to set out our detailed view on Dr Delmage; it is sufficient to say that his evidence was not evidence to which we could attach any weight, particularly as it was in part based on inaccurate statements made to him by McGill. Unfortunately, his willingness as an expert to opine on the basis of inaccurate, incomplete and partisan accounts appears to be yet another growing trend before this court. Furthermore, his evidence about the mental state of McGill at the time of the trial added nothing of value to the contemporaneous material already before the trial court, particularly the first report of Dr Harper.
Our conclusion in respect of sitting outside the dock
157.
It is regrettable that this issue was not addressed in open court. It should have been. We set out at paragraphs 227-228 below the steps that we have asked be taken to ensure this omission does not occur in the future.
158.
However, regrettable though this was, we have no doubt that the judge would have held that for reasons of security and as a matter of practicality it was not possible to have five young defendants outside the dock and the one adult defendant in the dock. The intermediary report of Naomi Mason, the intermediary for Corey Hewitt, raised the issue of sitting outside the dock (as we set out at paragraph 170 below). This was handed to the judge. Given the number of participants – defendants, lawyers, intermediaries, security staff and lawyers, the courtroom was not large enough to seat each of five defendants in the well of the courtroom with adequate security. Furthermore, the behaviour of some of the defendants was extremely worrying; given the information supplied about his behaviour which we have summarised at paragraph 155 vii), it is difficult to see how it would have been practical to allow him to sit outside the dock. We have noted that his remand in local authority accommodation had to be changed to secure accommodation on 6 March 2014 because the judge concluded that he was using social media to either interfere with witnesses directly or get someone else to do so for him.
159.
Mr Blaxland QC’s submissions also ignore the rights of the deceased victim’s family. It must also be recalled that this was a murder that arose out of a dispute between gangs who were capable of inflicting extreme violence, as what happened in the laundrette clearly demonstrated. The family of the deceased victim and his friends were, as was their right, in court. It was essential that proper order and security be maintained.
The alleged consequences of sitting in the dock
160.
In any event, we reject the assertion that McGill was in any way prejudiced by sitting outside the dock. He was offered as much assistance as was necessary. It is pure speculation to suggest that the defendants as a group would have behaved any better had they been seated in the well of the court; and the evidence suggests otherwise. Many of the problems with the defendants’ behaviour arose before and after hearings and outside the dock.
161.
It is clear that his decision not to give evidence was based on considerations relating to his inconsistent accounts; the professional judgment of his leading counsel was that he was likely to be an unpredictable and inconsistent witness. There was no evidence that supported the contention that his decision had anything to do with his being placed in the dock; this, too, was pure speculation. The behaviour in the dock between defendants relied on by counsel on the appeal were never raised with trial counsel and we have had no evidence about them; as his leading trial counsel stated, McGill never told him that any co-defendant tried to influence him.
The direction on the inference that could be drawn from the failure to give evidence
162.
The jury were directed that adverse inferences could be drawn from the failure of McGill and Andrew Hewitt to give evidence. No criticism could be made of the terms in which it was given, as it was in accordance with the law and entirely fair.
163.
The submission made is that no such direction should have been given in the light of McGill’s low cognitive ability and his age.
164.
The judge carefully considered the submissions made to him and the evidence, including the report of Dr Harper and Paula Backen; the decision he expressly made on 27 March 2014 was based on that evidence. It was well within that area of judgement open to the judge. It is clear that McGill was capable of giving evidence; a material part of the interviews he had given were played to the jury.
165.
As we have already concluded that the evidence of Dr Delmage will not be received by us, there is no new material that was not before the judge that would have entitled us to review a decision which was, as we have said, within the area of judgement open to him.
166.
We are therefore unable to accept this submission.
Our conclusion
167.
We have reflected on all the submissions made by Mr Blaxland QC on behalf of McGill. We have asked ourselves the question whether his right to a fair trial has been breached. We are entirely satisfied that it was not. Nor can we discern any grounds for doubting that his conviction for the murder was entirely safe.
168.
The application on the ground of inability to participate effectively in the trial and the consequent denial of a fair trial is refused.
(5)
The specific grounds of the application made by Corey Hewitt in relation to his ability to participate in the trial and the denial of a fair trial.
The position at the start of the trial
169.
As we have said, Corey Hewitt was 14 by the time of his trial. He was of previous good character with no convictions, warnings or reprimands on his record.
170.
After the pre-trial hearing on 17 January 2017 (to which we have referred at paragraph 121) Corey was assessed by Naomi Mason, a registered Intermediary, then employed by Communicourt who provided a report dated 24 January 2014. In that report, Miss Mason concluded:
i)
His receptive vocabulary was similar to that of a child aged 7.
ii)
His understanding of the meaning of sentences when constructed in different types (grammatical structure) was similar to that of a child aged 8.
iii)
His auditory working memory capacity (processing and understanding information in sentences) was limited to, at most, 4 key words. His level was similar to that of child in infant school.
iv)
He had a limited ability to challenge and would not always say when he did not understand partly because he did not necessarily realise he had misunderstood.
v)
He struggled with abstract concepts, figurative language and non-literal use of language.
vi)
She had no doubt, therefore that he had ‘considerable communication difficulties’. She recommended the use of an intermediary to assist in trial preparation, giving instructions, helping him understand the evidence and trial process, and that, ideally, the intermediary should sit next to Corey Hewitt in court where his attention could be better managed. If he sat in the dock, the intermediary should sit next to him. She also recommended that those questioning Corey Hewitt should use “clear, concrete language, simple everyday words and phrases”, keep to a chronology, introduce each topic, speak slowly and in short sentences, avoid ‘tag’ questions, avoid negatives, allow time for him to process what had been said, refocus him if he went off at a tangent and check he understood. He required frequent breaks during the trial.
We were told that this report was provided to the judge.
171.
Her findings have been substantially supported by Dr Rachel Worthington and Dr Helen Brown both Clinical Psychologists. Dr Worthington provided a pre-trial report dated 13 February 2014 and Dr Brown prepared a post trial and pre-sentence report for the judge dated 17 June 2014. Her findings revealed that Corey Hewiit has significant cognitive difficulties amounting to a disability (full scale IQ of 69, placing him in the ‘extremely low range’ and at the second percentile).
172.
Claire Ainscow was present as an intermediary for Corey when the trial began on 3 March 2014 and the following day, 4 March 2014, when counsel told the judge that Corey did not want an intermediary in the dock.
The ground rules hearing for Corey Hewitt before he gave evidence
173.
Before Corey Hewitt gave evidence, there was a ground rules hearing at which it was directed that Naomi Mason would stand beside Corey; there were to be intervals after 30 minutes.
174.
Corey Hewitt began his evidence on 24 March 2014 at 4 p.m. at the express request of his counsel; Paula Backen acted as the intermediary. He concluded his evidence on 27 March 2014.
The evidence of Paula Backen
175.
The intermediary Paula Backen provided a report on the conduct of the trial dated 22 November 2016 in which she made a number of criticisms of the way in which the applicant was questioned. She identified eight ground rules and the following incidents of failure to comply with them:
i)
Non-literal language: 13 examples of expressions such as “will you take it from me?”
ii)
Complex vocabulary: 53 examples of use of words such as “circumstances” “footage” and “initially”
iii)
Not allowing time so that the applicant jumped in: 8 examples
iv)
Long/multiple questions: 86 examples such as “But having seen what it was you said no” “So what - when and how did you go there?”
v)
Checking understanding: 2 examples
vi)
Unclear chronology: 1 example
vii)
Tagged questions: 150 examples of questions such as “Mr S is about to come into the room, isn’t he?”
viii)
Negatives: 22 examples of questions such as: “It would not get you into trouble witnessing a stabbing?”
176.
She complained that the judge failed to understand her role, support her when she tried to intervene and failed to rebuke co-defending counsel when he ignored her intervention. She explained the mischief in tagged and negative questions.
The submissions made on behalf of Corey Hewitt
177.
Mr Bennathan QC submitted:
i)
Corey Hewitt should not have been in the dock; he had no appropriate adult, or intermediary, or access to his legal team.
ii)
The intermediary direction was made for evidence only, notwithstanding Ms Mason’s recommendation (later supported in the psychological report). On the basis of the reports available at the time of trial, an intermediary should have been made available to the applicant for pre-trial conferences and throughout the trial and not just for the duration of his evidence. The failure to provide an intermediary in this way ‘must have’ resulted in the applicant’s failure properly to engage with the process and communicate effectively with his lawyers and with the court.
iii)
Although Corey Hewitt gave evidence with the assistance of an intermediary, there was a failure to comply with the Ground Rules. This included the use of non-literal language, complex vocabulary, insufficient time allowed resulting in Corey Hewitt jumping in to answer, failure to sign post, lengthy and multiple part questions, tagged questions and statements used as questions. Mr Bennathan QC placed particular reliance on paragraph 52 of
Lubemba
in which court upheld the judge’s repeated interventions in the trial of Lubemba because trial counsel asked questions that were unsuitable for a vulnerable witness. He attempted to counter the suggestion from trial counsel and the prosecution that the applicant gave evidence well with the assertion that this is ‘not good enough in a trial in which the case turned on his account’. The whole point of special measures was to achieve best evidence.
iv)
Individually and cumulatively, the breaches of the Practice Direction, failure to provide an intermediary and/or a person of support throughout the trial and breaches of the ground rules violated Corey Hewitt’s right to a fair trial in accordance with
T and V v UK
.
The information provided by trial counsel
178.
The flaw in Mr Bennathan QC’s general argument that Corey Hewitt could not participate effectively in the trial is that it is based largely on speculation and assertion. Whatever the experts may have thought would be the case, and despite Corey Hewitt’s undoubted difficulties and his young age, the evidence shows that he was fully engaged in the process, understood the process and was able to communicate effectively with his trial representatives and to the jury.
179.
The applicant’s trial counsel, Mr Andrew Fisher QC, made clear he considered the assertion that Corey Hewitt was unable to participate in his trial as “simply untrue and entirely without foundation”. His junior Mr Alaric Walmsley was very experienced with dealing with young defendants from his work in the Youth and Crown Courts; both were acutely conscious of the applicant’s age and difficulties, as set out in Dr Worthington’s report, and of the need for very great sensitivity in managing the trial process for his benefit. The applicant was ‘quite content’ with the seating arrangements and with the wearing of wigs and gowns. Their evidence to the court was that he fully understood the trial process.
180.
Corey Hewitt had a team of three care workers with him throughout the trial all of whom were from the care home in which he was residing and all of whom he knew well. One care worker sat immediately next to the dock so that the care worker and the applicant could see each other and the care worker could ensure his understanding and well-being.
181.
One accompanied the applicant at all the meetings with counsel. Mr Fisher has confirmed that the applicant had assistance in all his conferences with counsel and that they checked repeatedly during every break that he understood what had been said and done throughout the proceedings. There was a conference room reserved for him to which he went at every break and at the end and beginning of the day which he accessed through a back stairs so that he did not have to interact with anyone at trial. Whilst on bail there were no restrictions on his meeting his family and trial representatives as often as was desired and necessary and, similarly, when his bail was removed, counsel, accompanied by a care worker, could see him before and after court and during every break. The applicant, far from being unhappy about his bail being removed, regarded his secure accommodation as an improvement on local authority care accommodation. The evidence from Mr Fisher QC was unequivocal that he articulated during the whole of the trial his understanding and was able to participate fully and effectively at the trial.
182.
Ms Backen was able to see him outside the court room and satisfy herself he was fully understanding and engaging with the process. She expressed no concerns whatsoever other than during the applicant’s evidence (to which we shall come in a moment). The applicant’s family attended every day of the trial and were able to see and speak to him on a regular basis. In his evidence, he was an ‘exemplar’ and ‘showed up all the others by his manner, his sense and understanding. He gave his evidence ‘astonishingly well’. In the dock he was ‘entirely distinguishable by the way in which he obviously distanced himself from the other defendants’.
183.
In the light of all of the evidence and material before us we now address the specific complaints.
Conclusion on sitting outside the dock
184.
Although it is regrettable that the question of his sitting outside the dock was not canvassed in open court, we dismiss this ground of complaint for the same reasons we have dismissed the complaint in the case of McGill (see paragraph 157 above). His trial counsel Mr Fisher QC’s evidence was that Corey Hewitt told his legal team he was entirely happy with the arrangements in the courtroom.
185.
Even if it had been appropriate for arrangements to be made for him to sit outside the dock, it would have made no difference. As is evident from the material set out at paragraphs 179-181, he was fully supported and fully understood the trial process. He was fully able to participate in the trial and put his case.
Conclusion on the provision of intermediary
186.
First, the judge made it clear that he would allow for an intermediary for any defendant that needed one in conferences with counsel. He did not direct one should be made available for the applicant for the whole of trial because he was not asked to do so. He was not asked to do so because one was not necessary.
187.
The applicant had the assistance of counsel and solicitors, care workers, family members and the intermediary, Ms Backen, before and during the time he was in the witness box. He was able to give a full account of himself to his solicitors and counsel. He understood the proceedings and was well able to engage with them and communicate effectively.
Conclusion on the questioning of the applicant
188.
We have the benefit of a transcript of the questioning of the applicant and of the views of those who represented the applicant at trial. We do not recognise the complaints made of the judge by Ms Backen. Far from resisting her ground rules, as she claimed, the judge was wholeheartedly supportive of them. He had provided copies of the advocate’s toolkit for counsel in advance and could not have done more to emphasise their importance.
189.
Before the applicant began his evidence the judge asked Ms Backen specifically if she was happy with the arrangements and she said she was. She made no complaint about the seating arrangements or wearing of wigs and gowns; had she considered they were affecting the applicant’s ability to participate effectively in the trial, we are confident she would have done so.
190.
Her criticism of the judge for allowing ‘cross examination’ of the applicant to begin at 4 p.m. one afternoon, is misplaced. It was the applicant’s counsel who asked if he might ask a few general questions in chief of the applicant because that is what the applicant wished. The judge was initially opposed to the idea. Ms Backen did not intervene and the judge agreed.
191.
Whenever Ms Backen suggested a break that interfered with the planned timetable of breaks, the judge accepted her advice and that the applicant’s ability to concentrate may vary session from session. When questioning ran over into a planned break he sought her agreement before continuing at counsel’s request. When counsel played part of his taped interview to him and she objected to the amount of ‘auditory processing’ at the end of the day, the judge immediately adjourned.
192.
We also note that in the hundreds of questions asked of the applicant, the vast majority were short simple and clear. When counsel inadvertently slipped into error and failed to adapt their questioning sufficiently, the judge repeatedly supported Ms Backen and endorsed her interventions. The judge on occasion took the initiative and directed counsel to re-phrase their question for example where defence counsel asked a question in these terms: “Well as a friend or a cousin or a mate or what would you…” The judge interrupted to reminded defence counsel of the ground rules. However, before the question could be simplified the applicant provided a correct answer. On another occasion, when counsel for the co-accused Dykstra felt Ms Backen’s intervention was not justified, the judge responded that he was “duty bound” when the intermediary invited him to ask counsel to re-phrase a question to draw it to counsel’s attention.
193.
There were undoubtedly a number of tagged questions (as we have defined them at paragraph 114 above) and some over complex questions. We accept it would have been preferable had counsel avoided them. However, we note that of the 150 tagged questions now identified by Ms Backen on the transcript, she deemed it necessary to intervene on relatively few occasions which suggests she did not have the concerns she expresses now at the time. Defence counsel Mr Fisher QC does not share her concerns. He decided not to object because he was satisfied the applicant was well able to deal with the questions. The judge himself was constantly alert to the possibility of a misunderstanding and intervened repeatedly to require counsel to re-phrase their questions. Counsel then responded appropriately.
194.
In any event, as Ms Backen herself recognised, tagged questions are not inherently an issue. It depends on the content of the question and its structure. Many of the questions to which exception is now taken were questions containing two positives and were not therefore complex or difficult to follow, even for an applicant with Corey Hewitt’s problems. Those that did contain a positive and a negative in the question, in the context of the questioning as a whole, do not seem to have troubled the applicant. He held his own and stuck to his account.
195.
Mr Bennathan QC’s reliance on paragraph 52 of
Lubemba
(to which we have referred at paragraph 177 iii) above is misplaced. At paragraph 52 the court concluded that on the particular facts of that case counsel’s cross examination was inappropriate and justified the judge’s interventions, but her questioning contained far more than simply tag questions. Many were confusing, too long and too complex
.
This is a very different situation. The applicant was not confused or prevented from giving his best evidence by the form or structure of the questions asked.
196.
We have borne in mind that there was one occasion when Ms Backen rightly objected to a tagged question from counsel for the co-accused containing a negative and counsel did not appear to accept her intervention, but, counsel’s response to her was not in the terms she remembered. Furthermore, the judge supported her intervention. Counsel asked “You will not just agree with anything I say, will you?”; the applicant answered: “No”. Ms Backen raised her hand and counsel told her “You can raise your hand up all you want I think he understood”. He did not say: “You can raise your hand all you like, I am just going to carry on” as she claimed. The judge then directed counsel to avoid tagged questions. Later in the same counsel’s questioning the judge insisted he stop so that the intermediary’s objection could be heard and again counsel re-phrased the question.
197.
We have found only two occasions when Ms Backen was specifically overruled and on each occasion the judge was satisfied either that her concerns were not justified or if they were initially justified, had been overtaken by the applicant’s response and later questions.
198.
Ms Backen’s memory of events is therefore not reliable. She was not undermined and undervalued and repeatedly over ruled as she thought. The vast majority of her interventions were upheld and in courteous terms. Unfortunately, it became apparent to the members of this court during Ms Backen’s evidence before us that, for all her experience, she has become less than objective in her assessment of how she was treated and the applicant questioned. We note for example her description of her time as intermediary for Corey Hewitt as ‘extremely traumatic’ and she claims she was treated as an ‘enemy of the court’. There is nothing on the transcript or in any of the material before us that could come close to justifying that description objectively.
199.
We fear that Ms Backen may have misunderstood her role. If so, she may not be the only one to do so. Intermediaries provide a very useful service to the court and to the vulnerable witness or defendant and we are grateful to them for their expertise. However, they are instructed to provide advice and guidance to the judge (and to the advocates), not to dictate to anyone what is to happen. Their role is to provide a report and, if required by the court, to provide assistance to a witness or defendant
as directed by the judge
. They should not interfere with the functions of others unless specifically directed to do so by the judge. It does not follow from the fact that a judge does not adopt every one of their suggestions or uphold every one of their interventions that a witness or defendant has been treated unfairly. Ultimately the burden rests on the trial judge to ensure the effective participation of a vulnerable person, not on the intermediary.
200.
Thus, we are satisfied the judge controlled the proceedings and intervened appropriately to ensure that the applicant was able to understand the questions asked of him and communicate his answer effectively. The result was that, as his own counsel described, he gave his evidence extremely well.
Overall conclusion
201.
We have stood back and considered all the submissions made by Mr Bennathan QC on behalf of Corey Hewitt and asked ourselves the question whether his right to a fair trial had been breached. We are entirely satisfied that it was not. Nor can we discern any grounds for doubting that his conviction for the murder was entirely safe.
202.
The application on the ground of inability to participate effectively in the trial and the consequent denial of a fair trial is refused.
(6)
The specific grounds of the application made by Andrew Hewitt in relation to his ability to participate in the trial and the denial of a fair trial.
His position at the commencement of the trial
203.
Andrew Hewitt’s junior advocate, Mr O’Brien, visited Andrew Hewitt on several occasions to take instructions. On 9 December 2013, he discussed the instruction of a psychologist and an intermediary.
204.
A report dated 8 January 2014 was obtained from Dr Saima Latif, a chartered psychologist who practised from 1998 but has been in full time practice as an expert witness since 2010. This report was based on an assessment made on 13 December 2013. It concluded that he had an extremely low level of intelligence, but was able to give instructions. He might not comprehend the more complex aspects of the trial, but he would be able to participate in it. He should have regular breaks; the provision of an intermediary would be helpful. He did not need assessment by a psychiatrist. Although he had told her he had been previously been diagnosed with ADHD at primary school (but she had seen no medical records), he told her he had changed and was much calmer. Dr Latif was not concerned, as he was attentive and fully concentrated.
205.
Lucy Adams, a qualified speech and language therapist, and then a registered intermediary with Communicourt, saw the applicant on 10 January 2014. He agreed to be assessed, telling the intermediary that he did not know whether he wanted an intermediary. She produced a report on 10 January 2014 recommending the use of an intermediary before the trial at conferences, adaptations to the trial process (including 20 minute breaks every hour) and the presence of an intermediary at trial by sitting next to him in the dock and simplifying key points.
206.
Mr McDermott QC saw Andrew Hewitt on 17 January 2014; there was no further conference until the commencement of the trial. Mr McDermott had full instructions and no further conference was required.
207.
Later that day an application was lodged for an intermediary to be present throughout the trial process; it was supported by the report of Lucy Adams. It appears that the judge asked to see the report that stated that Andrew Hewitt had ADHD and Miss Latif’s report (after the removal of a privileged passage relating to his account of the murder) was supplied to the court on 20 January 2014 together with a report from Alder Hey.
Andrew Hewitt’s refusal to use an intermediary
208.
On the second day of the trial, 4 March 2014, Andrew Hewitt informed his counsel that he did not require an intermediary. The notes suggest that when offered an intermediary Andrew Hewitt commented to his solicitor and leading counsel that they knew what he was talking about and that he had no problem reading or changing his mind if he wanted to.
The submission made
209.
Mr Moloney QC’s contention on behalf of Andrew Hewitt that Andrew Hewitt was unable to participate effectively in the trial and was thus denied his right to a fair trial was pursued at the first hearing of the application in June 2017 on only one basis. It was submitted that in the light of his age and the evidence in relation to his cognitive capacity and his ADHD, he should have had an intermediary during the pre-trial conferences. If an intermediary had then been present, then Andrew Hewitt would have been familiar with the advantages derived from an intermediary and would have kept the intermediary during the trial.
210.
However examination of the documents held by the trial team and their answers to questions showed, as we have set out, that there were no pre-trial conferences between 17 January 2013 and the commencement of the trial on 4 March.
211.
The application was pursued on the basis that, with the benefit of hindsight, the trial team should have attached more weight to the opinion of Dr Latif and Lucy Adams.
The account of trial team
212.
The account of the trial team was:
i)
Andrew Hewitt, for all his cognitive issues and lack of formal education, was single minded, self confident, assertive and determined, despite his age. He was street wise and very aware, understood the course of the trial, the issues and was able to give clear instructions.
ii)
The suggestion that no apparent efforts were made during the proceedings to ensure Andrew Hewitt understood what was happening was “a travesty of the truth”.
iii)
The suggestion he sit away from the dock with his mother would have been ridiculed by him.
iv)
If Andrew Hewitt had been asked to attend a conference with the intermediary present, he would have refused to see her or even if he had he would have scorned her assistance.
v)
There was no way in which they could have forced an intermediary on Andrew Hewitt. If they had tried to get him to use an intermediary earlier his attitude would have been the same.
vi)
A schedule produced showed that there were numerous occasions during the trial when he was asked about having an intermediary. He refused. His mother confirmed her view on 24 March 2014 that he did not want an intermediary. He told leading counsel that he did not think the intermediary had assisted Corey Hewitt.
vii)
His ability to understand questions and communicate answers was never in doubt in the many hours they spent with him during trial. The trial team took into account all the difficulties the reports had identified.
viii)
Andrew Hewitt participated effectively in the proceedings throughout. As the attendance notes demonstrated, there were consultations with him every day of the trial.
ix)
He enjoyed a good relationship with his trial team; he listened to the evidence, discussed the evidence and gave instructions as the trial progressed.
The privileged documents fully reflect this account.
The direction on the inference that could be drawn from the failure to give evidence
213.
Andrew Hewitt did not give evidence at trial. The jury were directed that adverse inferences could be drawn from this.
214.
No submission was made to us that his decision not to give evidence was in any way influenced by the procedure adopted at the trial, his having dispensed with the intermediary or his presence in the dock. It is therefore not necessary for us to set out the reasons set out in detailed privileged documents made available to us as to why he did not give evidence.
215.
Trial counsel did not make any submission that a direction should not be given as this would have been disingenuous and misled the court.
216.
We can see no basis for an application on this basis.
Overall conclusion
217.
The application for Andrew Hewitt was very properly conducted by Mr Moloney QC. When the account of the trial team was obtained and the privileged documents (which contained detailed and meticulous notes) examined, it is impossible to see what ground of complaint Andrew Hewitt in fact has that he was unable effectively to participate in the trial. The materials before us unequivocally point to the conclusion that he effectively participated in the trial. Whatever weight should have been attached with the benefit of hindsight to the views of Dr Latif and Lucy Adams, it is clear that it would have made no difference to Andrew Hewitt’s refusal to use an intermediary.
218.
The application on the ground of inability to participate effectively in the trial and the consequent denial of a fair trial is therefore refused.
(7)
Extensions of time
219.
We have considered the matters set out in the second grounds of appeal as relating to all applicants by a review of the merits. We have not considered the very substantial extensions of time that would be required. We will return to the question of extensions of time when considering the applications in respect of sentence. However, we should record that, given what has emerged about the proper and skilful conduct of the trial by the advocates and the judge, it is difficult to see why the interests of justice could in any way have been served by granting an extension of time. See
R v Thorsby
[2015] EWCA Crim 1
;
[2015] 1 WLR 2901
: paragraphs 12-18,
R v Roberts (Mark)
[2016] EWCA Crim 71
;
[2016] 1 WLR 3249
: paragraphs 36-39,
R v Geraghty
[2017] 1 WLR 657
.
(8)
The adequacy of current procedures for the trial of young persons
The submissions of the Equality and Human Rights Commission
220.
The Equality and Human Rights Commission provided submissions as an Intervener. These accept that many factual aspects of the trial procedure remain in dispute, but nevertheless express concern about the failure to provide support to young and vulnerable defendants. It is argued that this apparent oversight is symptomatic of a wider problem within the criminal justice system of England and Wales that brings us into conflict with obligations under international law. The judge should take an active role in ensuring compliance with the requirements of the Practice Direction in respect of young persons; in each case, for example, the judge should raise with the advocates the question as to whether a young defendant should sit in the dock, and if it was decided that the young defendant should, short reasons should be given. This would reinforce compliance with the court’s duty.
221.
The submissions provide suggested guidance for advocates and the Crown Court, including an emphasis on ground rules hearings and a strong presumption that young people should sit with their family or legal team. Most pertinently, it is argued that where an appeal court concludes that all possible steps to maximise participation were not taken, quashing a conviction may be the most appropriate response, irrespective of whether trial lawyers were responsible for any failure to put safeguards in place. There should be a similar proactive duty on the court in respect of intermediaries.
222.
It was also submitted that mandatory training should be given before a judge could try a young or similarly vulnerable defendant. It was submitted the Bar Standards Board and the Solicitors Regulation Authority should make training in relation to young persons and similarly vulnerable witnesses and defendants compulsory.
The submissions of the applicants as to the adequacy of current procedure
223.
In addition, counsel for the applicants contended that despite the significant improvements made consequent on the decision of the Strasbourg Court and continually updated through the Practice Directions, and relying on the Law Commission report ‘Unfitness to Plead (Law Com No. 364) and the Review of the Youth Justice System in England and Wales by Charlie Taylor December 2016, “the general consensus is that the measures currently deployed are simply not good enough to ensure effective participation”.
Our observations
224.
We reject the assertion that ‘the general consensus is that the measures currently deployed are simply not good enough to ensure effective participation’.
225.
The material upon which reliance was placed does not take into account the very significant improvements made in recent years to ensure vulnerable defendants participate effectively in the trial process and the wide range of special measures designed specifically to cater for the needs of the vulnerable; we do not criticise the Commission, as the changes are moving at a pace that may not be readily discernible without detailed study of the changes and the development of the case law. They include the provision of intermediaries for defendants when necessary, the extensive training of judges and advocates (a national roll out of the training of advocates is currently underway), the provision of and repeated judicial endorsement of advocacy toolkits for questioning vulnerable witnesses and the holding of ground rules hearings designed to ensure the particular needs of individual witnesses and defendants are met.
226.
We confirm, if confirmation is needed, that the principles in
Lubemba
apply to child defendants as witnesses in the same way as they apply to any other vulnerable witness. We also confirm the importance of training for the profession which was made clear at paragraph 80 of the judgment in
R v Rashid (Yahya)
(to which we have referred at paragraph 111 above)
.
We would like to emphasise that it is, of course, generally misconduct to take on a case where an advocate is not competent. It would be difficult to conceive of an advocate being competent to act in a case involving young witnesses or defendants unless the advocate had undertaken specific training. That consequence should help focus the minds of advocates on undertaking such training, whilst the Regulators engage on the process of making such training compulsory. We continue to press the Ministry of Justice for further resources to extend the training of judges; it would, if resources permitted, be desirable to provide more extensive training in respect of evidence given by young defendants and witnesses.
227.
In the meantime, we accept that further improvements can be made to the procedure so as to ensure a proper focus on the needs of a vulnerable defendant at the earliest possible stage in the proceedings. The court therefore asked the Criminal Procedure Rules Committee to review the form used for the PTPH hearing; this form has proved an effective and vital means of identifying the issues that are likely to arise at the trial. The Committee had been asked to include within the form a check list of all the relevant matters that need to be considered when young persons are to be tried in the Crown Court. As the form will require the judge to give reasons for departing from the Practice Direction, focus on the needs of young defendants will be intense. The Committee has agreed to make revisions to the form.
228.
As was apparent, it was not possible for the court to find a record of some of the decisions relating to the trial of these defendants. This omission should therefore also be addressed through the amendment to the form.
Ground III: Incompatibility of the sentence with Rights under the ECHR
229.
We have set out at the outset of the part of the judgment relating to these applicants the sentences passed at paragraph 72 above.
230.
It was submitted by McGill, Corey Hewitt and Andrew Hewitt that the sentence of detention during Her Majesty’s pleasure, as a mandatory indeterminate sentence, was incompatible with the defendant’s rights under Articles 3 and 5 of the ECHR.
The current statutory position
231.
As the submission was directed at the mandatory imposition of an indeterminate sentence for young persons, it is necessary first to set out the statutory provisions as to the imposition of the sentence and the provisions and practice governing release and recall.
232.
The sentence contains, as is well known, two elements: a minimum fixed term which reflects the element of punishment and retribution and an element of public protection and the indefinite period thereafter, where detention is governed by the need to protect the public.
The relevant statutory provisions for the imposition of the sentence
233.
S. 1(1) of the Murder (Abolition of Death Penalty) Act 1965 provides:
“No person shall suffer death for murder, and a person convicted of murder shall, subject to subsection (5) below, be sentenced to imprisonment to life.”
234.
S. 90 of the Powers of Criminal Courts (Sentencing) Act 2000 (The 2000 Act) provides for a different mandatory penalty for those under 18:
“Where a person convicted of murder…… appears to the court to have been aged under 18 at the time the offence was committed, the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure.”
The statutory provisions and practice relating to release on licence
235.
S. 28(6) of the Crime (Sentences) Act 1997 (the 1997 Act) provides that once an offender has served the minimum term of his sentence, the Parole Board shall not give a direction for release unless it is “satisfied that it is no longer necessary for the protection of the public”. Plainly there is no guarantee of release at the end of the minimum term; the statutory threshold for release is a high one.
236.
However, it is possible to reduce the minimum term through review after half of the minimum term has been served: see
R (Smith) v Secretary of State for the Home Department
[2006] 1 AC 159
. The review process was recently considered in the Divisional Court in
R (Cunliffe) v Secretary of State for Justice
[2016] EWHC 984 (Admin)
.
237.
S. 28(5) provides that when a person is released, he is released on licence. S. 31(1) of the 1997 Act provides that the licence imposed as part of a s.90 sentence shall remain in force until the person’s death. S. 31(2) and (2A) provide for the imposition of conditions. S. 31(3)(a) provides that the Secretary of State shall not impose, vary or cancel any such condition other than in accordance with the recommendations of the Parole Board.
238.
The August 2015 Standard Conditions include residing at an address determined by the supervising officer, not leaving the UK without permission, and a requirement to “be well behaved and not to do anything which could undermine the purposes of their supervision which are to protect the public, prevent them from re-offending and help them resettle successfully into the community.”
The statutory provision and practice relating to recall
239.
S. 32 of the 1997 Act provides that the Secretary of State may recall a person who has been released on licence to prison.
240.
The parties dispute the range of circumstances in which this may occur. The Secretary of State contended that an offender could only be recalled for behaviour giving rise to a risk of offending linked to murder or serious harm to the public, and not, for example, giving rise to a risk of non-violent offending:
Stafford V UK
(2002) 35 EHRR 32
, at [81-82] applied:
R (Green) v Parole Board
[2005] EWHC 548 (Admin)
.
241.
Stafford
concerned an offender convicted of murder and sentenced to life imprisonment. He was released on licence and subsequently convicted of fraud, receiving a determinate sentence. The question that arose was whether the Home Secretary could refuse to release him on licence due to the further risk of non-violent offending relating to fraud:
R(Green) v Parole Board
at paragraph 27. This clearly relates not to recall to prison, but to release on licence.
242.
However, the term requiring the person to be “well behaved” is, on its ordinary meaning, a broad term: see
R (Calder) v Secretary of State for Justice
[2015] EWCA Civ 1050
at paragraphs 21-26 (disapproving the exegesis to the term given in
R (McDonagh) v Secretary of State for Justice
[2010] EWHC 369 (Admin)
). As is clear from
Calder,
however, a breach in itself is not enough; the Secretary of State must have evidence on which he can conclude that it is necessary to recall the person to prison (see paragraphs 27-29 of the judgment).
Suspension of a licence
243.
Guidance provided by the National Offender Management Service (now Her Majesty’s Prison and Probation Service) provides that a Supervising Officer may apply to the Parole Board for suspension of the supervision element of an indeterminate licence. An offender may not make such an application. Under the current version of the guidance dated 4 March 2015, the application may only be made after 10 years of satisfactory compliance in the community for sex offenders, noteworthy cases or offenders convicted of the murder of the child. For other offences a minimum period of four years living in the community applies.
244.
However, there are two minimum supervision conditions that cannot be suspended: (a) the requirement of being well behaved and (b) a requirement not to commit a further criminal offence. Experience has shown that the risk of recall is real (see
Faulkner v Parole Board
[2013] 2 AC 254
at paragraph 74) and is potentially detrimental to progress (see an example given in
R v Roberts (Mark)
[2016] 1 WLR 3249
at paragraph 147).
The present case law relating to mandatory sentences of life imprisonment
245.
There is a significant body of case law relating to the three different types of life sentence that were available to the courts – the mandatory life sentence for murder, the automatic life sentence for further serious offending and the discretionary life sentence. It is only necessary to refer to some of the decisions when considering the arguments in relation to the mandatory nature of the sentence of detention during Her Majesty’s pleasure.
246.
The starting point is
V v United Kingdom
(1999) 30 EHRR 121
. A challenge was brought to the sentence of detention during Her Majesty’s pleasure imposed under s.90 of the 2000 Act on the basis it was severely disproportionate and in breach of Article 3 and unlawful under Article 5. The Strasbourg Court considered a range of international texts, including Article 17.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), and the United Nations Convention on the Rights of the Child and the earlier decision in
Hussain v UK
(1996) 22EHRR 1
, but rejected the challenge:
“96. In assessing whether the above facts constitute ill-treatment of sufficient severity to violate Article 3 (see paragraph 68 above), the Court has regard to the fact that Article 37 of the UN Convention prohibits life imprisonment without the possibility of release in respect of offences committed by persons below the age of eighteen and provides that the detention of a child “shall be used only as a measure of last resort and for the shortest appropriate period of time”, and that Rule 17.1(b) of the Beijing Rules recommends that “[r]estrictions on the personal liberty of the juvenile shall … be limited to the possible minimum” (see paragraphs 43-44 above).
97. The Court recalls that States have a duty under the Convention to take measures for the protection of the public from violent crime (see, for example, the A. v. the United Kingdom judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22, and the
Osman v. the United Kingdom
judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 115). It does not consider that the punitive element inherent in the tariff approach itself gives rise to a breach of Article 3, or that the Convention prohibits States from subjecting a child or young person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention or recall to detention following release where necessary for the protection of the public (see the
Hussain
judgment cited above, p. 269, § 53).
98…. It does not consider that the punitive element inherent in the tariff approach itself gives rise to a breach of Article 3, or that the Convention prohibits states from subjecting a child or young person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention or recall to detention following release when necessary for the protection of the public.
...
104…There can be no question but that the sentence of detention during Her Majesty’s pleasure is lawful under English law and was imposed in accordance with a procedure described by law. Moreover, it cannot be said that the applicant’s detention is not in conformity with the purposes of the deprivation of liberty permitted by Article 5 (1) (a) so as to be arbitrary.”
247.
In
R v Offen
[2000] EWCA Crim 96,
[2001] 1 WLR 257
, [2001] 2 Cr.App.R. (S) 10, the Court of Appeal Criminal Division considered provisions of the 2000 Act requiring the imposition of an automatic sentence of life imprisonment upon adults convicted of a second serious offence, unless there were “exceptional circumstances”. The automatic life sentence introduced under that Act was for quite different circumstances from the mandatory sentence of life imprisonment for murder. In giving the judgment of the Court, Lord Woolf CJ upheld the provision, but gave guidance as to the way in which “exceptional circumstances” had to be approached in a proportionate manner so as to include a defendant who did not pose a significant risk to the public.
248.
In
R v Lichniak
[2002] UKHL 47
,
[2003] 1 AC 903
, the appellants sought to argue that the mandatory imposition of life imprisonment upon adults convicted of murder was contrary to Articles 3 and 5 ECHR. In the case of each appellant the trial judge had concluded that they did not represent a significant danger to the public and a reduced minimum term was accordingly set. The appellants sought to rely on
Offen
in arguing that a life sentence ought only to be imposed where a defendant posed a significant risk to the public. Several onerous features of life imprisonment were highlighted: (a) those convicted could not know when they would be released; (b) at the end of the tariff term it was for the prisoner to show that he was safe for release, the onus being on him; and (c) even after release the prisoner remained liable to recall for the rest of his days. In the case of those not judged to be dangerous these safeguards served no valid penological purpose.
249.
These arguments were rejected. In giving the leading speech, Lord Bingham said that the court should not consider whether the mandatory life term was desirable, but whether it was lawful. The mandatory life sentence was quite different from the automatic life sentence under consideration in
Offen.
The life sentence for murder was only imposed on those who had taken a life, as adults, with the intention of doing so or causing really serious injury, and whose responsibility for their conduct was not found to be diminished. Any discussion about the future risk posed to the public inevitably took place in the context of a person who had been shown to commit violence with fatal consequences to another. The provisions relating to the automatic life sentence in issue in
Offen
were different. Moreover, the complaints were not of sufficient gravity to engage Articles 3 and 5. They had been sentenced to tariff terms that reflected the judges’ views of the particular facts and circumstances of each case. The process had not been arbitrary. Moreover, it was doubtful that the burden was in truth on the prisoner to persuade the Parole Board to recommend release. It was an administrative process requiring the board to consider all the available material and to form a judgement. Any decision was subject to challenge. Finally, although a prisoner might prefer not to be subject to the threat of indefinite recall, no danger would exist in the absence of any resort to violence. In addition, any such recall would be subject to an independent assessment by the Parole Board.
250.
In
R v Parchment, Davidson, Herbert and Stewart
[2003] EWCA Crim 2428
, three of the appellants were convicted of murder. They were between 15 and 16 years of age at the time of the offence and accordingly were sentenced to detention during Her Majesty’s pleasure. It was argued that
Lichniak
was distinguishable, but this court presided over by Mantell LJ rejected the contention saying that no distinctions could be found which would enable the court to take a different approach (see paragraph 22).
251.
The case law is clear and unequivocal. The sentence of detention during Her Majesty’s pleasure is not incompatible with the ECHR.
The submissions of the applicants
252.
Although each of the applicants made separate written submissions, the oral argument was advanced by Mr Bennathan QC. They can be summarised as follows:
i)
Offen
established the general principle that the automatic imposition of a lifelong preventative sentence where it was not necessary violated Articles 3 and 5; the court had accordingly in effect to read down the provisions of the 2000 Act applying to automatic life sentences. Although
Lichniak
had not applied the same principle to cases of murder, the position of those under 18 was different;
Parchment, Davidson, Herbert and Stewart
did not give sufficient consideration to the principle in
Offen
and to distinguishing
Lichniak.
The approach to adult defendants should be distinguished for the reasons set out in the following sub-paragraphs.
ii)
The ECHR is a living instrument. The Strasbourg Court had not been unanimous in
V
and it was time to revisit that decision and the decision in
R v Parchment, Davidson, Herbert and Stewart
in the light of worldwide developments in the approach to the sentencing of juveniles. Neither
R v V
nor
Hussain v UK
had addressed the mandatory nature of the sentence.
iii)
The UN Convention on the Rights of the Child demanded that any sentence imposed on a person under 18 should be for the shortest appropriate period of time. This principle has been affirmed in domestic law in
R (Smith) v Secretary of State for the Home Department.
iv)
The special welfare principle enshrined in Article 3(1) and Article 37(b) of the UN Convention on the Rights of the Child clearly did not apply to adult offenders. Many judgments of the UK courts made clear the importance of this Convention; see for example the judgments of Baroness Hale in
R(D) v Camberwell Green Youth Court
[2015] 1 WLR 393
and of Moses LJ in
R(C)
[2014] 1 WLR 1234
at paragraphs 38 and following.
v)
The denunciatory element of the mandatory life sentence for adults does not apply to children. The mandatory life sentence for adults was introduced at the same time as the abolition of the death penalty for murder, whereas the death sentence for juveniles had been abolished in 1908.
vi)
The decision of this court in
R v JW
[2009] 2 Cr App R(S) 94 in relation to detention for public protection showed the kind of considerations to be taken into account when sentencing.
vii)
The decision of the US Supreme Court in
Roper v Simmons
543 US 551 (2005) emphasised the special need for a different approach to the sentencing of children.
viii)
The advanced copy of the report of the UN Committee on the Rights of the Child’s Concluding Observations on the fifth periodic report on the UK (published in June 2016) recommended at paragraph 82 the abolition of the mandatory imposition of life imprisonment for those under 18.
ix)
General Comment No. 10 (2007) of the UN Committee on the Rights of the Child strongly recommended that States abolish all forms of life imprisonment for offences committed by persons under the age of 18.
x)
In a March 2015 report, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment argued at paragraph 74 that mandatory sentences for those under 18 were incompatible with the State’s obligations regarding those under 18. Such punishment was grossly disproportionate and therefore cruel, inhuman or degrading when imposed on a person under 18. In the light of the unique vulnerability of those under 18, they should be subject to sentences that promoted rehabilitation and re-entry into society.
xi)
No evidence was available in the present case to justify the proposition that any of the applicants would continue to present a significant danger to the public after the conclusion of his tariff period. A lifelong exposure to continued detention and the liability to recall could not be justified.
xii)
Recent research into adolescent brain development showed in the case of a child the imposition of a life sentence could not be justified without a specific assessment as to future dangerousness.
xiii)
T
he Court should therefore make a declaration of incompatibility.
253.
We were referred to the report of the Child Rights International Network,
Life Imprisonment of Children in the European Union,
published in April 2014. The Report is critical of the approach of the United Kingdom. It observes that of the 28 States within the EU, 22 include within their laws an explicit prohibition on life imprisonment for children, or a clear limit on the period for which children may be detained which falls short of
de facto
life imprisonment. England and Wales are highlighted as an outlier for the relatively frequent use of detention during Her Majesty’s pleasure. The Ministry of Justice is criticised for its failure to maintain figures on how long children serving these sentences actually remain in custody. We were also provided with a witness statement by Leo Ratledge of the Children’s Rights International Network which explained their work. He explained that there was no State (whose regime the Network had considered as not allowing life imprisonment for children) which had legislation which permitted either recall at the end of the determinate part of the custodial sentence or indefinite on-going supervision with provision for recall, unless a further offence was committed.
254.
The Secretary of State criticised the quality of this evidence and referred us to a further report published in October 2012 by Children’s Rights International Network on
Inhuman Sentencing, Life Imprisonment of Children in the Commonwealth
which showed that 45 out of 54 Commonwealth States provide for one or more types of life imprisonment of young persons under 18.
255.
Mr Bennathan QC emphasised the position of Corey Hewitt; he was 13 at the time of the murder. In his case the fact that he had been convicted of murder did not mean he was either dangerous or likely to pose a risk to the public. The report of Dr Louise Bowers of the Forensic Psychologist Service dated 26 January 2017 showed the significant progress he had made; as a result of that progress in custody, his risk of engaging in future violence that could cause a risk of serious harm was very low. There were similar considerations in respect of the others.
Our conclusion
256.
At the outset it is necessary to make clear that this submission must be seen in the context of the murder we have described. It was a murder which took place in the context of gang violence in Liverpool, in which the deceased was hunted down, cornered and a knife and a swordstick used on him. It is clear that each of those convicted participated in the fatal attack upon him knowing of the presence of the weapons used to kill him. This is therefore a case where it can properly be inferred that each of the applicants at the time of their conviction posed a significant risk of committing serious violence that would cause serious harm, and that, for the protection of the public, the risk they pose must be reviewed at the conclusion of the minimum term. A period of licence was amply justified on the facts. We therefore reject the factual premise underlying the submissions made.
Our view of the case law
257.
In
V v United Kingdom
the Strasbourg court carefully considered the mandatory sentence of detention during Her Majesty’s pleasure upon juveniles and found no violation. In doing so it specifically considered Article 37 of the UN Convention on the Rights of the Child and Article 17.1(b) of the Beijing Rules. We reject the submission that the court did not consider the mandatory nature of the sentence and the life licence: see paragraphs 35-39 of the judgment.
258.
In
R v
Parchment, Davidson, Herbert and Stewart
this court applied the reasoning in
R v Lichniak
to the sentence of detention during Her Majesty’s pleasure. There is no basis for doubting the authority. In the present case, the reasoning of Lord Bingham applies with considerable force to these youths – this was a case where there was a substantial risk of further violence; it was quite different from
Offen.
The evidence before us of practice in other States.
259.
We have carefully examined the State practice and reports relied on. We are not satisfied that they address the specific operation of the sentence of detention during Her Majesty’s pleasure as we have set it out. For example, the UN Committee on the Rights of the Child did not explain the basis for their concerns. It was not clear whether the UN Committee understood the way that the provision of the minimum term and the assessment of release operated in practice. Similarly, the report of the UN Special Rapporteur does not address the fact that the sentence in each case is reflective of the individual circumstances. Nor is the information in respect of the EU States sufficiently clear to enable us to compare the regimes as operated in other States with the sentence of detention during Her Majesty’s pleasure.
The proportionality of the judge’s decision and of the regime for release
260.
It is clear from the sentencing remarks of the judge that he carefully approached the fixing of the minimum terms in a manner that took into account their culpability and their individual circumstances. The terms were proportionate. The argument that the sentencing of juveniles should be based on individualised assessments ignored that this is precisely what happens under the sentencing regime for detention during Her Majesty’s pleasure. When the sentenced is passed, the minimum term is fixed on the basis of a detailed consideration of the circumstances of the offence and the offender. When the minimum term is reviewed at the end of the minimum term and when the licence conditions are fixed, the individual circumstances of the offender are again considered and the decision made on that basis. The only part of the regime that is not adjustable to the circumstances of the individual is the inability to curtail the life-long nature of two of the licence conditions to which we have referred at paragraph 244.
261.
Furthermore, there is no evidential basis for contending that the Parole Board would detain these applicants beyond the minimum term if they posed no risk; there would in any event be a remedy by way of judicial review.
262.
All of these considerations have lead us to the clear conclusion that on the facts of this case there is no basis on which it could be said that the sentences imposed were in breach of Articles 3 and 5.
Our freedom to depart from the case law
263.
Even if we had taken a different view of the circumstances of this case, we do not consider that it would have been appropriate for us to depart from the decision of the House of Lord in
Lichniak
and the Strasbourg court in
R v V.
We would have pursued the course in such circumstances suggested in
Kay v Lambeth LBC
[2006] 2 AC 465
, at paragraph 42 and left the question of reviewing the international developments relied on and determining whether the case law should be changed to the Supreme Court.
264.
Accordingly, we regard the ground of the application for leave to appeal as to the mandatory nature of the sentence as without legal merit. On the facts of the case there could be no criticism of the minimum terms for the reasons we give in the next section. Plainly the risk to the public posed the applicants will have to be assessed at the end of that period by the Parole Board and a period of release on strict licence conditions will certainly be required. The wider points argued in relation to detention for Her Majesty’s pleasure therefore simply do not arise on the facts of these appeals. Their determination would make no difference to the outcome.
265.
As this court has pointed out in the cases to which we referred at paragraph 219, it is particularly important in appeals in relation to sentencing that the application is made within the prescribed time limits.
It is clear from the privileged material that the issue of an appeal against sentence was discussed shortly after sentence and a decision made not to seek leave to appeal
. As there was no good reason for the late application for leave to appeal in relation to the mandatory nature of the sentence and as the points raised do not arise on the facts and would make no difference to the outcome, we refuse an extension of time. If we had granted an extension of time, we would have refused leave to appeal.
Ground IV: The length of the minimum terms
266.
It was contended that the minimum terms were manifestly excessive on the basis of the principles ordinarily applied by this court.
267.
Although a court will have regard to all the circumstances in determining whether an extension of time should be granted, a long time lapse (such as has occurred in these appeals) requires a good reason for the court to extend time. We cannot discern in any of the papers before us any good reason for the late application on the basis that the sentences were manifestly excessive. Although we also refuse leave on that basis, we have also considered the merits.
McGill
268.
It was submitted that the judge had not sufficiently taken into account his cognitive difficulties; the judge had referred to his educational difficulties, but not to his ADHD.
269.
We regard this ground of appeal as without merit. The judge took into account all the relevant factors and set the minimum term at the lowest possible level.
Corey Hewitt
270.
Corey Hewitt is now 17; he will be 18 on 7 October 2017. He would ordinarily then be transferred to the adult estate to serve the remainder of his sentence. His minimum term expires on 19 January 2020. The principal submission made related to seeking a reduction to enable him to stay within the prison estate for those under 18.
271.
We were provided with a psychological risk assessment report by Dr Loiuse Bowers to which we have referred at paragraph 255. It was submitted to us that, given his progress has been so good, we should consider reducing his minimum term so as to permit him to remain at Barton Moss Secure Care Centre and be released directly from there.
272.
However, it important for a court to recognise the distinction between its function in fixing the minimum term and the function of the Secretary of State and the Parole Board in managing the terms of his sentence and release; there is a clear division of responsibilities under our constitution. It is particularly important in an appeal brought so long out of time that the court does not usurp the function of the Secretary of State. Although we see the force of the argument made by Mr Bennathan (based on the report of Dr Bowers and the other reports including the tariff assessment and sentence review reports and the YOT case manager’s reports) that it might be beneficial to Corey Hewitt to remain at Barton Moss and be released from there, that is a matter within the remit of the Secretary of State. He can reduce the minimum term and he can, as Mr Bennathan’s skeleton arguments points out, designate lower conditions of security. It would not be right for us to interfere with the length of the minimum term to achieve our view of how the Secretary of State should carry out his duties. That is a matter for his decision, subject, of course, to judicial review.
273.
The submission that the length of the minimum term did not reflect Corey Hewitt’s culpability and his disabilities was without merit. The term was the least possible the judge could properly have passed.
Andrew Hewitt
274.
It was submitted that the judge had not taken sufficient account of his youth, his cognitive disabilities and his immaturity.
275.
Again, this submission has no merit. The judge fully took into account his culpability his youth his immaturity and his disabilities. He set the minimum term at the lowest possible level. | ```yaml
citation: '[2017] EWCA Crim 1228'
date: '2017-08-11'
judges:
- LADY JUSTICE HALLETT
- MR JUSTICE GOSS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2019] EWCA Crim 447
Case No:
201802789 B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HER HONOUR JUDGE DHIR QC
T20170205
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15/03/2019
Before :
LORD JUSTICE BEAN
SIR DAVID CALVERT-SMITH
and
HER HONOUR JUDGE ADELE WILLIAMS QC
-
- - - - - - - - - - - - - - - - - - - -
Between :
PETER TONER
- and -
Appellant
R
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Esther Schutzer-Weissman
(instructed by
Registrar of Criminal Appeals
) for the
Appellant
Abigail Husbands
(instructed by
CPS Appeals Unit
) for the
Respondent
Hearing date : 12 March 2019
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Bean :
1.
The Appellant stood trial from 24 April to 6 May 2018 at the Central Criminal Court on an indictment which contained charges of indecency with young children allegedly committed between 1986 and 1991 and of possession of indecent photographs of a child (pornography on a laptop and USB sticks) in 2015. The defence applied to sever the indictment so that the historic counts and the recent counts could be tried separately. The judge, Her Honour Judge Dhir QC, refused the application. During the trial the judge directed acquittals on some of the historic counts. Four of the historic counts (representing allegations made by two complainants) and the three recent allegations were left to the jury who returned verdicts of guilty on each of them.
2.
The Appellant appeals to this court pursuant to leave of the single judge, Davis LJ who wrote:
“For the purposes of the bad character provisions, evidence of possession of indecent sexual images of children may be capable of being admitted in connection with sexual assault allegations relating to children:
R v D, P and U
. Had the various offences charged all been close together in point of time, I do not see much difficulty in the allegations being properly joined and in a refusal thereafter to sever. Here, however, the possession of the indecent images post-dated the charges of indecency with a child by well over 20 years. In such circumstances, one can have considerable unease at the propriety of joinder of all such counts for the purposes of Crim. P. R. 3.21(4). Moreover, such joinder was inevitably potentially prejudicial, (as the prosecution would say, because of the relevance of the nature of the later offending): and it can be argued that it was unduly and unfairly prejudicial by reason of the intervening lapse of time. Overall I think the points both on joinder and on severance are sufficiently arguable so as to justify the grant of leave to appeal.”
The single judge also granted leave to appeal on a second ground specific to one of the computer pornography charges to which we shall return later.
3.
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.”; and since 1967 this section has applied to all offences triable on indictment. Until the Indictment Rules were replaced in 2016 the provisions of the rules allowing joinder were very strict. Rule 9 of the Indictment Rules 1971 (reenacting in substance Rule 3 in Schedule 1 to the 1915 Act itself) provided:-
“Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form, or are a part of a series of offences of the same or a similar character.”
4.
A number of authorities dealing with the propriety of joinder under the old rules were cited to us in the Grounds of Appeal and Respoondent’s Notice. The leading case was
Ludlow v Metropolitan Police Commission
[1971] AC 29
. The House of Lords held that for two or more offences to constitute “a series of offences of the same or a similar character” under the then Rule 3 there must be some nexus between the offences, nexus being a feature of similarity which in all the circumstances of the case enabled the offences to be described as a series.
5.
Some of the reported authorities were in cases where, as in the present case, two sets of alleged offences were several years apart. In
Baird
(1993) 97 Cr. App. R. 308 this court held that the question whether the two sets of offences could be described as a
“series” should not be approached by reference to the dictionary definition of that word: if an appropriate nexus existed to bring the charges within Rule 9 even offences separated by a period of 9 years could be said to form a series.
6.
In
R v C
,
The Times
February 4, 1993 the offences were separated by 11 years but were each sexual offences against the same victim (the defendant’s daughter). Simon
Brown LJ, in a passage relied on by Ms Schutzer-Weissman for the Appellant, said:-
“It may be, although we express no final view upon it, that in this case Rule 9 was stretched towards its limits to accommodate two counts separated as these were by 11 years”
7.
We have real doubts about whether charges of indecency with young children between 1986 and 1991 and of possession of child pornography on a laptop and USB sticks in 2015 could be said to form part of a series of offences of the same or a similar character. However, for reasons which will appear, it is not necessary to decide the point in the present case.
8.
Section 5(3) of the Indictments Act 1915 provides:-
“Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately or any one of more offences charged in an indictment the court may order a separate trial of any count or counts of such indictment.”
9.
Until 2016, if the joinder of charges in a single indictment was in breach of Rule 9, the court had no option but to order severance.
10.
The strict terms of Rule 9 of the 1971 Rules have not been reproduced precisely in the current rules. Criminal Procedure Rules r 3.21(4), provides that:-
“Where the same indictment charges more than one offence, the court may exercise its power to order separate trials of those offences, if of the opinion that:-
(a)
the defendant otherwise may be prejudiced or embarrassed in his or her defence (for example, where the offences to be tried together are neither founded on the same facts nor form or are part of a series of offences of the same or a similar character); or
(b)
for any other reason it is desirable that the defendant should be tried separately for any one or more of those offences.”
11.
We note that the opening words of the rule state that the court “may”, not “must”, exercise its power to order separate trials in the circumstances set out in subparagraphs (a) and (b). That does not mean that the width of the judge’s discretion is infinite, or that the new rule 3.21(4) was intended to effect a revolutionary change. Indeed, paragraph 10A.3 of the Consolidated Criminal Practice Direction states:
“The rule has been abolished which formerly required an indictment containing more than one count to include only offences founded on the same facts, or offences which constitute all or part of a series of the same or a similar character.
However, if an indictment charges more than one offence, and if at least one of those offences does not meet that criteria, then CrimPR 3.21(4)(a) requires the court to order separate trials; thus maintaining the effect of the long-standing principle
. Subject to that, it is for the court to decide which allegations, against whom, should be tried at the same time, having regard to the prosecutor’s proposals, the parties’ representations, the court’s powers under section 5(3) of the Indictments Act 1915 (see also CrimPR 3.21(4)(b)) and the overriding objective. Where necessary the court should be invited to exercise those powers.” [emphasis added]
12.
Ms Schutzer-Weissman relies on the italicised sentence as showing that the change in the wording from the old Rule 9 does not diminish the strictness of the test at all. We do not interpret the new Rule in that way.
13.
The repeal of Rule 9 of the 1971 Rules and its replacement by CrPR 31.2(4) has in our view removed the technical barriers to joinder in appropriate cases. We consider that in a case where the evidence on one count would be properly admissible on the other as evidence of bad character it is difficult to argue that the defendant would be “prejudiced or embarrassed in his defence” by having both counts or sets of counts on the same indictment. The judge is not required to order severance of the indictment and separate trials unless on their proper construction the rules compel it, or there is some other factor (such as the need to avoid overloading the indictment or overburdening the jury) making separate trials desirable.
14.
We turn, therefore, to consider whether, if the defence application in the present case to order severance had succeeded, the computer pornography allegations would have been admissible at the trial of the defendant on the historic counts alone or vice versa.
15.
As the single judge observed, the case of
R v D, P and U
[2013] 1 WLR 676
is clear authority that where a defendant is charged with any prohibited sexual activity involving children, evidence that he had viewed or collected child pornography is capable of being admissible pursuant to sections 101(1)(d) and 103(1) of the Criminal
Justice Act 2003 as demonstrating a sexual interest in children: although, as Hughes LJ observed at paragraph 19:
“It will not always be so. There may be a sufficient difference between what is viewed and what is alleged to have been done for there to be no plausible link. It may be right to exclude the evidence as a matter of discretion, particularly if its probative value is marginal. But that it is capable being admitted under gateway (d) we entertain no doubt.”
16.
In the first two cases (D and P) the defendant’s possession of the pornographic images was undisputed but not the subject of criminal charges; in the third case, U, it had led to pleas of guilty on ten charges. This court does not appear to have found the distinction significant.
17.
The central issue in
R v D, P and U
was admissibility in principle; but there was consideration of the lapse of time in U’s case The rapes and indecent assaults with which U was charged were allegedly committed between about 1993 and 2004. The complaints surfaced in 2008 when a substantial quantity of indecent pornographic images of children and videos of similar material were found on or with the defendant’s computer.
18.
At paragraph 45 Hughes LJ said:
“For the reasons which we have already given, we are satisfied that this evidence was admissible and properly admitted under gateway (d). It is true that the making of the images found appears to have been in 2008 or thereabouts and that that was some years after the two complainants had ceased to live with the defendant and thus when any offences could have been committed. But a sexual interest in children is a characteristic which is unlikely to change over years. The jury was entitled to find that this evidence tended to show that the complaints were not false but rather were made against a man who would indeed have had the sexual interest in these two children which they said he had. A similar point was made in this court in relation to the timing of the abuse and pornography in
R v A (Alec Edward)
[2009] EWCA Crim 513
.”
19.
In the recent case of
Thompson
[2016] All ER (D) 56 Dec the defendant stood trial in 2015 on four counts of indecent assault allegedly committed in 1972. The trial judge ruled that evidence of child pornography found on the defendant’s computer when he was arrested in 2015 was admissible pursuant to section 101(1)(d) of the 2003 Act as being capable of establishing a sexual interest in children which was an important matter in issue at the trial. The pornography was not the subject of separate charges. A long list of websites visited by the appellant was included in the agreed facts placed before the jury. The defendant’s explanation was that (having by this time become a clergyman) he had visited them for the purpose of research for a sermon he had intended to preach.
20.
This court (Elias LJ, Sweeney J and Judge Dean QC) observed that given the lapse in time, some judges might not have adduced the evidence; however, the jury had been told to take that gap into consideration when coming to their conclusion. Elias LJ said at paragraph 15 of the transcript:
“The argument adduced before us is that there was far too long a period between the incidents and the subsequent discovery of the indecent material on the computer; that in all the circumstances it would be unsafe for the jury to infer that someone who had a sexual interest in children 40 years after the event necessarily had a sexual interest in children at the time. Indeed, it was submitted that the evidence adduced before the jury did not demonstrate a sexual interest before the jury. We reject that submission. Plainly it was capable of doing so, and the jury had to consider the appellant’s explanation as to why the material was present.”
21.
In the present case we consider that, if the child pornography counts had been severed, an application by the prosecution to adduce the facts on which those charges were based, as showing a sexual interest in young boys, at the defendant’s trial for the historic offences could properly have been allowed.
22.
By the same token, following severance, an application by the prosecution to adduce the evidence of the boys the subject of the historic offences counts (as they then were) at the trial of the pornography counts could properly have been allowed.
23.
We are conscious of the fact that the defendant did not admit either the pornography or the historic offences counts; but that cannot be determinative of the question of whether a bad character application would have succeeded. The pornography depicted boys in the 7-14 age group, the same as the complainants on the indecency charges, one of whom alleged that the defendant had filmed him stripping naked. The defendant’s explanation in relation to counts 1 and 2 (the USB sticks) was that he had acquired a variety of USB sticks some of which had been used by others and he did not check the contents: the jury must have found that highly improbable.
24.
Ms Schutzer-Weissman submitted that the pornography charges were being used to bolster a weak case on the indecency counts; and that the judge should have reviewed the position when at the close of the prosecution case the Crown withdrew the counts relating to the third complainant. We do not accept this argument; and observe that no application was made at that stage for the jury to be discharged. We think it most unlikely that had such an application been made it would or should have been granted.
25.
For these reasons we consider that it was a proper exercise of the judge’s discretion to refuse severance of the indictment.
26.
There was a separate argument relating to count 3, possession of indecent images on an inaccessible part of the hard drive of the defendant’s laptop. An expert witness testified that they would have been accessible at some earlier point (which could not be ascertained) before being deleted. The defendant’s case was he had bought the laptop as an ex-display model and had never viewed the indecent images. The judge directed the jury that they could not convict on this count unless satisfied that the defendant had had the images in his possession before they were deleted. The jury evidently disbelieved the defendant. There is nothing in this ground of appeal.
27.
We conclude that the defendant was properly tried on the indictment as it was put before the jury and that his convictions are safe. The appeal is dismissed. | ```yaml
citation: '[2019] EWCA Crim 447'
date: '2019-03-15'
judges:
- HER HONOUR JUDGE DHIR QC
- LORD JUSTICE BEAN
- SIR DAVID CALVERT
- HER HONOUR JUDGE ADELE WILLIAMS QC
- 'Lord Justice Bean :'
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2011] EWCA Crim 100
Case No.
2011/00161/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Tuesday 25 January 2011
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE EADY
and
MR JUSTICE SIMON
__________________
APPLICATION FOR LEAVE TO APPEAL
under section 159 of the Criminal Justice Act 1988
by
MGN LIMITED & Others
__________________
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 G Millar QC and Mr A Wolanski
appeared on behalf of the Applicants
Mr W Boyce QC
appeared as a representative of those defending in the First Trial
Mr A Hall QC
appeared as a representative of those defending in the Second Trial
Mr P Brogan
appeared as a representative of those defending in the Third Trial
Mr M Heywood QC and Mr J Evans
appeared on behalf of the Crown
____________________
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. This is an application by representatives of the media under
section 159 of the Criminal Justice Act 1988
for leave to appeal against the order made by His Honour Judge Moss QC sitting at the Central Criminal Court on 20 December 2010 and his decision dated 6 January 2011 confirming that order. The order provides:
"In order to avoid substantial risk of prejudice to the administration of justice in these proceedings (or pending or imminent proceedings) the court orders that there should be no report published which refers to today's or future proceedings,
Until further order."
The reference to "until further order" was recorded in error. The order should read:
"Until the conclusion of the third trial."
The avowed purpose of making the order was
"to protect the fairness of the trial from the publication of the material referred to, which, if published might have a substantially adverse effect on the fairness of the proceedings."
2. The order was made in relation to three trials listed for hearing at the Central Criminal Court, T20107117, T20107126, T20107210, T20107299, in accordance with
section 4(2) of the Contempt of Court Act 1981
. No other legislative provisions were considered.
3. The applicants require a three day extension of time. It is not entirely clear why, when Judge Moss considered this issue on 20 December 2010, so many members of the media now participating in this application were apparently unaware of the proceedings and therefore did not apply to participate in them. Whatever the reason, however, the application raises an issue of importance for the purpose of pending trials for murder involving no less than twenty young defendants. The issues merit our attention. We shall therefore extend time and grant leave. We shall deal with both decisions by Judge Moss as if they had been made in a single hearing.
4. For present purposes we have heard Mr Millar QC on behalf of the media; counsel for the Crown at trial, Mr Heywood QC; and counsel representing the different defendants in each of the three trials, that is the current trial and the two forthcoming trials, who have made submissions of common interest to all the defendants in the respective trials. We have also considered written submissions advanced by one or two of the counsel for the other defendants.
5. The litigation arises from the prosecution of twenty defendants aged between 15 and 18 years for the murder of Sofyen Belamouadden, a boy born in November 1994, who was aged 15 years at the time of his death. He was killed on 25 March 2010, shortly before 6pm, when he was chased across Terminus Place at the front of Victoria Station in London by a group of young men, some of them visibly armed. At least four of those pursuers peeled away and chased another young man. But Sofyen Belamouadden was chased by a large group. They caught him at the top of the stairs to the District and Circle Line ticket hall of the underground station at Victoria, where he was attacked. He was pushed and fell down a flight of stairs into the ticket hall. While there, for a continuous further period he was attacked, stabbed and slashed with knives, and beaten and kicked.
6. He sustained nine incised wounds, all of which were of significant severity and depth. His injuries included eight stabbings, a slashing injury and further blunt impact injuries. He suffered cardiac arrest at the scene. Death was certified at hospital later that same evening.
6. The stark recital of the facts is sufficient to demonstrate why the death of this young man caused, and remains the cause of public concern and legitimate interest. It was, after all, rush-hour at a mainline station in London. A boy of 15 was chased and attacked, and he suffered serious injuries which killed him. This was a very public incident which took place in a very public area.
7. The case for the prosecution is that the death of this young man was the result of growing and simmering tensions between pupils at a sixth form college in London, at which eighteen of those facing trial were then students, and their associates, and a group of others from a different area of London with which the deceased was connected, as they passed through Victoria Station on their way to and from their places of education.
8. On the previous day, 24 March, there was an incident at Victoria Station when members of the two groups met and clashed. There was a short fight, the details of which are irrelevant to our decision. After the fight members of the group from the sixth form college are alleged by the prosecution to have communicated with one another via mobile telephones and the Facebook social networking website. The prosecution case is that these communications were not coincidental. They indicated an intention to engage in serious violence.
9. The twenty defendants are indicted with the same offences: count 1, conspiracy to cause grievous bodily harm; count 2, the murder of Sofyen Belamouadden; and count 3, violent disorder. The charge of murder is based variously on alleged responsibility of one or more defendants as joint principals or as aiders and abettors (for example, as suppliers of weapons or offering encouragement) and/or secondary liability as parties to the wider violent joint enterprise. For case management reasons the trial has been divided so that there will, in fact, be three separate trials. The first trial comprises the defendants whom the Crown allege entered the ticket hall and were present at the time of the fatal attack, save for one further defendant who is alleged to have purchased knives and then involved himself in chasing the second young man. The second trial includes those who entered the ticket hall and some who peeled off from the main attack on the deceased and chased the other young man. The third trial includes defendants who joined in the chase of the deceased, but only one of whom on his own alleged admission can be demonstrated to have entered the ticket hall. However, none of the defendants in the first trial will be defendants in the second or third trials; and none of the defendants in the second trial will be defendants in the third trial. In reality, this is a single trial in which, for case management reasons and the practical organisation of the trial process, the division of trials has had to occur.
10. Defence statements have been received from the majority of the defendants. Why they have not been received from all of them is a question into which we shall not go, but it is unlikely that any defendant will contend that the use of any degree of violence against the deceased boy was lawful or justified in law.
11. In summary, therefore, the primary issue in the case of each defendant is whether it can be shown that he or she was party to an unlawful agreement to cause serious harm, and then took part in the events at Victoria Station, which amounted at the very least to a violent disorder, and did so knowing that a range of knives and other dangerous weapons were being taken to the scene and that it was at the very least in contemplation that these potentially lethal weapons might be used with intent to do really serious injury or to kill. It will, of course, ultimately be for the juries to decide whether Sofyen Belamouadden was the victim of murder. On the face of it, however, the more difficult question to be faced by each jury is whether it has been proved as against each individual defendant that he or she was guilty of murder or indeed any other of the alleged offences.
12. The first trial began on 4 January 2011. The first evidence was called on 13 January. The time estimate is twelve weeks. Consistently with the timetable, the second trial is fixed for 11 April, with an estimate of eight weeks. The third trial is fixed for 13 June, with an estimate of six weeks. In accordance with practice, the prosecution has served its case papers on each of the defendants. The papers include statements from approximately 360 witnesses, of whom a small majority are eyewitnesses of fact. Some of the witnesses are youngsters who attended college with the defendants. In the first trial, something like 55 adult eyewitnesses are fully bound to attend to give evidence, and five of the younger witnesses are similarly bound. It is likely that all five of the young witnesses, and a significant proportion of the other eyewitnesses, will be required to give evidence during either the second or the third, or possibly both the subsequent trials.
13. The effect of the order made by Judge Moss is a blanket prohibition on any reporting of any aspect of any of the three trials until the conclusion of the third trial. The fact that the prohibition is a blanket one is underlined by the fact that, as a result of the order, not even, for example, the opening of the case by the Crown at the first trial may be the subject of reporting. Judge Moss is a highly respected and experienced judge. It was no doubt for that reason that he was entrusted with a case of such importance and potential complication. It is clear from the transcripts that he perfectly well understands the principles of open justice and the public advantages of fair, contemporaneous reporting of criminal proceedings. His decision was based on his judgment that the interests of a fair trial, and the interests of both the prosecution and the defendants in a fair trial, required the imposition of this wide-ranging reporting restriction. His reasoning is clear. Focusing his attention on
section 4(2) of the Contempt of Court Act 1981
, he decided that accurate reports of any part of the three trials before the conclusion of the third trial, even if published contemporaneously and in good faith, would create a substantial risk of prejudice to the administration of justice in those proceedings or in any other proceedings, pending or imminent. To avoid that risk, he ordered that publication should be postponed. Unless he was satisfied about that risk, the order could not have been made.
14. In
R v Sherwood, ex parte the Telegraph Group Plc and Others
[2001] 1 WLR 1983
, commented on with approval in
Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago and Another
[2004] UKPC 26
,
[2005] 1 AC 190
, it was suggested that any possible confusion in relation to applications under
section 4(2)
of
the 1981 Act
could be avoided by a systematic approach to applications to restrict media coverage of court proceedings. The first question is whether the reporting would give rise to a not insubstantial risk of prejudice to the administration of justice. The second question is whether an order under
section 4(2)
would eliminate that risk. If not, there would be no necessity to impose such a ban. Again, that would be the end of the matter. If, on the other hand, an order would achieve the objective, the court still has to consider whether the risk could satisfactorily be overcome by less restrictive measures. Third, even if there is no other way of eliminating the perceived risk of prejudice, it still does not follow necessarily that an order has to be made. This requires a value judgment. The court highlighted the need for care to avoid confusing the senses in which the word "necessary" is used in the legislation. Adapting Viscount Falkland's famous aphorism, the court's approach should be that, unless it is necessary to impose an order, it is necessary not to impose one; and if it is necessary to impose an order at all, it must go no further than necessary. In summary, an order under
section 4(2)
of
the 1981 Act
should be regarded as a last resort.
15. To reach his conclusion, Judge Moss examined first the question whether fair and accurate reporting of the first trial would create or represent any risk to the integrity of the juries in the second or third trials, in effect prejudicing them in such a way that they might not perform their duty. He decided that any potential problems would be addressed in the usual way by clear and unequivocal directions with which the jury could be expected to comply. We have been asked to reconsider the same point. We acknowledge that this is a very high profile case, that there will be a number of trials arising from the same event, and that it is a case likely to create a considerable emotional response.
16. All that aside, however, in our judgment the juries in the second and third trials can be trusted to reach an unprejudiced verdict in relation to the alleged involvement in the offences of each and every individual defendant in accordance with the evidence. We maintain a positive view about the robustness of jurors. In
In the matter of B
[2007] EMLR 5
, this court emphasised that
"juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright. It is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process."
Having reflected on the submissions advanced on this aspect of the case, we do not regard the possibility of jury misconduct as providing any basis for the order made under
section 4(2)
of
the 1981 Act
. On this aspect of his judgment, we agree entirely with the trial judge.
17. It was after he examined the position of witnesses that Judge Moss satisfied himself that the blanket prohibition on reporting of the proceedings of the first trial was necessary. He had in mind that some of the witnesses were very young; that many of them came from the same places of education as the defendants; and that they would be exposed to the risk of potential hostility if they gave evidence for the prosecution. That would be bad enough in itself, but it would lead to the further risk that any evidence which they gave at the second or third trial would be altered or diminished, or in effect tainted by the unpleasant situation in which these witnesses might find themselves. It was therefore concluded that the effect of reading or studying reports of the proceedings in the media might create pressure on them. If that is the case, then so might pressure be created by others who knew what they had said. As we have indicated, the statements of the witnesses have been served on the defendants. The identity of each and every witness is known to each and every one of the twenty defendants. Their identities certainly are not secret.
18. Special measures are being taken in court to give the young witnesses the protection to which they are entitled. But however it is examined, notwithstanding any reporting restrictions, the defendants themselves would have not the slightest difficulty in identifying the witness giving evidence and informing the entire community of the fact. Some of the defendants are on bail. Some of them will have families and friends attending the proceedings. None of this can be avoided by the imposition of the order under
section 4(2)
. In effect, it is already too late, and would inevitably be too late, for the processes under
section 4(2)
to be deployed for the purposes of protecting these witnesses from whatever troubles may be anticipated for having assisted the police or (if they do) for having given evidence at the first trial.
19. In amplification of the submission we have just considered, it was argued that the reporting of the evidence of witnesses will lead to witnesses modifying their own accounts, not merely because of threats (or concerns about threats) but because if they look at reports of the evidence they may be subject to "memory adjustment", which sometimes occurs quite innocently as time goes by since an incident was witnessed, and further accounts about it emerge and are seen and noted by the witness.
20. This all presupposes that the witnesses will read all the reports published in the media about the trial, and that the media will publish all the evidence given by all the witnesses. In theory, that is possible, although in reality unlikely. The problem of witnesses giving evidence at trial which is inconsistent with earlier statements, or indeed giving evidence at a second trial, which is different from the evidence they have given at a first trial, is not new. The solution is not always easy and straightforward. But to the extent that evidence is changed or embellished to the disadvantage of any defendant, the witness can be cross-examined on the basis of his or her earlier statements or evidence. The greater concern, in reality, is for the prosecution: that the witnesses will not come up to their original statements or evidence when, unless they are a hostile witness in the sense understood in the criminal justice system, the prosecution cannot cross-examine them. In the result, without minimising the difficulties which may lie ahead when witnesses give evidence about the same matters on a second or third occasion, our focus in the present context is whether the blanket prohibition on fair contemporaneous reporting of the first trial would extinguish or significantly diminish these difficulties. We very much doubt whether they would do so. Indeed, we have reflected on many of the concerns carefully and succinctly expressed on behalf of the defendants and we have come to the conclusion that those concerns and the consequences of reporting in any very high profile case would be common. The issue of how these cases are tried and how they are conducted by counsel on each side exercising their responsibilities is never easy, but there is nothing specific about this case which is different from that of any other high profile case -- at any rate for the purposes of the imposition of a blanket prohibition on reporting under
section 4(2)
of
the 1981 Act
.
21. We must remind ourselves that this section is not concerned with inaccurate or unfair reports of court proceedings, or of observations or comments made anywhere which would constitute contempt of court. Lifting this blanket ban, or part of it, would not suspend the ordinary principles which apply to contempt of court. Those principles are always in place and in allowing the appeal, as we shall, we are not implicitly approving anything other than fair, accurate and contemporaneous reporting of the proceedings as they take place at the Central Criminal Court. As
section 4(2)
imposes limits on fair and accurate reporting on proceedings, for all the reasons encapsulated in two short words "open justice" -- and surely such an elementary principle requires no citation of authority -- an order is only to be made, as we have already said, when it is necessary for the purposes of ensuring that justice is fairly and properly done in the cases in which an order has been made.
22. Without minimising the burdens and difficulties faced by witnesses, the use of
section 4(2)
of
the 1981 Act
for the purposes of alleviating the difficulties of giving evidence, even if evidence has to be given in more than one trial, is rarely appropriate. Of course, if the conditions for an order under
section 4(2)
are established in the case of a particular witness or witnesses so that the order is justified in accordance with principle, then the order should be made. But in essence the protection of witnesses is more appropriately secured by statutory measures designed for the purpose, such as
section 39 of the Children and Young Persons Act 1933
, or sections 23-30 of the
Youth Justice and Criminal Evidence Act 1999
, or any further legislation designed to enable witnesses to give of their best.
23. For the reasons set out in this judgment, this appeal must be allowed and the order imposing the blanket prohibition on publication of fair and accurate reporting of the first trial, or the second or the third trial will be quashed. Any applications which may be made in relation to individual aspects of the present trial or the forthcoming trials should be made to Judge Moss, as the trial judge, and he will consider any individual applications in the context of the principles as we have endeavoured to state them in the course of this judgment.
MR MILLAR:
My Lord, may I just raise the question of whether the Crown ought to be ordered to pay some or all of the media's costs in bringing this appeal? There is a power to make such a costs order if the court thinks fit on the disposal of the appeal -- and the guideline authority is
Newsgroup Newspapers Limited
which suggests that where the Crown actively supports an application for an order which is struck down on appeal, such costs order may be made against the Crown.
THE LORD CHIEF JUSTICE:
We know that. I will speak to my colleagues and come back to you.
(
The court conferred
)
THE LORD CHIEF JUSTICE:
Before you continue with your submission, I think you should know that our view is that the Crown has endeavoured to assist in the administration of justice and has not taken a partisan position.
MR MILLAR:
Then that makes the application hopeless.
THE LORD CHIEF JUSTICE:
I think it does. Mr Millar, you have done very well today without saying very much.
MR MILLAR:
I am very conscious of that, but I hope it was not regarded as inappropriate to raise the issue.
THE LORD CHIEF JUSTICE:
Of course it was not.
MR MILLAR:
The media are often put to not insignificant costs and we thought it was important to make the application for costs.
THE LORD CHIEF JUSTICE:
Until we told you what our view was about the role by the prosecution, your application was fully justified.
MR MILLAR:
I am grateful.
THE LORD CHIEF JUSTICE:
Thank you.
MR BOYCE:
My Lord, would you forgive me if the answer to my next query is obvious? It is simply my ignorance which causes me to get to my feet. But if my Lords' order is taken at face value that the appeal is allowed, then the order ceases to have effect immediately.
THE LORD CHIEF JUSTICE:
Yes.
MR BOYCE:
And publication might take place in the morning --
THE LORD CHIEF JUSTICE:
Yes.
MR BOYCE:
-- before the opportunity to address Judge Moss on any particulars by my learned friends. Is that the intention of the court?
THE LORD CHIEF JUSTICE:
Well, so far we have not been told of anything which, so far at any rate, leads us to think that an order would be appropriate. None of the young witnesses in question have yet come to give evidence, have they?
MR BOYCE:
My only concern, my Lord, is that although we have as it were representative authority from the other seventeen defendants, it was a more broad-brush approach and individual submissions from the other seventeen may have entirely escaped us for obvious reasons. I simply draw that to the court's attention.
THE LORD CHIEF JUSTICE:
Thank you. Anything you want to say, Mr Hall?
MR HALL:
I support my learned friend's concern and if it were possible -- technically possible -- to give effect to your Lordship's order within, say, 48 hours, it would provide us with the opportunity we need to raise any matters with the learned trial judge. I simply do not know.
THE LORD CHIEF JUSTICE:
You have not been there.
MR HALL:
No.
THE LORD CHIEF JUSTICE:
Mr Brogan, do you want to say anything?
MR BROGAN:
I have nothing to add.
THE LORD CHIEF JUSTICE:
Mr Heywood?
MR HEYWOOD:
My Lord, we have thought of what the alternative might be. They seem to us to be these:
section 39
orders in relation to the young defendants in each of the three trials, which did exist previously but have rather been subsumed by the making of the 4(2) order; and
section 39
orders in relation to the three young witnesses of the five identified. We will further give consideration to whether or not there is justification in applications for a reporting direction in the case of the other two -- so those aged 18 or over -- under section 46 of the Youth Justice --
THE LORD CHIEF JUSTICE:
Forgive me, where have we got to in the proceedings that needs us to make any order at all which cannot be made to Judge Moss tomorrow morning or Thursday or Friday morning?
MR HEYWOOD:
My Lord, forgive me, I am not suggesting that this court should actively consider making an order. I only raise it so that my Lord does understand what it is that the Crown at least will draw to the attention of Judge Moss so that he might consider it tomorrow or as soon as counsel may be heard.
THE LORD CHIEF JUSTICE:
Well, we were giving a pretty broad hint in relation to
section 39
, but do you make any submissions to us about any potential prejudice to any of these trials if we do not impose any restrictions ourselves tonight?
MR HEYWOOD:
Only in one respect, my Lord, and that is this. Any reporting of any matter likely to identify any role played by a defendant in a subsequent trial -- that seems to us to be of significance. It may be opened in specific terms -- I have in mind the carrier of the sword and so on. That is the one matter which it seems to us is capable of attracting submissions on behalf of those defendants.
THE LORD CHIEF JUSTICE:
Very well. Mr Millar?
MR MILLAR:
My Lord, I confess I am puzzled. If there is no lawful basis for the reporting restrictions, what is the lawful basis for not doing anything for 48 hours? The order has been lifted and it can be reported.
THE LORD CHIEF JUSTICE:
The difficulty may be this. The order was a blanket prohibition. We have held that it should not have been made. There may, if the application has been made in respect of, shall we say for the sake of argument, Witnesses A, B and C, who, for the sake of argument, were 13 years old -- I know they were not, but if that application should have been made, then the question is whether we should make an order now, holding the position so that an application can be made which, if it should have been made and would have been made successfully, can be made and should be made successfully? I am not at all sure that this is not a storm in a teacup, but I need to know where we are going.
MR MILLAR:
May I take instructions so that I can find out what our position is?
THE LORD CHIEF JUSTICE:
Yes, by all means. I am speaking for myself -- and if my colleagues have anything to say on it they will say so themselves -- my only concern relates to the five people we have called the "young witnesses".
MR MILLAR:
Yes.
THE LORD CHIEF JUSTICE:
We will retire for five minutes so that you can take instructions outside, Mr Millar.
(
The court adjourned for a short time
)
THE LORD CHIEF JUSTICE:
Mr Millar, before you address us -- Mr Heywood, do we have this right? We are not sure that we have, but we have been talking about it outside. There were orders under
section 39
of the Children and Young Persons Act?
MR HEYWOOD:
There were in relation to the defendants, yes,
THE LORD CHIEF JUSTICE:
Ah, just for the defendants?
MR HEYWOOD:
Just for the defendants, not for the witnesses --
THE LORD CHIEF JUSTICE:
Right.
MR HEYWOOD:
-- because we have not even come close to the stage that it was in contemplation to articulating in any form that was promulgated as to what they might say.
THE LORD CHIEF JUSTICE:
Right. You have answered our question, thank you. Mr Millar?
MR MILLAR:
My Lord, I understand from my learned friends that they will make any applications they need to make to the learned judge tomorrow and we are content in effect that the ruling of this court should in effect be stayed for the course of tomorrow to enable them to make any applications they wish, if that is the way to do it.
THE LORD CHIEF JUSTICE:
I am not sure about that. If the press have their own self-denying ordinance, well they have their self-denying ordinance. That is fine and good and we welcome it, but before we made an order we need to be sure we have the power to make an order. At the moment, if we are looking at the power to make an order, what is the power? To say that although we think the order should not have been made, somehow we will continue some of it in force?
MR MILLAR:
No, I have said what I have to say about that. I am just saying what our position is because there is concern about this. If there is a route through it -- if there is a way through it which the court can find, having given its ruling --
THE LORD CHIEF JUSTICE:
Well, somebody will have to tell us what the route is.
MR MILLAR:
Yes, well, that is not my job.
THE LORD CHIEF JUSTICE:
No.
MR BOYCE:
Thank you for looking at me, my Lord. I will do my best. My Lord might consider that it is in the interests of justice to allow proper submissions to the proper tribunal for the proper balance between the risk of an unfair trial against the interests of the media who have conceded in relation to 24 hours that this court should make its own
section 4
order imposing a blanket prohibition on publicity for 24 hours to enable a proper consideration of the balancing considerations to be made tomorrow. That time frame will enable a proper reflection of the interests of the public on the one hand against the interests of protection where necessary or appropriate on the other, and therefore you will be making a positive order with a time limit attached to it.
THE LORD CHIEF JUSTICE:
Very well. Thank you. Mr Hall, do you want to say anything?
MR HALL:
I was going to defer to Mr Brogan.
THE LORD CHIEF JUSTICE:
All right.
MR BROGAN:
Your Lordships have power to vary the order. The variation we would suggest is one which foreshortens the period of time in which reporting is postponed so that it is not postponed until the conclusion of the third trial, but it is postponed until four o'clock tomorrow afternoon.
THE LORD CHIEF JUSTICE:
But we have held that the order was not properly made. I understand the difficulty, but you must understand ours. If we do not think the order was properly made, we cannot create a power in the court somehow to make it continue. To make an order that it should continue until four o'clock tomorrow afternoon, we would have to be satisfied that any publication of the proceedings would constitute a substantial risk to the fair trial. How are we going to be satisfied of that on the material that we have?
MR BROGAN:
If your Lordships are satisfied that reporting those aspects which relate to the witnesses and possibly to the roles of those in trials 2 and 3 might prejudice a fair trial, then albeit the order that His Honour Judge Moss made was found to be too wide in scope, the overriding concern now, with respect, must be the fairness of the trial in relation to those witnesses and in relation to trials 2 and 3. I respectfully submit that although the order that your Lordships have found was too wide, it can in justice remain until this time tomorrow afternoon.
THE LORD CHIEF JUSTICE:
Thank you. Mr Heywood, can you help us?
MR HEYWOOD:
The only powers of the court are governed by
section 159
, which includes variations. Whilst we understand the court's concern that the legal basis for the making of this order in these terms is not found to exist, then it is at least possible to address the question of scope and time and duration. Alternatively -- and this is the only alternative that occurs to us -- is to consider the positive making of certain other orders. That brings with it an exercise of jurisdiction which this court has so far not sought to do, reflecting, no doubt, the view that the trial judge is better placed to deal with the particulars of such orders. If that power does exist -- in other words, by way of variation of this order to impose lesser restrictions on reporting than a blanket ban, it seems to us that the court does have some power to act. For our part, having regard to who are the applicants in these proceedings, we would be content with the self-denying ordinance, but on the understanding that those applications to which I referred earlier will be made at least for the learned judge's consideration tomorrow morning.
THE LORD CHIEF JUSTICE:
I am discussing this with Mr Heywood, but you are all parties to the conversation. Let us begin by asking whether there is anything in the judgment that we have just given which could possibly attract a suggestion of substantial prejudice to the interests of justice?
MR HEYWOOD:
No, I accept my Lord has as it were found that the order made lacks justification at the point of identifying a substantial risk which is amenable to the making of an order of this kind. So that is a difficulty with the applications to vary.
THE LORD CHIEF JUSTICE:
So then we go to whatever it is you said in your opening, right through to the end, that a fair and accurate report of contemporaneous proceedings would involve, would it not, your opening -- if that is what was chosen to be reported --
MR HEYWOOD:
Yes.
THE LORD CHIEF JUSTICE:
-- but then where evidence has been given, and your opening failed to indicate correctly what the evidence would turn out to be, as always happens with counsel for the prosecution, a fair and accurate report of your opening would have to say: "But Mr Heywood got that all wrong. The witness did not say this, he said the direct opposite. It was not", for the sake of argument only, "Mr Millar who had an axe in his hand, it was Mr Hall who had an axe in his hand". So a fair and accurate report of that would have to take into account that Mr Hall had been identified.
MR HEYWOOD:
Taking that as an example, in fact that has not happened in this case.
THE LORD CHIEF JUSTICE:
I appreciate that it has not happened -- yet.
MR HEYWOOD:
Yet, anyway.
THE LORD CHIEF JUSTICE:
All right. Thank you very much. Is there anything that you want to add, Mr Boyce?
MR BOYCE:
Simply this, my Lord. One of the factors which might influence the court is to consider that the submissions by all defence counsel -- twenty of them variously -- were in a sense truncated by the nature of the proceedings in the court below in that any individual considerations in which they may have held concerns were assuaged instantly by the nature of the blanket order and therefore we have real reason to suspect -- and some of the considerations raised by Mr Heywood emphasise the point from his example -- that had each defence counsel not had the comfort of a blanket order, there may have been lesser applications and we simply cannot speak for the other seventeen in that detail. Now, that balance between seventeen being denied the opportunity to make submissions, irrespective of the reasons that they were pre-empted from making them, as against a delay which is conceded to be reasonable on behalf of the media, should there be power to make it, is such that the court might think that the order for 24 hours, which is suggested, is necessary in the interests of justice to enable those who have potentially inchoate submissions but have been defeated by the blanket order thus far, the opportunity of making those submissions tomorrow morning. That is how I would put it.
THE LORD CHIEF JUSTICE:
Mr Millar, have I understood your position correctly? So far as the media whom you represent are concerned, they would as a self-denying ordinance be prepared not to report the proceedings in the Crown Court, but they would be prepared -- if they want to and if they wish -- to report the proceedings before us today?
MR MILLAR:
My Lord, I cannot give that guarantee.
THE LORD CHIEF JUSTICE:
I do not see how you can.
MR MILLAR:
I cannot give the first guarantee and the second proposition is too wide. They will want to report this hearing.
THE LORD CHIEF JUSTICE:
All right. Thank you. We will retire.
(
The court retired to confer
)
THE LORD CHIEF JUSTICE:
As to today's proceedings, we can see absolutely no reason why anything that was said today should not be reported as a fair and accurate report of the proceedings before us.
As to the proceedings which have already begun in the Crown Court, we are, at the moment at any rate, unable to discern any jurisdiction in this court to make an order prohibiting publication of fair, accurate and contemporaneous reports. If we had had the power under the Children and Young Persons Act, which we do not think that we have, we would have made an order preventing the publication of the identification of the five young witnesses (or the three young witnesses who are still children and young persons) pending any application to Judge Moss. But we do not have the power. We shall simply invite the press kindly to exercise their judgment and discretion about this, and invite them not to identify them.
In any event, that is the carrot. The stick is that if the report that emerges tomorrow, which identifies them or is in any way not a fair report, or subject to inaccuracies because of events which have overtaken different parts of the case, then there may be problems for the press in publishing. Your editors may be fairly pleased with today's proceedings. The defence can make an application to the judge tomorrow morning and he will make whatever orders he thinks right.
MR BOYCE:
Thank you.
THE LORD CHIEF JUSTICE:
If anybody wants to tell us that we have power that we do not think we have, we will hear them. But we are not prepared to vest ourselves with a power that Parliament has not given us. Thank you very much.
_______________________________________ | ```yaml
citation: '[2011] EWCA Crim 100'
date: '2011-01-25'
judges:
- MR JUSTICE EADY
- MR JUSTICE SIMON
- under section 159 of the Criminal Justice Act 1988
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 2292
Case No:
200800072 D4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
HH JUDGE WILLIAMS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
09/11/2009
Before :
LORD JUSTICE STANLEY BURNTON
MR JUSTICE PENRY-DAVEY
and
MRS JUSTICE SHARP DBE
- - - - - - - - - - - - - - - - - - - - -
Between :
STEPHEN MICHAEL PIGOTT
Appellant
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
George Carter-Stephenson QC
and
Colin Wells
(instructed by
Garstangs
) for the
Appellant
Richard Christie QC
(instructed by
Revenue and Customs Prosecution Office
) for the
Respondent
Hearing date: 29 October 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
LORD JUSTICE STANLEY BURNTON :
Introduction
1.
This is the appeal, with leave of the single judge, of Stephen Piggott against the confiscation order in the sum of £1,498,887.60 made under the provisions of the
Criminal Justice Act 1988
by HH Judge Williams at the Crown Court at Canterbury on 30 November 2007. He was given until 31 January 2008, i.e., 2 months, to pay. The judge ordered that he serve a period of 10 years’ imprisonment in default.
2.
On 3 May 2005 at the Crown Court at Canterbury, before the same judge, the appellant had pleaded guilty to one count of cheating the public revenue contrary to common law and to one count of assisting another to retain the benefit of criminal conduct contrary to
section 93
A(1)(a) of the
Criminal Justice Act 1988
. Following the conviction of three of his co-accused (and the acquittal of one) on 9 September 2005 he had been sentenced to 9 years’ imprisonment on each count concurrently and disqualified under
section 1
of the
Company Directors Disqualification Act 1986
from being a company director for 15 years. On 16 September 2005 the period of imprisonment was amended to 8 years. On 10 October 2006 the Court of Appeal dismissed his appeal.
3.
The primary ground of appeal is that the judge should have recused herself from determining the confiscation proceedings against the appellant, and by reason of her bias or the appearance of bias he was deprived of a fair hearing. If that contention were to be upheld, the confiscation order would be set aside, and the question would arise whether the application for the order should be heard afresh, by this Court in the absence of any power to remit to the Crown Court. In the alternative, the appellant challenges certain findings made by the judge, of which the most important is the finding that he had hidden assets to the value of £1 million. Lastly, he submits that the period of imprisonment in default is excessive and the time allowed for payment insufficient.
The facts in summary
4.
Between October 2001 and February 2004 the appellant was involved in a fraud of the type referred to as a missing trader intra community (MTIC) or carousel fraud. The loss to Revenue totalling in excess of £40 million was caused by the input tax deductions of those being dishonestly invoiced. The proceeds of the fraud were sent to the Hong Kong bank accounts of a number of companies created for the purpose. These companies were, in fact, clones of existing British registered companies dealing mostly in mobile phones. The funds were then electronically dispersed via the Hexagon computer operated banking system for use by the dishonest beneficiaries. Invoices were issued in the names of existing British companies and VAT was charged on these invoices under their true VAT registration numbers; the invoices having been manufactured to resemble those used by the real companies.
5.
The dispersal of the funds was exceedingly complex, involving a multiplicity of bank accounts. Nine of the twelve false identity companies had accommodation addresses for receiving mail. Most of these companies traded for about six months, usually with no more than two companies being active at any one time.
6.
The Crown’s case was that the appellant did not devise or organise the fraud and he was not a main beneficiary. He and his co-accused were a team operating in the execution of the fraud. The appellant was closer to the organisers than his co-accused and he recruited the others to establish the necessary network of companies and bank accounts. The appellant had been a musician and music producer. He spent much of his time in Hong Kong and Dubai. He recruited the co-accused Hofberg who was a lawyer specialising in music and entertainment. She opened a company registration business in Hong Kong and arranged for the registration of numerous companies in Hong Kong and for the opening of bank accounts for them.
7.
The appellant recruited a girlfriend, the co-accused Bennett, to open and deal with accommodation addresses for the false companies and to act as his personal assistant when he was in London. She later set up a company in Spain (with a loan arranged by the appellant) dealing with electronic equipment which furthered the fraudulent activity. The appellant recruited the co-accused Igbanugo and Harris to run a company, Qualinorld, set up in the United Kingdom. The name Daniel Clifford was used for some purposes in relation to that company.
8.
The appellant was arrested on 26 February 2004. He had been living in Dubai where he had been playing his part in the fraud using a lap top computer.
9.
The appellant used the identity of David Roy Chapman which he obtained from a gravestone near his place of birth. He had an offshore Jersey account with Lloyds TSB in the name of Chapman and he also used that name to open bank accounts in Hong Kong. He had a passport in that name which he used extensively to travel. He also used the name TJ Power to open an account with HSBC Bank. He had a driving licence, birth certificate and medical card in that name. It was alleged that he also used the identity of Daniel Anthony Clifford in connection with Qualinorld (a company used in the fraud). The appellant submitted that the identity of Clifford was used by John Shaw who he said was the man who recruited him to the fraud. The appellant had a number of documents which related to the use of false identities including a list of names with dates of birth and death, blank diploma certificates, books on identity changes and setting up untraceable bank accounts.
10.
The benefit figure for the appellant was agreed at £27,377,192. Accordingly, the principal issue in the confiscation proceedings was the value of his realisable assets, which the judge found to be £1,498,887.60.
Recusal
11.
The contention that the judge should have recused herself was based on her comments during the proceedings and on her decisions on sentence and in the confiscation proceedings, which, it is submitted, demonstrated a closed mind adverse to the appellant. Applications for her recusal were made to her; she rejected them.
12.
The first incident relied upon was on 9 September 2005, when there was a hearing before the judge in chambers in order to put before her intelligence information that had been provided to the prosecution by the appellant. The judge said:
“Well, the problem with this information, and the question of any credit that might attach to it, is twofold. One, I have no means of knowing or determining whether it is true, nor whether he is showing genuine remorse and a genuine attempt to help the authorities or, given all I know about him, whether it is part of his extremely manipulative and dishonest frolics of his own.”
Mr Carter-Stephenson told the judge that she would be assisted as to the reliability of the information, because the prosecution would be able to inform her. The judge said:
“Oh, right, that is a different matter.”
There followed a discussion about the information. Miss Hardy, the officer in charge of the prosecution informed the judge that some of the information provided by the appellant had been previously unknown to Customs and Excise. She said:
“It will be difficult to verify this information, but it is something that we were not aware of.”
13.
Mr Carter-Stephenson submitted that the information provided was vital because of the interest in tracing the monies obtained by the carousel frauds. The judge said:
“Yes, at the moment I only regard this as a very small proportion of information in the context of the whole case.”
14.
Subsequently, counsel for Customs and Excise said:
“… the information is really of such a nature as to be incapable of being acted upon. There is simply insufficient material. Investigations so far as they were possible have been made, unsurprisingly without any result so in practical terms whatever the intentions behind it, it has not been of any practical use. ”
15.
The judge said:
“…. I have to say that, for the reasons that I gave when we began this hearing, it is quite difficult to assess whether Piggott's intentions are genuine. He has provided this information. It has not been possible for it to bear fruit. Unless you have any other submissions to make my initial reaction, subject to reading this document very carefully, is that there is a very, very limited amount of credit to be given for this at all.”
16.
We appreciate that in assessing whether the judge displayed bias, it is necessary to consider not simply what she said on each occasion when it is said she demonstrated bias, but also the cumulative effect of her remarks throughout the proceedings. It is nonetheless necessary to consider what she said on this occasion. In our judgment, it demonstrated scepticism, which turned out to be justified, but not bias. Her reference to her initial reaction, which was “subject to reading this document very carefully”, i.e. the mitigation document prepared on behalf of the appellant, is inconsistent with bias. The judge was entitled to view the information in the light of what she had learnt of the appellant during the trial of his co-accused, which was that he was, as she said, extremely manipulative and dishonest. His recruitment of his co-accused, and his part in the frauds, justified her description.
17.
The second incident relied upon occurred during mitigation before sentence. Mr Carter-Stephenson on his behalf addressed the gravity of the appellant's offending. The following exchange took place:
Mr Carter-Stephenson: “… Your Honour will know that a written basis of plea was prepared for the earlier occasion.
The judge: "Having sat through three months, I do not agree with the written basis of plea as to his involvement in the matter.
Mr Carter-Stephenson: "May I ask, your Honour, on what basis?
The judge: "I consider his involvement was considerably more than set out in the written basis of plea. I accept that he is nowhere near the top of this application but, as outlined by the Crown, he was in charge of a team. He could make decisions about the execution of the fraud. He received, in my judgement, on the whole of the evidence available to me, much more money than the mere £600,000 which is on the face of the documents in front of me.”
Mr Carter-Stephenson: "… It is not conceded by Mr Pigott that he made any other money apart from that."
The judge: "No. That is a judgement I make on hearing the evidence."
18.
Later, during his mitigation on behalf of the appellant, Mr Carter-Stephenson told the judge that the appellant was using his time in prison advantageously, by taking an Open University course in marketing. There ensued the following exchange:
The judge: “I am not sure that I necessarily find the assertion that he is studying for a degree in marketing with the Open University a positive aspect of the mitigation.”
Mr Carter-Stephenson: "It seems really then as if he cannot win."
The judge: "No. Any form of study of course is beneficial, but given his position the choice of subjects is somewhat remarkable.”
Mr Carter-Stephenson: "It is a choice of subject where he thinks he may be able on his release to actually find some employment. With a prison record background, it is not easy."
The judge: "No, of course not."
Mr Carter Stephenson: "I do not think that your Honour should find against him on the fact that he has chosen a marketing course."
The judge: "As I said, any course of study is to be highly commended but it is the choice of subject which I find surprising, if not alarming."
19.
The second exchange was in our judgment not indicative of bias. It was simply indicative of the impression that the judge had obtained from the evidence in the case. There is more substance to the complaint concerning the first of these exchanges. However, it was appropriate for the judge to alert counsel to the factual basis on which she was minded to sentence the appellant, so that he could make such submissions as were open to him with a view to satisfying her that her proposed basis was unfounded. In the present case, it is not surprising that that involved consideration of his receipts from the frauds. In this connection, it is significant that his benefit was subsequently agreed at a much greater figure than £600,000. The position might have been different if there had been no evidential basis for the judge’s conclusion; but there was. It follows that the judge was entitled, and indeed obliged, to say, in her sentencing remarks, that she was satisfied that he had received far more than that sum.
20.
It is also noteworthy that despite her remarks during the PII hearing, the judge ultimately gave the appellant a discount of 5 per cent on account of the information he had provided.
21.
The above allegations of bias were put before the Court of Appeal on the appellant’s appeal against sentence. It is apparent that they were rejected by the Court, since his appeal against sentence was dismissed.
22.
The appellant also relies on the judge’s refusals, in September 2007, to postpone the confiscation hearing. The postponement was sought on the ground that his leading counsel, Mr Carter-Stephenson QC, who had represented him throughout, could not be available on the dates fixed. There had already been considerable delay in the proceedings: as mentioned above, the appellant had been sentenced two years earlier; and the confiscation hearing had originally been fixed for 15 September 2006. If the judge formed the view that other counsel could properly represent the appellant, she was justified in refusing the postponement. In the event, it is accepted that he was competently represented at the confiscation hearing by Kim Hollis QC.
23.
Lastly, reliance is placed on the decisions of the judge on the substantive issues in the confiscation hearing, including her decisions on the time for payment and the default sentence. We shall address those below; for present purposes, it is sufficient to state that none of her decisions gave rise to an appearance of bias or of a closed mind.
24.
For these reasons, the appeal is dismissed in so far as it is based on the assertion that the judge was biased, or that there was an appearance of bias.
Disputed realisable property
The value of 39 Buck Lane
25.
The judge ascribed a value of £165,000 to the appellant’s interest in this property. She arrived at this figure by accepting the valuation evidence called by the prosecution. Their valuer, Mr Farnsworth, had made a walk-by valuation of £550,000. The appellant had purchased the property in 2003 for £465,000, which was good evidence of its market value at that time. The appellant called no valuation evidence, but produced a report of a structural engineer stating that underpinning and other repairs costing some £49,000 were required.
26.
It was common ground that the property was in a bad condition. The structural engineer’s report was put to Mr Farnsworth, who accepted that the cost of underpinning should be deducted from his valuation, but otherwise adhered to his valuation. His valuation took into account the benefits that would accrue from enlarging the property with planning permission, but did not discount the value on account of what might be real difficulties in obtaining planning permission in what was a conservation area.
27.
The judge found Mr Farnsworth to be an impressive witness. He explained why he had adhered to his valuation, subject to the deduction in relation to the cost of underpinning. His valuation was considerably lower than his figure for the property in good condition and with the possible extension.
28.
We see no error of law in the judge’s decision.
The ownership of 2A Belgrade Road
29.
This property was in the name of Stephen Lamb. The judge found that in fact it belonged to the appellant: either Lamb was a pseudonym that the appellant had used or he, agreed to be a fraud, was a nominee owner for the appellant. She gave substantial reasons for her finding. Among other reasons, she said:
“What is inescapable is this, that Stephen Pigott had a flat in these premises. He attempted to conceal the key to those premises on his arrest. A safe in these premises contained part of the material in relation to the false identities (of the appellant) and concealing money. He applied for planning permission to change the use of the premises. He commissioned building work on the premises. Money for the purchase came from Zoorn Technologies (a company involved in the MTIC fraud). And it came through a bank account which includes transactions in all three of Mr. Pigott’s main names (S.M. Pigott, T.J. Power and D. Chapman).”
T.J. Power and D. Chapman were pseudonyms of the appellant, used by him when dealing with the proceeds of the frauds.
30.
Again, the judge gave substantial reasons for her finding, and no error of law on her part has been shown.
2 watches
31.
The judge dealt with the issue as to the ownership of these watches summarily in her judgment. She had heard considerable evidence during trial about them. Zannthie Bennett, a co-defendant, said that she had collected the watches from a repairer in Dalston. She had received them from the appellant. The watches had been paid for by one of the appellant’s cloned missing traders. There was a document indicating that one of the watches was owned by one Steve Williams, but given the appellant’s use of pseudonyms, the judge was entitled to find that the watches belonged to the appellant.
Hidden assets
32.
The judge dealt with the issue as to hidden assets at length in her judgment. She summarised her conclusions as follows:
“I find that (Pigott) is minimising his role. He was responsible for recruiting his own team, creating the false identity companies then recruiting people as nominee directors who would open bank accounts in Hong Kong. Pigott’s IT skills were considerable. Of the £19 million diverted to Dubai I find that Shaw, Riderhoff, Cargill and his two assistants would have been entitled to percentages of that amount, but that Pigott would also have been entitled to a percentage of that money. £7 million had come from Qualinorld, Eso / Mic Tech and Artistcom/Altatec. Three of these companies were effectively being run by Miss Harris, Miss Igbanugo and Miss Bennett.
It is inconceivable that Pigott was not receiving a share of this money which was being diverted to Dubai. He has indicated that he has very small amounts of money in the two bank accounts at the Mashrek Bank. I ignore these sums of money, because I find from all of the evidence before me so that I am sure that the defendant has hidden assets in Dubai. I find these assets to be £1 million as this defendant’s percentage of the £7 million from Qualinorld, Eso/Mic Tech, Artistcom/Altatec. I apportion one seventh of that fund to this defendant.
Mr. Pigott has not given evidence in these proceedings. That is of course his right. It means that there is no evidence to counter any of the Crown’s evidence, which I accept. I do have the defendant’s written statements, his interview on arrest, his written basis of pleas and the submission made on his behalf. All of these matters I have considered very carefully indeed.”
33.
In our judgment, the judge made no error of law or of principle in finding that the appellant had the hidden assets to a value of £1 million, a significant sum but only a relatively small part of the moneys that he had handled. She was entitled to find that he would not have played the part he did in the frauds without substantial reward, and that he had the means and ability to conceal his part of the proceeds. Indeed, one of his co-defendants testified that the appellant was a rich man with two bars abroad – neither of which was disclosed. Her decision was not
Wednesbury
unreasonable or marred by any legal error.
Conclusion on the confiscation order
34.
For the reasons set out above, the appeal against the amount of the confiscation order against the appellant will be dismissed.
Time to pay
35.
The judge gave the appellant some two months, i.e. until 31 January 2008, to satisfy the confiscation order. That was insufficient time for him to sell the houses that had been included in his realisable property. It appears from the transcript of the hearing on 30 November 2007 when this issue, and the length of the default sentence, were discussed, that the judge was influenced by the forthcoming release of the appellant from his sentence, which she was told would be in February 2008. She considered it crucial that his time to pay the confiscation amount should expire before his release, implicitly because of the risk that he would then abscond abroad to a place where he could enjoy his hidden assets. She emphasised, however, that the defence could return to court and seek additional periods of time, particularly if some money was paid.
36.
We are concerned whether the risk of his absconding was a relevant consideration to be taken into account in determining time to pay. Normally, time to pay is determined by an assessment of the time required by the defendant to satisfy the order. Where the defendant has to realise or transfer assets, the time required for him to do so is a highly material consideration, if not the only consideration. However, it is unnecessary for us to decide this point. The appellant has not used any of his hidden assets to make any payment on account of the order. Indeed, he has paid nothing in satisfaction of the order. His original instructions to his counsel were to seek 12 months to satisfy the order. That period, and any reasonable period for payment of the order, expired long ago. Any period that we might have considered as appropriate for payment of the order has expired. It follows that the question whether the period ordered by the judge was inadequate and should be enlarged to a longer, more reasonable, period, is entirely academic. We therefore decline to interfere with the judge’s order.
37.
As it happens, we were informed that no steps have been taken by HMRC to enforce the confiscation order against the appellant, who has been discharged from prison having served half of his sentence, and who remains at liberty in this country. Those facts are however irrelevant to our decision.
The sentence of imprisonment in default of payment
38.
In fixing the period of imprisonment in default, the judge gave no reasons but simply said simply said, “… I consider the correct default period to be one of 10 years’ imprisonment.” It was however evident from her sentencing remarks and the sentence imposed on the counts of the indictment that she considered the appellant to be a seriously dishonest fraudster.
39.
Section 139(4)
of the
Powers of Criminal Courts (Sentencing) Act 2000
prescribes maximum default periods of imprisonment applicable to confiscation orders. If the amount of the order is between £250,000 and £1 million, the maximum is 5 years; if the amount of the order exceeds £1 million, by whatever amount, the maximum is 10 years, the period imposed in this case.
40.
In
Szrajber
(1994) 15 Cr App R (S) 821
, Latham J said:
The use of the words “the maximum period” [in the statute] makes it quite plain that it was intended that these should indeed be maximum periods, in other words that the court when imposing a period of imprisonment in default was to have a discretion below that maximum period. Normally the court is likely to determine that the appropriate period in default will fall between the maximum for the band immediately below that which was being considered, and the band itself. In the present case the sum in question is the band of £250,000 to £1 million for which the appropriate maximum is five years' imprisonment. The band next below it, which is £100,000 to £250,000 has a maximum of three years, so one would normally expect that the sentence would be between three and five years and would of course be determined in the exercise of the court's discretion by reference to the amount which was in fact in question in the particular case.
….
In determining the right figure in default, we have to consider the circumstances of the case, the overall seriousness of the matter; but in particular we bear in mind that the purpose of the imposition of a period of imprisonment in default is to secure payment of the amount which the court has ordered to be confiscated. We consider that it is not necessarily appropriate to approach the case on a simple arithmetical basis, in other words providing a sort of ladder up the scale from three years to five years dependent on where within the band the confiscation order lies, otherwise Parliament would presumably have indicated that that was the way to do it by rather clearer definition in the scaling process.
41.
In
French
(1996) 16 Cr.App.R (S) 841, Hobhouse J said:
It is to be borne in mind that there is a scheme under
the Act
whereby orders may be reviewed and whereby the period in default falls to be reduced if the order has been partially complied with. However, the hypothesis on which the order in default has to be made is that there is a wilful and total refusal to comply with the order. It postulates that the relevant person may be preferring to serve an additional period of imprisonment rather than comply with the financial order. It is not the role of the courts to encourage a defendant in any way in his non-compliance with the order. The period of imprisonment in default which is imposed should be such, within the maxima permitted, as to make it completely clear to the defendant that he has nothing to gain by failing to comply with the order.
42.
A similar issue to that in the present case arose in
Smith
[2009] EWCA Crim 344
. Thomas LJ said:
6 We turn therefore to the authorities which have been put before us in relation to the short issue. They are
R v Szrajber
(1994) 15 Cr.App.R (S) 821 ,
R v French
(1996) 16 Cr.App.R (S) 841 ,
R v Qema
[2006] EWCA Crim. 2806 ,
R v Howard
[2007] EWCA Crim. 1489 and
R v Liscott
[2007] EWCA Crim. 1706 . It is clear from those authorities that the court has a discretion up to the maximum period in the band. It would, taking as an example the band we are concerned with, namely the band of between £250,000 and £1 million, at a sentence between the maximum amount and the top of the previous band, namely three years. In fixing the precise length of the sentence, the court has to consider all the circumstances and is not bound to follow an arithmetical approach. In this case, as the sum is within a few thousand of the midway point, that clearly indicates that it is not right to fix the sentence merely in the midway point, namely as four years. The court must have particular regard to the purpose of the imposition of a period of imprisonment in default, that is to say to secure payment of the amount that the court has ordered to be paid. This is because the overriding purpose of the legislation is to ensure that those who benefit from such crimes do not retain those benefits. The power to imprison in default is given to ensuring or obtaining as far as possible the co-operation of the defendant in complying with the order. It is to make clear to him that he has nothing to gain by non-compliance. It is particularly important to have regard to the judgment of Hobhouse LJ in
French
to that effect at page 844 of the report. Although a court must take into account intransigence, it seems to us the court must also take into account, in a case where the order is not for the maximum, what that maximum is.
43.
The Court also commented on the relationship between the sentence imposed for the substantive offence and the sentence in default of payment:
8 We would add one further point. There is some suggestion that the judge should have had regard to the overall totality of the sentence of 13 years imposed for the substantive offence and the period to be imposed in default. That argument was not pursued before us as it was accepted that it was wrong in principle to take into account in fixing the default term the previous sentence. We consider that that concession was rightly made, as the purpose of the sentence of imprisonment was to punish him for his drug dealing; the purpose of the sentence for confiscation was the purpose we have set out, namely to ensure compliance with the order of confiscation. The sentences have completely different purposes and therefore it was right in principle to concede that an argument on totality could not properly be advanced.
44.
In determining the default sentence, the judge was entitled to take into account what she had learned of the appellant and his offending during the course of the trial of his co-defendants, and the purpose of that sentence, as explained in the above authorities. But she also had to bear in mind that the period of 10 years’ imprisonment that she ordered would also have been applicable in the case of a defendant whose benefit and disposable property greatly exceeded the appellant’s. In our judgment, it follows that the default sentence should have been less than the maximum.
45.
In our judgment, the appropriate default sentence is 8 years’ imprisonment. Accordingly, the judge’s order will be quashed and the period of 8 years’ imprisonment substituted for the period in default determined by the judge.
46.
To that limited extent, this appeal succeeds.
47.
Finally, we mention two matters. First, certain of the appellant’s contentions were not pursued because they were appropriate to an application for a certificate of inadequacy rather than an appeal against the confiscation order itself. Secondly, we wish to record our appreciation of the cogency of the submissions of counsel before us and the efficiency with which they conducted this appeal. | ```yaml
citation: '[2009] EWCA Crim 2292'
date: '2009-11-09'
judges:
- LORD JUSTICE STANLEY BURNTON
- MR JUSTICE PENRY-DAVEY
- MRS JUSTICE SHARP DBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2011] EWCA Crim 1269
Case No:
201100745/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 7th March 2011
B e f o r e
:
LORD JUSTICE MOSES
MR JUSTICE KEITH
THE RECORDER OF LEEDS
(HIS HONOUR JUDGE PETER COLLIER QC)
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 7 OF 2011
(JOHN DAVID SMITH)
- - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - -
Miss Z Johnston
appeared on behalf of the
Attorney General
Mr N Sandys
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE MOSES: This is a Reference by the Solicitor-General pursuant to
section 36 of the Criminal Justice Act 1988
in relation to a series of sexual offences, most importantly committed by the offender against his niece in which the not uncommon issue arises as to how the judge should approach offences committed under the
Sexual Offences Act 1956
in the context of the Definitive Guidelines under the
Sexual Offences Act 2003
. It raises the important point as to how the judge should approach the totality where there has, over a considerable period, been a variety of offending.
2.
The offender is the uncle of a girl, P, who was sexually assaulted over a considerable period many years before. The victim, P, was 20 when she disclosed that her uncle, the offender, had abused her. She had suffered considerably, it is important to note, as a result of his offending with depression and other conditions associated with that depression.
3.
The offending was particularly serious since it took place over the period between 1996 and 2003. There was an established pattern of offending. It escalated because as a result of the threats of this offender the niece did not complain.
4.
Count 1 illustrated the start of the offending. The offender was 33 to 35 years old. The offender massaged the young girl's chest under her clothes, saying that some people show love in different ways. The victim's contemporaneous account shows the delima of the young niece: "I'm not sure it was right, he said it was a secret." Count 2 alleged a similar offence. Count 3 demonstrates the escalation. She was 10 to 11 years old and the offender inserted his fingers into her vagina, causing her to bleed. She felt sick and dirty and described the offender as using brute force. Count 4 was a similar count of digital penetration. Count 5 demonstrates that matters got worse. The uncle was 35 to 40, the girl was 13 to 14. He undid her trousers and then digitally penetrated her and then committed what would now be called oral rape. Count 6 occurred when she was 14 and involved this offender massaging her breasts and kissing one of them under her clothes. In relation to those offences involving the niece, the total sentence was one of 3 years, 6 months on the first two, 3 years for the offences of digital penetration and oral rape, a total of 3 years' imprisonment.
5.
The next count, count 7, involved a totally different girl, although a similar pattern of offending. The offender knew the girl's grandmother and in May 2006, when inviting her to watch a film at his house and to eat a pizza this offender touched her high up her thigh and over her clothes on her private parts. He continued seeking to groom her by touching her bottom when they went outside and when she complained she suffered the indignity of being disbelieved by members of her family.
6.
But once the offender was arrested for the other offences the complaints were renewed. On his arrest the subject matter of counts 8 to 13 were discovered. There were found on his secondhand computer 1,541 level 1 images of young children, 44 at level 2, 31 at level 3, 43 at level 4 and one at level 5.
7.
In relation to the offences against the other girl, the offender was sentenced to 1 years imprisonment and in relation to the images on his computer to 4 months' imprisonment to run consecutively. Thus the total sentence was 3 years and 4 months' imprisonment and a Sexual Offences Prevention Order was imposed.
8.
The judge, His Honour Judge Compston, sitting at Oxford Crown Court, in imposing that total, carefully considered the appropriate level of sentencing by reference to the Definitive Guidelines and acknowledging, that the offences against the niece were committed before the introduction of
the 2003 Act
and therefore required discounting down to allow for the fact that the maximum for those offences, which covered a very wide variety was 10 years' imprisonment and not life.
9.
The judge's approach was correct in so far as the courts are bound to acknowledge the more up to date and realistic approach to sentences of this gravity. This was pointed out in the judgment of Openshaw J in this court in
R v Mansfield
[2009] EWCA Crim 2158
12. Even though the offences were committed at a time before 2003 Act was brought into force, the modern approach to the gravity of the offences is appropriate provided that account is taken of the charge by reducing the sentences to reflect the lower maximum relevant at the time they were committed. Thus, courts are bound to look at the Definitive Guideline, identifying that guideline, not by the name of the offence which has now changed but, as the Recorder of Leeds pointed out in argument, by reference to the facts disclosed in the case.
10.
Looking at those guidelines, it seems to us that the submission advanced on behalf of the Solicitor-General by Miss Johnson is correct. The sentencing involved two errors. Firstly, the sentences in relation to count 1 to 5 did not adequately reflect the gravity of that course of conduct over so many years. It did not reflect the abuse of trust between uncle and niece. It did not reflect the fact that the offender had threatened the girl to keep quiet and that she had obeyed those threats. It did not reflect the physical harm caused by the digital penetration and the gravity of what would now be called oral rape. Nor did it reflect the aggravating feature of the impact, the psychological damage to the victim.
11.
In those circumstances, we take the view that the sentence of 3 years imposed in relation to counts 3, 4 and 5 was plainly too lenient and the correct sentence should have been one of 5 years in respect of counts 3, 4 to 5. All those offences should be concurrent, as the judge says, making a total of 5 years.
12.
The next error related to the offence so far as the girl, H, is concerned. The Solicitor-General does not submit that the 1 year is plainly inadequate but does submit that the sentence ought to have been consecutive. We agree and in helpful submissions Mr Sandys did not argue on behalf of the offender to the contrary. In those circumstances the sentence of 1 year imprisonment should be made to run consecutive to of the total of the 5 years in respect of counts 1 to 6, making a total of 6 years' imprisonment.
13.
The judge rightly ordered that the 4 months' imprisonment for the images on the computer should run consecutively. The Solicitor-General does not submit that the total of 4 months was plainly inadequate although we should record our view that it was probably the absolute minimum that could be passed for so many offences including substantial numbers at levels 2, 3 and 4.
14.
But we bear in mind what is loosely described as double jeopardy, namely the fact that the impact of any increase on sentence will hit this offender much more gravely than it would have done had the sentences been passed originally.
15.
In those circumstances, to reflect that element, we shall change the sentence of 4 months on counts 8 to 13, so that it runs concurrently, making a total of 6 years in all. We wish to stress that had it not been for that element of what is described as double jeopardy, the sentences would have been high and they would certainly have been substantially higher had they been committed under
the 2003 Act
.
16.
What this Reference does teach however is the importance of a judge standing back at the end having conducted a systematic analysis, as this judge carefully did and asking himself whether the total properly reflects the total criminality. It did not in this case. So, to the extent we have identified the sentences will be increased.
17.
To reiterate the sentences on counts 1, 2 and 6 remain the same; counts 3, 4 and 5 are increased to 5 years; count 7 stays the same but is made to run consecutive; counts 8 to 13 remain the same but for the reason we will be concurrent. Six years in all. | ```yaml
citation: '[2011] EWCA Crim 1269'
date: '2011-03-07'
judges:
- LORD JUSTICE MOSES
- MR JUSTICE KEITH
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number
:
[2023] EWCA Crim 280
Case No:
202201637 A2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOLVERHAMPTON CROWN COURT
His Honour Judge Gosling
T20217147
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
17 March 2023
Before :
LORD JUSTICE GREEN
MR JUSTICE SWEENEY
and
HER HONOUR JUDGE SHANT KC
- - - - - - - - - - - - - - - - - - - - -
Between :
DAVID DIXON
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr J Rose
for the
Appellant
Hearing dates : 19 October 2022
- - - - - - - - - - - - - - - - - - - - -
APPROVED JUDGMENT
Her Honour Judge SHANT KC:
Introduction
1.
On 24 January 2022, at the conclusion of his trial before His Honour Judge Gosling and a jury in the Crown Court at Wolverhampton, the appellant (then aged 42) was convicted of an offence of wounding with intent, contrary to
section 18
of
the Offences Against the Person Act 1861
(Count 2). He was acquitted of attempted murder (Count 1).
2.
On 29 April 2022 he was sentenced by the judge to imprisonment for life. A minimum term of 10 years, less 331 days spent on remand, was specified under
section 323
of the
Sentencing Act 2020
(“
the 2020 Act
”).
3.
He now appeals against that sentence by leave of the single judge
.
Facts
4.
The appellant and Marie Hughes (we will refer to her as Ms Hughes) became friends while he was serving a custodial sentence. She would often visit him, and they spoke regularly on the telephone. The appellant was released on 20th May 2021 and moved in with his mother. Ms Hughes lived alone nearby. The couple saw each other every day. They discussed their relationship. They were not intimate as Ms Hughes wanted matters to progress slowly.
5.
The appellant attempted to contact Ms Hughes during the evening of 26 May 2021, but she did not answer his calls. He became suspicious that she was with another male. Ms Hughes returned home the following morning. The appellant, under the influence of alcohol and cocaine, arrived soon after to confront her. Ms Hughes let him into her house. She told the appellant that she had been with someone else. He made her call the male, who confirmed that, not only had they been seeing each other, they had slept together the night before. The appellant completely lost his self-control. He punched Ms Hughes repeatedly in the face, fracturing her eye socket. He then dragged her to the kitchen by her hair, pulling out a clump of hair as he did so. The appellant grabbed a small knife. The 2 struggled with the weapon which snapped. The appellant picked up a larger knife and stabbed Ms Hughes several times, aiming towards her head and upper body. She sustained 2 wounds to the head, 2 to the shoulder and upper back, and 1 through the upper neck which penetrated behind her throat and above her voice box. Throughout the incident Ms Hughes, who thought she was going to die, begged to be allowed to talk to her children. The appellant walked her upstairs at knife point and showered her head in an attempt to wash off the blood. He then took her to the bedroom and told her to change her clothes.
6.
A neighbour called the police. Seeing officers arrive, the appellant jumped from an upstairs window. Ms Hughes was taken to Queen Elizabeth Hospital in Birmingham where she remained until 4 June 2021.
7.
The appellant was arrested shortly before 23:00 on 27 May 2021. After he was returned to custody, he began telephoning Ms Hughes to persuade her to tell police that she did not believe that he had tried to kill her.
Medical evidence
8.
Mr John Pracy, a consultant ear nose and throat surgeon, made a statement based on the medical notes in relation to Ms Hughes. He confirmed that she had:
(1)
A stab wound to the anterior neck under the jaw.
(2)
A stab wound in the back of the base of the neck.
(3)
A stab wound on the back of the left upper shoulder.
9.
An examination with a flexible camera revealed evidence of a perforation in the upper part of her throat with air bubbles in the mucus around her voice box and some fresh blood. The source of the air bubbles appeared to be the perforation. As touched on above, she also had a fracture of the floor of her right eye socket.
10.
Her wounds were sutured, 1 stitch to the shoulder, 2 stiches to the left of the neck and 3 to the right of the neck. The perforation of her throat and the fracture of her eye socket were treated conservatively, without the need for surgery. She discharged herself on the 4 June 2021 and was treated in outpatients until the 5 July 21. She was then discharged to the care of her general practitioner.
11.
The consultant’s opinion was that the throat perforation, though managed conservatively, was a very severe, potentially life threatening injury indicative of a significant degree of force. The knife would have had to enter a significant distance to enter the pharynx. He went on to add that if she had not been treated appropriately, or if medical treatment had been delayed, she could have developed a severe infection possibly resulting in her death.
12.
Ms Hughes’ general practitioner reviewed her regularly throughout 2021 and into 2022. The general practitioner confirmed that Hughes still had pain in her cheek and eye socket for which she was receiving treatment. She was also in need of regular pain relief for her shoulder. She received counselling for depression and anxiety, and the general practitioner opined that Ms Hughes will suffer lifelong physical and psychological consequences.
Antecedents
13.
The appellant had 10 convictions for 36 offences spanning from December1995 to June 2017. These included robbery in 1995 and 1996, and threats to kill in 1998. Significantly, on the 19 December 2000, when the appellant was aged 21, he was sentenced to concurrent terms of imprisonment of 15 years for attempted murder, 10 years for another attempted murder and 10 years for robbery. The facts of the first attempted murder were that the appellant had approached a man, told him he was going to kill him, and then fired multiple shots at him, hitting him in the leg. The other attempted murder and associated robbery involved the defendant and another entering a shop brandishing a handgun. When the shopkeeper confronted them, one of them shot him in the chest before both fled from the scene.
14.
On the 4 August 2006, for possessing heroin with intent to supply whilst still serving his 15 year sentence, the appellant received a consecutive sentence of 6 years’ imprisonment. In 2015 he was sentenced to 6 months’ imprisonment for an attempt to pervert the course of justice whilst he was on licence. On the 26 June 2017, he received a 27 month prison sentence for conspiracy to sell or transfer prohibited ammunition. He was apprehended by the police in a car, with several bullets concealed in a disposable glove.
Pre-sentence report
15.
The court had a report dated the 4th of April 2022
16.
The court had asked for an assessment of risk, and it was described by the author of the report in the following way:
“Based on the severity of the index offence and the speed at which Mr Dixon capitulated following his release from custody, risk to the general public, future partners and known adults would be imminent if released into the community. Whilst in custody, however, the protective qualities of imprisonment reduce the risk he poses by limiting opportunity. Mr Dixon is therefore assessed as posing a high risk of causing serious harm to the public, future partners, and Ms Hughes. The nature of the risk posed to these groups is excessive violence, involving the use of weapons, resulting in serious injury and emotional harm and psychological trauma.”
17.
The report raised concerns about the appellant’s gang affiliations, which had featured in his previous convictions. It also raised the issue of a personality disorder stating: “Whilst not a diagnostic tool, a personality disorder screening has been completed, indicating that Mr Dixon presents with associated traits of such disorders.” However, the author of the report went on to observe that: “It should be noted that people with personality disorders are not pre disposed to violent behaviour, therefore the nature of the frenzied attack is extremely concerning, and further evidences Mr Dixon’s propensity to use weapons with a blatant disregard for the harm caused”
Victim personal statement
18.
In her victim personal statement Ms Hughes stated that she continued to have pain to her neck and shoulder. She was embarrassed about her scars and continued to suffer from flashbacks and anxiety for which she took medication. A number of things in ordinary life triggered her, causing her to panic and become breathless.
Sentencing remarks
19.
The judge placed the appellant’s offending on Count 2 in category 1A of the relevant Guideline, with a starting point of 12 years and a range of 10-16 years. He determined that the notional determinate sentence would have been 15 years imprisonment. He found that the criteria set out in
section 283
of
the 2020 Act
were met, was satisfied that it was not unjust to impose a life sentence, and did so. He then determined that the appellant would have served two thirds of the notional determinate term and therefore imposed a minimum term to one of 9 years and 34 days (i.e. 10 years less 331 days for time already served).
Grounds of appeal
20.
The appellant criticises the judge’s sentence on the following bases:
1.
The notional determinate sentence of 15 years was too long.
2.
A life sentence should not have been passed.
3.
If a life sentence was correct, the minimum term was too long.
Notional determinate sentence
21.
In assessing that there was high culpability, the judge concluded that the attack was prolonged and persistent (the appellant having used two knives), and that since the appellant was aware that Ms Hughes had previously been in a violent relationship which had impacted upon her, he knew her to be obviously vulnerable because of her circumstances. On behalf of the appellant it is accepted (in our view correctly) that, applying the relevant Guideline, the judge was entitled to conclude that the instant offence fell into culpability A,
22.
However, it is submitted that the judge was wrong to conclude that the instant offence involved category 1 harm, as he should not have found that “particularly grave or life threatening injury [was]
caused
.”
23.
It is emphasised that the consultant’s opinion was that: “If
medical treatment had been delayed and she had not received appropriate antibiotics
she
could
have developed a severe infection
possibly
resulting in her death.”
24.
In dealing with categorisation, the judge concluded that the injury caused was “particularly grave or life threatening” by reference to
section 63
(b)(ii) of
the 2020 Act
, which required him to have regard, when assessing the seriousness of the offence, to the defendant’s culpability for the offence and “to harm which was caused, intended or might foreseeably have been caused”
25.
The judge concluded;
“Now looked at through that lens, life threatening injury or death were
risks
which would have been obvious to the defendant when he stabbed her with a knife through the neck. The fact that she received timely help, and the fact that she did not require extensive treatment does not alter the threat to her life to which the attack gave rise
”
Interpretation of
section 63
of
the 2020 Act
.
26.
Section 63
of
the 2020 Act
is identical to
section 143 (1)
of the
Criminal Justice Act 2003
.
27.
Para. C 1.11 of the Overarching Principles: Seriousness Guideline provides guidance as to the effect of
section 143 (1)
in relation to harm, namely:
“In some cases no actual harm may have resulted, and the court will be concerned with assessing the relative dangerousness of the offender’s conduct; it will consider the likelihood of harm occurring and the gravity of the harm that could have resulted”.
At para. D 1.19, the same Guideline further provides that:
“ If much more harm or much less harm has been caused by the offence than the offender intended or foresaw, the
culpability
of the offender, depending on the circumstances, may be regarded as carrying greater or lesser weight as appropriate”
28.
Based on this guidance it was open to the judge to conclude that since the attack with a knife to the neck area carried the risk of life threatening injury, and that that was foreseeable, that that should increase the appellant’s culpability and therefore sentence. However, he concluded that, because of
section 63
of
the 2020 Act
, he could regard this as a case “where particularly grave or life threatening injuries [were] caused.” The medical evidence was that death
could
have been
possible
if (1) medical treatment had been delayed and (2) Ms Hughes had not received appropriate antibiotics.
29.
In our view, this was a case where the judge would have been assisted by a further medical report setting out the likelihood of the contingent events occurring. As the report stood, it was difficult, without further information, to reach a conclusion as to whether this was a case where there were “particularly grave or life threatening injuries [were] caused” within the meaning of the Guideline.
30.
Category 1 requires that there should be “particularly grave or life threatening
injury caused
”.
In this case the
injury could
possibly
have become life threatening if certain contingent events had occurred. In other words
there was a risk
they could become “life threatening injuries.” As stated already, the fact they were potentially life threatening should have led to a significant increase in culpability.
31.
Like the judge, we have been referred to a number of authorities that relate to the former Guideline (introduced on 13 June 2011) in relation to
section 18
offences, which required the injury to “be serious in the context of the offence.” The words used in the present Guideline to place an injury into category 1 harm are different and the injury
caused
has to “to be particularly grave or life threatening.” So those authorities have limited application. Nonetheless, they make clear that
section 18
injuries are, by definition, serious and category 1 requires the injuries to be serious in this context.
32.
The injuries in this case were undoubtedly grave, so in our view the judge should have placed them in category 2. The starting point for category 2 is 7 years with a range of 6-10 years. The serious nature of the injuries, coupled with the fact that harm included a very serious fracture of the eye socket, and that Ms Hughes’ has suffered lasting physical and psychological harm, should have caused the judge to move the starting point to the borderline between Category 1 and 2.
33.
There were also multiple factors that put this matter into culpability A which included the significant factor of the risk of life threatening injuries. Therefore the appropriate starting point was, in our judgement one of 11 years.
34.
There were a number of aggravating features:
•
This offence was committed a few days after being released from custody .
•
The appellant’s antecedent history of very serious offending.
•
His repeated offending on licence.
•
The offence had been committed under the influence of drugs and alcohol.
•
The appellant had sought to “persuade” Hughes to minimise his culpability.
35.
Those features significantly outweighed the mitigating features, such as they were, in the balancing exercise. Therefore an upward lift from the starting point of 11 years to a notional determinate sentence of 15 years, was entirely justified. Therefore, although we have differed in our approach, we find no merit in the ground that the judge’s assessment of a notional determinate sentence of 15 years was too long.
Life sentence
36.
The judge passed the life sentence pursuant to
section 283
of
the 2020 Act
.
37.
In the context of this case, a life sentence also had to be considered under section 285 of the same Act.
38.
Section 283
provides that:
“(1)
Subsection (3) applies where –
(a)
a court is dealing with an offender for an offence (“the index offence”) that is listed in Part 1 of Schedule 15,
(b)
the offence was committed on or after the relevant date.
(c)
the offender is aged 21 or over when convicted of the index offence, and
(d)
the sentence condition and the previous offence condition are met.
(2)
In subsection (1)(b), “relevant date” in relation to an offence, means the date specified for that offence in Part 1 of Schedule 15.
(3)
The court must impose a sentence of imprisonment for life unless the court is of the opinion that there are particular circumstances which –
(a)
relate to –
(i)
the index offence,
(ii)
the previous offence referred to in subsection (5), or
(iii)
the offender, and
(b)
would make it unjust to do so.
(4)
The sentence condition is that, but for this section, the court would impose a sentence of imprisonment for 10 years or more, disregarding any extension period it would impose under section 279………..
(5)
The previous offence condition is that –
(a)
when the index offence was committed, the offender had been convicted of an offence (“the previous offence”) listed in Schedule 15, and
(b)
A relevant life sentence or a relevant sentence of imprisonment or detention for a determinate period was imposed on the offender for the previous offence…”
39.
Section 285 provides that:
“(1)
This section applies when a court is dealing with an offender f
or an offence where –
(a)
the offender is aged 21 or over at the time of conviction,
(b)
the offence is a Schedule 19 offence (see section 307),
(c)
the offence was committed on or after 4 April 2005
(d)
the court if of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences (see sections 306(1) and 308).
(2)
the pre-sentence report requirements (see section 30) apply to the court in relation to forming the opinion mentioned in subsection (1)(d),
(3)
If the court considers that the seriousness of –
(a)
the offence, or
(b)
the offence and one or more offences associated with it,
is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life…….”
Approach to sentencing
40.
In AGs Ref No 27 of 2013 (Burkinskas) [2014] EWCA Crim 334, at para. 43, Lord Thomas CJ set out guidance on the approach to sentence under the similar provisions of the
Criminal Justice Act 2003
, as follows:
“The order in which a judge should approach sentencing in a case of this type is this:
i) consider the question of dangerousness. If the offender is not dangerous and s.224A(former two strikes provision) does not apply, a determinate sentence should be passed. If the offender is not dangerous and the conditions in s.224A are satisfied then subject to s.2(a) and (b)), a life sentence must be imposed;
ii) if the offender is dangerous, consider whether the seriousness of the offence and offences associated with it justify a life sentence.
iii) if a life sentence is justified then the judge must pass a life sentence in accordance with s.225. If s.224A also applies, the judge should record that fact in open court;
iv) if a life sentence is not justified, then the sentencing judge should consider whether s.224A applies. If it does then (subject to the terms of s.224A) a life sentence must be imposed; and
v) if s.224A does not apply the judge should then consider the provisions of s.226A. Before passing an extended sentence the judge should consider a determinate sentence”.
41.
In the combination of his written and oral submissions, Mr Rose, on behalf of the appellant, argues that the judge did not explicitly address section 285 in his sentencing remarks.
42.
At page 5D of the transcript of the sentencing remarks the judge stated: “Now I have been taken through the leading case of R v Burinskas by Mr Rose. I have no doubt, and he does not argue it, given the seriousness of this offence and his history, given the conclusion of the pre-sentence report, the defendant is a dangerous offender, but I make it clear I would not have imposed upon him a discretionary life sentence”. However, he did not explain why he arrived at that conclusion. Nevertheless, in the context of this case, we do not need to explore that further because of the conclusions we have reached in relation to the judge passing a life sentence under the provisions of
section 283
.
43.
As to that section, the judge stated that he had considered the guidance in R v Burinskas
44.
He correctly reminded himself of the requirements that had to be fulfilled, namely that he was dealing with the appellant for an offence within Part 1 of Schedule 15 to
the 2020 Act
which was committed after the relevant date. The appellant was over 21 years old when convicted, and:
i)
He would have imposed a sentence exceeding ten years imprisonment
ii)
The previous offence of attempted murder was a schedule 15 offence and
iii)
The sentence for the previous offence was over 10 years.
45.
The requirements of
s283
were thus fulfilled. He then correctly reminded himself that he must pass a life sentence unless he concluded that it would be unjust to do so in all the circumstances of the case, due to particular circumstances related to the index offence, the previous offence or the offender.
46.
The judge considered the gap between the index offence and the qualifying offence. The judge then rightly observed that he could not see these two offences in isolation when deciding whether a life sentence was unjust, and that he had to look at all of the offending history. The judge was undoubtedly referring to the appellant’s serious offending before his sentence for the 2 attempted murders and the robbery and also the offences committed since.
47.
The judge might have added the fact that the appellant had been recalled on four occasions during his licence period for the attempted murder sentence and that, according to the author of the pre-sentence report: “He demonstrated threatening and disruptive behaviour within custody and Approved premises, showing little motivation to change.” He was released a matter of days before the commission of the index offence. Equally, in the past the appellant had spoken with pride about his reputation and his gang affiliation, although he now spoke about wanting to cut ties with them.
48.
The judge then turned to the appellant’s personal circumstances and concluded that they also did not support the submission that it would be unjust to pass a life sentence.
49.
The judge was, in our view. also justified in coming to this conclusion based on the facts of this case. The appellant had on his own account taken cocaine and drunk alcohol throughout the night before the attack. Again the pre-sentence report observed that: “Furthermore the speed at which Mr Dixon turned to maladaptive substance abuse in the community is extremely concerning, indicating that he lacks the required ability to maintain stability outside of a custodial environment.” It was also obvious from the pre-sentence report that the appellant’s unstable emotional personality traits did not cause or explain the violence used by him towards Ms Hughes.
50.
In our view, the judge was right to conclude that there was nothing in the particular circumstances of the index offence, the previous offence or the appellant that made it unjust to pass a life sentence.
Conclusion
51.
For the reasons set out above, we reject the submissions that the notional determinate term of 15 years was too long; that the judge was wrong to impose a life sentence; or that the minimum term was too long.
52.
Therefore, this appeal against sentence is dismissed. | ```yaml
citation: '[2023] EWCA Crim 280'
date: '2023-03-17'
judges:
- LORD JUSTICE GREEN
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No: 200600056 A3, 200602014 A3
Neutral Citation Number:
[2006] EWCA Crim 1996
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Tuesday, 18th July 2006
B E F O R E:
LORD JUSTICE GAGE
LORD JUSTICE NELSON
MR JUSTICE LEVESON
- - - - - - -
R E G I N A
-v-
CRAIG WILLIAM BROWN
R E G I N A
-v-
JAMES BUTTERWORTH
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR J CLOSE
appeared on behalf of the Applicant, Brown
MR A BASSANO
appeared on behalf of the Applicant, Brown
MR P HOLDEN
appeared on behalf of the Applicant, Butterworth
MR A BASSANO
appeared on behalf of the Defendant, Butterworth
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE GAGE: As far as Butterworth is concerned, we make it clear that this was an important matter and we grant the extension and leave.
2.
The court has before it an appeal against sentence and an application for leave to appeal against sentence, which raise important issues concerning extended sentences passed pursuant to
section 227 of the Criminal Justice Act 2003
(
the 2003 Act
). We have heard both matters together and in this judgment we set out our decision in both cases. We start with the appeal of Craig William Robert Brown. Brown is aged 22. On 8 November 2005, at Preston Crown Court he pleaded guilty to 4 counts on an indictment containing five counts. On 29 November 2005, in respect of the counts to which he pleaded he was sentenced as follows: count 1, affray, an extended sentence of 36 months pursuant to
section 227
comprising a custodial term of 22 months' imprisonment and an extension period of 14 months; count 3, breach of an ASBO, no separate penalty; count 4, intimidation of a witness, 18 months' imprisonment consecutive; count 5, breach on an ASBO, no separate penalty. The total sentence was therefore an extended sentence of 3 years, pursuant to
section 227
, comprising a custodial term of 22 months' imprisonment and an extension period of 14 months, with 18 months' imprisonment consecutive.
3.
On 7 December 2005, the sentencing judge varied the sentence of 18 months' consecutive on count 4 to a sentence of four-and-a-half years' imprisonment concurrent to the sentence on count 1. The appellant appeals against sentence by leave of the single judge.
4.
The facts can be shortly stated. On Friday 15 July 2005, Anne Kelly was at her home in Raikes Road when she heard an argument taking place outside the appellant's address across the road. She heard the appellant shout: "I'm going to smash your face in" and a man reply: "I'll ring up and get my lads down here". The appellant went into his house and came out with a sword two-and-a-half feet long and started to swing it towards another man. As the other man backed off the appellant followed him still swinging the sword. The man left the area.
5.
The police were called. When the police officers arrived the appellant told them: "It's not me but the sword is in there". The police took possession of the sword and arrested the appellant. When he was interviewed the appellant said that it was a case of mistaken identity. He said there was another Craig Brown who looked just like him but was not him. He was released on bail.
6.
On 5 August 2005, Miss Kelly picked out the appellant at an identity parade. Over the next two days she heard the appellant outside her home shouting "grass". Other people were with Miss Kelly when these incidents took place. At 12.40pm on 7 August 2005 the appellant shouted across the road to Miss Kelly that her house was going to be petrol bombed. In respect of these matters the appellant was arrested and interviewed on 8 August 2005. He denied that he had called Miss Kelly a grass and denied that he had threatened to petrol bomb her home. However, as we have said, he pleaded guilty to these offences.
7.
The appellant has a large number of previous convictions. They consist of 33 convictions for 56 offences. They include four offences of possessing an offensive weapon; one offence of having a bladed article in public; one of threatening behaviour and one of assault occasioning actual bodily harm. There was before the court a pre-sentence report, which indicated that the appellant's offending started at the age of 16. The author of the report stated that since the age of 17 alcohol abuse by the appellant had become a problem. His offending had been persistent for a number of years and he had shown a capacity for violence. The author of the report was of the opinion that until there was a fundamental change in his attitude there was a high risk of the appellant re-offending.
8.
In sentencing the appellant on 29 November 2005 the judge referred to the seriousness of the offences. He said that the history of involvement with weapons and violence meant that there was a substantial risk in the appellant's case that he would cause serious harm to others by the commission of further specified offences. He concluded that the court was bound to pass an extended sentence. The sentence had to reflect the fact that brandishing swords in public was unacceptable and that those who sought to intimidate witnesses would receive severe punishment.
9.
On 7 December 2005, the judge reviewed the sentence which he had passed on 29 November. He said that taking into account observations of the court in
R v Lang
and Others
[2005] EWCA Crim 2864
it was undesirable to impose a sentence consecutive to an extended sentence. Accordingly he varied the sentence in the terms to which we have referred.
10.
Two issues of some importance arise in this appeal. They are, firstly, whether the judge in this case was right to follow guidance given in
R v Lang
that a determinate custodial sentence should not normally be made consecutive to an extended sentence. Secondly, whether it was appropriate to direct that a determinate sentence in length longer than the custodial element of an extended sentence should be served concurrently.
11.
We turn to the case of James Butterworth now aged 23. His application for leave to appeal was referred to this court by the registrar. On 6 July 2005, he fell to be sentenced at the Preston Crown Court for offences to which he had pleaded guilty in the Hyndburn Magistrates' Court (the Magistrates' Court offences) and been committed for sentence; and sentences on indictment (the indictment offences), to which he had previously pleaded guilty in Preston Crown Court. In respect of the indictment offences he was sentenced to 20 months' imprisonment for a count of attempted robbery and six months' imprisonment concurrent for a count of theft. For the magistrates' court offences he was sentenced to eight months' imprisonment for assault occasioning actual bodily harm and eight months' imprisonment for an offence of affray. Those two sentences were consecutive to each other and consecutive to the sentence on indictment. The total custodial sentence was therefore three years. In addition the judge in his sentencing remarks said that applying
section 227
of
the 2003 Act
the applicant would be subject to an extension period of two years in respect of the assault and a concurrent period of two years in respect of the affray.
12.
The facts are as follows. First, the indictment offences: on 20 February 2005 the complainant, Graham Hughes, was on a bus travelling from Clayton le Moors to Blackburn. The appellant and a co-accused, Clough, got into the bus. They sat in the rear of the bus near to Hughes. Clough took Hughes' baseball cap and put it on his head. Hughes had a mobile telephone in his hand and Clough demanded that Hughes gave it to him. Hughes refused whereupon the appellant said: "Give me the phone or we'll leather you". Hughes again refused. Clough then hit Hughes with the back of his hand and tried unsuccessfully to take the telephone from his pocket. Clough slapped Hughes again and the appellant again threatened him with being leathered. Hughes managed to attract the attention of the driver who stopped the bus and ejected the appellant and Clough. Before being ejected the appellant took a bag of sweets valued at £8 from Hughes and said: "Watch your back". Clough left with the baseball cap, which he had taken from Hughes. CCTV footage from a bus led to the appellant and Clough being identified and arrested. At interview the appellant admitted being present but denied stealing anything from Hughes.
13.
So far as the offences of assault and affray are concerned, they were committed when the appellant was on bail for the indictment offences. At about 9.15pm on 31 May 2005 the appellant was at a friend's house. Whilst heavily under the influence of alcohol he became involved in an argument with the residents of that house. This resulted in him head-butting Abigail Garrity-Phillips. The police were called. On arrival police officers found the appellant screaming, shouting, growling like an animal and waving his arms in the air. He ran away from the police officers but was found after a short chase. The appellant continued to be aggressive. He picked up a triangular red sign, held it above his head and threatened the police officers with it. The appellant then walked off with the road sign and took it into a public house. When the police officers entered the public house they found that the appellant had discarded the road sign and was holding a wooden stool above his head. He was threatening people with the stool. The appellant threw the stool at the police officers and had to be incapacitated by the use of CS gas spray. He was restrained and arrested. When interviewed he admitted making threats to the police and members of the public. He denied head-butting Miss Garrity-Phillips. He said he had been arguing with people at the house but did not assault anyone.
14.
The appellant has a substantial criminal record consisting of 18 previous convictions for 23 offences. They include three offences of battery, one of affray, one of section 20 wounding, one of assault occasioning actual bodily harm, one of assault with intent to resist arrest and one of theft from the person. Before the sentencing judge there was a pre-sentence report which referred to the appellant's lengthy and unenviable record of previous offences. It was said that most of his offences occurred whilst he was under the influence of alcohol. He was impulsive and responded aggressively to confrontational situations and the author of the report was of the opinion that there was a high risk of him re-offending.
15.
In his sentencing remarks the judge referred to the appellant's bad record and the fact that the offences of affray and assault had been committed when he was on bail. He concluded that the appellant presented a significant risk to the public as demonstrated by the facts of the offences of assault and his previous convictions for violence for specified offences. Accordingly, he passed the sentences to which we have referred.
16.
The Registrar referred this case to the court because it appeared to him that the extended sentence was an unlawful sentence. It is common ground between counsel for the appellant and counsel for the respondent that, for reasons which we will explain, the extended sentence is unlawful. Accordingly, as we have said, we extended time and granted leave to appeal.
17.
This case also raises difficulties in relation to the application of
section 227
of
the 2003 Act
particularly in relation to offences committed before the provisions of the Act came into force. We should say at once that we have great sympathy with judges of the crown court who have to wrestle with the labyrinth of the sentencing provisions of
the 2003 Act
which are further complicated by the transitional provisions related to offences still subject to the
Powers of Criminal Courts (Sentencing) Act 2000
.
18.
Before approaching the specific issues in each of these appeals we start by setting out the relevant statutory provisions. Chapter 5 of
the 2003 Act
is headed "Dangerous Offenders".
Section 227
is headed "Extended Sentence for certain violent or sexual offences: persons 18 or over". We set it out in full:
"This section applies where-
(a) a person aged 18 or over is convicted of a specified offence, other than a serious offence, committed after the commencement of this section, and
(b) the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.
(2) The court must impose on the offender an extended sentence of imprisonment, that is to say, a sentence of imprisonment the term of which is equal to the aggregate of-
(a) the appropriate custodial term, and
(b) a further period ("the extension period") for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences.
(3) In subsection (2) "the appropriate custodial term" means a term of imprisonment (not exceeding the maximum term permitted for the offence) which-
(a) is the term that would (apart from this section) be imposed in compliance with section 153(2), or
(b) where the term that would be so imposed is a term of less than 12 months, is a term of 12 months.
(4) The extension period must not exceed-
(a) five years in the case of a specified violent offence, and
(b) eight years in the case of a specified sexual offence.
(5) The term of an extended sentence of imprisonment passed under this section in respect of an offence must not exceed the maximum term permitted for the offence."
19.
Section 229 deals with the assessment of dangerousness. It provides that where a person has been convicted of a "specified offence" and the court must assess whether there is a significant risk to members of the public of serious harm from an offender over 18, it is subject to the assumption provided by section 229(3), which reads:
"(3) If at the time when that offence was committed the offender was aged 18 or over and had been convicted in any part of the United Kingdom of one or more relevant offences, the court must assume that there is such a risk as is mentioned in subsection (1)(b) unless, after taking into account-
(a) all such information as is available to it about the nature and circumstances of each of the offences,
(b) where appropriate, any information which is before it about any pattern of behaviour of which any of the offences forms part, and
(c) any information about the offender which is before it,
the court considers that it would be unreasonable to conclude that there is such a risk."
20.
It follows that, as is now well recognised, a defendant convicted of a specified offence, who has previous convictions for relevant offences, must be assumed to be a significant risk to members of the public of serious harm, unless the court considers that it would be unreasonable to conclude there is such a risk. The first task of the sentencing judge is, therefore, to assess the risk of dangerousness according to the provisions of section 229.
21.
The section 247 deals with the release on licence of prisoners serving extended sentences and provides in the material parts:
"(2) As soon as-
(a) a prisoner to whom this section applies has served one-half of the appropriate custodial term, and
(b) the Parole Board has directed his release under this section,
it is the duty of the Secretary of State to release him on licence.
(3) The Parole Board may not give a direction under subsection (2) unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(4) As soon as a prisoner to whom this section applies has served the appropriate custodial term, it is the duty of the Secretary of State to release him on licence unless the prisoner has previously been recalled under section 254."
22.
Finally sections 263 and 264 deal with concurrent and consecutive sections and further explain early release provisions. Section 264 has some relevance to the appeal in Butterworth.
23.
It will be apparent from the above that whereas an offender, the subject of an extended sentence, may not be released after serving half of the custodial term until the Parole Board is satisfied it is no longer necessary for the protection of the public to confine him, an offender serving a fixed term or determinate custodial sentence of 12 months or more will be released after serving half of his sentence (see section 244(3)(a)). It follows that if a consecutive determinate sentence is passed to an extended sentence it may be difficult to determine when the custodial element of the extended term ends and the determinate sentence begins.
24.
In our judgment these difficulties do not arise if an extended sentence is made consecutive to a determinate sentence. Mr Close, on behalf of Brown, argued that section 264(2) may be interpreted as permitting the Secretary of State to refrain from releasing an offender where a consecutive extended sentence is passed until such time as the aggregate length of the determinate sentence, and the custodial term of the extended sentence, has expired. We do not believe that this is so. It seems to us that this would be inconsistent with the clear terms of section 247(2).
25.
In these appeals we have received considerable assistance from all counsel and particularly from Mr Bassano who represents the respondent in each appeal. Mr Bassano has helped highlight some of the difficulties which sentencing judges face when passing extended sentences where the defendant falls to be sentenced for other non-specified offences.
26.
At the outset we feel it may be helpful to make some short points of general application. Firstly we conclude that the court has power to pass consecutive extended sentences. We have no doubt that the court has power to pass an extended sentence consecutive to a determinate custodial sentence. It may very well be that the court has power to pass a determinate sentence consecutive to an extended sentence. As Mr Bassano points out, nothing in the statutory provisions seems to forbid any of these combinations of sentence and section 264 would appear to contemplate such sentences.
27.
However, when the release provisions of section 247 are factored in difficulties may very well arise in respect of the calculation of dates for release and the start of the periods on licence. In those circumstances in our judgment the following points should be observed. First, consecutive extended sentences appear to provide considerable problems in determining the application of the appropriate licence period once the custodial element has been served. Secondly, similar problems will arise if a determinate sentence is made consecutive to an extended sentence. Accordingly we take the view that consecutive extended sentences and a determinate sentence consecutive to an extended sentence are, in general terms, not appropriate and should be avoided. However, we see no reason to suggest that such problems will arise if the extended sentence is made consecutive to the determinate sentence.
28.
There is no reason to suppose that concurrent extended sentences raise any of the above problems, nor that an extended sentence concurrent with a determinate sentence will cause insuperable difficulties. However in the latter case a concurrent determinate sentence, longer than the custodial element of an extended sentence, may well have the effect of the extension being subsumed in the longer determinate sentence. It is therefore sensible where possible to avoid such a combination of sentences since it will defeat the purpose of the mandatory extended sentence.
29.
Finally nothing that we have said is in any way intended to dilute the guidance given by the court in
Lang
and
R v S
[2005] EWCA Crim 3616
. We observe that as these two appeals demonstrate extended sentences in combination with other offences can pose difficult sentencing problems and advocates should be alert to assist judges navigate their way through the complex statutory provisions.
30.
We return to the instant appeals starting with Brown. The first ground of appeal challenges the judge's assessment of dangerousness. It is conceded that the statutory assumption in section 229(3) applies, but the appellant relies on a number of factors that, it is submitted, militate against a finding of dangerousness. They are firstly, the offences themselves did not result in any injury to any person, let alone any serious physical injury or psychological harm. Secondly, the man threatened with the sword goaded the appellant throughout the incident and made no complaint to the police. Although violence was threatened none was used. Thirdly, the appellant's records contains offences of violence towards the bottom end, it is submitted, of the scale of violent offences, and do not demonstrate that the appellant poses a risk of causing serious harm. Fourthly, no details of the fact of the offences were placed before the court without which it is difficult to assess the seriousness of them. As to this the court has now details of the offences. Fifthly, the pre-sentence report refers to the high risk of offending but not of causing serious harm. In support of this submission counsel relies on the guidance given by this court in
R v Lang
.
31.
In sentencing this appellant the judge said:
"In deciding the main issue - so in deciding whether there is a significant risk of harm from the commission by you of further specified offences, a significant risk of 'serious' harm I should say - I must look at all the information. I am not precluded from taking into account all of your previous convictions whether for specified offences or not. I regard as irrelevant any conviction you have for matters relating to driving or dishonesty. I only look at matters relating to violence or disorder. But I must take into account that you threatened serious violence to the witness by arson which is itself a specified offence.
I note you have been convicted on three occasions of possessing an offensive weapon a knuckleduster on one occasion and, in January of this year, three baseball bats and a weightlifting bar, and you also have a conviction for possession of a bladed article in a public place you also have two convictions for common assault, and for those offences you have received a variety of punishments ranging from a community punishment order to short terms of detention in a young offender's institution.
You pleaded guilty at the first opportunity and I accept you have some real remorse. I have read the probation officer's pre-sentence report and take into account. But I am driven to conclude that you do represent a danger to others of the commission of further offences. Your history of involvement with weapons and violence means that there is a substantial risk in your case that you will cause serious harm to others by the commission of further specified offences. So, in the case of the affray, I am bound to pass an extended sentence."
32.
It is in our judgment quite clear that the judge properly directed himself on the test applicable to assessing dangerousness. In our judgment the factors to which he referred were such as to enable him properly to conclude that the statutory assumption was not displaced. Accordingly that ground of appeal fails.
33.
The next ground of appeal challenges the length of sentence. It is submitted that the four-and-a-half years' custodial sentence was too long. Counsel relies on a number of decisions of this court, to which we have been referred in his skeleton argument. He refers to the fact that the appellant was entitled to a discount of one third for his guilty pleas entered at the earliest opportunity, and to the general pattern of sentencing for offences of affray. Next he relies on the guidance given in
Lang
in which the court said that when the court imposes an extended sentence, generally it should impose a shorter concurrent sentence for other offences: see paragraph 20 of the judgment. Finally, Mr Close points to the fact that the appellant must spend at least 27 months, half of four-and-a-half years, in custody whereas under the sentence passed initially by the judge, before it was varied, the time spent in custody might have been less.
34.
Mr Close submitted that if this court were to adopt the course of passing a determinate sentence and a consecutive extended sentence, the custodial term of the extended sentence should be less than 22 months. He submitted that the court should have in mind that extended sentences place an offender at risk of serving a much longer custodial sentence if the licence is breached. He referred to the fact that there may be an element of double counting as to seriousness, which should be avoided. That is correct, but it is an inherent part of the extended sentence regime. However, these are factors to be given some, albeit not considerable, weight.
35.
In our judgment there was nothing unlawful in the judge sentencing the appellant to an extended sentence concurrent with the determinate sentence, which is longer than the custodial term of the extended sentence. However, the sentence of four-and-a-half years for intimidation is much longer than the extended sentence and offends against the guidance by the court given in
Lang
, to which we have referred. As we have already said, the general guidance in
Lang
should, where possible, be adhered to.
36.
We think that in this case the judge could properly have achieved the desired structuring of the offence by passing the extended sentence for the affray consecutive to the sentence for intimidation. As we have said in our general comments, we see no reason to suggest that a sentence would be wrong in law or in principle on that basis. We accept that it is unusual and generally should be avoided where possible, but there will be cases where a non-specified offence will require consecutive sentences. In our judgment this is just such a case.
37.
We conclude that the way that the judge first approached the sentence was correct, save that he ought to have made the extended sentence consecutive to the determinate sentence. We see nothing wrong or excessive in either of the custodial terms. Accordingly we propose to quash the sentences which he passed as varied and, for the avoidance of doubt, we substitute 18 months in respect of count 4 and the 36 months extended sentence consecutive in respect of count 1. The latter comprised of 22 months custodial and 14 months extension. To that extent and for these reasons this appeal is allowed.
38.
We turn to the appeal in Butterworth. In an amended notice of appeal and skeleton argument submitted yesterday counsel seeks to challenge the judge's finding of dangerousness. This has been done no doubt prompted by the skeleton argument of the respondent. The submissions made on this further ground are that the sentencing judge did not have the material before him upon which properly to assess dangerousness. Further reliance is placed on the fact that the judge concluded only that the appellant presented a significant risk to the public. He did not state that he concluded that the appellant posed a risk of serious harm to the public.
39.
We have the information before us in respect of the appellant's previous convictions. They are set out helpfully in Mr Bassano's skeleton argument. As we have said, the appellant has convictions for affray, unlawful wounding, assault occasioning actual bodily harm and an assault with intent to resist arrest. He also has three convictions for battery.
40.
Mr Bassano makes reference to the pre-sentence report in which the author of the report records the appellant's impulsive behaviour in drink. The author of the report expressed the opinion that the risk of re-offending was high. As is pointed out by both counsel, the report does not consider the risk of serious harm if the appellant re-offends.
41.
With commendable fairness Mr Bassano in his skeleton argument set out the factors which might favour the appellant on this issue and those which favour a finding of dangerousness. We have carefully considered these factors. The ones that impress us are those in paragraph 14 of Mr Bassano's skeleton argument. We do not set them all out. He refers to the instant offences, which did not cause serious harm; the fact that there is no evidence that any of the previous offences of violence involved serious harm; and the fact that the previous specified violent offences were committed some time ago when the appellant was aged 16 to 18.
42.
The judge in his sentencing remarks does, as we have said, appeared not properly to have directed himself on the crucial test as whether or not the offender represented a significant risk to members of the public of serious harm occasioned by the commission by him of further offences. He said this at page 3E:
"I consider that you do present a significant risk to the public, as shown by the facts of the assault occasioning actual bodily harm and the affray, and I have regard also to the fact that you have a series of convictions for violence for specified offences."
43.
Taking into account all the factors, we are quite satisfied that the appellant represented a significant risk of committing further offences. But bearing in mind what was said in
Lang
by the vice-president at paragraph 11, in our view his past offending and these offences do not give rise to a risk of serious harm. In our judgment the material before the judge, the risk of serious harm, was not demonstrated and may account for the judge's failure to mention such a risk in his sentencing remarks. It follows that we allow the appeal in respect of the ground that challenges the judge's finding of dangerousness. It follows also that the extended sentences must therefore be quashed. However, we see nothing wrong with the custodial elements of these sentences and we propose to leave them unaltered. For the avoidance of doubt these will be sentences on each of the magistrates' courts offences of eight months' imprisonment consecutive to each other and consecutive to the indictment offences.
44.
Having reached this conclusion, it may however help others if we say what our conclusions would have been if we had concluded that the test of dangerousness had been established. There can be no doubt that the extended sentences passed by the judge were unlawful. This is so for two reasons. First the sentences, which made up the custodial element, were in each case for periods of less than 12 months.
Section 227(3)
makes it clear that an extended sentence can only be passed in respect of a custodial term of not less than 12 months. The judge subsequently recognised this but by the time it was drawn to his attention it was too late for him to vary the sentence. Secondly, an extended sentence is a two-part sentence comprising a custodial element and an extended licence period, the extension.
45.
In our judgment Mr Bassano's submission that the extension cannot be tacked on to two separate custodial terms is correct. The problem, however, is that the judge assessed the appellant as dangerous and in accordance with section 229(3) he therefore was obliged to pass an extended sentence. In our view the way in which he could have achieved that which he intended, provided he was right to pass an extended sentence, is the way in which Mr Bassano suggests in his skeleton argument. It is that the judge should have passed an extended sentence in respect of the first of the magistrates' courts' offences of three years and four months with a custodial term of 16 months and an extension of two years, that for the assault occasioning actual bodily harm.
46.
For the offence of affray the sentence should have been 12 months with an extension of two years. The custodial element so far as the affray sentence cannot be longer than 12 months, because it would then be longer than the maximum sentence for the offence, namely three years once the extension period of two years is passed. In the circumstances the sentences would then have been lawful and would have achieved the purpose which the judge required. Nevertheless, in accordance with our finding in relation to dangerousness, that matter does not arise.
47.
For the reasons which we have endeavoured to explain, the appeal in Butterworth is allowed to the extent set out. | ```yaml
citation: '[2006] EWCA Crim 1996'
date: '2006-07-18'
judges:
- LORD JUSTICE GAGE
- LORD JUSTICE NELSON
- MR JUSTICE LEVESON
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2008] EWCA Crim 2829
Case No:
200704038/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Thursday, 6th November 2008
B e f o r e
:
LORD JUSTICE LATHAM
(VICE-PRESIDENT OF THE CACD)
MR JUSTICE GROSS
MR JUSTICE LLOYD JONES
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
OMAR ALTIMIMI
- - - - - - - - - - - - - - - - - - - - -
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 I MacDonald QC
appeared on behalf of the
Applicant
Mr T Barnes QC & Mr M Taylor
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (As Approved by the Court)
1.
LORD JUSTICE LATHAM: This is an application for leave to appeal against conviction and sentence. We propose firstly to deal with the application for leave to appeal against conviction.
2.
On 4th and 5th July 2007 in the Crown Court at Manchester the applicant was convicted of six offences of possession of an article for a purpose connected with the commission, preparation or instigation of an act of terrorism, under
section 57
of the
Terrorism Act 2000
, acquisition of criminal property, contrary to
section 329
of the
Proceeds of Crime Act 2002
and attempting to possess criminal property. He was sentenced to 9 years' imprisonment on each of the counts based upon breaches of
section 57
of the
Terrorism Act 2000
and 12 months' imprisonment in relation to the last two offences, all those sentences were to be served concurrently.
3.
The application before us is a renewed application, the single judge having refused it.
4.
We deal with the facts in so far as they are relevant relatively shortly. The police interest in the applicant started when a large sum of money was transferred in 2006 to an account at the Nationwide based on a forged document. Of these monies £3,000 was transferred into an account held by the applicant. When the applicant sought to withdraw the funds the police were informed; and on 24th March 2006 he was arrested on suspicion of money laundering. That was essentially the basis of the last two counts in the indictment. He was searched and; it became apparent that he had an interest in two addresses, 10 Eastbank Street Halliwell, Bolton and 13 Landsdowne Road, Bolton. Police went to those addresses and seized computers. Five of the counts related to material found on the computer at Landsdowne Road; one count related to material seized from the computer at east bank street.
5.
The material contained on those computers which formed was material which clearly "related to" terrorist activity. The first count was in respect of an organisational chart entitled "Mujahideen Strategy". The second count related to a file which contained instructions for the making of a detonator. The third count related to a file containing instructions on the making of an explosive device. The fourth count related to a file containing material giving guidance and instructions on the creation of and use of chemicals, explosives and bombing strategies. The fifth count related to a file containing material providing instructions for the making of a nail bomb, and the sixth count related to further instructions and guidance in relation to the other material which had been found on the computers.
6.
The issue at trial was essentially whether or not the applicant had possessed those items. The applicant did not give evidence but had denied possession in interview and relied on his interviews. His case was that he had no connection with the computers or, if he did, other people had an opportunity to access those computers. He had no knowledge in any event of the contents of the files. As an additional argument it was pointed out that a number of the files were ZIP files, in other words they were files which would have had to be opened in order to enable anybody who had downloaded them to appreciate their content and there was no evidence that any of the ZIP files had been opened.
7.
The first basis upon which the matter came to this court was based upon grounds of appeal which criticised the judge in relation to the directions that he gave to the jury to deal with that issue; in other words, it was submitted that the judge had failed to direct the jury adequately as to the necessary matters of which the jury had to be sure in order to be able to find that the applicant possessed that material.
8.
The single judge said that the directions were correct. There is no need to go through the summing-up in detail. This experienced judge gave to the jury straightforward, readily understandable and entirely accurate directions as to the jury's task in determining whether or not the applicant possessed those files. We dismiss the application summarily in relation to those grounds.
9.
However, today, Mr MacDonald on behalf of the applicant has applied for leave to re-amend his grounds to include a ground based upon the decision of this Court in
R v Zafar & Ors
[2008] 2 Cr App R 8
, that is page 84. The basis upon which he submits that
Zafar
is relevant is that in
Zafar
the court concluded, in a judgment given by the then Lord Chief Justice, that the jury had to be satisfied that there was some direct connection between the material that was found in the possession of a defendant and a proposed act of terrorism.
Section 57
of the Terrorism Act should be construed accordingly. It is necessary therefore to look at the section in order to understand what the court was there saying.
Section 57
provides:
"(1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism."
The court held that that subsection had to be interpreted as if it read:
"A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that he intends it to be used for the purpose of the commission, preparation or instigation of an act of terrorism."
That decision was a decision which postdated the trial, with which we are concerned. Not surprisingly, therefore, the judge did not give a specific direction to the jury in those terms. Mr MacDonald, on the applicant's behalf, submits that that renders the conviction at least arguably unsafe.
10.
We have considered that submission in the light of the material with which the court was concerned at this trial. The prosecution case, as expressed by the judge in the summing-up, was that this material indicated that the applicant was what was described as a "sleeper"; in other words, he was a person who had the material on his computer ready to be used if and when either he or others considered it appropriate for that material to be used. That was implicit in the way the case was put to the jury and it was essentially the way that the prosecution sought to establish that the applicant possessed that material.
11.
It seems to us, in those circumstances, that the inevitable consequence of the jury's verdicts in this case is that the only conclusion that could be reached from possession of the material was indeed that it would be used in the way that the prosecution were seeking to persuade the jury. It follows that although the judge did not direct the jury as he might have done had he had the advantage of seeing the judgment in
Zafar
, it can make no difference to the ultimate verdict in this case, bearing in mind that what the jury would have to be satisfied of was that the circumstances of possession gave rise to a reasonable suspicion that he intended to use it.
12.
In our judgment, in the light of the jury's verdict as to possession, that question answers itself. We accordingly conclude that these convictions are safe; and the application must therefore be dismissed.
(Submissions re: sentence)
13.
LORD JUSTICE LATHAM: We turn then to the application for leave to appeal against sentence. We have outlined the facts and there is no need to deal with them in any greater detail, save to say that it is clear from the jury's verdict that the material here was material which this applicant had downloaded and for a purpose. The judge had to look at the overall criminality involved. The clue to his approach is contained in a short passage in the sentencing remarks where he said:
"I have concluded that the appropriate overall sentence in relation to the Terrorism Act offences is one of 9 years' imprisonment. There is room for a legitimate difference of opinion as to how that total should be reached. I propose to impose the sentence concurrently on each counts 1 to 6."
One can see from that that the judge was looking at the matter in the round, considering whether or not to impose consecutive sentences or whether to impose concurrent sentences. He came to an overall conclusion as to the criminality, which, in our judgment, cannot be faulted and hence the sentence of 9 years' imprisonment. The fact that it is close to the maximum of 10 years' imprisonment for a single offence is explained, in our judgment, by the passage to which we have just referred.
14.
We do not consider therefore there are any reasonable grounds to suppose that this sentence could be interfered with by this court. Accordingly the application is refused. | ```yaml
citation: '[2008] EWCA Crim 2829'
date: '2008-11-06'
judges:
- LORD JUSTICE LATHAM
- MR JUSTICE GROSS
- MR JUSTICE LLOYD JONES
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2019] EWCA Crim 1231
No:
201802576 B5
B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 27 June 2019
B e f o r e
:
LORD JUSTICE HOLROYDE
MR JUSTICE WARBY
MR JUSTICE JULIAN KNOWLES
R E G I N A
v
COURTNEY GEORGIA BRIERLEY
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 18-22 Furnival Street London EC4A 2DY, Tel No: 020 7404 1400
Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
Non-Counsel Application
J U D G M E N T
(Approved)
1.
MR JUSTICE HOLROYDE: Courtney Brierley was convicted after a trial in the Crown Court at Manchester of four offences of manslaughter. She was sentenced by the trial judge William Davis J to concurrent terms of 21 years' detention in a young offender institution. Applications for leave to appeal against conviction and against sentence were refused by the single judge. They are now renewed to the full court.
2.
The applicant was aged 20 at the time of the relevant events in December 2017. She was in a relationship with Zak Bolland, then aged 23. Bolland had for a time been engaged in a feud with Kyle and Lewis Pearson. There had been a number of tit for tat incidents, including daubing graffiti, smashing windows and causing damage by fire to cars and dustbins. The applicant had been involved in some of those incidents.
3.
The feud culminated in an attack on the Pearson family home in the early hours of 11 December 2017. Bolland, his friend David Worrall and the applicant had been drinking and taking cocaine. A young woman called Toome came to the house looking for a mutual friend and was persuaded to take them to a petrol station, where petrol was bought. Bolland and Worrall used the petrol to make two petrol bombs. They also armed themselves with a machete and an axe. They and the applicant were then driven by Toome to the Pearson family home. The two men went into the back garden and broke a rear window of the house. Worrall threw the smaller of the petrol bombs into the house.
It ignited, but only to a limited extent. Worrall then left the garden. As he did so, Bolland threw the larger petrol bomb into the house. It exploded with great force and within a very short time the whole house was ablaze. Kyle Pearson and a friend were able to escape from the upstairs window, though suffering from smoke inhalation. Four younger siblings, aged between 7 and 15, died in the fire. Their mother survived but suffered life-threatening injuries which required months of hospital treatment and from which she will never recover.
4.
The applicant, Bolland and Worrall, were jointly charged with four offences of murder, three offences of attempted murder and arson. The prosecution case against the applicant was that she had encouraged and assisted her co-accused, with full knowledge of their plans. Her case was that she was aware that petrol had been purchased but did not know that petrol bombs had been made and did not know of any intention to set fire to anything other than rubbish bins, as had happened an on earlier occasion.
5.
It is unnecessary to go into the details of the prosecution evidence at trial or of the evidence which the applicant gave in her own defence. It suffices to note that it is rightly conceded by her trial counsel in their written advice on appeal that the evidence was such that the jury were entitled to find that she did assist and encourage her co-accused.
6.
The learned judge provided the jury with written directions of law and with routes to verdicts in respect of each of the three accused. The jury were, of course, directed to consider each accused separately and were directed as to the several possible alternative verdicts.
7.
On each of the four counts alleging murder the jury found the applicant not guilty of murder but guilty of manslaughter. They found her not guilty of the charges of attempted murder. Bolland was convicted of all the offences of murder and all the offences of attempted murder. He was sentenced to life imprisonment with a minimum term of 40 years. Worrall was convicted of the four offences of murder. He was found not guilty on the charges of attempted murder but guilty of three offences of attempting to cause grievous bodily harm with intent.
8.
The grounds of appeal against conviction contend that in the light of the evidence and the way the case was put by the prosecution, the applicant's convictions are unsafe. It is argued that her convictions are inconsistent with other verdicts, contrary to the way the case was conducted and left to the jury, and irrational. In particular, it is said that the applicant in her evidence admitted knowing that the house was occupied. It is submitted that it is difficult, therefore, to see how the jury could have followed the route to verdict in the way they must have done without concluding that the applicant was guilty of the offences of murder. It is also said to be difficult to see how the jury could have been sure that she assisted or encouraged her co-accused to throw petrol bombs into an occupied house and yet not sure that she intended any occupant to suffer serious injury.
9.
The written grounds of appeal argue that in those circumstances it can be inferred that the jury were overwhelmed by the complexity of the judge's directions and unable to follow them. It is suggested that the jury's verdicts could be explained by a finding that the applicant had assisted or encouraged her co-accused in an unlawful act other than the throwing of petrol bombs into the house, which carried an obvious risk of some injury but was not intended to cause death or serious injury. But, it is argued, such an explanation - though correct in law - could not be supported in view of the way the case was conducted and in view of the route to verdict provided by the judge.
10.
The ground of appeal against sentence is closely linked. It is accepted that the sentence of 21 years' detention could not be regarded as manifestly excessive if the applicant had been party to a plan to petrol bomb an occupied house; but if that was not the basis of her conviction, then the sentence is said arguably to have been excessive in length.
11.
We have considered those grounds of appeal. Given that a number of alternative verdicts were possible in law, depending on the jury's findings as to the acts and intentions of each individual accused, and given that the cases against and for each of the three accused differed in significant respects, it was inescapably necessary for the routes to verdict provided by the judge in each case to cover all the possible verdicts which were open to the jury. We reject the submission that they were over complicated or were so difficult to follow as to be likely to cause confusion. We note that at one stage of their deliberations the jury asked for a further direction in respect of the case against Worrall but they did not feel it necessary to seek any assistance in respect of this applicant.
12.
We also reject the submission that the verdicts are irrational or are so inconsistent with other verdicts that the convictions are unsafe. The convictions of manslaughter can readily be explained on the basis identified by the judge when he came to pass sentence, namely that the jury were sure that the applicant assisted or encouraged the others to attack the house with petrol bombs and knew that the house was occupied, but not sure that she intended anyone in the house to be killed or seriously injured. As the judge rightly noted, the same basis explains the acquittals on the counts charging attempted murder. It would, of course, have been open to the jury also to be sure of the intent necessary for convictions of murder, but they were not bound to find that intent proved. The suggested inconsistency between the verdicts, far from casting doubt on the safety of these convictions, is in our view an indication that the jury properly considered the cases of each accused separately and, as they were entitled to do, reached different conclusions about their respective intentions at the material time.
13.
We are, therefore, satisfied that there is no arguable ground on which the safety of the convictions could be challenged. It follows that we are also satisfied that there is no arguable ground on which the sentence could be said to be manifestly excessive.
14.
These renewed applications accordingly fail and are refused.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
18-22 Furnival Street, London EC4A 1AB
Tel No: 020 7404 1400
Email: [email protected] | ```yaml
citation: '[2019] EWCA Crim 1231'
date: '2019-06-27'
judges:
- LORD JUSTICE HOLROYDE
- MR JUSTICE WARBY
- MR JUSTICE JULIAN KNOWLES
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2010] EWCA Crim 1327
Case No:
200902336D2/200902335D2/200902333D2
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
HHJ GULLICK
T20087130/T20087097
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/06/2010
Before :
LORD JUSTICE PITCHFORD
MRS JUSTICE RAFFERTY
and
HHJ GOLDSTONE QC
- - - - - - - - - - - - - - - - - - - - -
Between :
ASHIQ HUSSAIN, MOHAMMED KAMRAN & MOHAMMED SHABRAN
Appellants
- and -
Regina
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Malcolm Bishop QC
and
Charnjit Singh Jutla
(instructed by Javid Arshad & Co - Solicitors) for the
Appellant Hussain
Mr James Hill QC
(instructed by Javid Arshad & Co - Solicitors) for the
Appellant Kamran
Mr David Nathan QC and Shufqat Mahmood Khan
(instructed by Altaf - Solicitors) for the
Appellant Shabran
Mr Andrew Kershaw
(instructed by
CPS - Bradford
) for the
Respondent
Hearing date: 19th May 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
1.
Ashiq Hussain (‘Ashiq’) appeals his conviction with the leave of the single judge. Mohammed Shabran (‘Shabran’) and Mohammed Kamran (‘Kamran’) renew their applications for an extension of time for leave to appeal against their convictions. We granted the extension of time and leave to appeal and proceeded to hear their appeals.
2.
The appellants, with others, appeared at Bradford Crown Court on 22
January 2009 for trial upon an indictment containing five counts. Count 1 charged them that between 22 and 25 October 2007 they conspired to commit murder. Count 3, in the alternative, charged them with conspiracy to cause grievous bodily harm with intent. Count 2 charged Mohammed Shabran and Mohammed Kamran with having a firearm with intent to commit murder. Count 4, in the alternative, charged them with having a firearm with intent to cause grievous bodily harm with intent. Count 5 charged Ashiq, Shabran and Kamran with conspiracy to pervert the course of justice.
3.
Following a trial before HHJ Gullick, the Recorder of Bradford, and a jury which lasted some ten weeks, on 3 April 2006 Ashiq was convicted unanimously by eleven remaining jurors upon count 3. Shabran and Kamran were unanimously convicted of counts 3 and 4. Each of them was found not guilty upon counts 1, 2 and 5.
4.
These convictions arose from serious incidents of violence in Bishop Street, Bradford on 23 and 24 October 2007. Two families had fallen out, probably over the failed marriage between Shabran and a female member of the complainants’ family.
5.
Ashiq was the owner of a hand car wash company called Motorwise, with premises at Toller Lane, Bradford. Shabran and Kamran are his nephews. They worked for Motorwise as did Ibrar Hussain, Ashiq’s younger brother, and Amar Hussain, a friend of Shabran. Nazim Hussain, a taxi driver, lived at the same address as Shabran.
6.
Ibrar Hussain, Amar Hussain and Nazim Hussain were found not guilty of counts 1 and 3 upon the direction of the judge at the close of the prosecution case. Ibrar Hussain was also found not guilty on the judges’ direction of count 5. During the course of his summing up the judge directed a verdict of not guilty in relation to Nazim Hussain upon count 5 and he was discharged. The jury returned a not guilty verdict upon count 5 in the case of Amar Hussain. Ashiq, Shabran and Kamran were each sentenced to 12 years imprisonment.
7.
Turning to the complainants’ family, Abid Hussain owned a taxi firm called Fast Cars at Stanningley Road, Pudsey. Shafique Hussain is his son. Abid has three brothers, Sajid Hussain, Mohammed Razaq and Adalat Hussain.
8.
The appellants’ family lived or worked in the Bingley Road area of Bradford. The complainants lived in the Bishop Street area. These districts were both situated in the north west of Bradford but separated by the suburb of Heaton.
9.
The prosecution case was that at about 10 pm on 23 October 2007 a confrontation occurred between two groups at the BP petrol station on Howarth Road, also in the north west of Bradford, not far from Motorwise. Shamran, Amar and Ansar Hussain arrived in a Volkswagen Golf. Shafique Hussain, Zakar Khan and a friend, Jameel Sodhigar, were in Shafique’s father’s blue Mercedes. Threats were exchanged. It was the prosecution case that Shabran threatened to shoot Shafique and that CCTV evidence showed him making a gesture with two fingers to indicate a pistol or other hand gun aimed in Shafique’s direction. It was further alleged that Shabran telephoned his brother Kamran in the presence of the others, telling him to shoot the blue Mercedes next time he saw it. At 10.12 pm Shabran telephoned his uncle Ashiq. Cell site evidence placed Ashiq in the Keighley area. He returned to Bradford.
10.
Shafique returned to his father’s taxi base in Stanningley Road, Pudsey. He spoke to Abid and then returned with Zakar Khan and Jameel Sodhigar to Bishop Street, where he lived. On their way, Shafique and Zakar Khan saw a waiting party with vehicles stationary on North Park Road. Ashiq Hussain, with his distinctive red Mercedes car, was among them. Jameel Sodhigar had supported this account in his witness statement but resiled from it in evidence. The prosecution was given leave to treat him as hostile.
11.
According to Shafique, he was followed to Bishop Street by Ashiq and his followers. On arrival, Shafique, Zakar Khan and Jameel ran into the house. By now, other members of the complainants’ faction were in Bishop Street. Shortly afterwards, Ashiq’s red Mercedes, was attacked by unknown members of the appellants’ faction and set on fire. There was evidence that the driver of the red Mercedes was also attacked but managed to make his escape. There was a live issue at trial whether the driver of the red Mercedes was Ashiq. Ashiq claimed that he was not driving the car. There was evidence from defence witnesses that the driver was a chubby, bald man which did not match Ashiq’s description. He maintained that the driver must have been a friend of his called Saj, who had disappeared and from whom he had never heard again. The prosecution contended that Saj was a convenient invention. Mohammed Razaq gave evidence that Nazim Hussain pulled up outside 17 Bishop Street in his Mondeo taxi. He got out of the vehicle and smashed the windscreen of the blue Mercedes. Deprived of his car, it was the prosecution case that Ashiq climbed into Nazim Hussain’s taxi from where he co-ordinated following events in revenge for the destruction of his car. Abid Hussain claimed in evidence that Ashiq telephoned him with a threat that his son Shafique was going to be attacked. Ashiq was identified by witnesses who claimed either that he was the driver of or a passenger in Nazim’s taxi from which he issued threats towards Shafique and his group that he would be returning to shoot him.
12.
At 1.05 am, two men wearing balaclavas ran into Bishop Street. One of them fired two shots injuring Sajid Hussain in the groin. The gunshots also wounded Wajid Hussain and Mohammed Shabid. It is probable that at least some of the injuries were caused by ricochet from the road surface. Shafique himself was unhurt. Witnesses identified the gunman as Shabran from his voice. Immediately after the shooting Shabran ran with the second man to a waiting car followed by Nisar Ahmed and Mohammed Razaq, both of whom identified Kamran as the getaway driver.
13.
Count 5 charged the appellants with co-ordinated attempts, by attacks on property and telephone threats, to prevent witnesses giving evidence. We are informed by Mr Kershaw, counsel for the prosecution at trial, that there were difficulties with identification of those involved.
14.
There were significant and material inconsistencies in the evidence between witnesses for the prosecution. There were further internal inconsistencies in the evidence of individual witnesses. In particular, the complainants’ faction was unprepared to accept any responsibility for the attack on Ashiq’s red Mercedes. As the learned judge observed during his ruling at the close of the prosecution case (page 9/13 Ruling):
“All the prosecution witnesses to the principal events, with the possible exception of three, are related and can be said to be within the Bishop Street faction. It is said that all have demonstrably told lies, that they have all contradicted themselves and that they are all mutually contradictory. The lack of truly independent evidence is highlighted, and it is submitted that the overall picture is one of a large number of family members with scores to settle, colluding and perjuring themselves in order to seek the conviction of some or all of these defendants on serious criminal charges.”
15.
Later, (page 12/3 Ruling) the judge continued:
“Jameel Sadhagar, who was ultimately treated as a hostile witness, said in his evidence in chief that it was the Bishop Street faction who attacked the car with hockey sticks, snooker cues and so on, and that it was in fact Zakar Khan who set it on fire. He is the only witness who gives that account. All the other Bishop Street witnesses deny that they had anything to do with the attack on Ashiq Hussain’s red Mercedes.”
16.
In the case of Amar Hussain, the judge concluded that there was no evidence of participation and he directed the jury to return verdicts of not guilty upon counts 1 and 3. The judge identified the following evidence in the case of Nazim Hussain, the taxi driver, as material to counts 1 and 3:
i)
He was identified as smashing the front windscreen of the Mercedes;
ii)
Witnesses identified him either as a driver or passenger in the taxi from which Ashiq Hussain made threats to shoot Shafique’s group;
iii)
There was telephone traffic between Nazim and other defendants before and after the shooting.
Nevertheless the judge concluded that an inference that Nazim was implicated in the conspiracy to carry out a shooting was not properly available to the jury and he directed not guilty verdicts in Nazim’s case upon counts 1 and 3. This may be seen as a generous conclusion in favour of Nazim and one relevant to later events to which we shall need to refer.
17.
As to count 5 in Nazim’s case, Nazim’s taxi was identified at traffic lights at the junction of Bingley Road and Howarth Road, close to the home of Nisar Ahmed, at or about the time when two vehicles had been set alight. Its position was consistent with involvement in those incidents. The judge, therefore, rejected a submission of no case to answer on count 5.
Ashiq Hussain’s Grounds of Appeal
18.
The Recorder commenced his summing up on 2 April 2009. At the luncheon adjournment on that day the judge was informed that a female member of the jury intended to take no further part in the trial. She had become disenchanted with the length of the trial and needed to find work. She was persuaded by a jury bailiff to remain in order to communicate her intention to the judge. She did this in the form of a letter. The judge had himself formed the view that the juror had become detached from the proceedings and seemed to be taking a token interest in his summing up. He took the view that, despite the defendants’ wishes to be tried by twelve jurors, the safer course was to discharge the juror. This ground of appeal was faintly advanced and we conclude that there is no justifiable criticism of the judge’s decision.
19.
On the afternoon of 3 April the Recorder commenced a round up of the evidence in the case of each of the appellants in turn. At the close of the court’s sitting on that day he had almost completed his summary of the evidence in the case of Ashiq Hussain. Overnight, the judge clearly reviewed the evidence concerning Nazim Hussain upon count 5. He concluded that contrary to the view he had taken at the close of the prosecution case, the jury could not properly convict Nazim on count 5 and so directed them. A verdict of not guilty was returned and Nazim was discharged.
20.
Counsel were asked by the judge (transcript of summing up, page 115/26) whether there was any material knock-on effect. In the temporary absence of Mr Malcolm Bishop QC, leading counsel for Ashiq Hussain, both at the trial and in the appeal, junior counsel, Mr Jutla, raised the possibility that Nazim might be called to give evidence on Ashiq’s behalf. Nazim had elected to give no evidence in his own defence. Mr Jutla submitted that if Nazim had been discharged at the close of the prosecution case he would have been a compellable witness on behalf of Ashiq. Mr Jutla sought an adjournment for the purpose of taking instructions and consulting Mr Bishop on the question whether an application should be made to re-open Ashiq’s case for the purpose of calling Nazim to give evidence. The judge replied (transcript page 116/1), “No, I am not going to allow you to. If you want to pursue it elsewhere you can.”
21.
Mr Bishop submitted on Ashiq’s behalf that this created an unfairness to Ashiq Hussain which went to the safety of the verdict.
22.
Mr Bishop accepted and averred that until Nazim was discharged on the second day of the summing up, he was not a compellable witness to whom Ashiq could have had access. As soon as Nazim was discharged, he became a compellable and relevant witness in Ashiq’s defence. Article 6(3)(b) ECHR provides:
“(3) Everyone charged with a criminal offence has the following minimum rights:
……..
(b) To have adequate time and facilities for the preparation of his defence.
…..
(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
23.
Mr Bishop relied upon the statement of Lord Steyn in
R v A (2)
[2001] UKHL 25
,
[2002] 1 AC 45
, at paragraph 38, concerning the compatibility of
section 41 Youth Justice and Criminal Evidence Act 1999
(limitations upon cross examination of complainants in sexual cases) with the fair trial of a defendant under Article 6. Lord Steyn said:
“38. It is well established that the guarantee of fair trial under Article 6 is absolute: a conviction obtained in breach of it cannot stand,
R v Forbes
[2001] 2 WLR 1
, 13, para 24. The only balancing permitted is in respect of what the concept of a fair trial entails: here, account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play. The criteria for determining the test for proportionality have been analysed in similar terms in the case law of the European Court of Justice and the European Court of Human Rights. It is not necessary for us to reinvent the wheel. In
Defreitas v Permanent Secretary of Ministry of Agriculture, Fishery, Lands and Housing
[1999] 1 AC 69
Lord Clyde adopted a precise and concrete analysis of the criteria. In determining whether a limitation is arbritory or excessive a court should ask itself:
“whether:
(i) the legislative objective is sufficiently important to justify limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are rationally connected to it; and
(iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
The critical matter is the third criterion. Given the centrality of the right of a fair trial in the scheme of the convention, and giving due weight to the important legislative goal of countering the twin myths, the question is whether
section 41
makes an excessive inroad into the guarantee of a fair trial.”
24.
Lord Steyn was dealing with the concept of the fair trial in a very different context. Nevertheless, we accept Mr Bishop’s submission that it is axiomatic that when the trial judge has the discretion to grant an application in favour of a defendant who wishes to call a witness, the interests of justice including the fairness of the trial are of the first importance in the judgement as to how that discretion should be the exercised.
25.
Under the common law of England and Wales it is well established that the trial judge enjoys the discretion whether to permit a defendant to re-open his case at any moment before the jury retires to consider its verdict, for the purpose of adducing further evidence. In
Morrison
[1911] 6 Cr App R 159
, the defence was permitted to adduce further evidence which had only just come to light following counsel’s closing speech. In
Sanderson
[1953] 1 WLR 392
the defendant was permitted to call a witness at the close of the summing up. In the present case the learned judge undoubtedly had the power to grant the application if he concluded that it was in the interests of justice to do so. The judge did not give reasons for his decision but it is not difficult to anticipate what they were. This trial had already overrun. One juror had been discharged. There was a risk that if the adjournment was permitted its length would be prolonged by the need for consultation between Mr Bishop and the accused, the need to take a witness statement from Nazim Hussain, and the need for the defence to make its decision whether Nazim should be called. That decision would almost certainly have required consultation with the other defence teams. If Nazim gave evidence, it was capable of having the effect not only of prolonging the trial but also, for reasons which will appear below, of requiring the judge to re-cast his directions to the jury in respect of Ashiq, Shabran and Kamran. The judge had heard the evidence implicating Nazim in the violent events taking place in Bishop Street. Nazim had elected not to give evidence in his own defence. It is not a surprise to us that the judge declined to open the door to further delay based upon such uncertainty.
26.
It may be that the judge formed the instantaneous view that the prospect of Ashiq electing to call Nazim in his defence was minimal. While Nazim had been discharged from further consideration of counts 1, 3 and 5, that decision was made on the basis that, taking the prosecution case at its highest, namely Nazim’s involvement in events in Bishop Street (see paragraph 16 above and paragraph 36 below), the jury could not properly conclude that he was implicated in the conspiracies alleged. However, it is our view that, the defence having been asked whether the decision to discharge Nazim had an effect upon other defence cases and having been informed by Mr Jutla that there was such a possibility, the learned judge was somewhat peremptory in dismissing his application. The first step should have been, we consider, an inquiry as to what steps were required before Mr Jutla was in a position to indicate to the court whether an application would be made to re-open the defence case. Those inquiries would have been unlikely to take a prolonged period of time, and it may be that in consequence of the allowance of modest further time the prospect of an application would have been abandoned or, if maintained, granted without excessive disruption of the trial. In the absence of any explanation from the judge for his decision to refuse further time it seems to us at least arguable that the decision was unfair to the appellant Ashiq. That finding alone does not resolve his appeal, however. The decision for this court is whether, in the result, the judge’s decision had such an effect upon the fairness of Ashiq’s trial that the safety of the jury’s verdict is in question. There are, it seems to us, two issues which arise. The first is whether there was any reasonable prospect that, having considered his position, Ashiq would have instructed Mr Bishop or Mr Jutla to apply to re-open his case for the purpose of calling Nazim. The second is whether, if Nazim had been called to give evidence, his evidence could have had such an effect upon the jury’s consideration of Ashiq’s case that their verdict of guilty upon count 3 is arguably unsafe. It was common ground that Nazim’s evidence was relevant but was not, in view of the events which unfolded during the judge’s summing up, available to Ashiq at his trial. The issue for this court is whether Nazim’s evidence was capable of belief. For this purpose the court concluded that Nazim’s evidence should be received on appeal with a view to its admission under
section 23 Criminal Appeal Act 1968
. For the purpose of making this assessment we were provided with copies of Nazim’s summary of interviews, with his defence case statement and with copies of the witness statement he made on 29 April 2009, three weeks or so after Ashiq’s conviction.
27.
Nazim Hussain was interviewed under caution between 1.05 and 10.41 pm on 7 November 2007, that is, 14 days after the events he was then purporting to recall. In his first interview, he gave a detailed account to the effect that he had finished work at about 11 pm before picking up a takeaway from Mahmoud’s on Leeds Road, Bradford. He then drove to the Shell garage, also on Leeds Road, to eat his food. There, by chance, he had met Shabran and Amar at approx 11.30 pm. This would have been just over an hour after the confrontation between Shabran and Shafique at the BP garage. They chatted for about 10 – 15 minutes about a problem with Shabran’s car. As a result, Shabran decided to leave his car overnight at the garage and Nazim Hussain took both men to his and Shabran’s home at 15 Wensleydale Road. They arrived there at approximately midnight. There was no suggestion that the meeting at the Shell garage was pre-arranged. Nazim denied having received any prior telephone calls from Shabran. There is, however, incontrovertible telephone and cellsite evidence showing three calls from Shabran’s phone to Nazim Hussain’s phone at approximately 9.30 pm and a further three calls from Shabran to Nazim Hussain between 9.10 pm and 11.29 pm while Shabran was ‘on the move’ from Leeds to Bradford. Further, at 11.51 pm, Shabran’s phone made a call which was picked up by the server nearest to the Shell garage. As to the circumstances of the meeting at the garage, the defence statement is silent both as to whether or not it was planned and as to the presence of Amar.
28.
Only in his witness statement made on 29 April 2009 (see paragraph 35 below) did Nazim mention receiving a call from Shabran at about 11 pm. We have no doubt that this change of account was made to accommodate the telephone evidence. The overwhelming inference to be drawn is that the meeting at the Shell garage was in fact pre-arranged and not an unlucky coincidence. Its significance for the jury would have been the availability of the further inference that Nazim was, in interview, consciously distancing himself from the occasion when he was informed by Shabran of earlier events at the BP garage in Haworth Road and plans to take the attack to Shafique and his family in Bishop Street.
29.
As to the time at which he finished work, in his defence statement and witness statement, Nazim maintained, contrary to his account in interview, that he had finished work at approx 6.00 pm.
30.
In his second interview, Nazim said he remembered being at the BP garage on Haworth Road at around 2.00 am because he had seen the police there. After that, he and ‘J’, his girlfriend who he had collected at about 12.30 am, had driven around until he dropped her off at around 2.45 am. He claimed to remember being at home before 4.00 am “for sure”.
31.
In the third interview, he stated that he had heard on the evening of 24 October about the firing of the Mercedes car the night before. It follows that when he was being interviewed, he was well aware that the night about which he was being asked was the night before he had heard this news.
32.
In the fourth interview, allegations of sightings and overt acts were put to him and denied. He suggested that he had been ‘fitted up’ but agreed that none of the witnesses had, to his knowledge, any grudge against him.
33.
In the fifth interview, the sighting of his car at 4.14 am at the BP garage on Haworth Road was put to him (see paragraph 37 below). He accepted that he must have been there but still did not remember it.
34.
In the sixth interview, 3½ hours after the conclusion of the fifth, Nazim was confronted with his girlfriend Jodie’s account of the events of 23 October 2007. Nazim had refused to give any contact details for her, maintaining initially that he did not know her surname despite, on his account, having been her boyfriend for several months. When he was told that any delay in giving information about her might lead to the inference that he had ‘primed her’, he said that he could not get her involved as her mother had been locked up. In our view, it is no coincidence that when the police did make contact with Jodie she undermined beyond recovery Nazim’s alibi for the night of 23/24 October. Her account was that on the night of 23 October, she and Nazim had a row on the phone and had ‘called things off’; as a result they had not gone out that night and had not made up until later the following day. Furthermore, it is our opinion that these events provided Nazim with a second reason for remembering with precision the night about which he was being questioned, namely the night he and Jodie had a row and split up. When confronted with her account he said “I don’t really know”, and when the interviewing officer commented, “You don’t seem to know a lot really, do you?” he replied, “I know, that’s true. I don’t know a lot do I? I don’t know.” Nevertheless, he was still maintaining his account and asserting that Jodie was ‘probably mixed up’. At no stage prior to service of his defence statement did Nazim refer to Fayaz Ali. In his defence statement he did not identify Fayaz as his companion that night, but merely named him as a defence witness.
35.
Nazim Hussain told the court during examination by Mr Bishop QC that he was born on 18 December 1984 and lived at 15 Wensleydale Road in Bradford, the address at which he had been living with Shabran at the time of the events of 23/24 October 2007. We were told by counsel that Wensleydale Road is some 2 to 3 miles from Bishop Street. Nazim was at the time of these events of good character. He worked for Arrow Taxis and drove a Ford Mondeo. He confirmed that upon his discharge he would have been prepared to give evidence in Ashiq’s case. Asked how well he knew Ashiq, he said he was not a blood relative, did not know him too well but he knew him. He confirmed that he recalled some of the events of 23 October 2007 but when asked whether he could remember what time he finished work he said that he needed to see his statement. He was shown without objection the statement he had made on 29 April 2009. Having consulted the statement in which he said he had finished work at 6 pm, he said thought he had finished work at about 7 to 8 pm. Then he had driven around Bradford with his friend, Fayaz Ali, in whose company he remained until 4-5 am on 24 October 2007. At about 11 pm he received a telephone call from Mohammed Shabran asking him to collect him from the Shell Petrol Station on Leeds Road. When he arrived he found that Shabran was drunk. Amar, who was with him, was pretty sober. He took them to 15 Wensleydale Road where he left them. It was Shabran’s alibi at trial that he and Amar slept in an attic room on the top floor of that property where they remained overnight. Upon Nazim’s present account that alibi could have been supported by Fayaz Ali and Nazim Hussain. Nazim Hussain told Mr Bishop that he spent the rest of the night ‘joyriding’ in his taxi. With two exceptions he did not know where he drove, save that he drove around Bradford. At about 1.30 am he went to Motorwise whose offices were at the junction between Toller Lane and Bingley Road. He did not explain why he went there. Because he noticed a car outside he drove in and there saw a police vehicle. After a brief stay he drove away again and continued his joyride around Bradford. At 4 am he recalled visiting the BP petrol station and purchasing a soft drink. Asked why he went to the BP garage, he said he was thirsty. He returned Fayaz to his home at 4-5 am before returning home himself to 15 Wensleydale Road. Nazim maintained that at no stage during the night of 23 and 24 October did Ashiq Hussain enter his taxi. He did not see him that night, he did not go to the Bishop Street area, he did not see a red Mercedes on fire and had no knowledge of events in and around Bishop Street until after his arrest.
36.
At the close of the prosecution case the trial judge summarised the evidence concerning Nazim Hussain during the night of 23/24 October 2007 as follows:
(a) Nazim Hussain was seen smashing the front window of the blue Mercedes in Bishop Street;
(b) Witnesses identified Nazim driving his taxi from which Ashiq Hussain made gun gestures and threats to a number of people on Bishop Street;
(c) Nazim was seen in his taxi at traffic lights at the junction of Bingley Road and Howarth Road shortly after the shooting when vehicles outside Nisar Ahmed’s house nearby had been attacked;
(d) There was cell site evidence of Nazim’s presence in the north west Bradford area at the relevant time;
(e) There was telephone traffic between Nazim and other alleged co-conspirators before and after the shooting;
(f) Nazim’s taxi was seen at the premises of Motorwise with a number of men half an hour after the shooting;
(g) Nazim was present at the BP garage at about 4 am when men were seen to transfer between vehicles. Nazim drove off at high speed.
37.
Nazim Hussain was cross examined by Mr Kershaw. Asked by Mr Kershaw whether he was in the North Leeds area at 11 pm, Nazim replied that he was not sure. He agreed that two of the witnesses who identified him smashing the window of the blue Mercedes, Wajid Hussain and Adelat Hussain, were known to him. When it was pointed out to him that contrary to his evidence the cell site analysis showed that he was in the Bishop Street area that night, Nazim Hussain responded, “Does it?” It was pointed out to him that while there were a number of calls to and from his mobile phone there were no calls around the time of the shooting. Nazim replied that he did not know. He could not remember that later his car was at traffic lights in the immediate vicinity of fire attacks on nearby vehicles. He claimed not to remember at what time in the morning he had been at the premises of Motorwise. As to his visit to the BP Petrol Station at 4 am, the evidence had been that someone had jumped out of his taxi and transferred to a white Peugeot before Nazim sped away. In evidence Nazim said he could not recall any men transferring from one vehicle to another. He denied that he had driven off at high speed. Nazim was reminded that during his interview he told the police that he had been driving around Bradford with his girlfriend, Jodie Tait. Nazim said he did not know. He was reminded that the police traced Jodie who did not support his alibi. He responded that he could not remember claiming to have been with Jodie. He was reminded that he had submitted a signed defence statement to the Crown Court in which he had admitted not telling the truth in interview about his alibi. Nazim provided the court with no explanation for this concession.
38.
While he had not in his defence statement specifically identified Fayaz Ali as his companion that night he had named him as a witness in his defence. Nazim Hussain claimed not to remember. He confirmed that Fayaz Ali was alive and well at the time of the trial and that Nazim and Ashiq shared the same solicitor. It followed from Nazim’s evidence that if Fayaz Ali could support Nazim’s alibi then so could he have supported Ashiq’s denial that he entered Nazim’s taxi that night. It was Shabran’s evidence at trial that any telephone calls made from his mobile after his return to 15 Wensleydale Road were not attributable to him because he had left his mobile phone in Nazim’s car. One of those calls, after the shootings, was to Shabran’s girlfriend. Asked by Mr Kershaw whether he had any knowledge of Shabran’s girlfriend’s telephone number, Nazim replied that he did not. When asked whether Shabran had left his telephone in his taxi he said he could not remember. Asked whether either he or Fayaz called Shabran’s girlfriend from the taxi he again replied that he could not remember. Asked whether he returned Shabran’s mobile phone to him he replied that he did not know. Asked whether he could recall a phone ringing in his car he said he could not remember.
39.
Mr Bishop QC submitted that this was plainly not a witness who had been coached to give evidence. The vagueness of his account had the ring of truth about it. He is a witness on whose account the defence may well have relied had it been available to them at the time of trial. On the contrary, this court has no hesitation in concluding that Nazim Hussain was not a witness of truth. We are quite satisfied that he knew the purpose of his giving evidence in Ashiq’s appeal and that he was well aware of relevant evidence affecting both him and Ashiq. We make due allowance for the lapse of time since trial but simply cannot accept Nazim’s claims not to remember important events which featured large at his trial. Unchallenged cell site evidence demonstrated the improbability of his claim not to have been in the vicinity of Bishop Street on the night of the shooting. He admitted in his defence statement that the alibi given in interview had been untrue. Shabran gave evidence at trial of being collected by Nazim from the Shell garage. He claimed to have left his mobile phone in Nazim’s taxi. On Nazim’s present account Fayaz Ali was with him in his taxi and could have supported Shabran’s alibi. No mention of Fayaz Ali was made in the course of Shabran’s evidence. It seems obvious to us that if Nazim Hussain had given evidence he would have faced questioning upon the issue of Shabran’s phone. If he was unable to explain the telephone call to Shabran’s girlfriend made on Shabran’s telephone the detrimental effect to Shabran’s case was obvious. The cell site analysis was consistent with a journey by Shabran’s telephone from the Shell garage from which Shabran was collected by Nazim shortly before midnight; a journey from the Shell garage to the Bishop Street area by about 12.15 am; a journey from the Bishop Street area to the Bingley Road area, where Motorwise was situated, and a return to Bishop Street by 12.29 am. No call was made from Shabran’s mobile phone between 12.29 and 12.57am. At 12.57am the call to Shabran’s girlfriend was made from a cell site serving the Bingley Road, Motorwise and BP petrol station areas. Cell site evidence was consistent with the movement of Shabran’s phone towards Bishop Street just before the shooting. Had Nazim been exposed to cross examination on behalf of the prosecution at trial, the improbability of his account that he was never in the Bishop Street area would have been exposed. The eye-witness evidence of Shafique Hussain, Sajid Hussain, Wajid Hussain and Adalat Hussain to the effect that Nazim Hussain’s taxi was in Bishop Street at the material times was consistent with the cell site evidence of calls made by Nazim’s phone. In order to accept the evidence of Nazim, the jury would have been required to contemplate the possibility, not only that these witnesses had lied about seeing Ashiq in the vehicle in Bishop Street, but about the fact that the vehicle was there at all. Despite his evidence to this court, we regard it as highly improbable that Nazim would have agreed to give evidence on behalf of Ashiq and, thereby, expose Shabran’s position or that those acting for Ashiq would have taken the risk of calling him in a re-opened defence case. Much more probable, in our opinion, would have been a judgement that Ashiq’s position was better protected by the absence of Nazim from the trial altogether. However, we are in the present context not concerned with probabilities. If there is a workable possibility that Nazim would have been called in a re-opened defence case then we must finally consider the impact of his evidence on Ashiq’s trial.
40.
For the reasons we have given, we have no doubt that Ashiq’s position could not have been improved in the eyes of the jury and, in all probability, would have been made much worse. Nazim’s first alibi was admittedly false; his second alibi was unsupported by evidence from Fayaz Ali notwithstanding Fayaz Ali’s availability; Nazim’s evidence was vague and inconsistent upon matters which incriminated him in relevant events; making due allowance for the defence case of bias by prosecution witnesses towards Ashiq and his family, there was powerful evidence from witnesses, whom Nazim said had no axe to grind with him, that he was in Bishop Street at the time the violence erupted. Desirable though it would have been for the judge to permit time for consultation and reflection, we are quite satisfied that in the result no unfairness capable of affecting the safety of the verdict in Ashiq’s case took place.
41.
Mr Bishop QC pursued a further application to adduce fresh evidence from the Orange mobile telephone network provider. The application was deficient since it was unsupported by evidence explaining why the evidence was not available at trial. Secondly, we were invited to admit the evidence in the form of a letter from an employee of Orange to the effect that on 24 October 2007 Ashiq Hussain secured an upgrade by means of a SIM card swap and a new handset. The letter confirms that the handset was provided with a new international mobile equipment identifier (IMEI). However, the evidence which this ‘fresh’ material was intended to rebut was to the effect that calls continued to be made on Ashiq’s old handset after the shootings had taken place. Ashiq wished to establish that the call records may have recorded inaccurately the IMEI number of the handset on which he made calls made after his car was set on fire. The fresh evidence simply did not have the effect claimed. Furthermore, on Ashiq’s account his old mobile phone should have been destroyed in the fire which consumed the red Mercedes. We refuse leave to admit the ‘evidence’ from Orange.
42.
In conclusion, we have no reason to doubt the safety of the verdict in Ashiq’s case and his appeal is dismissed.
Mohammed Shabran’s Grounds of Appeal
43.
It was submitted on behalf of Mohammed Shabran by Mr Nathan QC that the judge should have acceded to a submission of no case to answer at the close of the prosecution case, alternatively at the close of the evidence, and alternatively that the state of the evidence renders Shabran’s conviction unsafe. Mr Nathan’s submissions concentrated upon the voice recognition evidence upon which the prosecution relied to identify Shabran as the gunman. Mr Nathan adduced the evidence of a leading expert in voice analysis, Professor Peter French, in order to provide the jury with some assistance as to the limitations of the evidence they had heard of voice recognition. Professor French gave evidence that if he were analysing a sample of voice he would require substantially more speech from the “suspect” voice than the words spoken by the gunman at the scene in order to make a meaningful comparison. He would need fewer words if the speaker had a distinctive voice. In his view, the fact that the words were shouted made voice comparison more difficult.
44.
The nature of the evidence being considered by the jury can be summarised as follows. Adalat, Sajid and Wajit Hussain all claimed to have heard the gunman shout the word “Oi!”. Zakar Khan heard the gunman shout “You mother fuckers”. Nisar Ahmed heard the gunman shout “Kill them, you mother fuckers”. Zakar Khan said he had heard Shabran using similar words during the earlier incident at the BP Petrol Station. While there was evidence that Shabran had on other occasions used the word “Oi”, we accept the submission that the evidence of Adalat, Sajid and Wajit was of little or no value to the jury. The evidence of Zakar Khan and Nisar Ahmed was, we accept, at the borderline of admissibility.
45.
The attention of the judge was drawn to the decision of this court in
R v Flynn and St John
[2008] 2 Cr App R 20
in which the court highlighted the dangers inherent in voice recognition. At paragraph 16 Gage LJ, giving the judgment of the court, observed that in general terms the expert evidence before the court demonstrated (1) identification of a suspect by voice recognition is more difficult than visual identification; (2) identification by voice recognition is likely to be more reliable when carried out by experts using acoustic and spectrographic techniques as well as sophisticated auditory techniques, than when made by the lay listener; (3) the ability of a lay listener correctly to identify voices is subject to a number of variables. There is at present little research about the effect of variability but factors which are relevant include:
i)
The quality of the “suspect” voice;
ii)
The gap in time between the listener hearing the known voice and his attempt to recognise the disputed voice;
iii)
The ability of the individual lay listener to identify voices in general;
iv)
The nature and duration of the “suspect speech”. Some voices are more distinctive than others and the longer the sample of speech the better the prospect of identification;
v)
The greater the familiarity of the listener with the known voice the better the chance of an accurate identification of the disputed voice.
46.
In
Flynn
, the court was concerned with the quality of a covert recording and recognition subsequently made, not with spontaneous recognition at the scene of an alleged crime. The court concluded that the evidence should not have been admitted since the covert recording was of insufficient quality for voice recognition to be made by non-expert witnesses. In this case both sides and the judge agreed that the quality of the evidence was in the nature of a “fleeting glimpse”. The judge took the view, having heard the evidence of the witnesses, and before hearing the evidence of Dr French, that the voice recognition evidence should be considered by the jury subject to explicit warnings. The judge reached this conclusion since, applying the principles in
Turnbull
[1976] 63 Cr App R 132
, the jury was entitled to consider not merely the quality of recognition but also any evidence capable of supporting it. That evidence included threats to kill uttered by Shabran to Shafique Hussain at the BP petrol station not long before the shooting, the request made to his brother Kamran during his mobile telephone call from the BP petrol station, the presence of his mobile telephone within the area of Bishop Street at the material time, and, if the jury so concluded, the falsity of his alibi. In our judgment the learned judge’s decision cannot be faulted.
47.
As we have observed, explicit directions to the jury as to the caution required were needed. In a passage of his summing up commencing at page 39 the learned judge gave those directions. He pointed out to the jury that the principal defence case was that the identifying witnesses were lying, not that they had made a mistake. Nevertheless the jury had to be alert to the possibility of mistake. The judge proceeded to give the jury assistance as to their approach to the defence case. We add in parenthesis that it was a curious fact, if the witnesses were motivated by malice, that they did not purport to make a more specific visual identification of Shabran notwithstanding that the gunman was wearing a balaclava. The judge proceeded, however, to provide the jury with directions as to the reliability of the evidence only on the assumption that the jury concluded that “a particular witnesses’ evidence is truthful, accurate and reliable”. He warned them of the special need for caution before convicting Shabran upon any of the evidence of voice recognition despite the fact that they concluded the evidence was honest, truthful, accurate and reliable. He provided the jury with a modified
Turnbull
direction. He pointed out that having regard to the incident at the petrol station the witnesses may have been expecting Shabran to turn up in Bishop Street with a gun. There was a risk that their purported recognition was prompted by prior knowledge. The jury was reminded that contamination by talk in the street after the event was a danger against which they should guard. The evidence of Dr French, pointing out the advantages of scientific analysis of voice samples over “lay listener voice recognition”, was summarised. The judge explained the difference between an exercise of voice analysis carried out by an expert and the judgement of witnesses claiming to recognise a voice in the street. He explained that the lay listener has no expertise and is unable to analyse in hindsight the reasons for the recognition claimed. The judge particularly directed the jury’s attention to the limitations of voice recognition evidence created by the limited number of words upon which any of the witnesses relied. He concluded by saying that even the most competent recognition of a voice by a lay listener may nevertheless be wrong. In our judgment the judge gave the firm directions which were promised at the close of the prosecution case. We consider that the judge was right to permit the jury to consider this evidence in the light of his warnings. We have no reason to doubt the safety of the resulting verdict.
Mohammed Kamran’s Grounds of Appeal
48.
It was also submitted on behalf of Kamran by Mr Hill QC that the case against him should have been withdrawn at the close of the prosecution case. The principal evidence in Kamran’s case was the identification evidence of Nisar Ahmed and Mohammed Razaq. It was submitted to the judge that while the reliability of a witnesses’ identification was a matter for the jury there was in the instant case the underlying assertion of a conspiracy by the complainants to pervert the course of justice. If Nisar Ahmed and Mohammed Razaq were demonstrably lying about key events and seeking to conceal evidence relating to the central issues then their evidence could not properly support a verdict of guilty.
49.
Mr Hill identified several matters of importance. It was submitted that they lied about their presence at the attack on the red Mercedes. They knew or should have known the identity of the getaway driver. Not until ten days after the event did the witnesses reveal Kamran as the alleged getaway driver. Adalat Hussain gave evidence which cast doubt upon Razaq’s assertion that he was anywhere near a point at which he could have made the identification he claimed. Nisar Ahmed, it was asserted, had lied to the jury about his identification of Kamran damaging his car on 12 December 2007.
50.
We are not persuaded by these submissions. Matters of credibility are for the jury. In his preamble to the consideration of the cases against each accused at trial the learned judge demonstrated his complete grasp of the basis for the defence allegation that the evidence for the prosecution was riddled with collusion. Nevertheless, these were matters for the jury. The judge correctly identified evidence which was capable of providing some support for the correctness of the identification. In particular, Kamran lied in interview when claiming that he was unable to drive a car. He had a previous conviction which demonstrated the untruth of that assertion.
51.
Mr Hill points out to us that there may, in the minds of the jury, have been an interlocking effect between the cases of Ashiq, Shabran and Kamran. If Ashiq and/or Shabran were not present in Bishop Street at the material times, that made it the less likely that Kamran was the getaway driver. We recognise that there is sense in Mr Hill’s assertion but, in the end, the jury had to make a decision whether they were sure the person driving away the gunman was, as the witnesses said, Mohammed Kamran. Furthermore we have decided that the verdicts in the case of Ashiq and Shabran were safe.
52.
We conclude that the appeal of each of these men should be dismissed. The appeals of Shabran and Kamran were privately funded. Ashiq’s appeal was publicly funded but limited to junior counsel only. We think it was desirable, in the particular circumstances of his case for reasons which appear in this judgment, that leading counsel at the trial should present his appeal and the representation order in Ashiq’s case is extended to Mr Bishop’s presence at the appeal.
53.
We were invited in the cases of Ashiq and Kamran to consider the sentences imposed notwithstanding the refusal of leave by the single judge. We have reconsidered counsel’s advice and grounds. We agree with the conclusion of the single judge that the commission of the offence of conspiracy with intent to cause grievous bodily harm by means of a firearm which was in fact discharged so as to cause injury renders the sentence upon each of the appellants manifestly justified. In our view it is not arguable that the judge should have distinguished between the appellants, nor that the sentences were excessive. | ```yaml
citation: '[2010] EWCA Crim 1327'
date: '2010-06-16'
judges:
- LORD JUSTICE PITCHFORD
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2017] EWCA Crim 618
Case No:
201604109 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
12/04/2017
Before
:
LORD JUSTICE TREACY
MR JUSTICE GREEN
MR JUSTICE PICKEN
- - - - - - - - - - - - - - - - - - - - -
Between :
R
Crown
- and -
Jason Leon Billington
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms A Earnshaw
appeared on behalf of the
Appellant
Mr P O’Shea
appeared on behalf of the
Crown
Hearing dates: 12
th
April 2017
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
.............................
MR JUSTICE GREEN
MR JUSTICE GREEN:
A.
Introduction
1.
The appellant pleaded guilty to two counts of making a threat to kill and assault occasioning actual bodily harm.
2.
On 26 August 2016, the appellant was sentenced to an extended sentence of 6 years pursuant to
section 226
A of the
Criminal Justice Act 2003
made up of a custodial term of 4 years and an extension period of 2 years. He was subject to a victim surcharge order.
B.
The Facts
3.
In December 2015, the appellant was released upon licence from prison. In February 2016, he met with the complainant in Barnsley town centre on a night out. It was the first time they had seen each other for approximately three and a half years. Towards the end of February 2016, the appellant and the complainant entered into a relationship but from the outset the appellant showed signs of controlling behaviour. He would, for instance, frequently check the complainant's mobile telephone and Facebook account.
4.
The complainant planned a night out with friends. For a few days prior to this the appellant was up tight and unhappy. He objected to the clothes the complainant was intending to wear. On 8 April, he was in a bad mood and upon checking the complainant's telephone he was concerned that she had received a telephone call from a male friend. At all events, at 9.15 pm the complainant left home to meet friends in the town centre. The appellant remained in the property. During the evening he sent a series of abusive text messages to her.
5.
She returned home at about 2.30 am to find the appellant awake. She made her way upstairs in order to use the lavatory. The appellant followed her with a glass of water in his hand which he then poured over the complainant's head. He refilled the glass and poured it once again over her. He was shouting at her, saying that she had left him on his own and failed to contact him all night. The complainant made her way into the bedroom. The appellant followed her and swept several perfume bottles from a dresser top onto the floor. He went downstairs and he obtained a long kitchen knife and returned upstairs. He held the knife to the complainant's throat, pressing it against her skin.
6.
Shortly afterwards, however, he removed the knife and they both went downstairs. But over the course of the next 3 hours, the appellant angrily inflicted violence upon the complainant. He blamed her for his temper. He told her that she had "fucked his head up". On a number of occasions he placed his hands around her throat, applying considerable pressure to the point where the complainant felt unable to breath. She was genuinely in fear that he would kill her. The appellant at one point dragged her off the sofa by her legs onto the floor. He threatened to hit her over the head with an empty wine bottle but she managed to take that away from him. He picked up a DVD player and threw it at the complainant twice, on one occasion hitting her upon the head. He punched her around the head and body. He bit her nose, lip and arm.
7.
Eventually, the complainant managed to break free and she ran from the front door but the appellant grabbed her as she reached the end of the driveway and pulled her back inside by her hair. Once inside he locked the door. He had knives in his possession. He told her that she was going to go nowhere, that he was going to kill her and spend the rest of his life in prison. The complainant attempted to calm the appellant down; she hugged him and told him that she loved him.
8.
At about 5.30 am, the appellant went upstairs to collect his phone. The complainant opened the downstairs living room window and she jumped through it head first, landing on some broken draws in the garden. The appellant followed her through the window and he jumped upon her preventing her escape. But she managed to convince him to go back inside without her and then she fled to the address of a neighbour, where the police were alerted.
9.
The injuries sustained by the complainant were photographed by the police and they were shown to the judge as part of the sentencing exercise.
10.
The appellant was arrested and indicated that he was prepared to admit everything except holding a knife to the complainant's throat or false imprisonment. However, once the questioning commenced he gave no comment responses to questions in interview and he became extremely agitated. He stood up clenching his fists and he demanded to leave the interview room.
11.
In a victim impact statement the complainant explained that she had suffered from domestic violence before and that she had recovered and endeavoured to rebuild her life. She said that she would do the same again but she had never been so frightened in all of her life and she genuinely feared that the appellant was going to kill her. She was frightened that when the appellant was released he would come looking for her and that her future and that of her son would be uncertain due to his behaviour. The complainant supported the prosecution.
12.
Subsequently, the complainant issued a statement in which she said that she was reconciled with the appellant. She did not believe that prison was the right place for him. She stated that the appellant had not asked her to drop the charges and she had not been coerced into the making of the statement by any third party. She did not, however, retract the allegations against him.
13.
The appellant has a lengthy list of 12 convictions for 19 offences. These spanned the period 2008 onwards. On 14 June 2013, at Sheffield Crown Court, the appellant was imprisoned for 5 years for burglary and assault occasioning actual bodily harm upon a previous partner. He was subjected to a restraining order protecting the partner from harassment and to a further order. He was released on licence in December 2015 just shortly prior to the events which have given rise to the present case.
C.
The Sentence
14.
The appellant came to be sentenced on 26 August 2016. At the hearing, the Recorder indicated that he would furnish the appellant and his lawyers with written reasons for the sentence that he intended to impose. He then imposed the sentence which is the subject matter of the present appeal.
15.
On 29 August 2016, the Recorder issued reasons for the sentence. The reasons are detailed, lengthy and carefully crafted. He recited the relevant facts, including the appellant's history of previous convictions. He observed that the most recent of the offences included an offence of assault occasioning actually bodily harm which resulted in the appellant being subject to a restraining order made in perpetuity. The Recorder cited from the pre-sentence report, which included the conclusion that the appellant sought to justify his actions by playing down the seriousness of the charges and blaming his mental health rather than accepting responsibility for his conduct.
16.
The Recorder noted that the assessment was based upon an assumption that the offending was unconnected to drugs or alcohol. However, the Recorder rejected this conclusion in the light of a report from a psychiatrist noting that the appellant claimed to have consumed 4 litres of lager and 2 litres of wine on the evening of the offence and the evidence of the arresting officer was that he was drunk when arrested.
17.
The Recorder was influenced by the fact that the appellant was on licence for a similar offence committed against his former partner when the present offence was committed. In this connection, the Recorder noted the observations of the author of the pre-sentence report that the current offence reflected an escalation in seriousness and that there was therefore a high risk of re-offending in a violent manner if the appellant failed to engage with mental health services and failed to understand the triggers for his violent conduct. The appellant was assessed as a high risk of committing serious harm.
18.
The Recorder set out a detailed analysis of the conditions precedent for an extended sentence under
section 226
A and under
section 229
CJA 2003
in relation to dangerousness. In relation to the latter, the judge considered the circumstances of the index offences and whether that contributed to an emerging pattern of behaviour. He assessed the psychiatric evidence submitted to the court from a Dr Pawar dated 18 May 2016 which set out the appellant's long history of anger lapses from schooldays onwards. The judge concluded that the appellant was a needy individual prone to jealousy and insecurity whilst at the same time capable of over possessiveness and controlling behaviour. He set out his reasons for this conclusion and he endorsed the views set out in the pre sentence report that the appellant was a serious risk to the public.
D.
Grounds of Challenge to the Sentence
19.
It is now argued before us that the sentence was manifestly excessive. The following facts and matters are relied upon in this regard. First, there is the fact that the appellant pleaded guilty and it is said that there is no reason why full credit should not have been granted for the guilty plea instead of the reduced 20 per cent accorded by the judge.
20.
Second, it is said that in the light of case law it was wrong to reach a sentence of 4 years for the offence of threats to kill. There was no other justification for an extended sentence of the sort imposed given that the appellant did not have relevant previous convictions. The case did not reflect a pattern of violent repeat offending. The offence had been committed following the appellant resorting to alcohol and drugs to cope with the grieving process following the death of his father. The appellant was engaging with mental health services and he had the ability to change. The appellant showed remorse.
21.
In granting leave, the single judge observed that it was most unusual and contrary to current sentencing practices for a judge to fail to give reasons in public and only to supply reasons privately to the appellant's lawyers. It is said that given the retraction on the part of the complainant and the mitigation advanced on the appellant's behalf it was arguable that the custodial term of 4 years after a reduction for the guilty plea was manifestly excessive.
E.
Discussion: Sentence
22.
We turn now to consider the issues arising in the appeal. We start with the sentence imposed. There are two preliminary points to make. First, there is a degree of confusion as to the starting point taken by the judge and whether this was 6 or 5 years. In the written sentencing remarks both are mentioned. It would appear, in light of the fact that credit of 20 per cent was accorded for the guilty plea to threats to kill, that the Recorder had a starting point of 5 years in mind. This is consonant with the custodial term being one of 4 years. The second preliminary point is that there is no criticism made by the appellant of the analysis performed by the Recorder of the conditions for the imposition of an extended sentence pursuant to 226A
CJA 2003
. The issue arising is one of the exercise by the Recorder of his sentencing judgment and discretion.
23.
In our judgment, the Recorder imposed a lawful sentence. The following facts are, in our view, relevant.
24.
First, the present offence was committed literally weeks after the appellant was released from prison for offences which included domestic violence and whilst he was on licence. The present offence was both a repeat and an escalation of previous domestic violence. The offence involved sustained and significant violence over a period of hours involving the use of a knife and strangling and threats to kill, which in the circumstances were credible and which were advanced with serious intent. The violence involved multiple sites of injury. The outburst of violence was also the combination of longer term controlling behaviour.
25.
Second, it appears from the evidence that the offence was fuelled by alcohol in the same way as the earlier incidents of domestic violence had been. There is no evidence before the court to suggest that the appellant can control his temper or refrain from use of alcohol and attempts to assist the appellant in this regard in the past have failed.
26.
Third, we reject any submission, insofar as it is maintained, that the appellant cooperated with police. He was unresponsive and essentially belligerent. He did not admit the full extent of the alleged criminality.
27.
Fourth, we can find no error in approach for assessment of dangerousness by the judge. The judge's conclusions were consistent with the findings arrived at by the psychiatrist and by the author of the PSR. On the evidence before the court, the judge was entitled to conclude that the appellant reflected a high risk of reoffending in a violent manner and that he was and remained a high risk of serious harm towards adults and with children who witnessed incidents of domestic violence.
28.
Fifth, the judge granted a 20 per cent discount for the late tendering of the plea. We see no material or significant error in the approach adopted.
29.
Sixth, we would observe that the complainant's statement, to which we have referred, carries little weight. She did not retract the allegations which were made and it is ultimately for the court to determine the appropriate sentence.
30.
In these circumstances, we conclude that the sentence imposed was a lawful one for the judge to impose and we reject the appeal against sentence.
F.
The Importance of Delivering Sentencing Remarks in Public
31.
We turn finally to an issue which has troubled both the Registrar of Criminal Appeals and the Crown in their written submissions to this Court, which is the failure of the Recorder to issue his sentencing remarks in public.
32.
We commend the judge for reducing his remarks to writing and for the care that he adopted in their preparation. We recognise that sentencing can frequently be complex and technical and the analysis which must occur in relation to an extended sentence might well be a good illustration of the sort of sentence where a judge feels the need to adjourn to consider carefully either sentence or how it should be explained. But where this happens it is crucial that the articulation of the reasoning takes place orally in public. This is to ensure that the public at large, which includes the press who might cover a sentencing exercise, are made fully aware of the reasons for the sentence passed. Transparency in the working of the justice system is integral to the maintenance of public confidence in that system. Transparency is equally critical in ensuring that the defendant knows exactly why the sentence has been passed and it facilitates consideration of possible grounds of appeal. For similar reasons it enables the Crown to know whether they should oppose an appeal and, if so, upon what basis and even whether they would wish to challenge a sentence as unduly lenient. We would draw attention to
section 174(2)
Criminal Justice Act 2003
which when referring to the duty to give reasons for sentences stipulates that such reasons must be given in “
open court
” and using “
… ordinary language and in general terms
”. This is for the salutary reasons of policy that we have identified.
33.
None of this, of course, prevents the increasingly common practice of the judge handing out printed copies of the sentencing remarks to those in court once they have been delivered. In the present case, we are told that the sentencing remarks were neither read out in public nor sent to the Crown. Indeed, we are informed by the Crown that they obtained copies of the judge's remarks only in the course of preparing for this appeal.
34.
With respect to the Recorder, who otherwise clearly devoted considerable care and attention to the preparation of his remarks, this was a serious failure in good practice. | ```yaml
citation: '[2017] EWCA Crim 618'
date: '2017-04-12'
judges:
- LORD JUSTICE TREACY
- MR JUSTICE GREEN
- MR JUSTICE PICKEN
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
2003/0766/D2
Neutral Citation No:
[2004] EWCA Crim 489
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE SCOTT-GALL
SITTING AT LEWES CROWN COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Wednesday 10
th
March 2004
Before :
LORD JUSTICE WALLER
MR JUSTICE HEDLEY
and
HIS HONOUR JUDGE STEPHENS QC
sitting as a Judge of the High Court
- - - - - - - - - - - - - - - - - - - - -
Between :
IAN ROGERS
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Gordon Bebb QC (instructed by The Registrar) for the Appellants
Patrick Magge (instructed by The Crown Prosecution Service) for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Waller :
1.
This is an appeal with leave of the single judge against a conviction (by a majority) on one count of indecent assault following a trial before His Honour Judge Scott-Gall and a Jury sitting in the Crown Court at Lewes on 13
th
January 2003. The appellant was subsequently sentenced to 18 months imprisonment.
2.
The original indictment had comprised four counts of rape and two of indecent assault. At the close of the prosecution case the learned judge withdrew the four counts of rape (there was insufficient evidence of lack of consent) but allowed the four allegations contained in those counts to go to the Jury as allegations of indecent assault as, given the age of the complainants, consent was irrelevant. In due course the jury acquitted on all counts save one (count 3) where they convicted the appellant. The appeal raises the issue of inconsistency of verdicts.
3.
At the conclusion of the hearing of the appeal we announced that the appeal would be dismissed for reasons that would be put into writing and handed down later. This we now do.
4.
The three complainants in this case were young teenage girls known as S, J and K. They were all friends but it is S and her family who are central to this case. The material facts can be stated comparatively briefly. The family of S had sustained bereavements: her father had sought solace in alcohol and her mother had been depressed. The appellant had become a friend of the family and had been friendly and generous towards S and her friends. On one evening in July 2000, whilst the father was in the pub and the mother away on holiday, the appellant was alone with the girls. S said that he indecently assaulted all three of them. S then maintained that the Appellant had had a sexual relationship with her over the next few months involving full sexual intercourse on some nine occasions. The other girls also complained of sexual activity. In the end the only conviction related to the very first incident related by S.
5.
In essence the prosecution case was that the Appellant deliberately curried favour in this family so as to gratify himself sexually at the expense of these girls. It was said to be implausible that they had colluded to make false allegations and the allegations made were, if anything, understated and made with no apparent motive. The Defence case was simply that no sexual contact of any sort had taken place with any complainant; that the allegations were made out of jealousy and bitchiness; and that their falsity was demonstrated by the inconsistencies within and between their accounts.
6.
In his summing-up (of which no complaint is made) Judge Scott-Gall put the matters fairly and concisely to the Jury. He said (page 2E-G):
“And your task can be simply stated in this way: in the case of each witness the first question you ask yourself is this: ‘Has that witness been telling the truth?’ And having asked the question, and answered it, you go on to ask yourselves the second question: ‘Has that witness been accurate on the account that he or she has given?’ And in answering the second question you are discharging your vital and critical function.”
He then went on, importantly in this case, to say (page 3F-G):
“The second direction I give you is important. There are six counts on the indictment and each count represents a separate allegation against this Defendant. You must consider the case against and for the Defendant on each of these counts separately; the evidence is different and therefore your verdicts need not be the same.”
Finally (at page 6F-G) he said this:
“Now, each complainant was adamant that the act complained of occurred. The Defendant denied any such act with any complainant ever occurred; that is the only issue that you need to determine on each of these separate counts.”
He then goes on to explain why that is so, but that it is so is agreed on all sides. The judge left to them the key issue, the key questions and the key direction for separate consideration. In the event they convicted, as we have said, on one count alone.
7.
What is now forcefully said by Mr Bebb on behalf of the Appellant really comes to this. The Jury has found that there are features of the girls’ evidence that make them unreliable. The issue in respect of each count was exactly the same i.e. did it happen? Therefore a conviction on Count 3 alone is logically inconsistent and has no rational explanation for it. Thus he says that the conviction is unsafe.
8.
The essential law is uncontroversial. When seeking to impugn a conviction on the basis of inconsistency of verdict, there is a burden on the appellant not only to establish inconsistency but to demonstrate that no reasonable jury properly directed could have arrived at the conclusion which was in fact reached. In other words that it was not possible to postulate a legitimate chain of reasoning which could reasonably explain the inconsistency.
9.
However, those principles have caused a little more difficulty when it has come to their application. A modern statement of the law can be found in
R –v- G [1998] Crim LR 483
. In that case convictions depended upon both the reliability and the credibility of a complainant to sexual offences. The jury convicted on some counts but acquitted on others. It was said that those verdicts were therefore inconsistent. The court rejected that argument and, having stated the law, as above, went on both to reinforce observations in
Bell (unreported 97/0085/Z4)
that it was not necessarily inconsistent to accept some parts of one witness’ evidence but to reject others and also to acknowledge possible exceptional cases as in
Cilgram [1994] Crim CR 861
to which we must return. The court in
R –v- G
went on to point out that a person’s credibility is not a seamless robe any more than is their reliability. The jury had to consider each count separately and might take a different view of the reliability of the evidence on different counts. It was too simplistic to draw a stark distinction between reliability and credibility. It was for the jury to decide on the basis of all the material before it whether it was sure of a particular allegation in each count.
10.
Mr Bebb accepted that this was the present state of the law but submitted that his case fell into that exceptional category recognised in
Cilgram
where the court ought to interfere.
Cilgram
itself was decided before both
Bell
and
R –v- G
but also involved sexual offences. On the basis of the reports available to us, it is not necessarily easy to reconcile the decision in
Cilgram
with the later decisions. That in itself constitutes a warning about the difficulties inherent in reviewing Jury verdicts in these type of cases where the impression and demeanour of witnesses is often so important. In our view the law is to be taken as definitively laid down in
R –v- G,
and
Cilgram
is to be treated as a case on its own particular facts (as the court in that case appears to have recognised) illustrating the proposition that there will be some cases in which appellate intervention is required.
11.
In the present case the question is whether it was open to the Jury to be sure of the first incident in the alleged series whilst clearly not being sure about anything that followed. It is a fair inference from the verdicts that they were unconvinced by the evidence of J and K and unconvinced by part of the evidence of S. Does that, however, lead irresistibly to the conclusion that they were not entitled to be convinced by the evidence of S on Count 3?
12.
In our judgment it does not. There is no reason in a case like this that a jury properly directed both to give separate consideration to each count and also that different verdicts were open to them (as they were) should not have done just that. They clearly gave the closest consideration to the case and returned their verdicts on the Counts relating to S last. That they should be sure about the first event but unsure as to anything else does not seem to us necessarily inconsistent and, even if it were, does not seem to us to defy rational interpretation. They did as the learned judge had directed them and came to a conclusion which, whilst it may have surprised those involved, in our judgment they were entitled to come.
13.
We would like to emphasise what was earlier said in this court in
Bell
and
R –v- G
that credibility is simply not one and indivisible. Especially is that so in this type of case. Of course any jury must look at the overall picture and form a view as to the essential credibility and reliability of those whom they have heard. Having done that, however, they are both required and entitled in respect of each allegation to ask themselves whether they are sure of guilt and answer that question by individual verdicts. It will, we think, require a compellingly unusual or obvious case before the court will be prepared to go behind a verdict which is based on the Jury’s assessment of the evidence of witnesses.
14.
It was for these reasons that we dismissed this appeal.
LORD JUSTICE WALLER: I should make clear that the constitution which heard this appeal on 20 February 2004 was myself, Mr Justice Hedley and His Honour Judge Stephens QC. On that day (20 February) we dismissed the appeal for reasons to be given later and we now hand down those reasons | ```yaml
citation: '[2004] EWCA Crim 489'
date: '2004-03-10'
judges:
- LORD JUSTICE WALLER
- MR JUSTICE HEDLEY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| 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:
[2024] EWCA Crim 461
IN THE COURT OF APPEAL
CRIMINAL DIVISION
No. 202202755 B3
202202645 B3
202202684 B3
202202711 B3
202202695 B3
202202744 B3
202202759 B3
Royal Courts of Justice
Tuesday, 7 March 2024
Before:
LORD JUSTICE WILLIAM DAVIS
MR JUSTICE WALL
MRS JUSTICE DIAS
REX
V
PAUL MICHAEL MOUNT
STEFON BEEBY
MICHAEL JOSEPH POPE
ANTHONY PAUL SAUNDERSON
STEPHEN RAYMOND SHEARWOOD
DARREN OWENS
KIERON IAN HARTLEY
Computer-aided Transcript prepared from the Stenographic Notes of
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Mr. B. Stuart
appeared on behalf of Paul Mount.
Mr. R. Howart
appeared on behalf of Stefon Beeby.
Michael Joseph Pope
was not represented.
Mr. S. Csoka, K.C
. appeared on behalf of Anthony Paul Saunderson.
Mr. J. Nutter
appeared on behalf of Stephen Raymond Shearwood.
Mr. O. Cook
appeared on behalf of Darren Owens.
Mr. A. Hill
appeared on behalf Kieron Ian Hartley.
Mr. N. Daley
and
Ms. N. Cornwall
appeared on behalf of the Crown.
JUDGMENT
.
LORD JUSTICE WILLIAM DAVIS:
Introduction
1
On 12 August 2022 in the Crown Court at Liverpool His Honour Judge Denis Watson, King's Counsel, conducted a substantial sentencing exercise in relation to an indictment which in total contained 11 counts. Most of the counts charged conspiracies to produce or to supply drugs, whether of class A or class B. In relation to two defendants there were counts relating to the acquisition or supply of prohibited weapons.
2
We are concerned today with seven of those whom the judge sentenced. Although the majority pleaded guilty to the counts in respect of which they fell to be sentenced, the judge had heard a trial of some of these defendants and others. Of those who appear before us, five (Paul Mount, Anthony Saunderson, Darren Owens, Kieran Hartley and Stefon Beeby), have leave to appeal against their sentences. Two more (Stephen Shearwood and Michael Pope), were refused leave to appeal by the single judge. They now renew their applications for leave. Mr Shearwood is represented by counsel, Mr Julian Nutter. We deal with Michael Pope as a non-counsel application.
3
The principal conspiracies with which we are concerned were to produce (count 1), and to supply (count 3) amphetamine in a form designed for administration by injection. Although amphetamine generally is a class B controlled drug for the purpose of the Misuse of Drugs Act 1971, when it is injectable it is a class A drug. We were told that there has been no previous reported case in relation to sentencing of those convicted in relation to amphetamine in its injectable form. That is despite the fact that the relevant provision in the relevant schedule in the Misuse of Drugs Act has been in place since the introduction of the Act. One issue for us to consider will be whether the judge took the correct approach to sentence to the injectable amphetamine. Also significant in relation to the appellants convicted of counts 1 and 3 is whether the judge's conclusions as to the amount of injectable amphetamine involved in those conspiracies was supported by the evidence. This was a fact specific exercise.
4
In respect of the appellants Mount, Saunderson, Owens, Hartley and Beeby, the only issues on appeal relate to the sentences imposed in respect of counts 1 and 3. Each of those appellants was convicted of other counts, whether drug related or relating to firearms. The grounds of appeal in the case of each of those appellants raise no issue with the various sentences imposed on those other counts.
5
The applicants Shearwood and Pope wish to argue that the sentences imposed upon them in relation to a different count, namely count 5, were manifestly excessive. Count 5 charged a conspiracy to supply class A drugs, namely cocaine and heroin. This is a count of which Mount, Saunderson and Kelly were also convicted.
6
The evidence in this case came substantially but by no means entirely from the content of messages passing between the conspirators using encrypted EncroChat devices. As is well-known, the EncroChat application was widely used by those in serious professional crime for a number of years up to 2020. Those using it believed, at the time quite correctly, that what was said using that application would not be retrievable by the authorities. In 2020 the server used to support the application was fatally compromised by French investigators. Not only did this mean that it could no longer be used by criminals to communicate securely, but also the authorities were able to access large amounts of historic material relating to criminal activity. The case with which we are now dealing is one of hundreds of similar cases.
7
The judge's sentencing remarks, with which we will deal in some detail shortly, dealt comprehensively but concisely with the circumstances of the offending with which he had to deal. The sentencing hearing occupied approximately two hours, in the course of which the judge analysed with care the activities of these appellants and applicants by reference to all of the evidence, but in particular the EncroChat messaging. The core argument of Mount, Saunderson and Owens is that the judge's findings of fact in relation to the conspiracies to produce and to supply injectable amphetamine were not justified on the available evidence. As a result, the starting point he identified in relation to those counts was wrong. Hartley and Beeby argue, amongst other things, that the judge's assessment of their role in the conspiracies was wrong. They also rely on the attack on the judge's findings of fact, since their sentences were dependent on the sentences imposed on the principal offenders. As we have indicated, the applications by Shearwood and Pope raise different issues. We will deal with those separately after our consideration of the appeals for which leave has been given.
8
Paul Mount is now aged 40. He has a significant criminal history. In 2009 he was sentenced to 32 months' imprisonment in Scotland for being concerned in the supply of controlled drugs. In 2013 in Liverpool he was sentenced to 8 years' imprisonment for causing really serious harm with intent. In 2015 he was sentenced to a consecutive term of 21 months in relation to the smuggling of articles into prison. By the time of these conspiracies he was at liberty but he was on licence.
9
Saunderson is now aged 44. He has a relevant conviction in 2014, when he was sentenced to 9 years' imprisonment for conspiring to supply cocaine. He was at liberty during the period of the conspiracies. He was on licence throughout that time.
10
Owens is approaching his fiftieth birthday. In October 2015 he was sentenced to 6 years' imprisonment for conspiring to supply cannabis and amphetamine. He was still on licence in respect of that sentence when he was involved in the conspiracies.
11
Kieran Hartley now is aged 34. He has no previous convictions. Stefon Beeby is aged 43. In 2005 he was sentenced to 7 years' imprisonment for conspiring to supply MDMA. In June 2016 he was sentenced to 40 months' imprisonment for possession of cocaine with intent to supply. The dates of the conspiracies with which these various appellants were charged and convicted per the indictment were from July 2019 to February 2021. The evidence principally concerned the period October 2019 to July 2020.
The sentencing remarks – general overview
12
The judge began his sentencing exercise by a general overview of the position. He said the case concerned a large group who had manufactured and supplied vast quantities of class A and class B drugs. Two of the defendants (Mount and Saunderson) had involved themselves in dealing with prohibited firearms. The judge described the quantities of amphetamine manufactured as vast. The main production site was at outbuildings at a building known as Wood Cottage, somewhere near Chester. The amphetamine, he concluded, was specifically designed so it could be administered by injection, in which event it was a class A drug. The production of the drug was on a large commercial scale, involving complex industrial chemical processes which required specialist apparatus. The process required skill, determination and hard work, and the sourcing and obtaining of specialist chemicals. None of the defendants are or were trained chemists. They worked hard so that their lack of formal training did not prevent them from achieving what they did, which was to manufacture very large quantities of high grade injectable amphetamine which was then distributed widely across England and into Scotland.
13
The judge identified that the manufacture of amphetamine and supply of what had been manufactured was not the only criminal enterprise. Some of the defendants were involved in arrangements to supply very large quantities of heroin and cocaine. That was count 5 on the indictment. Other class B drugs, such as ketamine and cannabis were to be supplied and produced.
14
The judge said that there came a point at which the conspirators concluded that the base at Wood Cottage became compromised. They became suspicious about surveillance. They decided to close the operation down, which was done quickly. People were sent to salvage as much as of the equipment and of the chemicals as possible. Premises at a place called the Box Works in Bootle on Merseyside were identified. Significant amounts of raw materials were taken there. As was clear from the evidence, it was not actually possible to resume production there. The judge said that, from everything he heard during the trial and from the entirety of the messages, he was satisfied some production had begun at an alternative site which the authorities had never been identified. Further, the closure of Wood Cottage did not prevent the trade in cocaine and heroin and other drugs continuing.
15
The judge said that he first had to assess the quantity of amphetamine actually produced and supplied. Next, he had to consider how much amphetamine in addition to that had been agreed to be produced or supplied. Third, given that amphetamine could either be class A or class B, he needed to determine how much of the amphetamine produced was designed for injection.
16
In relation to quantities, the judge said that he found assistance from considering what he described as the Encro messages. The retrieved messages started in late March 2020 and ran through to some point in June of 2020. From those messages the judge found that the various defendants had converted a total of 2.6 tonnes of a particular chemical, which had produced 939 litres of amphetamine oil and 709 kilograms of amphetamine sulphate paste. The messages show that there were further plans made to produce a further quantity of amphetamine from 5.6 tonnes of raw material, which would have produced just over 2,000 litres of free base oil and 828 kilogrammes of amphetamine sulphate paste. Those were the conclusions he drew from the totality of the EncroChat messages.
17
Next, he considered what could be concluded from what was found at the Box Works i.e. the premises where production was planned but was never carried through. At the Box Works the police recovered 8 kilogrammes of amphetamine. This was at the end of June 2020. They also found significant amounts of starter chemicals and sufficient raw materials to produce 385 kilogrammes of pure amphetamine sulphate which would be likely to produce over 3,000 kilogrammes of street purity amphetamine.
18
The judge was anxious to avoid double counting. He noted that the messages indicated that 828 kilogrammes were to be produced. He acknowledged this quantity would probably have come from the chemicals found at the Box Works. Therefore, that 828 kilogrammes had to be deducted from the 3,000 kilogrammes to which he had referred.
19
He considered what had happened to the 709 kilogrammes of amphetamine paste which messaging established had been produced. He concluded that almost all of that was produced after April. He asked himself whether the references in the messages to 709 kilogrammes of amphetamine was a record of the entire historical amounts produced over the previous six months. He rejected that as inherently implausible. EncroChat messaging was real-time commentary about what was being produced at the time the messages were being written. The judge referred to other features which supported that conclusion, in particular, particular messages passing between an EncroChat handle called Frost Jacket and members of the conspiracy, referring in one message to 120 kilogrammes of amphetamine, and in another, Saunderson saying "They do 250 a week”. The judge inferred that this was a reference to kilogrammes.
20
The judge found that production or manufacture began in 2019 and was already running efficiently by November of that year. He said that he had to try and determine the time at which the goal of those who ran production was that the amphetamine should be suitable for injection. The EncroChat messages beginning in late March 2020 showed that at that point that goal was a continuing part of the agreement.
21
In the course of the sentencing hearing the judge referred to the fact that he had given any defendant who wished to give or call evidence as to when it became the plan that amphetamine should be designed for administration by injection and how much of that kind of amphetamine was actually made the opportunity to do so. No defendant took that opportunity. He referred to a report from a Mr Morgan, an apparent expert in drug use, which established that injecting amphetamine, relatively speaking, was not common. As the judge said, that did not alter the fact there were users of amphetamine who believed rightly or wrongly, that they would get a better high from intravenous injection. The judge said that from the content of the messages and all the evidence given over two trials, he was sure that by the start of April 2020 the organisers of the conspiracy intended what they were to be supplying would be injectable amphetamine.
22
The judge found that it was unnecessary for him to determine how much amphetamine was in fact injected by users. What was important was the intention of those producing or supplying it. The intention was that amphetamine would be suitable for injection. That form of the drug commanded a higher price. The organisers and those involved in the conspiracy were indifferent as to whether it was injected or not. The judge found that from the beginning of April 2020, at the latest, the amphetamine being produced was designed for administration by injection. Referring back to the 709 kilogrammes, he concluded that not less than 600 kilogrammes of that quantity was designed for administration by injection. Therefore, the conspiracy was concerned with a Class A drug of that quantity. That was 30 times the indicative weight for category 1 in the Sentencing Council Drugs Guideline. In the guideline the indicative weight for category 1 in relation to amphetamine is 20 kilogrammes.
23
Summarising, the judge said that the conspiracies in counts 1 and 3 involved 600 kilogrammes of class A amphetamine which had already been supplied; 828 kilogrammes of class A amphetamine, which was to be supplied, and the possession of the chemicals needed to make a further approximately 2,000 kilogrammes of class A amphetamine.
24
He noted that submissions had been made to him that where injectable amphetamine, as a matter of fact, was not taken intravenously, it should not be treated as a class A drug. As the judge pointed out, that is not what the statute says. It refers to any preparation designed for administration by injection. The judge found that what matters, by reference to the statute, is the intention of those producing or supplying the amphetamine. How the end user chose to use the drug would not be determinative. In fact, the judge referred to the messages by way of complaints about problems with injecting amphetamine that had been supplied, which he described as a powerful piece of evidence about the actual end use.
25
Submissions were also made to him that amphetamine was some lesser form of class A drug, not in the same category as cocaine and heroin, for instance. As he observed, the problem with that was the legislation is crystal clear: a class A drug is a class A drug. There is differentiation between them within the Drugs Guideline by reference to the indicative weights which is how harm is categorised. Thus, cocaine and heroin fall into category 1 harm where the indicative weight is five kilogrammes. For amphetamine the indicative weight is 20 kilogrammes.
26
Counts 2 and 4 related to amphetamine not designed for injection. The judge found that amphetamine manufactured prior to April 2020 and the freebase oil produced fell into this category. In relation to count 5, the judge concluded that this was wholesale dealing of cocaine and heroin on a massive scale. He looked at the messages on EncroChat and concluded that between April and June some 83.5 kilogrammes of cocaine had been supplied, and between 82 and 97 kilogrammes of heroin. There were references to other transactions. The judge did not include those in the figures he gave because he could not be sure as to what amounts were involved.
27
The judge went on to consider other drugs which were being supplied which were referred to in other counts. They are irrelevant for our purposes. It is unnecessary for us to review his reasoning in relation to those drugs.
28
The judge then considered how he should apply the Sentencing Council Drugs Guideline. He observed that the quantities went beyond anything contemplated in the table of indicative weights in the guideline. He concluded that the rubric in relation to quantities of drugs greater than those referred to in the table was relevant:
"Where the operation is on the most serious and commercial scale involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender."
29
He observed that sentences within the guideline are set without reference to any previous convictions. Previous convictions, particularly if they are relevant drugs convictions, would constitute a substantial aggravating factor. He observed that personal mitigation would be relevant to the sentencing exercise in any case where it arose, but as he put it, "For a crime as serious as that involved in virtually all of these cases, the part it can play is much more limited."
30
He did not overlook the serious impact that there would be upon defendants and their families in the event of very long sentences. He reminded himself that some of those he was sentencing had young children, but he repeated the words of Hughes LJ, as he then was in the case of
R v Boakye
[2012] EWCA Crim 838:
"The position of children can be a relevant consideration when considering sentencing, but it will be rare that their interests can prevail against society's plain interest in the proper enforcement of the criminal law, and the more serious the offence, generally the less likely it is that they can possibly do so."
As the judge put it, families and the young children of defendants such as those with whom he was dealing joined the list of those already adversely affected by the criminality of those who deal in dangerous drugs. He noted that most, if not all, of the defendants had been on remand during the period of particularly stringent COVID restrictions. He rightly observed that this was of very limited impact for those facing longer sentences.
31
He turned to how he would distinguish between defendants. He said that it was going to be likely that some defendants would serve similar sentences to others and yet had played different parts. He was anxious to stress that sentences apparently identical to other sentences do not necessarily represent similar criminality. If the assessment of harm and culpability in a particular case would lead to the same sentence as in another case, that would be justified.
32
He referred to the submissions that had been made that some of those involved or convicted had only been linked to a drugs run on a few particular days. The judge said that those submissions ignored the fact that, whatever the acts of an individual, the involvement in the conspiracy is the joining of that wider agreement and the intention to further the wider aims of the agreement. By that route the culpability of an individual and the gravity of the offence are increased.
33
The judge said this:
"I have taken some time to reflect on the evidence at both trials so as to assess properly the hierarchy of criminality which is appropriate and reflects the comparative criminality of all the defendants. Having heard the evidence at both of the trials, I regard myself now as far better placed to assess the scale of the operation and the roles of those involved than I was before I heard the evidence from just reading the papers."
That passage is an excellent distillation of the advantage the trial judge had over those coming afterwards in assessing the appropriate sentence in each case. It does not mean that his assessment is not amenable to review or adverse consideration. Rather, it means that what his assessment of both general and individual factors in relation to sentence must carry significant weight.
Sentencing remarks – individual defendants
34
The judge began with Saunderson. The judge described him together with Mount and Owens as being at the top of the conspiracies with a leading role. Saunderson directed and organised the production of amphetamine, whilst buying and selling other drugs on a commercial scale. He had set up the production of the amphetamine. That put him in the equivalent position of an importer of drugs that were not capable of manufacture.
35
In relation to counts 1 and 3, the quantities of amphetamine supplied, planned and potentially produced involved around 180 times the indicative quantity of 20 kilogrammes in relation to category 1 harm. Count 5, the count relating to heroin and cocaine, involved a minimum of 165 kilogrammes of class A drugs. That was 33 times the indicative weight. In relation to the amphetamine not linked to potentially injectable amphetamine, the amounts were described by the judge as "similarly monumental".
36
The judge also dealt with the categorisation within the relevant guideline of the other offences with which, for the purposes of the appeals, do not us when considering the sentences imposed in the cases of Saunderson, Mount and Owens. He said that he took counts 1 and 3 as the lead offences for all the drugs offending. The sentence on those counts also reflected the conspiracy to supply more than 150 kilogrammes of heroin and cocaine. He passed the headline sentence on those counts. That was a sentence of 31 years' imprisonment on both count 1 and count 3. He passed concurrent sentences on all the other drugs related offending, including a sentence of 26 years in relation to the conspiracy concerning heroin and cocaine. He then imposed a consecutive sentence in relation to a firearms offence, which on its own would have justified a sentence of 8 years. But due to totality, the judge reduced that to 4 years, making 35 years in total.
37
The judge then turned to Mr Mount. He considered the features personal to him, which in his view, were of little or no effect, given the gravity of the offending. In relation to participation in conspiracies, he considered that his position was indistinguishable from that of Saunderson. The analysis that he applied to Saunderson applied equally to Mount. Mr Mount's sentences were identical to those imposed on Mr Saunderson in respect of counts 1 and 3 (31 years' imprisonment) and count 5 (26 years’ imprisonment). The firearms offence in Mr Mount’s case was less serious than the firearms offence committed by Saunderson. On its own, the offence would have justified a sentence of five years, six months’ imprisonment. The judge reduced that to three years’ imprisonment to be served consecutively. The reduction was to ensure that the overall sentence was just and proportionate. The total sentence in Mr Mount's case was 34 years’ imprisonment.
38
Mr Owens was involved on the production side of the amphetamine business, communicating regularly with chemical and equipment suppliers. Mr Owens was also in contact with customers. He provided information in relation to expected yield, strength and prices. The judge said Mr Owens had a business which used vehicles. Mr Owens was able to use the vehicles linked to that business as a cover for travelling, particularly to the Wood Cottage premises during lockdown, which began in the later part of March 2020. When Wood Cottage became unviable as a place of production, Owens provided the means of transport to move out equipment and drugs to other premises.
39
Mr Owens was somebody who had previous experience in relation to amphetamine which meant that, amongst the conspirators, he was the expert in its production. He ranked alongside Saunderson and Mount at the pinnacle of the conspiracies in relation to amphetamine. On the other hand Mr Owens had had no involvement either in the conspiracy concerning cocaine and heroin or in any firearms offence. Mr Owens had pleaded guilty on the first day of the trial listed in January 2022. There had been a delay in any pleas being tendered because there had been a dismissal application and Mr Owens tended his pleas relatively shortly after that.
40
The aggravating features were the fact that Mr Owens was on licence, he was involved over an extended period of time and he used encrypted telephones. The judge took counts 1 and 3 as the lead offences, just as he had in the case of Mount and Saunderson. In respect of credit for plea, the judge noted there had been no indication of plea in relation to any count until very shortly before the first day of the trial in which he was to take part. The judge said that even if he had been waiting for the outcome of the dismissal application, there was nothing to stop him entering pleas to all the other counts on which he appeared and to which he did in due course plead guilty. The judge took a global view and determined that the reduction for the pleas of guilty should be approximately 15 % across all offences He did not apply different reductions to sentences on different counts. The judge determined that the proper sentence on counts 1 and 3, had Mr Mount had a trial, would have been 28 years. After reduction for the plea of guilty the sentence imposed was 24 years’ imprisonment. Concurrent sentences were passed on other counts.
41
The judge then dealt with the appellant Hartley. He was somebody who had worked alongside Mr Owens who was de facto his father-in-law. The judge accepted that Mr Hartley was a step down from Mr Owens. However, Mr Hartley was still in a leading role because he was at Wood Cottage as much as anybody else. He had been involved in organising the buying and selling of amphetamine on a commercial scale. He had detailed knowledge of prices and yields. He had an expectation of substantial rewards from the conspiracies. He was in contact with both suppliers and customers. He pleaded guilty to some of the counts on the indictment albeit at a very late stage either at the start of the trial or midway through the trial. In relation to the principal counts involving production and supply of injectable amphetamine, he had been convicted by the jury. The mitigation relied on was: his lack of previous convictions; his lack of any involvement in heroin or cocaine or firearms; he was a working man who had a good job; he was a family man with young children. As with the other appellants, the judge took counts 1 and 3 as the lead offences. In Mr Hartley's case the judge determined, there being no reduction for plea, that the appropriate sentence was 23 years’ imprisonment. He dealt with the other lesser offences to which Mr Hartley had pleaded guilty with concurrent sentences.
42
Moving on to Mr Beeby, the judge said that he had been involved in the production of amphetamine at Wood Cottage from at least October 2019. He had travelled to those premises regularly. He assisted with transport because he had a 7.5 tonnes heavy goods vehicle which could be used to move chemicals and heavy equipment. He also had an involvement in installing some of the electrics at Wood Cottage and had done welding work there. The judge found that he had his own supply network to people he supplied in the North-east and Scotland. He was involved directly in the rapid dismantling of the equipment on 1 May at Wood Cottage, when it was abandoned at short notice. He had stored some of the plant and equipment removed from Wood Cottage.
43
His counsel's submission was that the point at which he entered his pleas entitled him to a reduction of 25 per cent. The judge, whilst not agreeing with that, concluded that he should have very close to that level of reduction. The judge referred to the basis of plea, to which we shall turn when we consider the grounds put forward by Beeby. The judge concluded that it revealed that Beeby had played what he described as a higher end significant role with a trusted operational management function within the hierarchy and an expectation of significant financial gain. His position was aggravated by his previous conviction, and, whilst he was not on licence at the time he was involved in the conspiracies, he was only just out of his licence period. He committed these offences very shortly after his previous sentence had come to an end.
44
The judge referred to the mitigation as being the lack of involvement in heroin and cocaine or firearms. He took counts 1 and 3 as the lead offences. Giving what he regarded as the appropriate reduction for plea on a sentence after trial of not less than 20 years' imprisonment, he reduced the sentence (as subsequently corrected) to 15 years and 6 months. Again, other sentences were imposed concurrently with which we are not concerned.
45
The judge finally considered the cases of Mr Pope and Mr Shearwood whose applications for leave to appeal were refused by the single judge. Mr Pope's principal offence was the conspiracy to supply cocaine and heroin. The judge described him as a rung down from Saunderson and Mount. Nonetheless, he was involved in sourcing and supplying drugs on a commercial scale, with messaging showing him able to source up to 15 kilogrammes of class A drugs at a time. Within the relatively short period for which messages were available he was identified as dealing with 3 kilogrammes of cocaine, 7 kilogrammes of heroin, 53 kilogrammes of cannabis and 60 kilogrammes of amphetamine. He was described as acting as a broker. He was tried by a jury for a number of weeks before it became necessary for the jury to be discharged from giving a verdict in his case. The trial continued without him. His case was listed for re-trial in May 2022. Shortly before that trial was due to commence, Mr Pope pleaded guilty.
46
Mr Pope was a close friend of Mr Mount and an associate, if not a close friend, of Mr Saunderson. He had at one stage been discussing with Mr Saunderson and Mr Mount them supplying him with packs of amphetamine, each of which would have been 200 kilogrammes in weight. The judge agreed with the Crown's submission that Mr Pope played a leading role. However, he considered that, since Mr Pope was only involved in supply rather than any production, his level of overall criminality was less than that of Mr Mount and Mr Saunderson.
47
The judge gave him some reduction for his plea. Notwithstanding the fact that it came only at the start of a re-trial, the judge reduced the sentence by approximately 7 per cent. Taking the sentence on count 5 as the lead sentence, he considered that a sentence after trial could not have been less than 19 years’ imprisonment. The sentence imposed was 17 years 6 months’ imprisonment after reduction for the plea of guilty. The other lesser sentences were concurrent.
48
Mr Shearwood had been arrested in July 2019, as a result of which he was convicted of relatively minor drugs offences and made the subject of a community order. At the time of his arrest the police had seen quantities of chemicals. They had not appreciated their significance in relation to the manufacture of drugs. The judge noted that notwithstanding the fact that he was the subject of a community sentence, he continued to be a willing participant in the conspiracies in which he had already got himself involved. The judge described his roles as involving storing and moving drugs, chemicals and cash. He was involved on a very regular basis, being seen at Wood Cottage on many occasions. He travelled around the country, both relatively close at hand and further away up to Scotland. The judge concluded that, because of his close association with Mr Mount and Mr Saunderson, he must have been aware of the size of the conspiracy. He described Mr Shearwood's role as significant rather than leading, but said he had been involved over many, many months. That placed him towards the top of a significant role. His lead offence by reference to his pleas was count 5. The sentence after trial could not have been less than 16 years’ imprisonment. Given that he had pleaded at the start of the trial, the sentence would be reduced to 14 years 4 months’ imprisonment. Other sentences were ordered to run concurrently.
49
We have set out the judge's reasoning at some length. It explained the nature of these conspiracies. The reasoning shows the way in which the judge reached the findings he did. It demonstrates that the judge’s review of the case and the evidence, though concise, was comprehensive.
The grounds of appeal – submissions and discussion
50
Mr Saunderson was represented by Mr Simon Csoka KC. He did not appear at trial. His submissions were directed to the sentences imposed on counts 1 and 3 i.e. the offences involving amphetamine designed for administration by injection. He argued that in many cases, particularly where drugs are recovered, the nature of the class A drug is readily identifiable by reference to concentration or purity. On analysis the drug may be of high purity indicating it is close to the source. It may be of relatively low purity so as to suggest that it is ready for supply to drug users. When a court is considering offences of supply, an adjustment may need to be made from the starting point within whichever category is relevant, considering the quantity and purity of the drugs involved. No precise calculation is likely to be possible, but sufficient information ought to be available to enable some adjustment to be made.
51
Mr Csoka argues that, because the production of amphetamine designed for administration by injection is very likely to be of a similar concentration as a preparation not so designed, the reality is that it is impossible properly to identify amphetamine as a class A drug in the same way as you do for cocaine and heroin. The result is that the judge should have considered the conspiracies involving amphetamine by reference to the class B guideline whether or not they were designed for administration by injection. That is an argument that finds no place in Mr Saunderson's grounds of appeal. It is only given passing mention in Mr Owen's grounds, which is from where Mr Csoka invites us to consider them. It is also an argument that, if it was put at all to the sentencing judge, was not put with any force. Mr Csoka is correct in saying that, in the event of amphetamine being seized and analysed, it may well be that it would be difficult to distinguish between what is amphetamine designed for administration by injection and what is not. Where people agree to supply amphetamine designed for administration by injection, it is in substantial measure their intention which creates the classification of amphetamine as class A.
52
But this was a conspiracy. The agreement, to manufacture and then to supply, was an agreement to supply amphetamine designed for administration by injection. As the judge observed, if that is how it was used, so be it. If it were not used in that way by the final customer, that would not affect the culpability of the person entering into the agreement. Mr Csoka submits that it does make a difference to the harm caused. Administering amphetamine by injection puts the user at greater risk of harm. Whether that is the case is not something which can affect the classification of the drug. Parliament determined that, where amphetamine is designed for administration by injection, it is to be a class A drug. The judge used 20 kilogrammes as the indicative weight by reference to the guideline which distinguished the drug from cocaine and heroin. That was a proper route by which to reflect any lesser gravity involved in the manufacture and supply of amphetamine.
53
Mr Csoka and others moved on to a second argument, namely that the prosecution did not contend that the available evidence allowed them accurately to identify the amount of amphetamine that had been produced in a way designed for administration by injection. For the judge to engage in that exercise and thereafter to find that all amphetamine planned to be produced after April 2020, would be class A amphetamine was a plain error. He did not have any basis on the evidence to do so. The judge, it is said, could only have included amphetamine within class A where there were specific EncroChat messages confirming such a supply. There was double counting in the judge's calculation even though, in his sentencing remarks, he expressly abjured any such double counting. For those reasons, the quantity of class A amphetamine was far less than the judge found it to be. Thus, he was not entitled to sentence on the basis of hundreds of tonnes of injectable amphetamine forming the subject matter of the conspiracy. The amount was far below that. That meant that the sentences on counts 1 and 3 were manifestly excessive.
54
In relation to what the prosecution had to say about the evidence, it was of limited value to a judge who had heard all the evidence for himself. He was entitled to draw proper inferences from all of the EncroChat messaging, and in terms of what was to come, what was found at different premises. We do not intend to repeat his reasoning which we have set out in some detail. Our simple conclusion is that we cannot identify any flaw in that reasoning. Mr Cook on behalf of Mr Owens took us to a number of EncroChat messages which he says appear to demonstrate that no amphetamine at all had been produced at the time those messages were sent. That may be so. That would not affect the amount and type of amphetamine planned for production pursuant to the criminal agreement. The judge analysed all the messages retrieved from the EncroChat server. In our view, the conclusion he reached as to the amount of amphetamine that had been produced and had been supplied was unimpeachable, His view as to how much of it was designed for administration by injection was a matter for him to judge on all the evidence he had heard. The issue was not what the end user of the amphetamine would do with the amphetamine that was supplied, the end user being far distant from these conspirators. It was the purpose for which it was capable of being used. The judge inferred that every effort would have been made to produce class A amphetamine. We cannot see any reason to attack that inference.
55
We have referred to a complaint about double counting. In our judgment, that has no force. In relation to defendants such as Mr Saunderson and Mr Mount, who were involved in the conspiracies to supply and produce non-injectable amphetamine as well as the class A amphetamine, the judge determined that the former conspiracies, in part at least, covered the manufacture of freebase oil, thousands of litres of which were produced.
56
It is clear the sentence of 31 years imposed in relation to counts 1 and 2 were very significantly outside the category range in the guideline. It is not suggested that the judge was not entitled to go outside the category range. In Mr Saunderson's case in his grounds of appeal he expressly avows that the proper sentence should have been 26 years rather than 31. That is because this case was one falling within the rubric, which we have already cited and to which the judge referred. In
R v Cuni
[2018] EWCA Crim 600 this court said that even in cases to which the rubric applied, there was generally a ceiling of about 30 years, save in extraordinary circumstances. The judge found that the circumstances here were extraordinary. We cannot say that he was wrong to do so. The conspiracy to manufacture and supply class A amphetamine on his findings involved something like 3 metric tonnes of the drug. The principal conspirators were also concerned in supplying well in excess of 150 kilogrammes of cocaine and heroin. In our judgment, those circumstances entitled the judge to go beyond the notional 30 year limit to which
Cuni
referred.
57
The judge's approach to the notion that class A amphetamine is in some way a lesser form of class A in comparison to other class A drugs was sensible and principled. He referred to the fact that the guideline required a greater quantity of amphetamine to bring the case within category 1 harm. By that route he accommodated any point there may have been about the lesser significance of amphetamine.
58
For all of those reasons, we conclude that the sentences in the case of Mr Saunderson and Mr Mount were not manifestly excessive nor wrong in principle. We dismiss their appeals.
59
Mr Owens put forward the same general arguments, which we have already rehearsed in respect of Mr Saunderson and Mr Mount. We reject them for the reasons we already have given. However, he had two freestanding submissions. First, he pointed out that a notional sentence after trial in his case was 28 years. That was only three years less than the equivalent sentence imposed on Mr Saunderson and Mr Mount. Yet, he was not involved in the conspiracy to supply very large quantities of heroin and cocaine. Second, he was only given about 14 per cent credit for his pleas of guilty. His pleas were tendered around two weeks before trial. He said that he had indicated to the prosecution that he would plead guilty to all counts save counts 1 and 3 at a much earlier stage, and his pleas to counts 1 and 3 came after the application to dismiss had failed. In those circumstances, a much greater reduction for plea should have been given.
60
In a drugs conspiracy of the size with which we are concerned there is going to be bunching of sentences between those who were involved in the organisation and running of the agreement. Mr Owens, Mr Saunderson and Mr Mount had different levels of participation but they were all leading lights in these conspiracies. The bunching of sentences is a factor recognised in
Cuni
. The convictions of Mr Mount and Mr Saunderson for conspiring to supply cocaine and heroin were the prime reason why their sentences exceeded 30 years. Even if they had not been convicted of that conspiracy, they would have been subject to very long sentences. It is clear to us that the judge who had heard the trial and considered all of the evidence had closely in mind the need to calibrate the sentences. That could not be a simple and straightforward mathematical exercise. The judge considered all the relevant factors in each individual’s case. We are satisfied that he met the need properly to calibrate the sentences. The sentence imposed on Mr Mount was a proper reflection of the nature and extent of his offending.
61
We have rehearsed what the judge said about Mr Owens' pleas of guilty. He did not plead guilty to any count until close to the start of his trial. He could have tendered pleas to those counts where there had been no challenge to the sending of the charges long before he did. It is argued that it is possible for a judge to identify different reductions for different offences depending on the circumstances. Equally, the judge is entitled to look at the case in the round and see what he considers to be the appropriate overall reduction. That is what the judge did in this case. We cannot see he that he fell into any fundamental error by concluding that a reduction of somewhere in the order of 14 per cent was appropriate. For the reasons we have given, the appeal of Mr Owens is dismissed.
62
Mr Hartley was convicted of counts 1 and 3 after a trial. In so far as his appeal depends on the various propositions set out above about the types and quantities of amphetamine produced, his appeal fails, for the reasons we have already given.
63
The sentence in his case was 23 years' imprisonment on counts 1 and 3. The argument is that this failed to take account of three matters in particular: the fact he had joined the conspiracy after it had begun; the fact that he was not an organiser from the outset; the fact his participation was secondary to the principal offenders. These factors were identified by the judge. He set them out in terms. He said that in consequence Mr Hartley was a step down from Mr Owens, but he was still an organiser in the way the judge described.
64
The sentence in his case was five years less than that which would have been imposed on Mr Owens had Mr Owens not pleaded guilty at a late stage. In our judgment the judge did give sufficient weight to the matters now relied on. Had he not done so, the sentence would have been longer.
65
It is also submitted that insufficient weight was given to Mr Hartley's good character, his work history, his position as a family man and the good use to which he was putting his time in prison. They were all factors to which the judge referred. But we remind ourselves of the general proposition noted by the judge, namely that personal mitigation could only play a limited part when offending was very serious. That applied in Mr Hartley's case. In our view, the judge cannot be said to have failed to give sufficient weight to all of the matters relating to Mr Hartley's personal mitigation. We dismiss his appeal.
66
The final appeal is that of Mr Beeby. He pleaded guilty. He was concerned solely with conspiracies involving amphetamine, but including those involving class A amphetamine. He provided a basis of plea which was accepted by the judge. In short form this provided as follows. He was involved from October 2019 onwards. He assisted in the works, setting up Wood Cottage as a place of manufacture. He thereafter collected and delivered material and money as required. In April 2020 he was directly involved in the production of amphetamine at Wood Cottage. When Wood Cottage was abandoned he removed equipment. He had no direct involvement with any conspiracy after the end of May 2020. Whilst he was aware that amphetamine was being produced with a view to injection of the drug, his involvement in such production was "more limited".
67
It is argued to us as it was argued before the judge below that his basis of plea ought to have placed Mr Beeby on the borderline of lesser and significant role. We disagree. The judge's conclusion was that he had played a higher end significant role. On the admissions he made in his basis of plea, in our view, this conclusion cannot be impugned. The judge set out by reference to Beeby's activity very clearly how he reached his conclusion. There was no departure from the basis of plea by the judge in his factual findings.
68
We consider that the sentence after trial identified by the judge, namely 20 years' custody, was a proper reflection of the very serious offending of Mr Beeby.
69
Mr Howat in oral submissions argued that he could not find another case where somebody had been involved in a significant rather than a leading role in drug dealing that was outside the guideline, where such a person had received more than 18 years' custody. Knowing Mr Howat's experience of this sort of case, we are prepared to accept that he is correct. The problem with the submission is that every case must be dealt with on its own facts. The fact that a lot of other cases have only led to sentences up to 18 years does not mean a sentence in this case of 20 years was wrong in principle or manifestly excessive. The judge had to sentence Mr Beeby for what was before him. We have already described how the judge viewed these conspiracies.
70
It is said that the judge gave insufficient weight to the mitigation. With respect, there was little mitigation. Whilst Mr Beeby had not been involved with cocaine or heroin or firearms, that was not so much mitigation, as a lack of aggravation. The judge could have aggravated the sentence rather more than he did to take account of Mr Beeby's previous convictions involving drug trafficking. He was, to use the vernacular, a three-strike offender. The sentence imposed reflected a reduction of just short of 25 per cent for the pleas of guilty.
71
In our judgment, taking all matters into account the sentence was an appropriate one for Mr Beeby's offending. His appeal is dismissed.
72
Finally, we turn to the renewed applications. Michael Pope is 37 and has a previous conviction for conspiracy to supply drugs, albeit that the class of drugs previously supplied is not clear from his criminal record. He pleaded guilty two weeks before the second trial in which he was to be involved. His complaint is that the notional sentence after a trial, one of 19 years in relation to count 5 (the conspiracy to supply cocaine and heroin), was manifestly excessive. The first point we make in his case was he was afforded credit, i.e. a reduction in sentence of around 7 per cent, to reflect his pleas of guilty. This was very generous. Mr Pope had had contested a trial on the counts with which he was concerned for several weeks before he was discharged from that trial. In our view, he could not have complained at all had he been afforded no reduction whatsoever.
73
He invites us to consider the judge's finding that he played a leading role. We are quite satisfied the judge was correct in finding as he did. Leading role as a concept will necessarily encompass different levels of participation at the highest level. It does not necessarily mean the offender is the principal or the leader of the relevant criminal enterprise. As we have described, Mr Pope was a broker of very significant quantity of drugs and he was properly described as having a leading role. As with others in his case, the mitigation supposedly available to Pope was in reality in large measure a lack of aggravation. Further, as we have said already, personal mitigations in cases of really serious professional crime will have limited effect. The single judge said that the application for leave to appeal was unarguable and we agree. His renewed application is refused.
74
Stephen Shearwood's renewed application was presented by Mr Julian Nutter. We are very grateful to him for his attendance and his representation of Mr Shearwood. Mr Shearwood is now 40. He was made the subject of a community order for producing cannabis in March 2020. He pleaded guilty either at the start of his trial or during his trial, depending on which count we are looking at. The argument in his case is that the sentence on count 5, which before any reduction for plea was said to be 16 years, is manifestly excessive. His apparent role by reference to the material available to the judge was that he had moved 1.5 kilogrammes of the relevant class A drug. That meant that he was barely in the highest category of offending and he certainly did not deserve a sentence at the top of the category range for category 1. With great respect to Mr Nutter, we consider this submission does not grasp the fact that the judge was sentencing Shearwood for close involvement with the amphetamine conspiracy, albeit the one involving amphetamine as class B. As the judge found, he knew of its scale. We agree with the single judge who said that the sentence on the lead count (count 5) had to reflect the overall criminality with which Mr Shearwood was involved. The sentence on the count relating to class B drugs was 9.5 years before reduction for plea. That demonstrates the seriousness of that offending. The lead offence had to encompass all offending, and in our judgment, the sentence eventually passed in relation to Mr Shearwood did that.
75
We do not consider that there are any arguable grounds of appeal in his case. Therefore, this renewed application also is refused.
__________ | ```yaml
citation: '[2024] EWCA Crim 461'
date: '2024-03-07'
judges:
- LORD JUSTICE WILLIAM DAVIS
- MR JUSTICE WALL
- MRS JUSTICE DIAS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2018] EWCA Crim 2566
No: 201705588/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 6 November 2018
B e f o r e
:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE WILLIAM DAVIS
MRS JUSTICE MAY DBE
R E G I N A
GERALD THOMAS DAVIES
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
Mr D Leathley
appeared on behalf of the
Applicant
J U D G M E N T
(Approved)
1.
MR JUSTICE WILLIAM DAVIS: On 24 November 2017, in the Crown Court at Swansea, the applicant, Gerald Thomas Davies, was convicted following a retrial of two offences: indecent assault, contrary to
section 14(1)
of the
Sexual Offences Act 1956
and assault of a child under 13 by penetration, contrary to
section 6
of the
Sexual Offences Act 2003
. On 15 December 2017 he was sentenced to 2 years' imprisonment in relation to the indecent assault and a concurrent determinate sentence of 4 years' imprisonment in relation to the assault of a child under 13 by penetration.
2.
We observe in passing that this was an unlawful sentence.
Section 236
A of the
Criminal Justice Act 2003
required the applicant to be treated as an offender of particular concern and there should have been 1 year additional licence attached to the sentence. That is not something we can do anything to remedy. We observe simply that it is yet another example of advocates not assisting the trial judge in relation to the relevant sentencing regime.
3.
We are concerned with the applicant's renewed application for leave to appeal against conviction after refusal by the single judge.
4.
The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this case. No matter relating to the victims of the assault shall, during their lifetime, be included in any publication if it is likely to lead members of the public to identify them as the victims of the offences.
5.
We deal with the facts relatively briefly. The complainants (and there were two) formed part of the applicant's large extended family. He and his wife had no children but often hosted large family gatherings. The applicant's habit was to entertain the younger children with stories.
6.
K, born in 1996, was sexually assaulted by the applicant in about 2003 when she was aged either 7 or 8. She was visiting the applicant's home. Her mother and stepfather remained in the kitchen with the applicant's wife. K was in the living room with the applicant who is telling her stories. In the course of their being together the applicant placed his hand on her leg and moved it under her skirt. He then brushed her vagina with his hand over her knickers and apparently made some attempt to insert his hand underneath her underwear. K's evidence was she pushed his hand away, went into the kitchen and told her parents that she wanted to leave. The evidence of her mother was that K was distressed.
7.
On the journey home, K apparently told her parents what had happened. They took the view it must have been an accident or a misunderstanding. The applicant was not confronted at the time nor was the matter reported to the police.
8.
Some 9 years later K told her boyfriend about the incident. Eventually in 2016, upon hearing of the allegation that had been made against the applicant by another, namely C, she decided to make a formal complaint and provided evidence to the police.
9.
In the course of her evidence, she agreed that there had been an occasion when she had gone on holiday to France with C, in which they had spoken together about the applicant and she told C that she found the applicant "creepy".
10.
C, 19 by the time of trial, alleged that the applicant had sexually abused her when she was aged 9 which was in 2007. She had been staying with the applicant and his wife. Her evidence was that the applicant took her upstairs to a spare bedroom, supposedly to watch birds from the window. As she was kneeling on the window sill the applicant came in, put his hand on her shoulder and then put his hand inside her jeans into her knickers and penetrated her vagina with his fingers. C did not inform anybody at the time. Her case was that she was scared that no one would believe her. In 2016 she was in a relationship with a young man to whom she sent a series of text messages which described the sexual abuse. The young man encouraged C to inform her mother which she did by letter and in due course the matter was reported to the police.
11.
In the course of the trial a young woman whom we shall refer to as "BW" was called to give evidence by the prosecution. Her evidence was that she had received compensation following a sexual assault by a family member and that she had told C about this. C's evidence was that she was not aware that BW had received compensation.
12.
The applicant's case in relation to K was that there had been no sexual touching. It may have been that by accident he had brushed against her vaginal area but she must have misinterpreted it. In relation to C, his case was that the allegation was wholly fabricated. He said that the act alleged would have been physically impossible, taking into account the size of the window sill and the configuration of the room in which it was said to have happened.
13.
Counsel, who appeared for the applicant at trial (Mr Leathley) and who has appeared before us today pro bono, provided lengthy written grounds of appeal, setting out four grounds. He has appeared before us today, and we are grateful for his submissions. He has abandoned two of the four grounds. We say nothing more about them.
14.
The two grounds which he maintains are (i) the summing-up was biased in favour of the prosecution and could not be cured by the standard warning that was given and (ii) the judge disallowed material evidence.
15.
Mr Leathley, as well as appearing before us today, helpfully put his submissions into writing, shortly before this hearing, concentrating on those two grounds.
16.
In his original grounds Mr Leathley described the summing-up in these words:
17.
"The writer can only describe this as an impassioned plea from the judge to convict."
He ameliorated that somewhat florid description in his recent written submissions, by using these words:
"The learned judge's summing-up was weighted far too much in favour of the prosecution. The learned judge exhibited blatant unfairness and pro-prosecution bias."
We have no difficulty in rejecting the description of the judge's summing-up as an impassioned plea to convict or to do anything. It was a painstaking rehearsal of all of the evidence given in the trial. The transcript is 50 closely typed pages. For a relatively short case the summing-up, with great respect to the judge, was far too long. "Impassioned" is almost the last word we would use to describe it.
18.
Particular criticisms are made of the summing-up. In the written grounds, first, it was pointed out that at one point the judge described defence exhibits as being of "limited value". He was there referring to photographs. What the judge actually said was this:
"... the photos, you've got the photographs I, I hope I'm not doing them a disservice when you may think the photographs are of somewhat limited value but you have them there and give them such weight as you think they deserve."
In the recent written submissions, that is distilled with these words: "The learned judge informed the jury that the defence photographs were of limited value." As we have just rehearsed, that is not what the judge said. He gave a perfectly reasonable description of the photographs and made a comment about them which the jury could take on board or not as they saw fit.
It is said that the defence case was summed-up in a very short time compared with the prosecution case. We emphasise, again, this summing-up missed nothing out at all. The defence evidence was summed up in totality. It plainly did not occupy the same amount in terms of summing-up as the prosecution case, but that is because it simply did not take as long to give. What is more, the defence case was referred to throughout the review of the evidence via a rehearsal of the cross-examination. Much is made of the fact that the judge read out, in full, the text messages that had been sent to C's boyfriend and the letter that C had sent to her mother. We do not understand why the judge felt it necessary to do that at all. It occupied a considerable amount of time in the course of the summing-up. It covers some eight pages of the closely typed transcript. The jury clearly had those documents in front of them and it was not necessary for anything other than a brief reference to be made to them for the jury to look at in their own time. But the submission is made that the text messages and the letter were read out in a way that left no room for doubt that they were absolutely sincere or were genuine.
19.
Of course, we only have the summing-up on paper. But the fact of the matter is that what happened was that the text messages and the letter were read out. Nothing was said in terms of either text messages or the letter that invited one view or the other as to their genuineness. In relation to the letter for instance, the judge said in terms of whether the letter was truthful:
"... the Prosecution case, this is essentially a truthful document. The
Defence case is it isn't and it's just made to set up the false claim and the false allegations."
The competing accounts were set out in clear terms and the judge then, as we say, unnecessarily read out the letter in full.
20.
We see nothing in the proposition that the way in which the judge read out material that the jury already had in any way "left no room for doubt that they were absolutely sincere or genuine".
21.
In his oral submissions today, Mr Leathley picked on one particular passage in the summing-up and said that it demonstrated the judge's animus to the defence. It was a passage in which he referred to some photographs that were before the jury, of K, dressed in a somewhat voluminous party dress on her way to some kind of end of school year party. She was riding on the applicant's motorcycle. The point was being made by the defence: well, there she is on a motorcycle with the applicant; would she be doing that if she had been sexually assaulted?
22.
Criticism is made that the judge sided with K's evidence when he said this:
"... you've got the photographs, it's, looking at her, her party dress it's perfectly obvious that she didn't go any great distance on that motorcycle on that, dressed like that, she's sitting side saddle on the pillion seat and he says that he drove down the drive, I think he says about 300 yards, she says it was just a few yards but anyway there it is. I think the Prosecution, the Defence case is that this shows she wasn't frightened of him. Well, she agrees, she wasn't frightened of him then because, she says, she knew how to deal with him."
With great respect, we entirely fail to see how that passage can demonstrate animus on the part of the judge.
23.
Finally, in the written submissions reference is made to a passage in the evidence in which the judge was referring to the fact that C had described at one point the fact she had been raped by the applicant, whereas her case before the jury was that there had been digital penetration. We do not need to rehearse the passage in the summing-up but it sets out in clear terms the defence case i.e. why what she said to a friend of hers and what she said in her mother's letter could be demonstrated to be both inconsistent and exaggerated. The judge also set out the prosecution's response to that argument. The judge set out what the competing cases were. There is no legitimate criticism to be made.
24.
We are quite satisfied that the judge, albeit at inordinate and unnecessary length, set out the competing cases fully and fairly. We see absolutely nothing in the proposition that this was a biased or unfair summing-up.
25.
The second ground is that the judge refused to admit evidence which the jury should have had before them in order properly to consider the case.
26.
The defence at trial at one point wished to put before the jury a photograph of the room where C said she had been digitally penetrated. When C said that happened the room had been a bedroom. By the time of the trial it had been refurbished as a bathroom. It appears to us from all the material we have seen that the photographs were not actually produced until after C had given evidence and therefore not had any opportunity to comment on them.
27.
The respondent's notice indicated that they objected to the production of those photographs to the jury. We find no reference to the judge being required to give or indeed giving any ruling on the topic. The photographs were simply removed from the bundle. Even if the judge had given the ruling, we could well see why he would say in the circumstances that it would be potentially misleading for the jury to have those photographs.
28.
There is then a series of propositions put in relation to the evidence of BW. As we have already indicated, BW was a witness who gave evidence both at the original trial and at the retrial that she had been sexually assaulted, that she had received compensation for that sexual assault, and that, critically from the defence point of view, she had told C about that. We have already observed that C denied any such conversation, at least any such conversation involving mention of compensation. However, that was BW's evidence and she gave it both at the first trial and the retrial. Before she gave evidence at the retrial, but after C had given evidence and apparently left the court building, BW spoke to a police officer or a member of the Crown Prosecution Service. She said that she had been approached by C at some point, after the first trial, and that C had said to her: "You have to choose whose side you're on". The judge concluded in part because C by now was no longer available to have that matter put to her and in part because the matter was wholly collateral that BW should not be permitted to be asked about that. That comment was and is categorised as a threat by the applicant. We confess that we are not able to identify why it should inevitably be considered to be a threat. In any event, the fact of the matter is that BW gave exactly the same evidence in substantive terms at the retrial as she did at the first trial. Whatever C may have said to her, it had no effect on that evidence.
29.
We can see perhaps some very small value in the jury knowing that C had said that to BW but the value is so small that its exclusion could not conceivably affect the safety of the resulting conviction.
30.
The judge was also invited to allow the jury to be told about a series of events involving various people, none of who had any direct involvement in the case. Apparently BW's boyfriend had been struck in some form of assault by K's boyfriend. In an altogether separate incident, BW's boyfriend had been struck by C's boyfriend. The judge gave leave for those matters to be put to the prosecution witnesses who supposedly had been present on those events. These were prosecution witnesses who attended to give other marginal evidence. Quite what the relevance of that was is difficult for us to see. However, the witnesses denied that the events had taken place. The judge then refused to allow evidence to be called to rebut the denials. We are quite satisfied he was quite right to do so. At very best, the evidence went to credit. Quite whose credit is not clear
to us but it does not seem to us that sensibly could be argued that it went to the credit either of K or C, who after all were the people whose credit was in issue.
31.
Cited to us was the case of
R v Busby
, a case involving cross-examination of police officers who had investigated the case which formed the subject matter of the trial. This court deceided that Busby should have been permitted to call evidence to rebut evidence that the police officers had given evidence that, on the face of it, went to credit. In our view, the rationale of the decision in
Busby
has no conceivable relevance to this case. As we have said, it seems to us that the judge was, if anything, overaccommodating to the applicant in permitting anybody to be asked about those incidents at all. It follows that the second ground that there was wrongful exclusion of evidence has no substance.
32.
Since grounds 3 and 4 have been abandoned it follows that this application must be dismissed.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400
Email: [email protected] | ```yaml
citation: '[2018] EWCA Crim 2566'
date: '2018-11-06'
judges:
- MR JUSTICE WILLIAM DAVIS
- MRS JUSTICE MAY DBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 2135
No:
2009/2363/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 6 October 2009
B e f o r e
:
LORD JUSTICE KEENE
MR JUSTICE BLAIR
HIS HONOUR JUDGE ROGERS QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - -
R E G I N A
v
SCOTT REID
- - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr J Macnamara
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE KEENE: On 21st October 2008 at Nottingham Crown Court this appellant pleaded not guilty to attempted murder (count 1 on the indictment) and not guilty to wounding with intent to do grievous bodily harm (count 2). Some six weeks later on 2nd December 2008, by which time the trial date had been fixed, the appellant pleaded guilty on rearraignment to the section 18 offence. That plea was not at that time acceptable to the prosecution. However, the Crown subsequently did accept that plea and on 6th April 2009 the appellant was sentenced by Butterfield J to imprisonment for public protection under
section 225 of the Criminal Justice Act 2003
, with a specified minimum term to be served of seven years, less 286 days spent in custody on remand. He now appeals against sentence by leave of the single judge who only granted leave because he regarded it as arguable that the minimum term specified was too long.
2.
The victim in this case was a 42-year-old man called David Wilson who was clearly a vulnerable person. He had lost his entire right arm in a motorcycle accident some years before and he had also suffered some degree of brain injury. His short-term memory was consequently impaired.
3.
There had been some friction between Mr Wilson and some of his neighbours in the past, one of those neighbours being a friend of the appellant called Walker. Walker said that he and his partner had been threatened some weeks earlier by Mr Wilson.
4.
All of this came to a head on the evening of 20th June 2008 when the appellant and his wife visited Walker. Both the appellant and Walker proceeded to drink vodka and a time came when the appellant starting ranting about how much he hated the complainant and how he wanted to "do him over", as he put it.
5.
There was some initial trouble and then the appellant and Walker drove off to the home of another man. There the appellant went inside on his own and came out with a carrier bag containing two Balaclavas and a 12-inch kitchen knife with a 5-inch blade. The two men then returned to Walker's flat where they changed their clothes and put on the Balaclavas, as well as some gloves.
6.
They proceeded to go round to Mr Wilson's flat and banged on the door. He and a female friend came to the door, the former having equipped himself with a pipe from a vacuum cleaner - no doubt as some attempt at protection. When the door was opened the appellant, wearing the Balaclava and gloves and armed with the knife, attacked Mr Wilson who was very rapidly disarmed of the vacuum cleaner pipe. He was then attacked by the appellant with the knife, the appellant stabbing him repeatedly in the chest. The complainant was later found to have suffered a total of seven stab wounds to the chest, as well as two to his left arm. The knife blows severed the left mammary artery and a major vein, either of which wounds could have proved fatal. There was substantial blood loss, but fortunately the emergency services arrived on the scene very quickly. Had a police officer not applied pressure to the leakage point in the chest, the complainant would have died from the blood loss either at the scene or en route to hospital.
7.
Meantime, the appellant and Walker had run off and the appellant burnt their bloodstained clothing in his garden. They were in due course arrested. In his interviews -- some seven in all -- the appellant gave no comment replies.
8.
The appellant is aged 24. He has a considerable number of previous convictions including one for assault occasioning actual bodily harm in 2002, another of those later in that same year, another in 2004 and yet another in 2005. He also has several convictions for lesser assaults.
9.
The pre-sentence report on him identified a medium risk of harm to members of the public, in some instances of very serious physical harm. Butterfield J held that the facts of this case and the previous convictions demonstrated that the appellant was a dangerous offender within the terms of
the 2003 Act
and that a determinate sentence would not suffice. For those reasons he imposed a sentence of imprisonment for public protection. That aspect of the sentence is not now challenged.
10.
The one matter which is and which troubled the single judge was the length of the notional determinate sentence. The single judge rightly said that this was one which, as a minimum, implied a determinate sentence of 14 years' imprisonment. The single judge went on to equate that with a 21 year sentence after trial. In that he was in our view mistaken. This was not a plea to a section 18 wounding at the first reasonable opportunity, but a plea on rearraignment some six weeks after a not guilty plea and at a time when, as we have already indicated, the trial date had been fixed. The appellant was not entitled to the full one-third discount.
11.
On his behalf, Mr Macnamara today argues that the implicit term of 14 years after a plea as a determinate sentence was manifestly excessive. He emphasises that all this happened after the appellant had been drinking and there was here this plea of guilty, by which time some additional medical evidence had been obtained. Nonetheless, Mr Macnamara accepts that there were here a number of aggravating features.
12.
We agree that there were those aggravating features. This was a very grave case of section 18 wounding with intent, one of the most serious that one can imagine. As we have said, Mr Wilson could well have died and it was fortuitous that he did not. Had he died, the appellant would have been facing a life sentence for murder with a starting point for the minimum term
to be served
of some 15 years' imprisonment. Mr Wilson's injuries were clearly life-threatening and they were numerous, indicating a sustained attack. Moreover the offence was aggravated by two further features. First, this was a planned attack involving the obtaining of a knife, gloves and Balaclavas from elsewhere and the carrying of those articles to the victim's own home where the attack then took place. Secondly, the victim was patently vulnerable, as we have said already, because he had only one arm and had suffered earlier brain damage. He was effectively unarmed when he was attacked by these two men.
13.
For these reasons such a violent, sustained and life-threatening attack on a vulnerable man required a very lengthy prison sentence. Had there been a trial a term of some 16 or 17 years' imprisonment could well have been anticipated. The notional determinate sentence of 14 years made, in our judgment, adequate allowance for the late plea of guilty. The specified minimum term of seven years' imprisonment is not therefore manifestly excessive and this appeal in consequence is dismissed. | ```yaml
citation: '[2009] EWCA Crim 2135'
date: '2009-10-06'
judges:
- LORD JUSTICE KEENE
- MR JUSTICE BLAIR
- HIS HONOUR JUDGE ROGERS QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2010] EWCA Crim 1577
Case No:
200906055/D1
Court of Appeal Criminal Division
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
08/07/2010
Before
:
LORD JUSTICE ELIAS
MR JUSTICE TEARE
and
MR JUSTICE STADLEN
- - - - - - - - - - - - - - - - - - - - -
Between :
SUKHBIR DHILLON
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Sarah Whitehouse
for the
Appellant
Mr Edmund Gritt
for the
Respondent
Hearing dates: 11 June 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Elias :
1.
On 23 October 2009 at the Crown Court at Southwark before His Honour Judge Wadsworth, the appellant was convicted by a majority of 10/2 of assault by penetration (count 1) and sexual assault (count 3). He was sentenced to 18 months’ imprisonment on count 1, and 6 months’ concurrent on count 3. The total sentence was therefore 18 months. As a consequence he was required to comply with the provisions of
Part 2
of the
Sexual Offences Act 2003
for 10 years.
2.
He was acquitted of three counts; one of assault by penetration (count 2); one further count of sexual assault (count 4), and one of attempted rape (count 5). He now appeals against conviction by leave of the single judge.
3.
The five counts reflected allegations of different forms of sexual activity with one complainant during the course of a single sexual encounter.
4.
The counts and the activities they reflected were as follows:
Count 1, assault by penetration, allegedly involved insertion of the fingers into the vagina of the complainant.
Count 2, assault by penetration involved the alleged insertion of the fingers into the anus of the complainant.
Count 3, sexual assault, involved touching the breasts of the complaint.
Count 4, another count of sexual assault, involved allegedly licking the vaginal area of the complaint.
Count 5 was the attempted rape.
5.
The appellant admitted that the activities reflected in counts 1, 3 and 4 had occurred. He denied that the activity in count 2 had occurred and as for the attempted rape, he accepted that he was willing to have consensual sex with the complainant but said that he was unable to do so since his penis was not erect.
6.
The background was as follows. The complainant had stayed with the appellant at a flat owned by the company of which they were both employees. They had both been to a charity quiz at a wine bar and the complainant had asked if she could stay in the flat rather than return to her home in Hove. During the course of the evening sexual activity took place. The appellant agreed that it had (whilst denying that the particular acts covered by counts 2 and 5 had occurred) but said that it was with consent.
7.
The complainant’s evidence was that when they got back to the flat she was drunk and very tired but was aware of things. The appellant had offered her the bed but she had refused. He went back to the bedroom and she went to sleep. The next thing she remembered was being in the hall. The appellant was behind her. He was trying to lift and push her. She did not go to the bedroom by herself. She dug her heels in and asked what he was doing. He had his hands under her arms and he was pushing her along. He said that they should swap sleeping arrangements. They then got to the bedroom. She did not feel particularly threatened.
8.
Once inside the bedroom the next thing she recalled was being face down on the bed. The appellant was moving his fingers in and out of her vagina and anus. He was using both hands. He did this more than once. She was aware at that stage that she had no knickers on. She had not taken them off and did not know what had happened to them. She was confused and did not know what was happening. He was naked.
9.
She was trying to turn onto her back but he kept pushing her back. She could feel his chest and his penis. He was constantly trying to take her top off and was groping her breasts and legs. She twisted her hips around in a kneeling position, but was still face down. He then licked her vagina. She started to panic. She was disgusted and confused.
10.
He got her onto her front and was on top of her and between her legs. He was in a position for sexual intercourse and was making a stabbing motion. He did not care whether he entered her vagina or anus. She shouted “Enough” two or three times. His penis was not erect and he said “Oh, flippy floppy”. She then said “I’m fed up with this” and moved off sideways.
11.
She went to the bathroom because there was a lock on the door. She then got dressed in the lounge. She sat on the sofa to put her shoes on and he came in wearing his pyjamas. He said “You’re not going to be silly? I did nothing you didn’t want”. She told him to leave her alone which increased the intensity of what he was saying. As she left he said “nice arse by the way” and she replied “Fuck off”.
12.
The appellant’s evidence about the incident was that he had offered her the bed but she had refused it and so he went into the bedroom and fell asleep. Later he woke up and realised that another couple were staying in another bedroom in the flat so he went to the complainant and told her that he thought it would be embarrassing if the other couple were to see her on the sofa. She agreed. He offered her the bedroom and this time she accepted.
13.
He went to the lavatory. When he came out she was in the bed and the bedroom door was closed. He got into the bed and tickled her back. She giggled and rolled over onto her back. He pulled up her vest and fondled her breasts. He touched her over her knickers. She groaned and said “I like this”. He put his hand inside her knickers and there were more appreciative signs. She lifted her legs and took her knickers off. He then performed oral sex and penetrated her vagina with his fingers. His finger might have been on her anus but he did not penetrate it and he did not want to.
14.
He began to take his shirt off and she tugged at his shorts in order to get them off. He lay on his back and she straddled him. They kissed and he performed more oral sex. He then held his penis up and said “Oh, I’ve just got a flippy floppy”. She reached around and touched his penis and made a noise as if to say he was pathetic. He was embarrassed and said that they should not be doing this and that it was awful.
15.
The complainant pulled her vest down and went to the toilet. She came out and he said nothing. He then put his trousers on and went into the lounge. He asked if she was ok but she did not respond. He asked her whether she was feeling bad as well. He then said “What have I done?” and she replied “You know what you’ve done”. He answered “We did that”. She asked him to leave her alone and he did. He heard her leave about 10 minutes later. He went back to bed and found her knickers. He pushed them down the back of the bed. He then went to sleep until the police arrived.
16.
The complainant left the flat at around 2.14 a.m. She telephoned two sisters, who were friends of hers, and they said she was distressed and crying. She recounted the experience to them but made no mention of oral sex at that time. Nor did she mention the oral sex or attempted intercourse in her first statement to the police. Again, when she saw the doctor she did not initially mention the oral sex, but did so after the doctor had asked her if they had kissed. She then said “I think he went down on me”.
17.
The basis of the appeal is that there were inconsistent verdicts. It is accepted that the jury were entitled to find the appellant guilty on some counts and not others, and indeed the judge had reminded the jury that they should consider each count separately. However, it is submitted that there is a logical inconsistency in the verdicts which the jury in fact reached; convicting on counts 1 and 3, but not on count 4.
18.
The basis of the submissions of Ms Whitehouse, counsel for the appellant, is as follows. There was no issue before the jury other than that the three incidents referred to in counts 1, 3 and 4 had occurred. The only issue for the jury to determine was whether the complainant had consented, or whether there was a reasonable belief in consent. She referred us to passages in the summing up which, she submits, make this plain.
19.
In relation to count 1, the judge said that the appellant had agreed that he had penetrated the complainant’s vagina with his finger and he told the jury “It is a fact for you to decide one way or the other, but nobody disputes it”. And then he told them that really what they had to decide was whether there was consent or reasonable belief in consent.
20.
Similarly, in relation to count 3, touching the breast, he said this “He said he touched her breast. She says he touched her breast. You probably will be satisfied that he did. Question, was it consensual or not? Was there belief on his part?”
21.
He then approached count 4 in essentially the same way. After referring to the oral sex, he commented that: “Both sides agree it happened, but the questions are of consent and reasonable belief in consent.”
22.
Logically there were three potential routes by which the jury might have reached the different verdicts. The first was that the jury may have been unsure whether the oral sex had occurred whilst being sure that the other two sexual acts had occurred. The second was that the complainant had consented to the oral sex but not the two lesser acts identified in counts 1 and 3. The third was that the Appellant had a reasonable belief that the complainant was consenting to the oral sex but did not have any such reasonable belief with respect to the touching of the vagina and the breasts.
23.
Ms Whitehouse submits that a conclusion that the oral sex might not have occurred was an impossible conclusion given that both participants had said under oath that it did, and given the way in which the judge summed up to the jury. Although in the time honoured way the judge told the jury that the facts were for them, there was simply no basis for departing from the evidence of both parties in a manner entirely inconsistent with the way in which the case was left to them.
24.
As to the question of consent, it would be quite bizarre to infer that the complainant had objected to the touching of the breasts, referred to in count 3, and yet had been a willing party to the oral sex in count 4. Similarly, given the nature and inter-relationship of these counts, it was fanciful to think that the appellant could have had reasonable grounds to believe that the complainant was consenting to the oral sex but not the less invasive incident in count 3.
25.
Mr Gritt, who appeared for the prosecution in this court but not at the trial, accepted that there was no conceivable basis on which the jury could have found that the complainant had consented to the oral sex but not the two acts of touching. However, he contended that there were two potentially rational and consistent bases for the verdicts that the jury reached. First, they might not have been sure that the oral sex occurred. He emphasises that the jury were told that they should approach each count separately, and that the evidence was for them. There is no reason to suppose that they did not adhere to those directions.
26.
He points out that the complainant, when recounting her experience, had not initially mentioned the oral sex at all. Furthermore, this was a matter that was firmly before the jury because the appellant was seeking to rely upon that fact. It is true that he was doing so not in order to dispute that the oral sex had occurred - because of course he admitted that it had - but rather in order to establish that the complainant’s account of events was not consistent and therefore unreliable. Nevertheless the evidence about this was prominently before the jury who might have focused on that evidence in order to conclude that they were not entirely sure that that incident had occurred, notwithstanding the contrary evidence at trial of both complainant and appellant.
27.
The second possible basis for the verdicts suggested by Mr Gritt focuses on the issue of reasonable belief in consent. Mr Gritt says that if one looks at the chronology of these incidents then a possible explanation is that the jury did not believe that the appellant could have had a reasonable belief that the complainant was consenting to the incidents recounted in counts 1 and 3, whilst concluding that he may reasonably have held that belief with respect to the oral sex covered by count 4.
28.
He puts the point this way: there had been no evidence of any sexual attraction or flirtation when the parties were together before returning to the flat. The appellant would, therefore, have had no basis for assuming that any advances of his would be with the complainant’s consent. However, there was no evidence either that the complainant actually said anything while the sexual activity was taking place and that could have led the appellant to believe that she was happy with what he was doing. So by the time he engaged in the oral sex, the jury might have concluded that he reasonably believed that she was consenting.
29.
Ms Whitehouse responds that there was no evidential basis to support either analysis, and furthermore it was not the way in which either counsel was advancing the case to the jury. Indeed, when she asked the judge to remind the jury that the complainant had not initially mentioned the oral sex – in order to illustrate the unreliability of her evidence - he did not do so giving as his reason the fact that both parties had agreed that oral sex had happened.
30.
As to the possibility that the appellant may have had no reasonable belief in consent with respect to counts 1 and 3, but may have had such reasonable belief with respect to count 4, Ms Whitehouse submitted that this was not a conceivable explanation either. She pointed out that the jury had in fact posed a question to the judge about the chronology of events. They asked this:
“Is it possible to clarify for the jury the chronological order of the first four counts?”
31.
The judge replied to the jury in the following way:
“I have had a word with counsel about this and we all assume from that that you are satisfied that the 5
th
came last in time. As remains for the other four, it is a matter for you to find the chronological order, not for us to tell you, but I think I can say that counsel are content that I should say we should expect that count 1 probably came first, if only by a very, very short time, and it is unlikely, whether these matters are consensual or not, that either a complainant or a defendant asked a year later about such an incident should be able to lay it out in a sort of Parliamentary series; the other three probably came pretty speedily together afterwards, but that is a matter for you. Again, you may think, and I stress that I mean these words literally, you may think that if you are looking at questions of consent or reasonable belief in consent it may be that they would apply equally to all four in that they all happened in the same incident, but you are certainly not bound to that view and you may have a different view.”
32.
Ms Whitehouse contends that in the light of the evidence, coupled with this indication as to the sequence of events, the jury could not properly have concluded that the incident in count 4 occurred at some appreciably different time to that in count 3. There was, therefore, no proper evidential basis entitling a reasonable jury to conclude that the appellant did not have a reasonable belief in consent with respect to count 3 but might have done with respect to the oral sex in count 4.
The law.
33.
It is notoriously difficult successfully to challenge a jury’s verdict on the grounds that inconsistent verdicts have been returned. We have been referred to a number of authorities which in our view establish the following principles:
1.
The test for determining whether a conviction can stand is the statutory test whether the verdict is safe.
2.
Where it is alleged that the verdict is unsafe because of inconsistent verdicts, a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition.
3.
Even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency. It is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed.
4.
The burden of establishing that the verdict is unsafe lies on the appellant.
5.
Each case turns on its own facts and no universal test can be formulated.
34.
The requirement summarised in the second principle, namely that there must be a logical inconsistency in the verdicts, is now very firmly established. It was affirmed by the decision of this court in
R v Rafferty and Rafferty
[2004] Crim 968 when the then Vice President (Rose LJ) said this (para 18):
“So far as inconsistent verdicts are concerned, during the last 10 years or so, this court has said again and again that an appeal based on inconsistent verdicts cannot and will not get off the ground unless there is, first a logical inconsistency between the verdicts returned by the jury. ……. We repeat yet again, in summary form, just a few of the authorities in this court, in which the need for logical inconsistency between the verdicts to be prevented before such a ground can take off. We identify, for example,
R v McCluskey
98 Criminal Appeal Reports 216;
R v Bell
Court of Appeal (Criminal Division) 15 May 1997,
R v Clarke and Fletcher
Court of Appeal (Criminal Division) Transcript 3 July 1997,
R v Gee
[1998] Crim LR 483, and
R v McCartney & Others
[2003] EWCA Crim 1372
. Finally, we refer to an observation made by Buxton LJ in
G
at page 484 of the report which, regrettably, seems to be far less heeded than it should be. It is in these terms:
“In appeals in relation to alleged inconsistent verdicts those promoting the appeal should ensure that
Bell
and the instant case [
G
] are before the court and should be in a position to explain why the general approach adumbrated in
Bell
(i.e the need to establish a logical inconsistency) should not apply.””
35.
The third principle is supported by a number of authorities where this court has accepted that there is a logical inconsistency in the verdicts, but has nonetheless not been persuaded that the verdict is unsafe: see e.g.
R v Segal
[1976] RTR 319
;
R v McCluskey
(1994) 98 Cr App R 216
and most recently,
R v Lewis, Ward and Cook
[2010] EWCA Crim 496
. In
Clarke and Fletcher
(30 June 1997) Hutchison LJ said that an appellate court will not conclude that the verdict is unsafe “if it possible to postulate a legitimate train of reasoning which could sensibly account for the inconsistency.”
36.
However, in
R v Cova
Products Ltd
[2005] EWCA Crim 95
, Kennedy LJ observed that it is difficult to see how a legitimate train of reasoning could lead to logically inconsistent results. We respectfully agree that the phrase “legitimate train of reasoning” may be inapt. But in some cases it may be possible to see why a jury applying common sense and their experience of life has reached the verdicts it has, even though its analysis cannot withstand rational scrutiny. A recent example is found in
R v Lewis, Ward and Cook
where a jury convicted of manslaughter when rationally, given their verdict on another count, it was conceded by the prosecution that they ought in logic to have convicted of murder. This court surmised that they had not done so because, unlike the two co-accused who were convicted of murder, the appellant did not participate in the actual killing.
37.
The fourth and fifth principles were affirmed by this court in a judgment given by the then Lord Chief Justice, Lord Phillips, in
R v
Ashley Mote
[2007] EWCA Crim 3131
. In that case the court declined to follow a suggestion originally made by Professor Sir John Smith, and which this court in
Cova Products
considered had much to commend it, to the effect that once a logical inconsistency had been established, it should be for the prosecution to satisfy the court that the conviction was not the result of confusion or the jury adopting the wrong approach. Lord Phillips said this (para 50):
“We question whether it is helpful to adopt a staged approach to the burden of proof in this way. The starting point is that the burden is on an appellant to persuade the Court of Appeal that the verdict is unsafe. Where he seeks to do this by showing that the acquittals on some counts are inconsistent with convictions on others, he has to persuade the court that the nature of the inconsistencies is such that the safety of the guilty verdicts are put in doubt. That question will turn on the facts of the particular case and it is not safe to attempt to formulate a universal test.”
38.
A key issue is what amounts to a logical inconsistency. In
Durante
(1972) 56 Cr App R 708, 714 Edmund Davies LJ described the test as being whether the verdicts were such that “no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the two differing conclusions.” In other words, there is no rational explanation to justify the jury’s conclusion. However, since the facts are within the purview of the jury, and they do not reveal them, it must follow that if the apparently inconsistent verdicts could be explained by findings of fact which were properly open to the jury on the evidence, even if they might appear to be surprising findings, then no successful appeal could be maintained.
39.
This approach is supported by the observations of Toulson LJ giving the judgment of this court in
R v Cross
[2009] EWCA Crim 1553
. Toulson LJ said that verdicts would be inconsistent where:
“they cannot plausibly be explained by any line of reasoning which the jury could have adopted looking at the evidence as fair-minded ordinary people. The appellate court has to apply this test in the context of the issues which were presented to the jury, but that does not of course mean that a jury had to view the evidence bearing on those issues in the way that was argued for either by the prosecution or the defence.”
40.
It is firmly established, however, that a verdict will not be illogical simply because credibility is in issue, each count depends upon the uncorroborated account of a single complainant, and the jury convicts on one count but acquits on another. As it was put in
R v G
[1998] Crim LR 483 by Buxton LJ, neither credibility nor reliability is a seamless robe. A jury is entitled to accept part of a complainant’s evidence whilst rejecting - or more accurately not being sure about - other parts.
41.
Generally, therefore, in sex cases where it is alleged that different sexual incidents occurred on separate occasions, verdicts will not be inconsistent simply because a jury convicts on some counts and acquits on others, because there is likely to be an obvious legitimate chain of reasoning to explain the verdicts. The jury may be sure that a witness has reliably recalled one incident but remain unsure about another; or they may consider that some incidents are exaggerated or fabricated but not all. There have been numerous cases of this nature where challenges on the basis of inconsistent verdicts have unsurprisingly failed: e.g.
R v Bell
(unreported 15 May 1997) and
R v VV
[2004] EWCA Crim 355
.
42.
This case does not, however, fall into that category. Here the various alleged offences are simply different facets or acts in the course of a single sexual encounter. In these circumstances, if the jury is unsure of the complainant’s evidence with respect to one count on the grounds that it may be unreliable or lacking credibility, it is likely to be more difficult than it would be with respect to chronologically separate encounters for a jury to be sure that the evidence on the other counts is reliable and credible.
43.
We have been referred to two cases where the appellant appealed his conviction on the grounds of inconsistent verdicts with respect to what might be treated as a single sexual encounter.
44.
In
Van der Molen
[1997] Crim LR 604 the appellant had allegedly both sexually assaulted a woman by putting his finger into her anus and a little later raped her. He denied that the assault had occurred and claimed that he honestly believed that she was consenting to the intercourse. She denied consenting to either act. He was convicted of the assault but not the rape. In giving evidence the appellant agreed that initially the complainant had not been willing to have sex. The appeal was on the basis that if the jury could not be sure as to the rape, it was unsafe to convict for the assault.
45.
This court (Evans LJ, Hidden J and Judge Walsh QC) observed that “the court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard.” The court held that there was nothing irrational or inconsistent about the jury acquitting of the more serious charge of rape but convicting on the lesser charge. We respectfully agree; there was plainly evidence from the defendant himself which suggested that there was initially opposition to his advances. So the jury could well have concluded that he did not initially believe that the complainant was consenting to the assault, but did later honestly believe that she consented to intercourse.
46.
By contrast, in
R v Michael O’Brien
[2003] EWCA Crim 995
the appellant was charged with two counts of rape and one of attempted rape, all incidents occurring in the course of a single encounter. The appellant conceded that intercourse had occurred once but claimed that it was consensual. He was convicted on one of the rape counts but acquitted on the other two counts. The Court of Appeal (Tuckey LJ, Keith J and Sir Brian Smedley) upheld the appeal on the grounds that the conviction was unsafe. After exploring possible ways to find a logical basis for the verdicts, Tuckey LJ said this:
“So it is apparent from this analysis that one has to struggle to find a logical explanation for these verdicts and that each possible explanation is very much open to doubt. The reason for that, of course, is that these explanations stray further and further away from the evidence which was actually given in the case, where there was, as we have said, an acute conflict between the complainant and the appellant as to what happened. Of course, it is open to a jury to accept part of a complainant's evidence and part of an appellant's evidence and it is not bound by a black and white conflict to accept one version or the other. But in this case, at the end of the day, struggle though we have to find a logical reason, we have not been able to find at least one which satisfies us sufficiently to be able to say with confidence that these verdicts were not inconsistent and that the appellant's conviction was therefore safe.”
47.
This case demonstrates the principle that when assessing the jury’s reasoning, it is important to have regard to how a fair minded jury would approach the evidence that was properly before them. It is not legitimate to find an explanation for the different verdicts which is premised on factual findings which no reasonable jury, properly considering the whole of the evidence, could reach.
48.
Applying the principles we have enunciated to the facts of this case, we have concluded that these verdicts are logically inconsistent. There is no satisfactory explanation of them which can render them consistent. We are not persuaded by either of the possible explanations advanced by Mr Gritt. As to the first, we do not think that a fair minded jury, having regard to the evidence before them, could reasonably have found both that the incidents in counts 1 and 3 did occur but that the oral sex covered by count 4 did not. We do not say that the jury was bound to find that any of these incidents occurred; plainly that was a matter for them, and in principle they could have been so unimpressed with the evidence from both complainant and appellant that they were not satisfied that they could be sure of anything. But having accepted as true and reliable the complainant’s evidence that the incidents in counts 1 and 3 occurred, it would in our view have been perverse for it to reject her evidence that the incident in count 4 occurred given that the appellant in an admission against interest corroborated her evidence by admitting that it did indeed occur. The perversity of such a finding would in our view cast sufficient doubt as to the jury’s approach to the evidence as to render the convictions potentially unsafe.
49.
Nor do we think that Mr Gritt’s alternative explanation is plausible. In our view no reasonable jury could have concluded that the appellant had a reasonable belief that the complainant was consenting to the oral sex but not the touching of the breasts referred to in count 3. Again, there was no evidential basis for drawing a distinction in this regard between counts 3 and 4. It was not as if the evidence showed that the oral sex in count 4 had occurred some time after the breast touching in count 3. Had that been the case then it might just have been possible to justify an inference that the appellant’s reasonable perception of whether the complainant was consenting could have changed in the meantime. But the evidence was that they occurred virtually at the same time. The judge’s response to the question on the chronology of events indicated that it was not possible from the evidence to be clear as to which of the acts in count 3 or 4 had occurred first. Furthermore, neither the judge nor counsel had ever suggested that the appellant may have had a reasonable belief at one stage but not another. In our view no reasonable jury, fairly applying their minds to the evidence before them, could have distinguished count 4 in this way.
50.
It follows that in our view the verdicts were inconsistent and/or perverse. But as we have said, that does not of itself demonstrate that they are unsafe.
Mr Gritt submitted that even if, contrary to his primary submission, they were inconsistent and/or perverse, they constituted what he described as “explicable perversity”. The issues before the jury were clear; they knew that they had to find that the act described in the count occurred, that there was no consent, and no reasonable belief in consent. The jury took considerable care over their verdicts; they considered them over a period of some six hours. If and to the extent that the verdicts are inconsistent, the evidence suggests that the verdict on count 4 might have been an unjustified acquittal, favourable to the appellant, rather than that he was unjustifiably convicted on counts 1 and 3.
51.
We see the force of that submission but are not ultimately persuaded by it. We are satisfied that the jury may have approached these counts in the wrong way. They clearly found difficulty reaching a verdict as witnessed by the fact that it was a majority verdict after some six hours of deliberation. We think that there is a real risk that in an understandable attempt to reach a verdict, a compromise might have been reached without the necessary majority actually being sure with respect to the two counts where convictions were returned.
52.
It follows that in our view the appeal succeeds; the guilty verdicts are not safe and must be quashed. | ```yaml
citation: '[2010] EWCA Crim 1577'
date: '2010-07-08'
judges:
- LORD JUSTICE ELIAS
- MR JUSTICE TEARE
- MR JUSTICE STADLEN
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2023] EWCA CRIM 1149
Case No:
202203602 B1
202203643 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
12 October 2023
Before:
LADY JUSTICE SIMLER
MRS JUSTICE MAY
and
MRS JUSTICE STACEY
REX
- V-
MOEEZ BANGASH and JONATHAN MAKENGO
- - - - - - - - - - - - - - - - - - - - -
Tyrone Smith KC appeared on behalf of BANGASH
Jane Bickerstaff KC and Sachin Rajput appeared on behalf of MAKENGO
Hugh Davies KC and Louise Oakley appeared on behalf of the Crown
JUDGMENT
LADY JUSTICE SIMLER
:
Introduction
1.
These are appeals against sentence by leave of the single judge.
2.
Following a seven-week trial at the Central Criminal Court before Her Honour Judge Durran and a jury that concluded on 7 July 2022, Makengo (then aged 25) and Bangash (then aged 26) were both acquitted of murder but convicted of manslaughter in the circumstances described below.
3.
On 14 November 2022 the appellants, together with others convicted in the same trial, were sentenced. For manslaughter, Makengo was sentenced to an extended sentence of 21 years’ imprisonment pursuant to
section 279
of the
Sentencing Act 2020
comprising a custodial term of 16 years and an extension period of five years, and Bangash was sentenced to imprisonment for life with the period of 14 years (less 765 days spent in custody on remand) specified as the minimum term under
section 322
of the
Sentencing Act 2020
.
4.
A co-defendant in the same trial, Tyler Moore, was convicted of murder and sentenced to imprisonment for life with a minimum term of 20 years (less 765 days spent in custody on remand) specified under
section 322
of the
Sentencing Act 2020
. Because of the Covid-19 restrictions in force at the time, five other defendants were tried separately at an earlier trial between August and October 2021 before Her Honour Judge Joseph KC at the Central Criminal Court. Four of those were convicted of murder (Shariq Khan, Hassan Riaz, London Beqa and Omari Thompson) and one (Ihnsanullah Aman) was acquitted of both murder and manslaughter.
Summary of the facts
5.
This was a joint enterprise killing of Mohammed Usman Mirza, then aged 19. On 19 November 2019 he was killed in a pre-planned revenge attack by friends or associates of Atiq Rahemi. Rahemi, together with another man, was shot at point blank range in the early hours of 28 September 2019 by a group of masked men. Mirza was a suspect in the attempted murder of Rahemi and was wanted by police for questioning. It was suggested that the intended target of the attack on Rahemi was Bangash, and he received a threat of life warning from the police after the shooting.
6.
The detailed circumstances leading to the attack on Mirza and the attack itself are fully and clearly summarised by the judge in her careful sentencing remarks. For present purposes it is sufficient to provide the following summary.
7.
The prosecution case was that Mirza considered Shariq Khan (also known as “Tyga”) and Bangash as his friends. However, Khan and Bangash were also friends or associates of Rahemi. In the weeks leading up to the fatal attack (between 5 October and 18 November), several cars were stolen to be used to drive participants to the scene of the planned attack. A black Ford Kuga was stolen between 14 and 15 November. The cars were also used to complete reconnaissance of sites later used to dispose of the cars. Immediately after the attack, two of the stolen cars (a red Peugeot and a white Captiva) were set on fire and telephone calls were made summoning assistance to take participants away from the burning cars. Petrol cans had been filled earlier in the day to use to accelerate the destruction of the cars. Telephones were used to make decoy calls designed to make it look as if their owners were elsewhere at the time the attack took place.
8.
Khan had arranged to meet Mirza on 19 November on the pretext of the two committing a robbery together. At 10 pm that evening, Mirza met Khan in the stolen red Peugeot at Burnside Road. They drove to a garage area near Owen Waters House and were followed by the stolen white Chevrolet Captiva, arriving soon after 10.15 pm. A group ambushed Mirza. They followed him up an alleyway towards Owen Waters House. He was fatally stabbed many times with bladed weapons and finally collapsed in front of Owen Waters House. He made a dying declaration to a witness and his cousin (Isfahan Khan) that Tyga from Ilford had set him up and stabbed him. He was pronounced dead at 11.53pm that evening.
9.
It was alleged that Moore, Khan, Riaz and Thompson were the people who stabbed Mirza or were present at the scene when he was stabbed. Makengo, Bangash, Beqa and Aman were not alleged to be present at the scene but were said to have been involved in the planning, organisation and implementation of the murder. After the attack some of the men were seen on CCTV meeting at a Domino’s Pizza in Elm Park. Moore, Makengo, Bangash and others then travelled to a massage parlour in Swiss Cottage, which had been booked by Bangash. These meetings were characterised as a post-murder debrief. Cell site evidence showed them travelling from Swiss Cottage back to Ilford in the early hours of 20 November 2019.
10.
The roles of Makengo and Bangash were clearly set out by the judge in the course of her detailed sentencing remarks. We shall return to these below.
11.
In summary, Makengo was involved in the theft of three of the stolen vehicles on a number of days prior to the attack and had control of the Ford Kuga after it was stolen. His phone and the car were linked to the reconnaissance of the site used for the destruction of the White Captiva (in Express Drive). He also remained in telephone contact with other accused throughout the evening. Later he drove Moore, Bangash and Thompson from Ilford to Swiss Cottage and back, for the debrief at the massage parlour. He was stopped by police in the Ford Kuga on 29 November. An examination of clothing from the burnt-out Captiva car found DNA linked to him.
12.
In police interview Makengo gave an account stating he had no knowledge of Mirza or the attack. On the date in question he had been with others unconnected with the murder. During a re-interview he provided a prepared statement, again denying participation and answered no comment to questions.
13.
Makengo gave evidence at trial and maintained his denial of any involvement in the plan to attack Mirza, who was not known to him. The phone contact he had with some of the defendants, who mostly lived in the same area as him, was in relation to supplying drugs on a social basis. He did not know Beqa or Aman. He denied any knowledge of the offences leading to Mirza’s death, including the theft of cars. He accepted trying to create a false alibi and lying in police interview, but said that he had panicked given the seriousness of the allegation and wished to distance himself from the other accused. He did not wish to admit to criminal behaviour (drug supply and driving whilst disqualified). He acquired the Ford Kuga from Riaz to cover a drug debt. He accepted driving Bangash and Thompson to the massage parlour, but not Moore. His DNA may have been present as a result of secondary transfer from a bag of drugs or something similar.
14.
Bangash was considered by Mirza to be a friend but was in reality a double agent with ties to Rahemi. He exploited his connections with Mirza to assist, alongside Khan, with coordinating Mirza’s arrival at the scene of the attack. At just before 5pm on 19 November, he arranged the booking of the massage parlour in Swiss Cottage, later used for the debrief. He made calls to Mirza right up to the minutes before his death. At around this time, Bangash called others, including Makengo at 10.17 pm, to update them in accordance with the alleged plan. At 10.20 pm, as he was dying, Mirza called his cousin stating that he had been stabbed and that Tyga had set him up. At 10.21 pm, the cousin called Bangash and they subsequently met. The cousin believed that Bangash would help him find Mirza. Bangash made further calls to the massage parlour, later travelling there with Moore, Makengo and Thompson, to meet other accused at 12.30 am. At 2.40 am Bangash was still in contact with Mirza’s cousin.
15.
Bangash told police initially that he last saw Mirza five days earlier and that there had been limited communication between them. In police interview he answered no comment to questions asked of him.
16.
He did not give evidence at trial.
The sentences
17.
Both appellants were sentenced without pre-sentence reports, and we make clear at this stage that no report was then or is now necessary in either case.
18.
Manslaughter is an offence listed in schedule 19 of the
Sentencing Act 2020
. Both men were over 21 on conviction and the offences were committed after 4 April 2005.
Section 285
of the
Sentencing Act 2020
was therefore potentially engaged in both of their cases, and the question whether life sentences should be imposed had to be considered. That in turn meant consideration and determination of the question whether the offender in question posed a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. Thus, a discretionary life sentence or an extended sentence were possible outcomes.
19.
The judge made factual findings about Bangash’s role as follows:
“You were involved in the planning of the offence, you connived with Mr Khan to ensure Mr Mirza was present in the Ilford area and met Mr Khan on 19 November. You had direct contact with Mr Mirza and deliberately deceived him and acted as a double agent to ensure he was present in the Ilford area, meeting with Mr Khan on 19 November. You communicated with co-defendants around the time that Mr Mirza was attacked, including with Mr Makengo, and with phones belonging to Tyler Moore and Hassan Riaz on what were their dirty mobile phone numbers. You made a booking at the massage parlour in Swiss Cottage to facilitate the debrief after Mr Mirza was attacked. I am not persuaded that the fact that you booked the massage earlier in the day has any real significance as you knew that an attack was to take place later.
Immediately before Mr Mirza was attacked, you were part of a multiway call involving Mr Mirza, Mr Makengo and Mr Khan, as the red Peugeot was being driven into the garages. You were involved in the aftermath in the sense that you continued to act as aa double agent, communicating with and driving around with Isfahan Khan immediately after Mr Mirza was attacked. You travelled to Swiss Cottage with Mr Makengo, Mr Moore and Mr Thompson in a stolen vehicle, where you met up with Khan and Riaz for a debrief.
Mr Smith makes representations in his helpful sentencing document in relation to your role. I accept it is not clear that you were the intended target of the attack on Mr Rahemi. I am satisfied, however, that you had oversight as to the planning in the form of stealing cars and identification of locations.
I cannot be sure that you knew the mechanism of how Mr Mirza would agree to get into the car with Shariq Khan and I cannot be sure that you knew that knives would be used, but I am entirely satisfied that you were a principal figure in the planning of this attack on Mr Mirza. You were the primary link with him. You were a trusted friend of both Mr Mirza and Isfahan Khan. You made sure that others effectively did the dirty work of stealing the cars, the reccy of the sites of the attack and for the destruction of the cars. You kept yourself away and as a principal leader only you could have ensured a total arms’ length involvement for yourself.
When Isfahan Khan received the final telephone call from Mohammed Mirza, you were the first person he called. You went with him to try to find Mr Mirza, knowing full well where he was and what had happened to him. The prosecution characterised your role as that of a double agent, displaying outward friendship to Mr Mirza while plotting with others to have him injured and I accept that overarching description of your role. You organised the celebration or debrief at the Swiss Cottage massage parlour.”
20.
The judge made factual findings about Makengo’s role and involvement as follows:
“Jonathan Makengo, you are 25 years of age. On 19 November 2019 you were 22 years of age. It is submitted by the prosecution that you should be sentenced as a trusted lieutenant of Shariq Khan, that you intended that Mr Mirza be caused harm falling just short of grievous bodily harm. You were given access to and allowed to drive a stolen Ford Kuga that was stolen overnight on 14 and 15 November. You were still driving this vehicle on 19 November and were still in possession of the vehicle on 29 November 2019 when you were arrested. You were involved in the planning of the offence and assisted in stealing vehicles. You were in communication with Mr Khan in the early hours of 19 November while Mr Khan was in the vicinity of Owen Waters House. Immediately thereafter, you were also in contact with Mr Riaz and Mr Moore. You were involved in transporting Mr Riaz and/or collecting the petrol after it had been purchased by Beqa and Aman. You were present at the reccy around Express Drive between 17.00 and 17.45 in the evening of 19 November 2019. Immediately before Mr Mirza was attacked, you were part of the multiway call involving Mr Mirza, Mr Bangash and Mr Khan as the red Peugeot was being driven into the garages. You were involved in the aftermath in that you drove Mr Bangash, Mr Moore and Mr Thompson to Swiss Cottage in the stolen Ford Kuga for the de-brief and you were driving the stolen Ford Kuga in convoy with the Vauxhall Mokka when it returned to the scene where Mr Mirza had been attacked on 20 November, with Mr Khan, Mr Riaz and Mr Moore.
Mr Berry too in his helpful sentencing note disputes that you were a trusted lieutenant, that you were involved in the transportation of petrol to assist Beqa and Aman, and disputed that you were party to a multiway call involving other defendants.
I am satisfied that while you were trusted by Shariq Khan, you were not a leading mind in this operation. You were acting on his instructions and carried out a number of significant tasks. I am satisfied you participated in the reccy of the attack scene, were involved in stealing cars, drove the Kuga to assist in preparation for the attack. You were involved subsequently when you returned to the scene of the attack, but like Mr Bangash and Mr Beqa, you did not attend the scene
. …
”
21.
In sentencing both Bangash and Makengo, the judge first dealt with culpability. The prosecution contended this was a case involving very high culpability (category A) with a starting point of 18 years and a range of 11 to 24 years in the Sentencing Council’s Manslaughter Guideline, with death caused at a time when both had an intention to cause harm falling just short of grievous bodily harm. Leading counsel for both appellants sought to persuade the judge that a lower category applied. She was, however, satisfied that a significant violent assault on Mirza was planned, falling just short of really serious bodily harm. She said she came to this view based on the significant planning, involving thefts of vehicles, their destruction, the use of dirty phones, the provision of petrol and clothing to conceal the identity and cars of those involved. There was a high risk of death given the large group attack in which Mirza was significantly outnumbered. The combination of these two features, both extreme in nature, led to her conclusion that culpability was very high in both cases. The starting point was therefore 18 years. The judge made clear, however, that she could not be sure either one knew those carrying out the attack would be armed with knives.
22.
The judge found that there were aggravating features in both cases that were additional to the factors placing the case in category A of the guideline. It was a revenge attack in the context of ongoing violence between different factions; it was to be a group attack to take place in public areas at a time when others were likely to be, and were in fact, aware of and affected by it; the significant physical suffering caused to Mirza; and that neither was a person of good character.
23.
In the case of Bangash,
the judge found that his one conviction for an offence of violent disorder in 2015 did not significantly aggravate this offence.
24.
The mitigating features in his case were his age and the positive references she had received about him. Bangash was 26 at the date of sentence and 23 years old at the time of the offence, and although the judge did not find him to be immature for his age, she recognised that some allowance should be made for this.
25.
The judge then addressed the question of dangerousness in accordance with step 3 of the Sentence Council Guideline. She found that Bangash is dangerous: he was part of the planning group for a sophisticated revenge attack intending violence just short of really serious harm, albeit she could not be sure he knew those carrying out the plan would be armed. Weighing all the circumstances of the case, she concluded that this manslaughter offence was so serious that a life sentence was required. Having taken a starting point of 18 years she elevated that to 24 years to reflect the aggravating features and then reduced it to 21 years to reflect the mitigation (primarily Bangash’s youth).
26.
Makengo was 22 years old at the date of the offence and 25 at sentence. He had three convictions for eight offences but none for violence. There was a psychiatric report dated 13 September 2022 from Dr Alan Reid in his case.
27.
As far as mitigating features were concerned, having seen him give evidence, the judge found him to be immature for his age and said she was making a significant reduction because of his age. She said that Makengo could not be described as a leading or organising mind but there was nothing to suggest he was under any peer pressure to play his part in the planning of this enterprise. She referred to Dr Reid’s psychiatric report which detailed his difficult personal circumstances growing up. He had difficulties with his mental health. He had a promising future in sport of some kind before he was injured and then turned to a life of crime.
28.
The judge was satisfied that Makengo is dangerous because he was part of the planning group for a sophisticated revenge where violence falling just short of really serious harm was to be caused. This was revenge for an attempted murder involving a firearm and he knew those carrying out the directions of others would administer group violence.
29.
In Makengo’s case the judge was not satisfied that the offence was so serious that a life sentence had to be imposed, given his involvement and knowledge of the background, and bearing in mind that he worked under the direction of others. However, she was satisfied that Makengo willingly engaged in a sophisticated revenge attack on someone not apparently known to him. Further, she had regard to Dr Reid’s observations about his need to fit in and concluded that until that tendency diminished, he would pose a significant risk to the public of serious harm occasioned by the commission of further specified offences. A determinate sentence would not therefore be sufficient. Accordingly, the judge concluded that an extended sentence should be imposed. Her starting point of 18 years was elevated to 22 years to reflect the very substantial aggravating features. Bearing in mind his mitigation and how he came to be involved in criminality, she reduced that to 16 years. This was the custodial term with an extended licence period of five years.
The appeals
30.
There are a number of overlapping grounds of appeal against sentence common to both appeals.
31.
Both Mr Smith KC and Ms Bickerstaffe KC contend that it was wrong for the judge to determine that the appellants were dangerous and to impose a discretionary life sentence in the case of Bangash and an extended sentence in the case of Makengo without inviting submissions from the Crown or defence, or at all. This question was not ventilated in writing or in oral argument. The prosecution referred to the relevant provisions but made no submissions as to their application to the facts and circumstances of this case and did not address the judge on this issue. Neither defence counsel mitigated on this basis and the judge did not indicate that she had dangerousness in mind or invite counsel to address her on this basis. The absence of submissions on this question was compounded by the lack of any independent assessment, in the form of a pre-sentence report in either case, to assist with the likelihood of re-offending and the risk posed by each appellant.
32.
In any event, it was wrong in principle to conclude that either appellant was dangerous. There was an insufficient basis for these conclusions. The fact the jury could not be sure that Bangash and Makengo knew the attackers would be armed was the strongest evidence against such a finding. Given this and the jury’s verdict which meant they could not have intended to cause really serious harm, there was no material that could properly lead to a conclusion that either young man was a significant risk to members of the public of serious harm. There was nothing in the role and conduct of each appellant when properly viewed in light of the manslaughter verdicts, nor in their personal circumstances and characteristics, that afforded any basis for findings of dangerousness in either case. A determinate sentence should have been imposed in each case.
33.
Furthermore, both appellants contend that culpability was wrongly categorised as A when at best the evidence in relation to each appellant was only capable of justifying category B. There was no basis for a conclusion that there were “extreme” features and nor could it be said that there was a multiplicity of category B features that raised the case to a category A offence.
34.
Mr Smith submitted on behalf of Bangash that there was insufficient evidence to support the factual findings made by the judge about his role, in particular, that he had a leadership role in planning the whole enterprise, and making sure others did the dirty work for him. These were unreasonable findings and, moreover, the judge’s findings were completely at odds with the logical inferences that should have been drawn from the jury’s verdict in his case. How could it be said that Bangash had organised a knife attack if he did not know the attackers were carrying knives? If Bangash did not know this was to be a killing why would there be a need for him to organise stolen cars? Why would there be a need to obtain petrol before the incident to set the stolen cars on fire after the assault if this was merely an assault that was to fall short of causing serious harm? The fact that the jury could not be sure that Bangash knew that the attackers were carrying and would use knives was the strongest possible evidence that Bangash was not the organiser. The judge was simply wrong to find that he was the architect of this pre-planned attack. At best he ensured that a meeting would take place between Mirza and others where some harm would occur. His role was significant but not essential since Khan and Mirza knew each other and had arranged to meet that evening.
35.
Ms Bickerstaffe adopted these submissions as to role and categorisation in Makengo’s case. She submitted that the extreme character of one or more culpability B factors and/or a combination of culpability B factors does not safely feature in relation to Makengo to result in category A applying. In his case too, the jury could not have been of the view that he intended for those present at the scene to use at least really serious harm towards the victim because he was acquitted of murder. Moreover, the judge accepted that he would not have known that those present at the scene would have knives. He too can only have intended that some harm be caused. Makengo was not associated with Rahemi or Mirza and was not present at the scene. There was no direct evidence to support his involvement in transporting petrol at any time and the judge was not entitled to draw that inference. Further, the fact that he was not present at the scene of the murder, means he would arguably not have known the extent of any force used by those present.
36.
Finally, both appellants contend that even if the judge was justified in concluding that this was a category A offence within the guidelines, the notional sentence was too high in each case. The aggravating features identified by the judge were the very features of culpability B (or so closely associated with those features) that resulted in category A being the more appropriate category in this case. They had already been taken into account in reaching the category A conclusion, and there was no justification for increasing the starting points to 24 and 22 years respectively.
Analysis and conclusions
37.
We start with role and categorisation. The judge presided over this seven-week trial. Unlike this court, the judge had the obvious benefit of having heard and been immersed in all the evidence (including factual/eyewitness, cell site, telephone, forensic and expert evidence) about this revenge attack, its planning and execution. She was uniquely well placed to evaluate the role of each appellant in the offending. She made determinations of fact, as she was entitled to do, and in our judgment, was fully entitled to make the findings she did.
38.
Despite the attractively presented and superficially compelling challenge by Mr Smith to the rationality of the judge’s factual findings, we are satisfied that there was no inconsistency in her factual findings, the manslaughter verdicts and her conclusion that she could not be sure either appellant knew the attackers would be armed with knives. We are satisfied that the judge was amply entitled to conclude that the significant planning, the stealing of cars, the use of dirty phones and petrol to set fire to the stolen cars were all part of reputation building, and the demonstration of power and strength in the context of ongoing violence between rival factions and the earlier attempted murder by shooting. The jury were not sure that either appellant had the necessary intent for murder, but this was a death caused in the course of an unlawful act: a minutely planned, remorselessly executed revenge attack by a group of men on one unsuspecting man. These were, on any view, extremely serious features. There was clearly a high risk of death given the group attack in which Mirza was significantly outnumbered. The fact that each appellant’s own intention fell just short of really serious harm does not alter this, or the extreme planning and remorseless execution that were features of this organised attack. As we have said, it was reputation building violence in a show of strength and power.
39.
Both appellants played an intrinsic part in the attack. Both knew and intended an attack just short of grievous bodily harm by four men on Mirza. It was a clearly motivated revenge attack. This was offending at the most serious end of the spectrum for manslaughter. Their own roles, motivation and participation are unchanged by the verdicts.
40.
In the case of Bangash, the history of his engagement with others, including his friend Rahemi, the detail of telephone activity, the planning and movements before, during and after the attack, amply entitled the judge to find that he was a leading organiser. He orchestrated events, while ensuring that others took the risk of attending the scene of the attack itself. For example, he was part of the multiway call involving Mirza, Makengo and Khan before the attack, and as Mirza was being driven to the ambush, Bangash was speaking to him by phone, providing reassurance to him, as he was driven to the prearranged place for the ambush. The evidence undoubtedly justified the assessment of very high culpability in Bangash’s case and the description of double agent.
41.
The same is true in relation to Makengo’s role, motive and participation, and we reject the submission that his conduct properly assessed was in category B at most. There was ample evidence of Makengo’s involvement in planning the revenge attack intending violence just short of really serious harm. He assisted in stealing cars. Petrol cans produced by Aman and Beqa were put into the Kuga and driven to the scene by Makengo. He took part in the reccy near Express Drive where the red Peugeot was burnt out. Makengo spoke to Khan on the morning of the attack, at a time when Khan was in the area of Owen Waters House, and immediately afterwards, he was in contact with Riaz and Moore, all principals in the murder. Makengo was also part of the multiway call immediately before the attack, as the judge was entitled to conclude; and he was involved in the aftermath. The judge made wholly justifiable determinations of fact. Her findings as to the nature of the offending generally, and Makengo’s own conduct and the role he played in it, cannot be impugned. They provide ample justification for her assessment of very high culpability in Makengo’s case.
42.
For all these reasons we are satisfied that this was demonstrably a category A case for both Bangash and Makengo.
43.
As to the approach to the question of dangerousness, we consider that it would have been better for this question to have been ventilated in the course of the sentencing hearing and an express opportunity given to defence counsel to make submissions on it. That said, in light of the nature and seriousness of this organised attack, the possibility of dangerousness findings was inherent in the case, and by implication, the possibility of a discretionary life or extended sentence. Furthermore, it was expressly referred to in the prosecution sentencing note. Given the evidence as a whole, and the judge’s wholly justifiable determinations of fact as to each appellant’s role and character, we can see no basis for interfering with the findings of dangerousness that she made. We repeat: this was an organised revenge attack; meticulously planned over weeks and remorselessly executed by a large group of men; and each appellant played an intrinsic and significant role in it.
44.
Bangash was, as the judge found, a leading organiser. He planned and orchestrated events in a way that would demonstrate his faction’s strength and power, and he ensured that others took the risk of attending the scene of the revenge attack itself. The judge was uniquely well placed to assess the role he played in planning and effecting the execution of the attack, his overall culpability and the risk he posed. The findings she made were amply open to her, and entitled her to conclude that he posed a significant risk of serious harm in all the circumstances. Her conclusion that a life sentence was necessary, was both rational and reasonable: the seriousness and sophistication of this revenge attack, in which he intended violence just short of serious harm to be caused, was an ample basis for concluding that his role in this offence was at the most serious end of the spectrum. We have concluded that there is no proper basis on which to interfere with her assessment that he is dangerous, and that a life sentence was necessary in his case.
45.
Likewise, Makengo was trusted by Khan, one of the principals in the attack, and played his part in the planning and putting into effect the group attack on Mirza. Though he did not know weapons would be used, he must have known this was to be a group attack by four on one in which he intended violence just short of serious harm to be caused. The judge considered the detail of his role in undertaking significant tasks leading to this revenge attack following the shooting and attempted murder of Rahemi. She properly considered Makengo’s maturity relative to other convicted defendants, as well as his evidence during the trial. She was able to make a clear assessment of him when he gave evidence. She also had proper regard to the report of Dr Reid. Her judgment that he too posed a significant risk of serious harm in all the circumstances, and that an extended sentence was necessary, was properly based, and cannot be impugned.
46.
That leaves the question whether the ultimate sentence imposed in each case was, as both Mr Smith and Ms Bickerstaffe contend, manifestly excessive. As we have explained, having concluded that this was a very high culpability manslaughter offence in each case, the judge identified a number of features that aggravated the offence for both appellants, and which she expressly said were not features she had already taken into account in placing the offending in category A. In Bangash’s case this resulted in an increase from the 18-year starting point in category A to 24 years, and in Makengo’s case, an increase to 22 years. Both counsel contend that the increase was too high and that the aggravating features were already encompassed in the 18-year starting point in each case.
47.
We have set out the aggravating features relied on by the judge. We have concluded that there is force in this ground. With all respect to the judge to whom we pay tribute for her careful, detailed sentencing remarks, we consider that she fell into error in aggravating the starting point to the extent to which she did in both cases, and that there was an element of double counting. In particular, we consider that the first two aggravating features she identified (it was a revenge attack in the context of ongoing violence between different factions by a group of men) were very closely connected with the judge’s assessment that this was category A offending with a starting point of 18 years’ imprisonment. On the other hand, we are satisfied that the judge was entitled to have regard to the fact that this was a planned attack in public areas where others were liable to be affected and that significant suffering was caused to Mirza by the group attack, albeit neither appellant knew knives would be used. Neither man was of good character. We do not understate the seriousness of the appellants’ respective roles in this offending, but viewed overall, we have come to the conclusion that although the features identified by the judge justified an increase in the starting point in each case, we consider that an increase of 6 and 4 years respectively was manifestly too high.
48.
Having regard to these conclusions and balancing the mitigating considerations applicable to Bangash, we consider that the notional determinate term in his case should have been 18 years. On that basis, the sentence should have been one of life imprisonment with a minimum term of 12 years. We therefore allow the appeal in his case to this limited extent only: we quash the sentence of life imprisonment with a minimum term of 14 years, and substitute for it a sentence of life imprisonment with a minimum term of 12 years.
49.
So far as Makengo is concerned, and again balancing the aggravating and mitigating considerations applicable to his case, there should have been a notional determinate term of 14 years. His extended sentence should therefore have comprised a custodial term of 14 years. We consider that an extended licence period of four years was appropriate. We therefore allow the appeal in his case to this limited extent only: we quash the extended sentence of 21 years (comprising a custodial term of 16 years and an extended licence period of five years), and substitute for it an extended sentence of 18 years, comprising a custodial term of 14 years and an extended licence period of four years. | ```yaml
citation: '[2023] EWCA Crim 1149'
date: '2023-10-12'
judges:
- LADY JUSTICE SIMLER
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
201800717 A1
Neutral Citation Number:
[2018] EWCA Crim 1325
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 27 March 2018
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE GOSS
HER HONOUR JUDGE TAYTON QC
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
- - - - - - - - - - - - - - - - - -
R E G I N A
v
GLENN WALL
- - - - - - - - - - - - - - - - - -
Mr J Polnay
appeared on behalf of the
Attorney General
Mr R Dawson
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - -
J U D G M E N T
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (
Sexual Offences (Amendment) Act 1992)
, or where an order has been made in relation to a young person.
LORD JUSTICE SIMON:
1. This is the Solicitor General's application to refer a sentence of two years' imprisonment passed in the Crown Court sitting at Manchester Crown Square on 22nd January 2018 under
section 36 of the Criminal Justice Act 1988
as being unduly lenient.
2. The sentence was passed on the offender, Glenn Wall, by His Honour Judge Field QC in respect of a single count of causing death by dangerous driving. The offender, now aged 35, was convicted of this offence on 4th December 2017 following a trial.
3. At about 5.30 on the afternoon of Monday 20th June 2016, the offender left his place of work in Rochdale to drive home in his Vauxhall Astra. The vehicle was licensed, insured and in roadworthy condition, and the offender held a full, clean driving licence. There was no suggestion that alcohol, drugs or mobile telephone use were factors affecting his driving.
4. Helena Thurm was 25 years old when she died. She had lived in the Altrincham area her whole life. She had travelled into Manchester that day for a job interview. She then did some shopping before returning home.
5. The A56 is a major arterial route from Manchester City Centre that links the M60 and M56. In June 2016 major junction improvement works were being undertaken at the junction of the A56 and the B5165 Park Road/Woodcote Road near Altrincham which included the installation of pedestrian crossing facilities. The road was subject to a 30 mph speed limit. As a result of the works, the southbound approach had been altered. The left hand lane was designated "left turn only". This was marked by four left turn arrows and a solid line, as well as an area of painted chevrons on the road designed to separate the flows of traffic. There was no Road Traffic Regulation Order in force in relation to the left turn lane, so failure to comply with the signage and road markings was not of itself an offence. Evidence was given at trial that a number of drivers routinely ignored the signage markings. The right-hand lane was designated "ahead only". A right turn was prohibited.
6. The offender's route took him south along the A56 Manchester Road. As he approached the junction and the lanes divided he pulled into the left hand lane designated for left turning traffic. When the traffic lights turned amber he did not stop, though he could have done so safely. He continued straight on into the junction, undertaking a vehicle in the right-hand lane that was slowing down to stop at the traffic lights. As he entered the junction the offender was driving too fast for the prevailing circumstances, but was not exceeding the speed limit. Helena Thurm had been at the south side of the junction for not less than 25 seconds, waiting to cross in a westerly direction. Her precise waiting point on the footpath was unknown. As the offender's vehicle passed through the junction she moved off the pavement and into the road. By the time she stepped into the road the collision was unavoidable. She walked 0.3 metres from the kerb edge to the point of impact in 0.2 seconds. At the point she stepped off the kerb, the offender's vehicle was 2.37 metres away from her, travelling at 29 to 30 mph. The vehicle struck Miss Thurm, throwing her into the air. The offender stopped his vehicle and telephoned the emergency services.
7. Miss Thurm was taken to hospital. She was in cardiac arrest and was found to have suffered numerous skull fractures, a catastrophic brain injury, as well as significant internal injuries. She died the following day at 1.18 pm.
8. The offender was spoken to at the scene. He told the police that he had gone through the traffic light on amber and was travelling at 30 mph. This assessment of speed was later supported by the prosecution's expert evidence at 29-30 mph. The offender claimed that Miss Thurm holding a mobile telephone stepped out in front of his car. He swerved to avoid her, but hit her. A formal interview took place on 13th July 2016 when he gave a similar account. He stated that when the lights changed to amber he was four car lengths behind the stop line and did not wish to perform an emergency stop, so he carried on through the stop line.
9. Apart from a caution in 2008 for possession of cannabis, the offender has no previous convictions or cautions recorded against him. There were no endorsements on his driving licence. He is married and had a full time job as an IT operations manager. Since the incident, he had undertaken three periods of counselling and cognitive behavioural therapy. He has flashbacks of the collision.
10. The court was provided with seven character references which this court has also seen. Those references spoke to his positive good character, in particular his excellent work ethic and trustworthiness, his honesty, his work in raising money for charity in particular Macmillan Cancer Support, his previous good driving record in the experience of those who had been in vehicles with him and to the fact that he is kind and supportive to those in need.
11. A pre-sentence report assessed him as posing a low risk of re-conviction and a medium risk of serious harm. The writer of the report stated: "Despite still feeling that the offence was a tragic accident, [the offender] did present with what I felt was genuine remorse in my interview".
12. Personal statements were before the court from Sandra Thurm and Stephen Thurm, Helena's mother and brother. They read their own statements to the court at the sentencing hearing. The statements spoke of the catastrophic effect the loss of Helena had had on the whole family. This included a large number of family members suffering post traumatic stress disorder and other serious mental ill-health consequences. Her parents are now unable to work as a result of the depression and anxiety from which they now suffer. They have had to give up their nursing and teaching careers. Stephen Thurm, Helena's brother, an architect, had also sunk into a deep depression and was unable to work. The entire family expressed how they found it particularly upsetting that the offender blamed Helena for her own death.
13. In sentencing the offender, the judge made the following findings. The offender had no intention of driving dangerously. There was no evidence of other bad driving during the journey, other than in the few moments leading up to the fatal collision. While he had approached the traffic lights in the wrong lane, that did not directly cause the collision, though it did amount to an aggravating factor as it involved the apparent disregard of lane closure signs. The offender could have stopped safely at the traffic lights without causing a risk to other traffic when the lights changed to amber. He chose not to. While he did not reach the speed limit, he continued into the junction at a speed that was too fast in the prevailing circumstances which included:
The fact that on the opposite side of the junction and there for all to see was a pedestrian waiting to cross the road at a designated crossing place. She was there to be seen by [the offender], [who] failed to spot her and as a result [the offender] did not see heed her presence, [he] did not adjust [his] speed or cover [his] brake in case she stepped from the pavement in front of [him], as in fact happened.
14. In relation to Helena Thurm the judge found:
The fact that Helena undoubtedly stepped from the pavement into the path of your approaching vehicle does not, in my judgment, diminish your culpability one jot.
... There is of course a chance that Helena Thurm might have been misled by your position in the road, but we will never know whether that was in fact the case.
15. In relation to the prosecution submission that the offender had falsely claimed that the collision was the fault of the deceased, the judge said:
In the context of this case, and particularly in the light of the expert evidence not only that was heard in the course of the trial but that appears in the various reports that I have read, I do not conclude that this was an aggravating feature that I can properly take into account in respect of sentence.
16. Mr Polnay, who appears for the Solicitor General, reminds the court that the maximum sentence available in respect of causing death by dangerous driving is 14 years and that there are definitive guidelines for offences of causing death by dangerous driving. The first step in applying the guideline is to determine the offence seriousness. There are three levels. Level 1 is defined as "the most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others." Level 2 is defined as " ... driving that created a substantial risk of danger". Level 3 is defined as: " ... driving that created a significant risk of danger".
17. The guideline states that Level 3 is likely to be characterised by driving above the speed limit:
... at a speed that is inappropriate for the prevailing road conditions, or driving when knowingly deprived of sleep ... or knowing that the vehicle has a dangerous defect ... or a brief but obvious danger arising from a seriously dangerous manoeuvre or driving while avoidable distracted or failing to have proper regard to vulnerable road users.
18. The guideline further states at paragraph 3 of the offence guidelines at page 10:
The 3 levels are distinguished by factors related predominantly to the standard of driving; the general description of the degree of risk is complemented by examples of the type of bad driving arising. The presence of aggravating factors or combinations of a small number of determinants of seriousness will increase the starting point within the range. Where there is a larger group of determinants of seriousness and/or aggravating factors, this may justify moving the starting point to the next level.
19. Having made the findings we have set out, the judge said this in relation to categorisation:
I have concluded that this is a Level 3 case. Your driving was driving that created a significant risk. I have looked carefully as to whether the combination of factors of you driving too fast in the circumstances and failing to have proper regard for the pedestrian on the opposite side of the junction, is such as to increase the risk from what is regarded as significant to what is regarded as substantial. I have looked at the various features under Level 2, and it seems to me that an appropriate categorisation of this case is indeed Level 3, a significant risk created by the manner in which you drove.
20. A Level 3 offence has a starting point of three years' custody with a category range of two to five years.
21. Mr Polnay submits that the following aggravating and mitigating features are present. An aggravating factor was the offender's disregard for lane markings. Mitigating factors were the offender's previous good character and driving record, his attempts to assist the deceased at the scene, his genuine remorse and his excellent work record.
22. The Solicitor General submits that the sentence passed was unduly lenient in that on the findings made by the judge there were two determinants of seriousness: inappropriate speed and failing to have regard for a vulnerable road user. This should have resulted in an uplift applied to the Category 3 starting point. A further uplift should then have been applied in relation to the aggravating feature that the offender carried out an undertaking manoeuvre, using the wrong lane and passing through an amber light. Even if not causative of death it is submitted that this is an aggravating feature of some weight. While it is accepted that there were mitigating factors in this matter, Mr Polnay submits they are not of such weight that they would not only counterbalance the multiple determinants of seriousness and aggravating features, but also result in a sentence at the very bottom of the category range.
23. For the offender, Mr Dawson submits that the judge having presided over the trial was in a very good position to assess the culpability of this offending. The inappropriate speed in the conditions and the failure to have regard to a vulnerable road user were what made the driving dangerous and it was this that made it a Level 3 offence with a starting point of three years. Against this there was substantial and powerful mitigation which justified the reduction as the judge found.
24. We have considered these submissions. We start with an important feature of this and other cases where death has been caused by a crime, dangerous or careless driving. It is a feature reflected by the victims' statements in this case. There is the devastating immediate sense of shock amongst members of the family at the sudden totally unexpected disaster of the death of someone who is loved. If the immediate sense of devastation recedes it is then replaced by a numbing sense of loss and regret which will continue throughout their lives. The death of a daughter and a sister is never forgotten and the thoughts of what has been lost in terms of a future which has been destroyed continue. While the family may feel there is no sentence which can possibly reflect their loss, a matter that the judge specifically acknowledged in his sentencing remarks, and while the sentencing system takes into account the feelings of the family and the harm which is caused, (the death of the victim), the process itself focuses on culpability, bearing in mind that the death caused by the driving was neither intended nor foreseen.
25. In the present case, we are satisfied that the judge was correct to place the driving at Level 3. There was a significant risk of danger. This was not a Level 2 offence. The examples given involve distinctly greater levels of culpability, for example greatly excessive speed, competitive driving and composing text messages over a period of time. While Level 3 factors may collectively or even in isolation create a substantial risk of danger, in our view the judge was entitled to take the view that this was Level 3 offending, notwithstanding those factors identified by Mr Polnay; the offender's disregard for lane markings and his failure to have proper regard for Helena Thurm. We see the force of Mr Dawson's submissions in this respect.
26. On this basis the starting point was a term of three years. Against this was to be weighed the mitigation - his good driving record over considerable distances for a period of 15 years, his attempts to assist the victim at the scene and, despite the doubts of Helena's family in the light of his defence at trial, what we take to be his genuine remorse as recognised by the Solicitor General. These are all specific matters of personal mitigation referred to in the guideline at paragraphs 26 to 29 which may be taken into account and may justify a reduction in sentence. There was also the offender's positive good character and his good work record. The letters written in his support are persuasive of his qualities.
27. The judge had presided over the trial and was in a good position to assess the offender's culpability. In his sentencing remarks he carefully considered the relevant guideline and set out the matters of aggravation and mitigation which bore on his sentencing decision before passing a sentence of two years' imprisonment. He rightly considered the guideline on the imposition of community and custodial sentences, but concluded that he could not properly suspend the sentence. In our judgment, this was not an unduly lenient sentence. Accordingly, although we grant leave to refer, we will not interfere with the sentence. | ```yaml
citation: '[2018] EWCA Crim 1325'
date: '2018-03-27'
judges:
- LORD JUSTICE SIMON
- MR JUSTICE GOSS
- HER HONOUR JUDGE TAYTON QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2016] EWCA Crim 44
Case No:
201403264 C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
Mr Recorder Sanghera
T20117980
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
10/03/2016
Before :
LORD JUSTICE TREACY
MR JUSTICE HADDON-CAVE
and
MR JUSTICE GARNHAM
- - - - - - - - - - - - - - - - - - - - -
Between :
John Alan Brooks
Appellant
- and -
The Queen
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
M Trafford QC
(instructed by
Kaim Todner Solicitors
) for the
Appellant
A Mitchell QC
(instructed by
the
Crown Prosecution Service
) for the
Respondent
Hearing date : 14 January 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Treacy :
1.
This is an appeal against a confiscation order made on 18 June 2014 at Birmingham Crown Court. At the end of a contested hearing, the appellant was found to have benefited in the sum of £3,601,818.00 and to have realisable assets in the same sum. Accordingly, a confiscation order in that sum was made. It was to be paid within 6 months. In default thereof the appellant was to serve 7 years imprisonment.
2.
Confiscation proceedings arose out of the appellant’s conviction on 24 September 2012 in the Birmingham Crown Court of an offence of conspiracy to import cocaine. The period covered by the indictment was between 1 January 2006 and 31 December 2009. The charge arose out of the seizure by the Irish Navy in November 2008 of 1504 kilograms of cocaine with an average purity of 70 per cent after they had boarded a yacht called
Dances With Waves
in heavy seas near the Irish coast. The drugs had a street value in the order of £150 million. In addition to the drugs, various charts, papers, logbooks and other documents were recovered. The drugs were intended for Wales, the destination of the boat being Caernarfon Bay. The yacht had started its journey in Trinidad. Its three crew members pleaded guilty in Ireland to attempting the importation of drugs into the United Kingdom. Each was sentenced to 10 years imprisonment.
3.
This appellant’s case, rejected by the jury, was that he knew nothing about and had no involvement in any conspiracy to import the drugs. The Crown’s case against him was that his role in the conspiracy was as an organiser and procurer of the boats and yachts which would transport the drugs which had originated in South America to the United Kingdom. He was also concerned with the hiring of the crew and directing arrangements for the importation. The use of the yacht was central to the importation and the appellant had given directions about the loading and storage of the cocaine and must have been involved in liaising with the South American suppliers in determining where it would be transferred to the yacht off the coast of South America.
4.
There was evidence that the appellant had sent cash transfers to the crew after purchase of the yacht for the purpose of picking up the cocaine. He had, prior to the yacht’s departure, made two trips to South America for the purpose of arranging matters, using false identities. There was evidence showing his ability to be in contact with the satellite phone on the yacht as it made its journey, as well as evidence capable of showing involvement with arrangements for a rendezvous point off the coast of north Wales for transfer of the drugs. There was also evidence that prior to purchase of
Dances With Waves
the appellant had visited Trinidad and had been involved in the purchase or proposed purchase of two other boats using false identities. In addition to that general summary, there was evidence of a lavish lifestyle well beyond the appellant’s known or declared income.
5.
The jury heard evidence of previous relevant drug convictions involving importations. There was a conviction in 1989 in Spain for smuggling cannabis from Morocco for which the appellant received 4 ½ years imprisonment. In 1996 the appellant was convicted and sentenced in his absence in France after the interception of a boat carrying a very large quantity of cannabis. In 1997 the appellant was convicted in Morocco and sentenced to 10 years imprisonment for an offence described as “trafficking narcotics” involving a boat. There was also evidence of convictions in 1987 and 2007 in this country for the use of passports in false names.
6.
As this court in dismissing his appeal against conviction observed there was a very strong circumstantial case against the appellant (see
Brooks
[2014] EWCA Crim 562
). The bad character evidence referred to above can only have strengthened the Crown’s case against the appellant. He was sentenced to 28 years imprisonment less time on remand and made the subject of a serious crime prevention order.
7.
It appears that the appellant has had a number of different counsel to represent him in the course of the proceedings. Counsel appearing at the confiscation hearing was not trial counsel, and counsel appearing before us is did not appear in the confiscation proceedings.
8.
In the contested confiscation proceedings, the appellant gave evidence and maintained that he had a legitimate source of income but had been hampered in presenting his case because the Spanish authorities had seized documentation from his home in Spain which would have supported his arguments. The Crown had obtained and disclosed documentation from the Spanish authorities and did not accept that there was additional material still in Spain. A ground of appeal based on the judge’s refusal of an adjournment for further enquiry of the Spanish authorities has not been pursued.
9.
One of the issues at the hearing related to the appellant’s interest in a Spanish property. The judge permitted the appellant to adduce a witness statement of the appellant’s partner and supporting documents including an opinion from a Spanish lawyer. The judge accepted that the partner was the legally registered owner of the property but concluded that the mortgage on the property could only have been provided with financial involvement from the appellant which, he held, would have been the proceeds of crime. He therefore concluded that the appellant had a beneficial interest of one half of the market value in the property. In computing the appellant’s benefit the court valued the appellant’s beneficial interest in the Spanish property at £296,797.21, equivalent to €365,000.00.
10.
The judge ruled that the appellant had a criminal lifestyle pursuant to
section 75
and Schedule 2 of the
Proceeds of Crime Act 2002
(POCA), the offence of which the appellant was convicted being specified in Schedule 2. This is uncontroversial. Next, the judge turned to the question of whether the appellant had benefited from his general criminal conduct. He noted that, whilst the appellant had not made any admission, there had been no dispute that he had benefited from his criminal conduct. He observed that, in the light of the conviction, its surrounding circumstances and the quantity of drug involved, there could be no serious issue on the point and that, indeed, none had been taken. He made a finding that he was satisfied that the appellant had benefited from his criminal conduct. He then identified the real issues raised before him as relating to the amount of benefit and the recoverable amount.
11.
As already stated the judge assessed the appellant’s total benefit at a little over £3.6 million. This included the value of the drugs at approximately £2.947 million and a 50 per cent beneficial interest in the Spanish villa valued at about £296,000.00. In making the findings as to benefit, the judge repeatedly noted the absence of documentary evidence to support claims made by the appellant that he had a number of legitimate sources of income. The judge noted that in assessing benefit, the assumptions in
section 10
of
the Act
applied unless the appellant could rebut them by showing on the balance of probabilities that an assumption was incorrect or that there would be a serious risk of injustice if the assumption were made. He commented that the appellant’s contentions were largely based on bare assertions unsupported by documentation in circumstances where documentation could be expected to exist.
12.
The judge then turned to the question of the recoverable amount. If a defendant’s available assets are less than the benefit figure a confiscation order must be made in that lesser sum. It is for a defendant to establish on the balance of probabilities that the amount recoverable is less than the benefit figure. The judge held that apart from the interest in the Spanish property, the only identified available assets were a relatively small amount of cash, premium bonds and an amount held in an account together totalling just under £1,400.00. However, the judge went on to note that the appellant had conducted his financial affairs in such a manner as not to leave a documentary trail. He had used false passports and false names. There was evidence of bank accounts, property and business deals in various countries, all undocumented. There was evidence of substantial sums of cash paid into bank accounts or held in a safe or deposit box. The existence of three flats in Thailand only emerged during the hearing: they seem to have been sold under some form of barter arrangement. Moreover, the judge said that it was unarguable that the appellant had at least contributed to the purchase of the drugs which were the subject of the conviction. That would involve access to a considerable sum of money.
13.
The judge went on to cite a passage from
R v Green
[2007] 3 All ER 751
where this court said:
“By virtue of section 6(1)(a) the amount that might be realised is the total value of all the realisable property held by the defendant, whether derived from drug trafficking or not, and the burden of satisfying the court that the total value of his realisable assets is less than his proceeds of drug trafficking rests on the defendant. It follows that if the defendant fails to discharge that burden the court should make a confiscation order in the amount of his proceeds of drug trafficking. Moreover, the fact that the court is concerned for these purposes with a total value of all the defendant’s realisable assets means that there is no reason to assume that the value of any hidden assets does not exceed the profits that he derived from the drug trafficking from the indictment. If the defendant wishes to ensure that the amount of the confiscation order does not exceed the value of the assets available to meet it, he must make full disclosure to the court in order to enable it to be satisfied that it has the complete picture.”
The judge said that he was satisfied that the appellant had assets which he had not disclosed. Involvement in the illegal drugs trade to the extent evidenced by this offence could not be undertaken without significant means. The appellant had failed to discharge the burden of satisfying the court that his total assets were less than his proceeds of crime. Accordingly, he held that the recoverable amount was the same as the benefit figure, namely £3,601,818.00.
14.
Mr Trafford QC for the appellant put forward to us grounds which represented a degree of refinement from the written materials submitted. In accordance with the approach indicated by Lord Bingham in
R v May
[2008] 2 Cr App R 28
at [48], he submitted that there were three questions to be addressed: (i) has the defendant benefited from the relevant criminal conduct, (ii) how is any benefit to be quantified, and (iii) what sum is recoverable. As to (i), it was not contested that the defendant had benefited from his criminal conduct. As to (ii) the quantification of benefit, he submitted that the recorder fell into error in making a finding that the appellant had purchased, or at least contributed to, the purchase of the drugs which were the subject of his conviction. There was no evidence upon which he could have made such a finding and, indeed, the Crown had not put its case on that basis.
15.
If this proposition was accepted, it would have an impact on the confiscation exercise because if the appellant was a purchaser of the drugs he would automatically come within the terms of section 76(4) of POCA which provides that “a person benefits from conduct if he obtains property as a result of or in connection with the conduct.” Mr Trafford submitted that, if the appellant was not a purchaser of the drugs, it did not necessarily follow that section 76(4) was satisfied in relation to them or their value. In this context, he placed reliance on the decision of this court in
R v Clark and Severn
[2011] 2 Cr App R (S) 55
. On the particular facts of that case, the court held that the appellant Clark was capable of being regarded as a bailee of vehicles involved in the conspiracy as opposed to “an equity partner”. In the former case, Clark would not have obtained the property within section 76(4). The confiscation order was quashed and the matter remitted to the Crown Court for further consideration in the absence of a clear finding as to the capacity in which Clark had received the property. Mr Trafford sought to draw an analogy with this appellant’s position. He presented the appellant as someone who was merely concerned with transportation and that in reality he had no control or power of disposition over the drugs. He relied on [48(6)] of Lord Bingham’s speech in
May
:
“D ordinarily obtains property if in law he owns it, whether alone or jointly which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else…Mere couriers or custodians or other very minor contributors to an offence rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property.”
16.
Mr Mitchell QC for the Crown resisted that submission. He submitted that the decision in
Clark
was clearly factually different to the present case and that this appellant’s actions had clearly gone beyond those of a mere bailee. We agree. Mr Mitchell had rightly accepted that the Crown had never contended that this appellant had purchased the drugs and that there was no evidence before the judge to enable him to draw such a conclusion. However, it is clear to us that there was ample evidence before the court to demonstrate that this appellant had “obtained” the drugs within the meaning of section 76(4) even if he had not contributed to their purchase. It is clear to us from a consideration of the activities of this appellant as set out above that he was not to be regarded as a mere custodian of the drugs. There was, in our judgment, extremely strong evidence of control and a right of disposition in relation to the drugs.
17.
We note that in
R v Ahmad and another
[2014] UKSC 36
, the principal judgment of Lord Neuberger and others comments between [41] and [48] upon the passage we have cited from Lord Bingham in
May
. It is clear that the word “obtain” is to be given a broad, normal meaning with the court being entitled to rely on common-sense inferences, in which the role of a particular conspirator may be relevant as a matter of fact. Clearly every case will be fact- sensitive, but on the basis of the extensive role of this appellant in the drugs conspiracy and, in particular, his central involvement in the transportation and proposed delivery of the drugs with significant managerial and operational control over the exercise, we are satisfied that the only sensible conclusion which could be reached on the facts is that this appellant “obtained criminal property” for the purposes of section 76(4) and thus has benefited from his criminal conduct in respect of the drugs.
18.
We note, additionally, that the appellant’s previous counsel acknowledged at the hearing below and in his grounds of appeal that the appellant’s benefit figure should include the value of the drugs. We do not consider that such a concession was incorrect, nor, in the circumstances, is there any other reason which would permit its withdrawal. That concession confirms the conclusion to which we have come based on a consideration of the evidence.
19.
We go on to note that in
Waya
the majority judgment of the Supreme Court stated at [55(a)]:
“Once property has been obtained as a result of or in connection with crime, it remains the defendant’s benefit whether or not he retains it. This is inherent in the value based scheme for post-conviction confiscation.”
In this case, the drugs were seized by the Irish Navy and thus taken back into lawful custody. That does not, and cannot, operate so as to take the value of the drugs outside the benefit figure.
20.
In addition, there was some faint criticism of the valuation of the drugs at £2.947 million by the judge. The judge had formed conclusions as to the drugs’ value based on the middle of a range of the costs of purchase. We do not think his approach can be faulted. Indeed, such an approach was conservative and highly favourable to this appellant. By the time the drugs were approaching the UK shores, their wholesale value would have greatly exceeded that amount, probably in the region of £60 million. Accordingly, although we have found that the judge was in error to make a finding that the appellant had purchased or contributed to the purchase of the drugs, we are satisfied that there was, for the reasons given, no error in his inclusion of their value in the global sum representing the benefit obtained from criminal conduct, namely £3.6 million.
21.
The next, and stronger, argument advanced for the appellant moves on to consider the quantification of the available or recoverable amount. It is submitted that that should not have included the assessed value of the drugs since they had been seized by the Irish authorities. The inclusion of this sum distorted a proper consideration of the available assets in a way highly unfavourable to the appellant.
22.
It is clear from the judgment below that, once the judge had rejected the essence of the appellant’s evidence concerning his available or realisable assets he moved automatically to a finding that the available and recoverable amount must be the same as the benefit figure. It would seem that he was influenced to take this course by reference to the passage of this court’s judgment in the case of
Green
as cited above. Mr Trafford contended that this was an incorrect approach and that the mere fact of rejection of the appellant’s case did not absolve the judge from a sensible consideration of the available evidence. In this context he relied on the decision of this court in
R v McIntosh
[2012] 1 Cr App R (S) 60
. At [15] Moses LJ said;
“In the light of
Glave’s
case and
May’s
case there is no principle that a court is bound to reject a defendant’s case that his current realisable assets are less than the full amount of his benefit, merely because it concludes that the defendant has not revealed their true extent or value or has not participated in any revelation at all. The court must answer the statutory question [in s.7(2)] in a just and proportionate way. The court may conclude that a defendant’s realisable assets are less than the full value of the benefit on the basis of the facts as a whole. A defendant who is found not to have told the truth or who has declined to give truthful disclosure will inevitably find it difficult to discharge the burden imposed upon him. But it may not be impossible for him to do so. Other sources of evidence, apart from the defendant himself, and a view of the case as a whole, may persuade a court that the assets available to the defendant are less than the full value of the benefit.”
23.
In particular Mr Trafford pointed to the fact that the cargo of drugs had been seized by the Irish authorities and so no longer represented assets available to the appellant; they had plainly played a major role in determining the overall benefit figure of £3.6 million when in fact they should not have done so. The judge’s approach to the question of the benefit figure had been insufficiently rigorous.
24.
Mr Mitchell did not dispute that
McIntosh
represented a correct approach. It was wrong for a judge to make a leap from rejecting a defendant’s account as to his assets to concluding necessarily that the available amount should equate to the amount of benefit. In the situation where the drugs had been seized the judge should have looked for evidence to show that the appellant had available assets. There was room for a conclusion in this case that, in addition to such assets as the judge found were in fact available, the judge could conclude that there was in addition the value for hidden assets to be taken into account. After rejecting the appellant’s evidence, the judge was entitled to take a broad brush approach. In this case, there was evidence of an affluent lifestyle which could have justified a finding of hidden assets, but it was acknowledged that the judge’s approach had failed to assess the matter on the whole of the evidence, knowing that the drugs had been seized so that they were no longer available to the appellant. There had been an insufficiently careful analysis and it was conceded that this had led to an overstatement of an appropriate benefit figure.
25.
We consider that the submissions of Mr Trafford and the concessions made by Mr Mitchell as to the flaws in the judge’s ruling were broadly correct. The passage cited from
Green
has been superseded by developments in the case law and the more nuanced approach of
McIntosh
is the correct one. When the issue of available assets was being considered, the rejection of the appellant’s claims of impecuniosity did not bring the inquiry to a close since there was other evidence before the court. That evidence showed that, in fact, the substantial value of the drugs was no longer available to this appellant to realise.
26.
Section 9(1) of SOCA provides:
“For the purposes of deciding the recoverable amount, the available amount is the aggregate of –
(a) the total of the values (at the time the confiscation order is made) of all the free property
then held by the defendant
minus the total amount payable in pursuance of obligations which then have priority, and
(b) the total of the values (at that time) of all tainted gifts. (Our italics)”
The italicised words clearly focus the mind of the court upon the value of property held by the defendant at the time of the court’s inquiry.
27.
In
R v Thacker [1995] 16 Cr App R (S) p461
the court held that where drugs had been seized from a defendant by Customs and Excise they were not property held by a defendant for the purposes of calculating the recoverable amount. In
R v Islam
[2010] 1 Cr App R (S) 42
the speech of Lord Mance at [34], [37] and [44], with which the majority agreed, makes plain that a clear distinction is to be drawn between the time and circumstances in which an assessment of value for the purpose of calculating benefit is made as against the time and circumstances for an assessment of value for the purpose of calculating the available or recoverable amount.
28.
More recently this court in
R v Kakkad
[2015] EWCA Crim 385
considered and endorsed the position at [21]-[32]. The latter paragraph contained the proposition:
“Self evidently, property seized and forfeited would no longer be part of the available amount. Its value would not be part of all the free property held by the appellant, as pointed out in
Islam
.”
29.
We note that at [34] of
Islam
, Lord Mance commented that where HMRC have seized goods forfeiture is automatic, and in that case the goods will no longer be property held by the defendant at the time of a confiscation order. He went on to say that in other cases the confiscation order would precede any order for forfeiture under the Misuse of Drugs Act so that the drugs would continue in law to be “free property then held by the defendant” at the time of the confiscation order, even though physically in the possession of the authorities and destined to be the subject of a forfeiture order. Here the drugs were seized by the Irish Navy and thus do not fall within the first part of Lord Mance’s comments. However, the situation does not cause difficulty since, as Lord Mance went on to point out, in such circumstances it would be impossible to regard the drugs as having any market value for the purpose of assessing the available amount. They would not ever be bought or sold on any market, legal or otherwise.
30.
For these reasons we are satisfied that the judge moved too precipitately from a rejection of the appellant’s evidence to an inclusion of the value of the drugs in the available amount. In truth, once the drugs had been seized they no longer represented an asset of any value held by, or available to, the appellant.
31.
Although this conclusion undoubtedly has an impact upon the correct assessment of the available amount, the matter is not necessarily to be disposed of simply by deducting the value attributed to the drugs from the overall benefit figure. There are other considerations in play to which we will return after a consideration of a further point taken on behalf of the appellant.
32.
This relates to the judge’s treatment of the appellant’s interest in the Spanish property referred to at [9] above. Mr Trafford’s submission was that the judge had approached the question of the Spanish property in an incorrect manner. The appellant’s partner was the registered owner of the property and the judge made a number of findings of fact which are relevant. The appellant’s partner had not commenced a serious relationship with him until 2004. Prior to that time, she had taken steps to purchase the Spanish property which was to be built to her requirements. She had made substantial down payments which appear to have exceeded €250,000 prior to the commencement of her relationship. The purchase was completed later in 2014 for about €649,000 with the aid of an interest only mortgage in the sum of about €400,000. When the purchase was completed the appellant moved into the house with her.
33.
The judge had seen details of the appellant’s partner’s income and concluded that her income was insufficient to service the mortgage repayments. The judge therefore concluded that the mortgage on the property must have been repaid by substantial contributions if not exclusive payments by the appellant. The judge found on the basis of the Spanish lawyer’s opinion that that would give rise to a reclaimable personal loan and that since the appellant had no legitimate sources of income any payments made by him would have been from the proceeds of crime. Those mortgage repayments would have been payable from the time of completion of the house purchase which took place in October 2004.
34.
The judge said that he was satisfied that the appellant was not married or in any legally recognised civil partnership with his partner and stated that the opinion of the Spanish lawyer that he would have no recognisable legal or equitable interest in the property might well be correct. The judge went on to say that where a defendant had made a tainted gift after the commission of an offence the court considers it appropriate to take that gift into account. The property can be treated as that of the defendant and realisable for the purposes of a confiscation order. The judge continued:
“The presumption of legal ownership consequently has no relevant effect. I am satisfied, therefore, on the balance of probabilities that the defendant has an interest in the property. Based upon the finances that Mrs Sayeed does disclose and the evidence of her own payments I am satisfied that such interest is quantifiable as to one half of the market value, rather than the entire property.”
35.
Mr Trafford contended that, contrary to the judge’s conclusion, Spanish law should apply in determining whether the appellant had an interest in this property,
i.e.
the
lex situs
. In this case the Spanish lawyer’s opinion had been clear. The appellant’s contribution to mortgage repayments would be deemed as a private loan and would not confer ownership rights. In the absence of marriage or a registered civil partnership such payments would not confer such rights. In essence, therefore, the appellant’s partner was the legal and equitable owner of the property under Spanish law. A separate argument challenged the judge’s conclusion that the partner would not have had the means to make the mortgage repayments. As to that latter point, we are unconvinced, the judge made an assessment on the evidence before him with which we do not consider it appropriate to interfere.
36.
For the Crown, Mr Mitchell contended that there was no need in fact for a consideration of what the position was under Spanish property law. The judge had approached the matter from the wrong perspective. There was no evidence of the appellant having contributed to the lump sums paid as part of the purchase price of the property. Indeed, the evidence showed that those payments had been made by the partner at a time before the judge had found that any serious relationship existed between the pair. That left the mortgage payments. The judge had found that the appellant must have made those payments on the basis that the partner had no ability to meet them. That was a sustainable finding and should have led the judge to consider the tainted gifts provisions under sections 77 and 78 of POCA. Application of section 77(1)(b) and 77(2) should have led to a finding that the mortgage repayments were tainted gifts since, applying section 78(1), there was no evidence that the mortgage repayments had been made for a consideration; indeed, the appellant in his witness statement had said that they did not represent rent on his part. The judge should have calculated the value of the repayments, adjusted that value for inflation, and treated it as part of the available sum pursuant to section 9(1)(b). None of that required any consideration of Spanish law in order to determine whether a beneficial interest had been acquired in the property. It simply required an application of POCA. On the materials available the interest payments were at the rate of €2,000 per month and had been made over a period of 6 years, giving a total of €144,000 to which an allowance to represent the change in the value of money should be added. This sum should have formed part of the calculation of the available amount.
37.
Both parties, therefore, were critical of the judge’s approach and we have to say that we did not find the judgment easy to follow in relation to the matter of the Spanish property. We consider that the argument advanced by Mr Mitchell in approaching the matter by reference to the tainted gifts provisions was the correct one. Mr Mitchell has not attempted to support the approach of the judge which was to attempt to assess beneficial interest in the property by reference to the mortgage repayments, notwithstanding the judge’s conclusion that the Spanish lawyer’s evidence that the appellant would have no recognisable legal or equitable interest in the partner’s property might well be correct. It follows therefore that the inclusion of a 50 per cent beneficial interest in the value of the Spanish property by the judge was wrong since it exceeds by some margin the value of the tainted gifts, and since there was no firm basis for such an assessment.
38.
We have, thus far, come to conclusions which show that in significant respects the judge’s approach to the question of the recoverable or available amount was seriously flawed in a way which resulted in an excessive confiscation order being made.
Sections 11(3)
and (3A) of the
Criminal Appeal Act 1968
enable this court, where it quashes a confiscation order, either to make such order as it thinks appropriate for the case, or to remit the matter for a fresh hearing before the Crown Court. Mr Trafford invited us to take the latter course, Mr Mitchell, the former. We consider that it is appropriate to deal with the matter in this court as the facts are sufficiently established so as to enable us to do so. An important consideration for us in deciding to deal with the matter in this court has been that there was no real issue between the parties as to what the appellant’s lifestyle was; the issue below related to how it was funded, (the judge holding that the source of the funds was not legitimately acquired funds, but the fruits of a criminal lifestyle).
39.
Our assessment of the position must recognise the fact that the value of the seized drugs is to be left out of account. On the other hand, the judge made a series of findings showing that the appellant had led what can be described as a cash lifestyle which had enabled the purchase of cars, property in Thailand, boats, expensive watches and an expensive hotel stay amongst other things. The nature of the appellant’s activities, in which the judge found he made very significant efforts to live in a way which did not leave a document trail, in our view also leads to the inference that the appellant had had and has significant amounts of cash available to him. We bear in mind that it is for a defendant to show on a consideration of the whole of the evidence that the available amount is less than the benefit figure.
40.
It is of note that the judge’s finding was that the only available assets that had specifically been identified apart from the Spanish property was cash, premium bonds and a small amount in an account totalling about £1,400.00. To this he would have been entitled to add the value of the mortgage repayments uplifted for inflation. In the absence of precise detail we shall take a conservative value of €165,000.00 to represent the updated value of the tainted gifts. Applying the currency conversion rate adopted by the judge this gives s figure of about £135,000.00.
41.
We are satisfied that, given the judge’s findings as to the nature and the level of the appellant’s cash lifestyle which was entirely justified on the evidence, we are entitled to come to the conclusion that at the time of the hearing there remained available to this applicant substantial hidden assets which should be taken into account in the section 9 calculation, in addition to the value of identified assets and tainted gifts. Where a defendant’s evidence has been rejected he will naturally be in a disadvantageous position, but as
McIntosh
shows, that does not relieve the court of the obligation to come to a just and proportionate view based on the whole of the evidence.
42.
The reality of the position here is that the Crown had never contended that this appellant had available assets on the scale which was found by the judge. It was the judge’s error in taking into account the value of the drugs as approaching £3 million which had led to the overall order in the sum of £3.6 million. The evidence properly available to the judge simply did not warrant a conclusion resulting in a liability of that order. Mr Mitchell for the Crown acknowledged as much. He submitted that having regard to the findings as to the appellant’s lifestyle, and taking into account the value of the tainted gifts, this court could properly find that there was an available or recoverable amount in the sum of about £1 million. We consider that that was an overestimate based on our assessment of the evidence of this appellant’s lifestyle which underpins the finding that he has available hidden assets.
43.
On the basis of the evidence we think that a fair and proportionate conclusion is that overall, and taking into account the tainted gifts and the £1,400.00 value of specifically identified assets, the value of available assets is no less than £500,000.00. This appellant has in our judgment failed to demonstrate on the balance of probabilities that the available assets was any less than that sum. Since that sum is less than the benefit figure of about £3.6 million identified by the judge, by virtue of section 7(2) the recoverable amount under the confiscation order is the sum of £500,000.00.
44.
For the reasons given this appeal is allowed. The confiscation order in the sum ordered below is quashed and in its place we substitute the sum of £500,000.00. This also requires an alteration of the term of imprisonment to be served in default of payment. We allow a period of 6 months in which the payment is to be made. We fix the term to be served in default at 5 years instead of the 7 years imposed below. To that extent this appeal is allowed. | ```yaml
citation: '[2016] EWCA Crim 44'
date: '2016-03-10'
judges:
- LORD JUSTICE TREACY
- MR JUSTICE GARNHAM
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2016] EWCA Crim 1588
Case No:
201502822 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE PONTIUS
T20147409
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/10/2016
Before :
LADY JUSTICE HALLETT
VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
MR JUSTICE KING
and
MR JUSTICE DOVE
- - - - - - - - - - - - - - - - - - - - -
Between :
Anthony Jonathan France
Appellant
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr R Kovalevsky QC and Mr J Hodivala
(instructed by Mandip Kumar of
Hansards Solicitors
) for the
Appellant
Ms Z Johnson QC and Mr S Biggs
(instructed by
CPS Organised Crime Division
) for the
Respondent
Hearing dates: Thursday 6
th
October 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
The Vice President:
Introduction
1.
The applicant was one of a number of journalists and public officials whose conduct was investigated by police during Operation Eleveden. He was employed as a junior crime reporter at The Sun newspaper. The Sun openly advertised the fact it would pay money for stories. Between 31 March 2008 and 1 July 2011, Timothy Edwards, then a serving police officer at Heathrow airport, sold them thirty-eight pieces of information. The applicant wrote the articles that followed and submitted the necessary forms to his employers for Edwards to be paid. The forms had to be approved first by the news editor and then by an editor or deputy editor. In total, The Sun paid Edwards over £20,000.
2.
The applicant was charged with encouraging Edwards to commit the offence of misconduct in public office and stood trial alone at the Central Criminal Court before His Honour Judge Pontius. On 22 May 2015 he was convicted and sentenced to 18 months’ imprisonment suspended for 24 months with a requirement to carry out 200 hours’ unpaid work and ordered to pay £34,618.10 prosecution costs and a Victim Surcharge of £100. He applies for an extension of time (120 days) in which to renew his application for leave to appeal against conviction. Fresh Counsel (Mr Kovalevsky QC and Mr Hodivala) have abandoned the grounds submitted by trial counsel and submitted fresh grounds of appeal based entirely on the judge’s directions.
Prosecution case
3.
Ms Zoe Johnson QC for the Crown put her case on the basis that Edwards was clearly guilty of misconduct in a public office and that the manner in which he provided information, as a serving police officer, damaged the public interest. However, she conceded that the mere fact a journalist bought information from a public official would not suffice for the offence. In the context of a public official selling information to the media, the Crown must still prove the requisite standard of seriousness by reference to the harm caused to the public interest.
4.
She relied upon a number of factors to establish harm:
i. the fact that Edwards was employed airside at Heathrow;
ii. the fact that he was employed in the two highly sensitive commands of aviation security and anti-terrorism;
iii. the fact that a high degree of trust is placed in an employee in his positon;
iv. the fact that it is essential to maintain confidence in the integrity of those employed in such commands;
v. the fact that he accessed a confidential data base to retrieve information.
5.
Having not only accepted but positively asserted that the stories bought and sold were mostly trivial and likely to find their way into the public domain in any event, she maintained there could be no public interest in buying and publishing them.
Defence case
6.
The defence did not dispute that Edwards’ conduct would merit internal disciplinary sanction and that the applicant was aware Edwards may have lost his job if caught. They did not claim that Edwards was acting as a “whistle-blower”. However, they did not concede that Edwards’ conduct amounted to wilful misconduct, that he had acted without reasonable excuse or justification, or that his actions were so serious as to constitute an abuse of the public’s trust. The defence argued that publication of the stories a. did not harm the public interest and b. was positively in the public interest.
7.
The issue of mens rea for both Edwards and the applicant, if not the primary issue, also remained live.
R v Chapman
8.
All parties were aware of the then recently published judgment in
R v Chapman and others
[2015] 2 Cr App R 10
in which the court reviewed the
Attorney General’s Reference (No 3 of 2003)
[2004] 2 Cr App R 23
,
[2005] QB 73
and re-affirmed the four elements of the offence of misconduct in a public office namely:
i) A public officer acting as such
ii) wilfully neglects to perform his duty and/or wilfully misconducts himself
iii) to such a degree as to amount to an abuse of the public's trust in the office holder
iv) without reasonable excuse or justification.
9.
In relation to mens rea, the court concluded that for the holder of a public office to be convicted of the offence, it is sufficient to prove that he had the means of knowledge available to him to make the necessary assessment of the seriousness of his misconduct albeit the actual assessment is for the jury. Similarly, the aider and abettor/encourager must be aware of the relevant facts. He does not have to know or intend that the consequence of all of those facts will be so serious as to amount to the third element of the offence of misconduct in public office.
10.
The principal focus in
Chapman
and others
was on the third element, the threshold test for the misconduct to be sufficiently serious to amount to an abuse of the public’s trust. This is an issue for the jury to decide but the court emphasised the importance of providing the jury with proper assistance on how to approach their task and determine the level of seriousness. The judge must direct the jury that only conduct worthy of condemnation and punishment and that harms the public interest is criminal conduct. Any direction must take into account the context in which the misconduct has occurred. At [33] Lord Thomas CJ, giving the judgment of the court, observed:
“In a democratic society the media carry out an important role in making information available to the public when it is in the public interest to do so, not simply (as the judge pointed out) because the public may be interested in it. Those employed by the state in public office will generally be in breach of the duty owed by them to their employers or commanding officers by providing unauthorised information to the press. However, information is sometimes provided by such persons in breach of that duty where the provider of that information may benefit the public interest rather than harm it. The provision of the information may well in such a case be an abuse of trust by the office holder to his employer or commanding officer, even if the disclosure of the information may be in the public interest. It may therefore result in disciplinary action and dismissal of the officer holder. That is because the abuse of the trust reposed in the office holder by the employer/commanding officer in such a case is viewed through the prism of the relationship between the office holder and his employer or commanding officer. That is not the prism through which a jury should approach the issue of the abuse of the public's trust in an office holder. [33]
He continued at [36]:
“In the context of a case involving the media and the ability to report information provided in breach of duty and in breach of trust by a public officer, the harm to the public interest is in our view the major determinant in establishing whether the conduct can amount to an abuse of the public's trust and thus a criminal offence. For example, the public interest can be sufficiently harmed if either the information disclosed itself damages the public interest (as may be the case in a leak of budget information) or the manner in which the information is provided or obtained damages the public interest (as may be the case if the public office holder is paid to provide the information in breach of duty).”
11.
In this case, Ms Johnson pinned her prosecution colours firmly to the mast of the second limb: the manner in which the information was provided or obtained.
Judge’s directions
12.
It is necessary to consider the judge’s directions in some detail. There is no dispute that the judge did his best to ensure they met the requirements of
Chapman and others
.
13.
In his summing up of the elements of the offence, the judge began with a clear direction that if the jury concluded:
“that what Constable Edwards did by selling stories to the defendant amounted to a serious abuse of the public’s trust in him and therefore to misconduct in his public office and consequent harm to the public interest, that does not mean that this defendant in arranging payment for those stories must be guilty of encouraging him to do so because that decision must depend on your assessment of all the relevant evidence put before you in relation to Anthony France including of course his own evidence of his knowledge at the time of what Constable Edwards was doing.”
14.
Having stated that the public placed trust in those who hold public office and that the public expects and deserves high standards, he continued:
“if that trust is abused in some way for example by the person holding public office improperly taking advantage of their position to enrich themselves then that abuse of trust is likely to harm the public interest.”
15.
He explained that the jury must decide whether the public interest had in fact been harmed and gave the jury the example of the altruistic “whistle blower” as a situation where providing information to the media might be in the public interest. He directed the jury that the misconduct must be worthy of condemnation and punishment and summarised the offence at page 121 letter E:
“ So the prosecution must establish that an abuse of the public’s trust by Timothy Edwards occurred there being no reasonable justification for it, that abuse amounting to deliberate misconduct at such a level that it is properly be described by you as representatives of the public as both potentially and actually harmful to the public interest.”
16.
He emphasized the high threshold of seriousness and that the prosecution must prove misconduct going beyond conduct worthy simply of internal disciplinary proceedings stating: “It is the breach of the public’s trust and consequent harm to the public interest that must be proved not merely the breach of the employer’s trust”.
17.
His written directions to which he then turned were as follows:
“1) Are we sure that TIMOTHY EDWARDS, whilst holding public office as a constable in the Metropolitan Police,
wilfully
, (i.e. deliberately)
misconducted himself, without reasonable excuse or justification
, in the three ways numbered (i), (ii) & (iii) in the Particulars of Offence in the Indictment?
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES go on to ask
2) Are we sure that P.C Edwards’ misconduct was, in our judgment,
sufficiently serious as to amount to an abuse of the public’s trust in him
(i.e. that it was a blameworthy departure from accepted standards of behaviour in his public office, falling so far below those standards as to amount to behaviour calling for condemnation by right-minded members of the public and for appropriate punishment)?
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES go on to ask
3) Are we sure that P.C EDWARDS’ misconduct
resulted in harm to the public interest?
(
N.B
. When considering this question, the payment of money to P.C EDWARDS for information he supplied to the defendant is relevant but is not necessarily the deciding factor.
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES go on to ask
4) Are we sure that this defendant
intentionally encouraged and/or assisted
P.C EDWARDS to supply confidential information for payment?
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES go on to ask
5)Are we sure that,
in the circumstances of which the defendant was aware
at the time
of giving that encouragement and/or assistance, P.C EDWARDS’ behaviour (i) amounted,
in our judgment
, to wilful misconduct in his employment as a police officer and (ii) was,
in our judgment
, sufficiently serious as to amount to an abuse of the public’s trust in him (for the meaning of which see question 2 above)
and
resulted in harm to the public interest?
If the answer to that question is NO then the defendant must be found Not Guilty.
If the answer to that question is YES then the defendant must be found Guilty”.
18.
He then directed the jury that they need not find deliberate misconduct in relation to every story sold and that payment for the stories was a relevant but not determinative factor in finding misconduct. His final summary of the prosecution and defence case would have left the impression that the real issue for the jury to determine was whether publication of the stories was in the public interest, as the applicant had maintained in his evidence.
Grounds of Appeal
19.
The fresh grounds of appeal are:
(i) The judge failed adequately to direct the jury on the offence of misconduct in a public office.
(ii) The judge failed properly to direct the jury on the meaning or relevance of “confidential” information when assessing the seriousness of the misconduct.
20.
As the argument developed before us, the two grounds merged into one: the judge’s alleged failure to provide the jury with adequate assistance on the elements of misconduct in a public office in the light of the judgment of Lord Thomas in
Chapman and others
.
Discussion
21.
The judge undoubtedly directed the jury in accordance with
Chapman and others
to the extent that he set out the elements that the prosecution had to prove and he did not commit the error identified in
Chapman
of failing to explain to the jury how, as a matter of law, they should approach determining whether the necessary threshold of conduct was so serious that it amounted to an abuse of public trust in the office holder. However, Mr Kovalevsky took exception to the order in which he set out the elements of misconduct in his written directions, his failure to provide greater assistance to the jury on the issue of harm to the public interest and the use of the word “confidential”, without any elaboration, in both the summing up and the written directions.
22.
Mr Kovalevsky accepted that the judge had both intended to follow
Chapman and others
and to provide the jury with a fair and balanced summing up but he contrasted the summing up in this case with those in other Operation Eleveden trials and claimed the judge had failed in his objective. It was his strong contention that the judge should have directed the jury in far greater detail in relation to relevant factors when assessing the seriousness of Edwards’ conduct and the harm to the public and that, without that assistance, the jury could not safely reach their guilty verdict. The relevant factors were not limited to those listed above, upon which Ms Johnson placed reliance, but rather related to the nature of the information and the desirability of its being published. They included:
i. Whilst there is a public interest in the maintenance of standards by public officials, there is a public interest in the public’s right to receive information;
ii. There is a public interest in a free and diverse press;
iii. A newspaper is a commercial enterprise and can only flourish by selling newspapers. This includes the commercial reality of being the first to break a story and enhance its reputation;
iv. The “public interest” is not confined to “whistle-blowing”. Information which shows that the police are competently detecting or investigating crime can also be in the public interest;
v. It was common ground that the information was trivial and inconsequential and likely to reach the public domain in any event.
23.
Ms Johnson never suggested that the information supplied was in any way ‘secret’; her case was based on the premise it was effectively “tittle tattle” so that there could be no public interest in its publication. If so, the jury had to determine whether the official’s conduct in passing it to a journalist could properly be described as so serious as to amount to an abuse of the public’s trust. Mr Kovalevsky complained that this issue was never addressed properly by the judge.
24.
Furthermore, although the judge used the term “confidential” in his summing up and in question 4) of the Route to Verdict (which required the jury to be sure that Mr France encouraged Edwards to supply “confidential information” in return for payment), he did not draw any distinction between information received ‘in confidence’ and ‘confidential information’ of a secret or sensitive kind. All material held by a public official which comes to him as a result of or in connection with his public office may be “held in confidence,” but information “held in confidence” is not necessarily the same as “confidential information”. Mr Kovalevsky gave as an example the menu in the works canteen. A public official may disclose information he holds in confidence (the menu example) without in any way harming the public interest. Trivial information, or information which is already in the public domain, or information which is bound to become public may not be “confidential” in the sense in which the judge appeared to use it. The judge failed to remind the jury of the relevance of this factor to the principal issues of seriousness and harm.
25.
Finally, Mr Kovalevsky complained that although the judge made repeated references to the element of “without reasonable excuse or justification”, he did not elaborate on what might be a reasonable excuse and gave only one example of a reasonable excuse: whistle blowing. This was not the defence raised, and he argued that it would have left the jury with the impression this was the only basis for establishing “reasonable excuse or justification”. When one couples this with the fact that the judge directed the jury on the elements of the offence in what he submitted was the wrong order in his written directions, Mr Kovalevsky invited us to consider whether the judge has effectively divorced the issue of “reasonable excuse or justification” from the issue of seriousness. Accordingly, there is a real risk the jury may have wrongly concluded that Edwards was guilty of the offence simply by selling information of any kind obtained during the course of his employment.
Conclusions
26.
There are a number of hurdles in the applicant’s path. First, this a case in which the very experienced judge took the wise precaution of discussing his legal directions with trial counsel before he summed the case up and they did not object to this part of his summing up. Second, this court has said on numerous occasions it is a matter for the trial judge how he structures his summing up and that he is not obliged to rehearse all the evidence or the parties’ arguments in the way the advocates would prefer, provided, of course, his summary is fair and accurate. Third, the applicant requires an extension of time.
27.
On the other hand, this was a complex area of the law and the judge’s task unenviable. The concept of the public interest, and in particular whether the conduct of the public official is so serious as to amount to an abuse of the public trust placed in him or her, is an unusual, and not always straightforward, one for a jury to determine. In this case, for example, one of the arguments deployed by the prosecution was that the naming of those arrested, but not yet charged, was against police policy and consequently harmed the public interest: a highly controversial issue. As was emphasised in
Chapman and others
, therefore, it was essential that the judge provide the jury with as much assistance as possible by putting the admitted conduct into its proper factual context.
28.
We have not rehearsed the entirety of the summing up but we hope we have done justice to it in our summary. The judge took great care to be fair to the appellant. He repeatedly stressed the level of misconduct to be proved had to be so serious as to be characterised as criminal, and he properly identified the other elements of the offence. However, he did not go further. He did not give the jury any help on how to assess seriousness and harm, for example, by providing them with a list of possible factors that they might wish to consider. He directed the jury that “abuse of trust is likely to harm the public interest” and that “it is the breach of the public’s trust and consequent harm to the public interest that must be proved”, as if the one (harm) automatically followed from the other (breach). He failed to elaborate on what is meant by “confidential” material, in circumstances where, as we have noted, the passing of information held in confidence is not in and of itself sufficient necessarily to pass the threshold of being so serious as to amount to an abuse of the public trust in the official.
29.
In our judgment, more detailed instruction as to the factors relevant to the question of the public interest were required on the facts of this case so that the jury could weigh carefully the seriousness of the breach. As part and parcel of that direction, the jury should have been directed to consider whether the information passed was so trivial or inconsequential that the public interest could not, in the particular circumstances of the case, be harmed. The reference to “confidential information” in paragraph 4 of the written directions for the jury which we have set out above was potentially misleading: it should either have been removed or further explained. The written directions also placed the issue of “reasonable excuse or justification” as part of the second element from
Chapman,
as if consideration of that factor was not relevant to the last element.
30.
Taking any one of those criticisms in isolation, we may not have been persuaded the summing up rendered the conviction unsafe. However, we must consider their cumulative effect and read the summing up as a whole. Having done so, we are driven to the conclusion that the jury were not provided with legally adequate directions tailored to the circumstances of the case and that the conviction is unsafe.
31.
Accordingly, despite the hurdles in the applicant’s path, we have decided to grant the extension of time, give leave to appeal and we allow the appeal. The conviction will be quashed. We will receive submissions on any consequential orders in writing. | ```yaml
citation: '[2016] EWCA Crim 1588'
date: '2016-10-27'
judges:
- LADY JUSTICE HALLETT
- MR JUSTICE DOVE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2015] EWCA Crim 2192
Case
No: 201405676 A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 4 December 2015
B e f o r e
:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
SIR BRIAN LEVESON
MR JUSTICE FOSKETT
HIS HONOUR JUDGE MOSS QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
LUKE CLARK
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr K Thomas
appeared on behalf of the
Appellant
Mr M Hooper
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T (Approved)
1.
SIR BRIAN LEVESON, PQBD: On 11 August 2014 at the Crown Court in Carlisle, this appellant pleaded guilty to one offence of affray and one offence of criminal damage arising out of the same incident. Given the appellant's history of learning difficulties, sentence was postponed for the preparation of psychiatric reports. So it was that on 10 November 2014 at the same court before His Honour Judge Peter Hughes QC, the appellant was sentenced to a hospital order pursuant to section 37 of the Mental Health Act 1983. The judge also imposed a restriction order pursuant to section 41 of the Act indefinitely. He now appeals against the restriction order by leave of the single judge.
2.
In order to understand how the matter comes to court, the circumstances can be summarised quite shortly. The appellant is now 20 years of age with a history of learning difficulties. At the material time he was living in supported accommodation in Carlisle, receiving some 55 hours of support per week, with sleep-in staff every night. His accommodation was run by a charity called United Response, which offers support to adults with learning difficulties and mental health issues. He had lived in this accommodation since September 2013 without incident.
3.
On 11 March 2014, he went into the staff room and asked to write in a book. When told that it was for staff use only, he became agitated and began to lose his temper. He was asked to leave but refused to do so. When eventually he left the staff room, he slammed the door and was verbally abusive. Ms Gill, an experienced care worker who knew the appellant well then locked the door behind him because she feared for her own safety. After that, the appellant repeatedly kicked and hit the door whilst threatening to stab and kill her. He pushed a knife with a blade some 5 or 6 inches long underneath the door. In the meantime, he was sending texts to another member of staff, threatening that member of staff, saying that he was going to kill Ms Gill. Ms Gill was herself convinced that had he succeeded in getting through the door, she would indeed have suffered serious injury.
4.
The police were called and the appellant was arrested and interviewed. He declined to answer questions put to him. The damage consisted of scratches to the outside of the door, with a crack in the veneer that appeared to have been caused by the knife. Not surprisingly, he did not return to that accommodation, and thereafter he stayed elsewhere. During the course of that summer he was detained pursuant to the provisions of section 3 of the Mental Health Act 1983 for treatment in a low secure forensic unit in Northgate Hospital in Morpeth where he underwent comprehensive assessment.
5.
Because his legal advisors were conscious that a hospital order might be contemplated, the appellant's solicitors arranged for two consultant psychiatrists to prepare reports upon him, section 37 requiring the provision of the written or oral evidence of two medical practitioners concerning his mental health state. These doctors were Dr Julie Thorp, who provided reports dated 5 August 2014 and 16 October 2014, and Dr James Stoddart, who provided a report of 28 October 2014. The doctors were specifically asked to address the question of restriction.
6.
In her second report, Dr Thorp stated that the appellant presented with deficits in adaptive function and some symptoms suggestive of autism. She described his mental state at that stage as settled, with no major management problems. She gave further details of broad progress, although she described his mild learning disability as "a life-long, enduring mental disorder" that would require further treatment and multidisciplinary work before his rehabilitation into the community. She did not consider it necessary for the court to impose a restriction order, observing:
i.
"It must be demonstrated that, having regards to the nature of the offence, the antecedents of the offender, the risk of him committing further serious offences if set at large, there is a necessity to protect the public from serious harm. I note the serious nature of the current alleged offences, although it is clear that Mr Clark does not have an extensive previous history of offending. He has subsequently undergone treatment in hospital however, and his mental health remains stable. It is thus my opinion that the court should not consider the additional imposition of a Restriction Order under Section 41 of the Mental Health Act 1983."
7.
Dr Stoddart agreed with that assessment.
8.
The judge was plainly concerned about this joint view, recognising, as was the case, that the appellant had very limited prior involvement with the courts: he had been reprimanded and cautioned each on one occasion as a 15-year-old and had no previous convictions. He was particularly concerned about the gravity of the offence for which he fell to be sentenced, subsequently observing for the court that the protection provided by the provision of a restriction order and the necessary requirement for the permission of the Secretary of State to be obtained prior to leave was of importance given the circumstances of the incident while in the community.
9.
Although neither psychiatrist supported the making of a restriction order, it is common ground that the decision in that regard is for the judge. However, before such an order can be made, the provisions of section 41(2) must be complied with. That provides:
i.
"A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court."
10.
It follows that the judge had to receive the oral evidence of one of the psychiatrists in any event.
11.
Arrangements were made for the hearing to be conducted in the appellant's absence for his own welfare. No criticism is made of that, provided that he consented, which he did. Unfortunately, the provision of a live link to the psychiatrists, both of whom worked in Newcastle, was thwarted by failure within the technology. Having spent a considerable period of time endeavouring to set up the appropriate link, the court, with the consent of counsel, understandably took the course of receiving the evidence of Dr Stoddart by telephone. That evidence was, in the event, unsworn.
12.
Unfortunately, the court and counsel overlooked two recent decisions of this court, which hold clearly that evidence cannot be received by telephone in a criminal case, even by consent. These decisions are
R v Diane
[2010] 2 Cr App R 1
and
R v Hampson
[2012] EWCA Crim 1807
. In the latter case, Sir John Thomas P (as he then was) said:
i.
"14. In the light of the decision in
Diane
, we consider that the power of the courts in criminal cases to receive evidence other than by a person being present to give oral evidence is regulated by statute. There are the statutory provisions that enable statements to be read. There are the statutory provisions that enable hearsay evidence to be adduced, either by consent or if statutory conditions are fulfilled. There are the bad character provisions, again, which provide either for specific conditions to be satisfied or consent to be given. It seems to us that if one looks at both the provisions in relation to bad character evidence and the provisions in relation to hearsay, if the submission of the Crown was correct, and evidence could be admitted if both parties consented, then it would not have been necessary to provide in the legislation for consent to be a means of putting either hearsay evidence or bad character evidence before the court.
ii.
15. Furthermore, the statutory provisions relating to video link cases, as is set out in the authorities referred to in
Diane
, make it very clear that the video link procedure can only be used where the statutory provisions provide for it.
iii.
16. It seems to us therefore that there is no power for a judge to permit, even by consent, evidence to be given by phone. [...]"
13.
It seems to us, therefore, that the judge, although he considered that he was receiving oral evidence from Dr Stoddart, was not in the event doing so lawfully according to these authorities. First, the evidence was not given by way of a video link; secondly, it was not in any event sworn. Thus the judge proceeded unwittingly to make an order without the jurisdiction to do so. Having said that, had he received the evidence of Dr Stoddart orally in court, he would have had the power to make that order notwithstanding that neither doctor supported it.
14.
In the circumstances, the court must now consider the position afresh, and, to that end, further reports (both provided in October 2015) have been obtained from Dr Thorp and Dr Stoddart. Both have re-examined the appellant and have noted that there have been no similar incidents of the type which led to the prosecution in the period which has elapsed since the original sentence, although there have been incidents which have required careful handling within the hospital setting. Both argue that it is sufficient to control the future behaviour of this appellant if he is subject only to a hospital order without restriction, on the basis that either the responsible clinician or a Mental Health Review Tribunal would be in a position to impose a community treatment order such as to provide appropriate protection for the appellant, and indeed the community, should he be released from the section 3 order. They further argue that his rehabilitation will be assisted by the fact that leave will be more readily available to him, subject to the views of the responsible clinician, on the basis that the Secretary of State will not have to consent if there is no restriction.
15.
We have considered this material with care and have had the advantage of hearing from both Dr Thorp and Dr Stoddart on a video link expounding their reasons for the conclusion that they have reached. We agree with it and, in the circumstances, the restriction order, considered afresh but still within the powers of this court to make, will be quashed.
16.
It would be inappropriate to leave this case without taking the opportunity to discuss the wider issues involved in the receipt of evidence. Para 2.2 CrimPR defines "live link" as "an arrangement by which a person can see and hear, and be seen and heard by, the court when that person is not in court". While this definition applies not only to the telephone live links that the courts have used over many years, it will also apply to technological innovations such as internet-based live links. It does not, however, cover use on a telephone.
17.
As Sir John Thomas identified, the circumstances in which defendants and witnesses may give evidence in criminal courts by live link, whether as a special measure or otherwise are prescribed by statute. The legislative landscape regarding such links has evolved in a piecemeal manner and is not, as a result, as consistent or comprehensive as it might be. Thus, a court may give a special measures direction under section 24 of the Youth Justice and Criminal Evidence Act 1999 to enable eligible witnesses to give evidence by live link; similarly, if a witness is outside the United Kingdom, leave may be granted pursuant to section 32 of the Criminal Justice Act 1988. Except where eligible for a special measures direction under section 33A of the Youth Justice and Criminal Evidence Act 1999, however, there is no provision in that Act permitting a defendant to give evidence by live link.
18.
The matter more generally is identified by section 51 of the Criminal Justice Act 2003, which provides that a witness may give evidence by live link in certain criminal proceedings where the court is satisfied that this course is in the interests of the efficient administration of justice. The criminal proceedings to which this power applies, as specified in section 51(2) of the 2003 Act, include a summary trial, a trial on indictment, an appeal to the Court of Appeal Criminal Division and a hearing before a Magistrates' Court or the Crown Court which "is held after the defendant has entered a plea of guilty". While the latter definition of criminal proceedings appears to be directed at a
Newton
hearing, it would also apply (most likely by accident rather than design) to circumstances such as those pertaining in the instant case at a sentencing hearing that takes place following a guilty plea where a registered medical practitioner is required to give oral evidence because the court is contemplating the imposition of a restriction order. However, had this appellant been convicted after a trial, live link would not have been available. I say nothing about the position in other circumstances where, by reason of the way in which the legislation is framed, a live link would not be available.
19.
That there are idiosyncrasies in the provision of this important aid to the administration of justice does not, in our judgment, befit a modern system of criminal justice. It does not further the overriding objective to deal with cases justly, including being fair to the parties, recognising the rights of defendants, respecting the interests of victims (and, in this case, witnesses) and progressing cases in a manner that is efficient, expeditious and proportionate.
20.
There are clearly circumstances where it may be in the interests of justice for a court to be able to receive evidence by live link from witnesses and defendants for which the existing statutory provisions do not provide. One potential example is a defendant who wishes to give evidence in relation to a minor road traffic offence alleged to have been committed hundreds of miles from his home. There may even be examples where it may be in the interests of justice for a court to be able to receive material by telephone.
21.
When Parliament first began legislating to prescribe the circumstances in which criminal courts could receive evidence by live link, the requisite technology was in its infancy and the courts were not necessarily equipped with the relevant equipment (or technical knowledge). Times have changed; technology has improved and is continually improving. The courts now regularly receive evidence by live link where the statute permits.
22.
In the circumstances, therefore, it may be that Parliament should consider repealing the provisions of primary legislation relating to live links and provide a general authority to the Criminal Procedure Rules Committee to make rules to determine how and in what circumstances the criminal courts may receive evidence. Rules made by the Committee have the benefit of being formulated by representatives of those that have to use them and may be affected by them. They can also be amended with relative speed (for example, where gaps or unintended lacunas come to light) and in order to make best use of emerging technology. That, however, is a matter for Parliament, but, in our judgment, it is a step which requires very serious consideration.
23.
Having said that, this appeal is allowed and the restriction order quashed.
24.
MR THOMAS: My Lord, I rise with some trepidation. The doctors have specifically asked me to raise as to where their fees are coming from for the last order, the situation being that the court directed them to do the recent reports each of 1 October. They say that in fact the Court of Appeal Office has refused to pay them. The Legal Aid Board never authorised either of the latest reports. I have been telephoned directly on several occasions by the doctors with regard to that, and I said I would raise it.
25.
SIR BRIAN LEVESON, PQBD: There is no justification for either of these doctors doing this work without appropriate remuneration, albeit perhaps at the legal aid rates. We shall direct the Registrar of Criminal Appeals to make the appropriate enquiries in order to ensure that these fees are met in some way.
26.
MR THOMAS: They will be very obliged, and thank you for letting me raise it, my Lord. | ```yaml
citation: '[2015] EWCA Crim 2192'
date: '2015-12-04'
judges:
- SIR BRIAN LEVESON
- MR JUSTICE FOSKETT
- HIS HONOUR JUDGE MOSS QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
2006/03745/C5
Neutral Citation Number:
[2007] EWCA Crim 2797
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 31st October 2007
B E F O R E:
LORD JUSTICE LATHAM
(
Vice-President of the Court of Appeal, Criminal Division
)
- - - - - - - - - - - - -
R E G I N A
-v-
TREVOR ANTHONY HASKAYNE
- - - - - - - - - - - - -
Computer Aided Transcript of the Palantype Notes of
Wordwave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
Mr J Knowles
appeared on behalf of the
Appellant
Mr A Bird
appeared on behalf of the
Crown
- - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE LATHAM: Have you got a copy Mr Bird of your note to me?
2.
MR BIRD: Yes, my Lord. My Lord should also have one from my learned friend as well.
3.
MR KNOWLES: I have a note from him.
4.
MR BIRD: I am sorry, it is my fault.
5.
LORD JUSTICE LATHAM: Do not worry.
6.
Thank you both of you for the notes. I think Mr Knowles that I am not going to be able to give to you any further information than Mr Bird has indicated. I have thought carefully about it together with my colleagues yesterday, but there are, I am afraid, difficulties if I go further and I am afraid I am going to have to deal with it as suggested by Mr Bird.
7.
At a hearing on 11th October 2007, this court considered the position of disclosure in this case. As a result of the position as seen by this court, the Crown indicated that it no longer sought to resist Mr Haskayne's appeal against conviction. The consequence was that we adjourned the matter from that date in order to give both sides an opportunity to consider the form of any judgment which this court considered appropriate in disposing of the reference.
8.
We have had notes from both the respondents and the appellant, and having considered those notes we propose to say as follows.
9.
Mr Haskayne was convicted on 21st December 1995 at the Maidstone Crown Court, before His Honour Judge Simpson and a jury, of two counts of being knowingly concerned in the importation of drugs on 4th December 1994. The drugs consisted of 107 kilograms of ecstasy and 3.5 kilograms of amphetamine. The street value was about £6 million.
10.
They had been transported in five holdalls aboard a coach from the Continent to the United Kingdom, which had been chartered by Mr Haskayne's company, Montravel. Mr Haskayne was acting as the tour leader on the coach and a co-defendant, Moore, was a passenger. At the trial he pleaded guilty.
11.
After conviction, Mr Haskayne was sentenced to 18 years' imprisonment. He appealed against both conviction and sentence. On 14th February 1997 the full court refused leave to appeal against conviction. On 26th March 1997 his appeal against sentence was dismissed.
12.
On 25th July 2006 the Criminal Cases Review Commission referred the conviction back to this court. By then Mr Haskayne had been released from custody.
13.
The reasons for the referral were not provided to Mr Haskayne but were contained in the confidential annex to the Commission's statement of reasons, which was provided to the court and to the Crown. In an open note of 30th October 2006, the Crown was able to tell Mr Haskayne of the Commission's concern that:
"There was a failure by the prosecution in respect of its disclosure obligations in the context of submissions made by the prosecution to the trial judge in the course of
ex parte
hearings. The Commission considers that this failure meant that the judge was not given access to material that might have assisted Mr Haskayne's defence."
14.
The
ex parte
hearings referred to took place on 23rd November 1995. The Commission, the Crown and the court have all tried to obtain a tape or transcript of the
ex parte
hearings, but none has been located. What happened at and in the run-up to those hearings has had to be reconstructed from available documents, but largely also from the memories, often imperfect, of those involved.
15.
On 31st October 2006 the Court of Appeal invited the Attorney-General to appoint special counsel who was to have access to all the material, including sensitive material that was still available. Mr Penny was appointed, considered the material and provided written submissions to the court on 4th October 2007.
16.
Having considered the material now available, in the light of the special counsel's submissions and the preliminary observations of the court at the ex parte hearing on 11th October 2007, the Crown then announced that it had decided no longer to resist the appeal and that it conceded the conviction was unsafe. The reasons for this decision cannot be given in detail due to the sensitivity of the material concerned. The court and special counsel are aware both of the nature and the content of that material, but Mr Haskayne is not. What this court can say, however, is that the material related to a significant part of the Crown's case at the hearing and was clearly relevant to the way in which the prosecution put the case, both to Mr Haskayne and to the jury.
17.
There is no doubt that had that material been made available to counsel at the time of the trial, it is inconceivable that it would not have been disclosed to the judge, and inconceivable that counsel would have put the case to the jury in the way that he did. The Crown have openly conceded that there was a failure accordingly of disclosure not simply to the court, but to those who were appearing for the prosecution at the time. We think that that should be made abundantly plain. In other words, no criticism can properly be made either of the counsel at the trial or the judge. But the position is clearly such that since that material related to a clear basis upon which the prosecution put the case to the jury, the verdict could not have been safe. It was on that basis that the Crown conceded the matter as it did on the last occasion.
18.
Accordingly, we quash the conviction.
19.
To that extent, Mr Knowles, we have been able to help you, but it is only a little bit I know.
20.
MR KNOWLES: I am grateful.
21.
JUDGE MOSS: Mr Bird, you are content with that?
22.
MR BIRD: Yes.
23.
LORD JUSTICE LATHAM: I thought it was important that we should make it abundantly plain that it was not the fault of those counsel who were concerned in relation to disclosure at the time of the original hearing.
24.
MR BIRD: My Lord, from our point of view, my Lord knows from the earlier note to the court, we were unable to come to a firm conclusion as to precisely what happened, but (
inaudible
). | ```yaml
citation: '[2007] EWCA Crim 2797'
date: '2007-10-31'
judges:
- LORD JUSTICE LATHAM
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2010] EWCA Crim 762
Case No:
201000534 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
MR JUSTICE MACKAY
T2008/7296
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/04/2010
Before :
LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE MCCOMBE
and
MRS JUSTICE SHARP DBE
- - - - - - - - - - - - - - - - - - - - -
Between :
The Queen
Appellant
- and -
AY
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr M Hill QC and Miss A Morgan
(instructed by
Crown Prosecution Service
)
for the
Appellant
Mr Henry Blaxland QC and Mr R Menon
(instructed by
Birnberg Peirce
) for the
Respondent
Hearing dates : Tuesday 30
th
March 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes :
1.
This has been an interlocutory appeal brought by the Crown under
section 35 Criminal Procedure and Investigations Act 1996
against a ruling of law made by the trial judge at a preparatory hearing. The issue relates to the ambit of the defence of reasonable excuse provided by
section 58(3) Terrorism Act 2000
to the offence of possessing a document or record containing information likely to be useful to a person committing or preparing an act of terrorism (s 58(1)).
2.
The defendant faces re-trial on four such counts. The re-trial arises because the jury was unable to agree verdicts on these counts at the first trial. Since this will be a re-trial the issues are known more accurately than would normally be the case in advance of a first trial.
3.
The ingredients of the offence are to be found in
section 58(1)
. Subject to the defence of reasonable excuse they are: (a) the defendant is in possession of a document or record which is (objectively judged) likely to be of practical use to a person committing or preparing an act of terrorism, rather than of general use to any person, (b) he knows he has the document or record and (c) he knows the nature (but not necessarily every detail) of the information contained in it. Those propositions derive from
R v G & J
[2009] UKHL 13
especially at paragraphs 43-50. They were common ground before us.
4.
In this case none of those ingredients was in issue at the first trial nor is it anticipated that any will be in issue at the second. The documents in his possession were (i) “The Mujahideen Terrorist Handbook”, (ii) “The Mujahideen Explosives Handbook”, (iii) a video of instructions on the making of a ball-bearing suicide vest and (iv) a video of instructions on the making of improvised explosive devices. Those are plainly objectively likely to be of practical assistance to a person committing or preparing an act of terrorism, and that is not disputed. Nor is it disputed that the defendant knew the nature of what he had got. It follows that it is common ground that he is guilty of the offences charged unless he can avail himself of the statutory defence of reasonable excuse provided by
section 58(3)
. The terms of
section 58(3)
are simple and unparticularised:
“(3) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.”
By section 118 of the Act, if the defendant adduces evidence of this defence sufficient to raise the issue, it is to be treated as established unless disproved by the Crown beyond reasonable doubt.
5.
The core facts relied on by the defendant for that statutory defence are also known from the first trial and there is no suggestion that they will be different at the re-trial. In a helpful skeleton argument Mr Blaxland QC set them out on his behalf for the trial judge. They are four in number:
a)
He downloaded the material when in Sweden where possession of it was not unlawful;
b)
He downloaded it en masse from internet websites without distinguishing between different files and documents;
c)
He downloaded it at a time when he believed on reasonable grounds that the Somali people, and in particular those associated with the Islamic Courts Union (‘ICU’) in Somalia had been the victims of the use of unlawful and disproportionate force and were in need of assistance by way of the use of armed force. He considered that the information which he downloaded from the internet could potentially be of use for the purpose of resisting the unlawful invasion and occupation;
d)
At the time of his arrest in the UK he no longer had any intention to put the information which he had collected to use.
No doubt in his closing speech to the jury at the first trial Mr Blaxland either elaborated upon or broke down the suggested core elements of that defence a little further on the footing of the evidence which the defendant had actually given. According to a note taken by the Crown he added :
e)
The original downloading took place at a “hugely emotional time” in Somalia;
f)
The material was readily available on the internet;
g)
The material was unlikely to have been of any practical value;
h)
The volume of it showed that the exercise was indiscriminate;
i)
There was no evidence that the defendant actually sent any of the material to Somalia
j)
The military wing of the ICU, Al Shabaab, was not at any material time a proscribed organisation.
6.
In advance of the re-trial the judge was invited by the Crown to rule that a part of that defence could not in law give rise to the defence of reasonable excuse, even if not disproved. The judge declined to do so. The Crown challenges that ruling by this appeal.
7.
The part of the putative defence on which the Crown’s application focussed both before the judge and here has been element (c), namely that the defendant’s reason for possessing the documents was, at least in the past, that the information contained in them should be deployed by Somali muslims in self defence against opposing forces. It follows that the only issue formally before this court is whether suggested element (c), an alleged intended use for the lawful defence of others, or to assist them to employ lawful self defence, is or is not capable of amounting to reasonable excuse within s 58(3). We will return to some limited observations on some of the other suggested elements at the end of this judgment, but they were not part of the judge’s ruling and accordingly no decision upon them is open to us.
8.
There was a large measure of agreement at the first trial on the state of affairs in Somalia. We summarise gratefully from the way the judge set it out in his ruling. The last Government of any duration fell in 1991. That is when the defendant left for Europe. Since then he had been back on visits in 2004 and 2006. The evidence was that since 1991 Somalia has been a failed State, torn by anarchy and fought over by warlords and different interest groups. A form of Government emerged in about 2004, called the TFG, but it has barely been in control of any part of the country beyond a portion of the capital, Mogadishu. The principal opposition in recent years has been the Islamic group known as the ICU, with its military wing Al Shabaab. This group seized brief control of much of the country in 2006 but a combination of the TFG and a large force of Ethiopian military, to which the TFG allied itself, forced the ICU into exile, where it has split into two wings which quarrel with each other.
9.
The Defendant’s case is thus that he was a supporter of the ICU and that the information charged was collected and originally held by him with a view to supplying it to the ICU for use against the TFG and the invading Ethiopians. He would characterise that as use by what he would term ‘the resistance’ as defence against what he would term the unlawful force of invaders.
10.
At the first trial the indictment contained not only the four counts which now remain but also two further counts. There was a charge against this defendant and a co-accused of dissemination of terrorist material via a web forum and a second charge against them both of fund raising for terrorism. Neither of those counts now remain. The judge ruled that there was no case for this defendant to answer on the fund raising charge. The jury acquitted both defendants of the dissemination charge and the co-accused of the fund raising charge. It follows, therefore, that at the first trial the judge had to direct the jury in relation to those two charges as well as the four which now remain. The issue of lawful self defence arose on those two charges also.
11.
The judge gave the jury a carefully formulated written direction which had been the subject of no little discussion between Bench and Bar and which was agreed on all sides. It included a direction as to the general law of self defence. Then, in relation to the four charges under
section 58
the jury was directed that it should approach the issue of reasonable excuse in this way. First it should consider whether the defendant’s explanation was or might be true. If yes, it should decide whether or not in its view it amounted to a reasonable excuse for possession of the documents. En route to that second decision, it should consider whether what the defendant contemplated as the use of the information contained in the documents was or might have been activity which was
solely
defensive. If the jury came to that conclusion, it was open to it to treat that as a reasonable excuse, although it was not bound to do so. It is to be observed that the judge did not direct the jury that if the contemplated use of the information in the documents was solely defensive, it followed necessarily that that amounted to a reasonable excuse. Whether it did so or not remained a question for the jury’s judgment. Thereafter the judge went on to remind the jury of the rival arguments about the contemplated use of the material, for example reminding them of the defendant’s case about events in Somalia and of the question whether a suicide vest had a defensive use.
12.
However, in advance of the re-trial, the Crown, having reflected on the position, and because now only the four
section 58
counts remained, invited the judge to rule that this direction had been wrong. It contended that there should not be left for the jury’s consideration the possibility that, if the defendant contemplated solely defensive use of the material, that was capable of amounting to a reasonable excuse within
section 58(3)
. Although the indictment now contained only the four
section 58
counts, the Crown’s application represented a change of position from that which it had adopted at the first trial.
13.
Mr Blaxland’s written, although not his oral, submissions to us repeated the argument made to the judge that it was not open to the Crown thus to alter its stance. The judge held that it was. He remarked at paragraph 5 of his ruling:
“It may be an inelegant way to have proceeded but the fact is that if Mr Hill’s present application is right the first jury was misdirected as to a crucially important issue of law and that error should not be repeated in the re-trial. ”
We agree.
14.
It is important to note what the Crown does
not
contend. It does not, at least in this case, contend that self defence can never be a relevant issue in a trial on terrorist charges. It accepted in the first trial that self defence arose, not only on the
section 58
charges, but also on the two counts now no longer to be tried. Before us it has not been argued that an act of terrorism is committed even if the sole content of the act was reasonable self defence. An act of terrorism is defined in
section 1 of the Terrorism Act 2000
. It is not necessary to examine the details of the definition, but it includes the use or threat of serious violence to the person when done for the purpose of advancing a political religious or ideological cause and designed to influence a government or intimidate the public. When explosives or firearms are involved such behaviour is an act of terrorism whether or not designed to influence a government or intimidate the public. In
R v Rowe
[2007] EWCA Crim 635
;
[2007] QB 975
it was assumed by the parties, and also by the court, that if the
sole
content of an act was self defence that was lawful and not an act of terrorism (see paragraph 40). The point was not argued and may or may not be open for argument. The court in
Rowe
adverted to the possibility that it had been put in doubt by
R v F
[2007] EWCA Crim 243
, but although that latter case contained potentially relevant observations on the illegitimacy of the use of force to serve one’s own or another’s perceived view of the public interest (see paragraphs 36 and 39), it was a case concerned with what was unarguably
offensive
purpose and not with a contention that there was a purpose confined solely to lawful
defence
. On the other hand, the debate in
Rowe
as to whether the trial judge’s summing up was or was not sufficient would have been unnecessary if the activity contemplated would have been an act of terrorism even if solely committed in reasonable self defence. Accordingly, since the point was not argued before us, we say nothing at all about whether the availability of self defence in the context of terrorist offences is arguable or not.
15.
The Crown’s argument here is, however, that self defence cannot arise in a
section 58
case. As developed before us by Mr Hill QC, the argument fell into two parts:
(a)
it was an error of principle to permit the purpose for which the defendant held the material to be relevant to the issue of reasonable excuse; purpose is relevant to the
section 57
offence, but not to the
section 58
offence; alternatively
(b)
a defendant cannot rely under
section 58(3)
upon any proposed deployment in combat or, as it was put, ‘in the field’, of the information contained in the material which is in his possession; the concept of reasonable excuse is limited to the circumstances in which he is in possession of the material and does not extend to active use in the field which he intends to make of the information contained in it.
For convenience we will refer to these two arguments as the ‘purpose’ and the ‘deployment’ arguments.
16.
Central to both arguments is an analysis of the difference between the offences created by
sections 57
and
58
. The relationship between these two sections has been scrupulously analysed by the House of Lords in
R v G & J
. Neither party here suggested any qualification of the analysis there undertaken, which is in any event binding upon us. We have no need accordingly to attempt to summarise or paraphrase it. But we accept that one essential difference between the two sections is that the ingredients of the
section 57
offence involve some consideration of the purpose of the defendant, whilst the ingredients of the
section 58
offence, absent consideration of reasonable excuse, do not. As Lord Rodger said in
G & J
at paragraph 58,
“So, while
section 57
focuses on the circumstances of the defendant’s possession of the article,
section 58
focuses on the nature of the information which the defendant collects, records or possesses. Subject to the defence in
section 58(3)
the circumstances in which the defendant did these things are irrelevant. So, unless it amounts to a reasonable excuse under subsection (3), his purpose in doing them is irrelevant. In particular there is nothing in the terms of
section 58(1)
which requires the Crown to show that the defendant had a terrorist purpose for doing what he did.”
17.
From this the Crown proceeds to argue that it cannot be the law that the purpose of the defendant, being absent from the ingredients of the
section 58
offence as set out in
section 58(1)
, can be re-introduced into that offence via the concept of reasonable excuse under
section 58(3)
. We are unable to see that that follows. What
section 58(3)
does is to furnish a defendant with the opportunity to say that he had an explanation for possessing the material which he asks the jury to say was objectively a reasonable one. It necessarily focuses upon his
reason
for possessing the material. His reason for possessing it will in most if not all cases involve saying what he had it for, and thus what his purpose was in possessing it. If he says that he is a bona fide research student sponsored by Chatham House and intending to use the documents to write a thesis on insurgency and guerrilla warfare, he is giving evidence of his purpose in possessing the documents. If he is a bomb disposal expert who says that he is intending to look at various forms of improvised explosive devices in order to instruct soldiers or civilians in how to neutralise them, and has the documents for that reason, he is likewise giving evidence of his purpose in possessing them. Indeed even the hypothetical railway passenger, postulated in
G & J
at paragraph 81, who says that he found the documents on the train and, having read them and discovered their contents, was on his way to hand them in at a police station, is, as it seems to us, giving evidence of his purpose in having taken them into his possession.
18.
That conclusion is supported by the reasoning of their Lordships in
G & J
. The words of paragraph 58, which we have quoted above at our paragraph 15, make this clear. We draw attention to the words:
“
Subject to the defence in
section 58
, the circumstances in which the defendant did these things are irrelevant. So,
unless it amounts to a reasonable excuse under subsection (3)
his purpose in doing them is irrelevant.”
The emphasis is ours. But the underlined words demonstrate that the purpose may well be part of the excuse which the defendant advances and which he asks the jury to say is reasonable.
19.
The Crown supported the purpose argument before us by a supplemental contention. It was said that if the defendant, or at least
this
defendant, is permitted to give evidence that his purpose was the solely defensive use of the information in the documents, that would have the effect of imposing on the Crown the obligation of proving that he had the purpose (ie intended) to enable the commission of an act of terrorism. That is not and cannot be the law, says Mr Hill, because
section 58
has very clearly created an offence which does not depend on proof of any such purpose or intention. Rather it strikes at the logically prior stage of collection or possession of information which, objectively judged and thus independently of the defendant’s intention,
might
be of use to a terrorist, whether or not any act of terrorism is contemplated, or ever occurs.
20.
Mr Hill rightly recognises that it cannot be said that this will always be the effect if a defendant gives evidence of what he asserts is a reasonable excuse for possession of such material. He must make that concession in the light of the analysis in
G & J
. As Lord Rodger said at paragraphs 67 and 68, what the Crown must do to destroy the defence of reasonable excuse is merely to disprove the explanation advanced; it does not have to go on to prove what the defendant’s reason for possessing the information was. Or, we would add, the Crown may destroy the defence by demonstrating to the satisfaction of the jury that even if the defendant’s explanation is true, it is not a reasonable excuse for possessing material of the kind in question. That is enough to dispose of the supplemental argument. But we do not agree that even in the present case the Crown will be put to the necessity to prove a terrorist intent on the part of the defendant if element (c) of his proposed defence is before the jury. It may of course choose to seek to do so – that will depend on the evidence in favour of such a suggestion at its disposal, and we do not know what that is. But it need not do so. It can perfectly properly counter element (c), if it wishes to do so, in other ways. There are, as it seems to us, a number of potential such ways, and those we mention are not necessarily exhaustive. (1) The Crown might demonstrate, if the evidence is available, that the proffered explanation of association with the ICU is simply untrue. (2) It might contend that the contemplated use asserted by the defendant is incapable of being
solely
defensive, because it amounts to use in support of one side in a civil war, and that whether that side is the “better” or more respectable side is irrelevant, because what a combat group in a civil war does is inevitably not simply defensive, but is a mixture of defensive and offensive operations, as is possibly illustrated by the inclusion in the information of the method for constructing improvised explosive devices and a suicide vest. (3) It might contend that even if the explanation is true and even if the intended use is solely defensive, it is nevertheless not reasonable to put such methods into further circulation, with the consequences which might follow for the population of any area where they are used.
21.
Accordingly we reject the purpose argument as inconsistent with the nature of the concept of reasonable excuse. A defendant must be allowed to say what his purpose was in possessing the documents in order to submit for the jury’s consideration his assertion that that purpose was an objectively reasonable one. The only exception is where his purpose, and thus his excuse, is one which no jury could find reasonable, as for example the excuse offered by the defendant G in
G &
J (see below).
22.
The deployment argument is a refinement of the purpose argument. Mr Hill contends that even if, contrary to his first purpose argument, the defendant’s purpose may sometimes enter into consideration of reasonable excuse, it can never be reasonable to possess information of the kind covered by
section 58
with a view to deployment “in the field”. He adds that the present case involves information about firearms and explosives and is accordingly at the more serious end of the range of information which would be caught by the section. He reminds us that the use of firearms and explosives to occasion or threaten serious violence to the person is categorised as a terrorist act even if not aimed at influencing a government (see paragraph 14 above).
23.
We do not doubt Mr Hill’s general proposition that the more alarming or dangerous the information in the document or record, the more difficult it is likely to be to advance a reasonable excuse for possession of it. But it does not follow that there can never be a reasonable excuse for its use. We are unable to see any basis in the statute for limiting the scope of the defence of reasonable excuse in this way. Nor would it be consistent with
G & J
to do so. Their Lordships were at pains to reject (at paragraph 81) the Crown submission in that case that the defence should be confined narrowly to cases such as possession with a view to handing over to the police or accidental possession. They said:
“So it is impossible to envisage everything that could amount to a reasonable excuse for doing what [
section 58
] prohibits. Ultimately, in this middle range of cases, whether or not the excuse is reasonable has to be determined in the light of the particular facts and circumstances of the individual case. Unless the judge is satisfied that no reasonable jury could regard the defendant’s excuse as reasonable, the judge must leave the matter for the jury to decide.”
24.
Nor can we see how the proposed deployment test could be practicable. The bomb disposal expert who proposes to use the information in instructing combatants, or indeed civilians, in counter-measures against the devices explained in the documents would, so it would appear, be deploying it in the field. We are unable to accept Mr Hill’s further submission that the statute can be read as permitting the advancement of an officially authorised use in the field, but not an unauthorised one. That would involve extensively re-writing the statute. The presence or absence of authority would certainly be of the greatest relevance if the jury were to be concerned with adjudicating upon the reasonableness of the possession of
section 58
information by a soldier or policeman, but that is quite different from construing the statute as if it included limiting conditions for the defence which have plainly not been written into it. Accordingly we are satisfied that the refined purpose argument, namely the deployment argument, must similarly be rejected.
25.
We accept the proposition, inherent in
G & J
, that a defence of reasonable excuse advanced under
section 58(3)
must be left to the jury unless it is quite plain that it is incapable of being held by any jury to be reasonable. That there are indeed cases where the defence could not be left to the jury is demonstrated by
G & J
itself, in the case of the defendant G, whose assertion that he wished to unnerve or ‘wind up’ prison officers was held to fall into this category. But the case must be a clear one. The concept of ‘reasonable excuse’ is par excellence a concept for decision by the jury on the individual facts of each case. Although to rule out a particular excuse would not amount to the forbidden process of directing a jury to convict (see
R v Wang
[2005] UKHL 9
;
[2005] 1 WLR 661
), a judge must be cautious not so to rule unless satisfied that the proffered excuse is incapable in law of being held to be a reasonable one. He cannot substitute his own view of the prospects of a jury accepting the reasonableness of the explanation; he can only withdraw the defence if as a matter of law no jury could accept it. It is helpful in such circumstances to remember the way the point was put by Auld LJ in
R v Nicholson
[2006] EWCA Crim 1518
at paragraph 9:
“There is clear authority, as Mance LJ (as he then was) recently noted in
Quayle
[2006] 1 All ER 988
at 1000E-H, that if an issue is suggested based on proposed evidence that cannot possibly constitute any defence in law, a trial judge is entitled to rule that he will not leave that issue to the jury. If, however, on the facts advanced or to be advanced by the defence, a jury could find them to support an evidential issue raised by the defence, particularly one involving a value judgment such as that of reasonable excuse, then he should leave it to the jury. ”
26.
The reality is that element (c) of this defendant’s proposed defence can be removed from the consideration of the jury only if it is incapable of being held by the jury to be a reasonable excuse. Since the Crown accepts that self defence may be relevant in the case of an act which would be within the definition of an act of terrorism or in that of a terrorist offence, the proposed element of the defence could not be withdrawn only on the ground that it involved the proposition that the information might be used “in the field”.
27.
We agree that it could turn out that the excuse offered is simply incapable of being one which is confined to
solely defensive
activity. It may very well be that in some cases the evidence shows no more than that a defendant is claiming to characterise as self defence something which is necessarily activity of mixed defensive and offensive behaviour. It may very well be that in some cases his characterisation of his purpose as defensive is, on inspection, no more than an assertion that the faction in civil strife which he supports is deserving of sympathy and support, but still is engaged in activity which must be thus mixed. Being on the ‘right’ side (even if that were not a matter of competing opinion) is not necessarily the same as acting solely in defence. Depending on the way the evidence emerges, it may be that the defence will not, in law, be available, or it may be that it will be necessary to direct the jury that it is not its function to adjudicate upon the rights and wrongs of international or internecine strife. But none of this was the basis on which the judge was asked to rule this defence out of court, and an interlocutory appeal where we do not have a full analysis of the evidence is not a procedure in which an appellate court should go beyond the point on which he did rule.
28.
We make it clear that the judge was only asked to rule upon the legitimacy of element (c) of the defendant’s proposed defence. Since that was the limit of his ruling, we are in no position to go outside that element. Accordingly we are not making any ruling upon the various other elements listed in paragraph 5 above. We have not seen or heard the evidence, nor is it entirely clear whether or not it is accepted that the additional features (e) to (j) were advanced for the defence in quite the way remembered by the Crown. Most of them would appear to us to be (probably understandable) advocate’s colour given to the four core elements at (a) to (d). Feature (g) might on its face go well beyond that and be inconsistent with the acceptance that the material was of a kind objectively likely to be useful to a terrorist; we were, however, told that it was agreed by the defendant that the ingredients of the offence required by
section 58(1)
, as explained in
R v G & J
, were all made out, so either it was not put quite as remembered or if repeated it would involve Mr Blaxland being asked to explain which stance was being adopted. Features (h) and (i) likewise look prima facie barely consistent with core element (c) and with acceptance that the defendant knew the nature of what he had got. Feature (j) was no doubt simply a reminder that the defendant was not to be convicted on a quite different basis, but appears otherwise irrelevant. Of the core elements, however, we observe that (d) may be important. Whilst the defendant is no doubt entitled for the reasons we have given to explain why and how he came into possession of the material, what is charged is possession on the date of his arrest. If indeed it is his case that by then he had some time previously abandoned any intention to put the material to the allegedly defensive use contended for, the issue for the jury will be whether he nevertheless had a reasonable excuse for continuing to possess it on that date. Such considerations as these, however, formed no part of the pre-evidence argument before the judge and must await the realities of the re-trial.
29.
For the reasons given, we are satisfied that the judge was right, and that this appeal by the Crown, for which we give leave, must be dismissed. | ```yaml
citation: '[2010] EWCA Crim 762'
date: '2010-04-27'
judges:
- LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
- MRS JUSTICE SHARP DBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200404924/A1
Neutral Citation Number:
[2005] EWCA Crim 132
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Thursday, 20th January 2005
B E F O R E:
LORD JUSTICE AULD
MR JUSTICE BEATSON
MR JUSTICE WAKERLEY
- - - - - - -
R E G I N A
-v-
ESB HOTELS LIMITED
- - - - - - -
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 HILTON
appeared on behalf of the APPELLANT
MR M COPELAND
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
Mr Justice Beatson: On 27th May 2004 at the Bolton Magistrates' Court the appellant company pleaded guilty to two counts of contravening the requirements of a fire certificate contrary to
section 4
of the
Fire Precautions Act 1971
. The company was committed to the Crown Court for sentence and on 19th July 2004 at the Crown Court at Bolton His Honour Judge Hope sentenced it as follows: on the first count to a fine of £300,000; and on the second count to a fine of £100,000. The company was also ordered to pay £11,000 towards the prosecution costs.
2.
The company appeals against sentence by leave of the single judge.
3.
The appellant company, a wholly owned subsidiary of Queen's Moat Houses plc, is the occupier of the Bolton Moat House Hotel, a modern seven-storey hotel built in 1990. The sleeping accommodation is on four of the floors. The prosecution arose out of a serious fire at the hotel notified to the fire service by a 999 telephone call at just after half past mid-night on Tuesday 24th April 2001. The source of the fire was seen to be the third floor with smoke coming from the third floor windows as the fire brigade arrived. When fire fighters entered the building, they were presented with intense heat and thick smoke from a fire in the third floor corridor. They required breathing apparatus to tackle it and carry out a search.
4.
The first fire fighter on the scene had to go in on his stomach and to crawl because of the heat. The very thick smoke meant there was no visibility. He came across the bodies of two elderly guests who had been staying in room 310. The occupant of another room was found in a distressed state but was uninjured. Five other people occupying rooms on the third floor successfully escaped down the corridor.
5.
An investigation found that three upright beds placed in the corridor between rooms 310 and 312 had been set alight by an employee of the hotel who was subsequently convicted of manslaughter and is serving a term of life imprisonment.
6.
The hotel premises had, as they were required to, to have a fire certificate issued by the relevant fire authority. This certificate, issued on 11th June 1993, set out the fire precautions the occupier had to take to ensure as much as possible the safety of those using the premises. The certificate detailed the means for securing routes of escape that could safely and effectively be used at all times. Specified means of escape shown on a plan were required to be kept free from obstruction and from storage of combustibles.
7.
Following the fire, the forensic science service reported that the beds in the corridor were combustible and, due to poor housekeeping procedures, they had remained inappropriately placed in the corridor for a prolonged period of time and provided the opportunity for the fire to be set. The evidence was that the beds had been placed in the corridor on the morning of 23rd April; that is, as the sentencing judge found, probably some 12 to 15 hours before the fire was started. These events gave rise to the first offence.
8.
The second offence was not directly related to the fire. It concerned a mattress that at the time of the fire was being stored on the first floor of the hotel. The agreed statement of facts states that this showed that the placing of beds in the third floor corridor was not an isolated incident and that the potential for further injuries or further fatalities was thereby increased.
9.
As well as the report from the forensic fire service, the Greater Manchester Fire Authority investigated the circumstances surrounding the fire. As a result of their investigation the authority had serious concerns about the fire precautions. The personnel and training officer at the hotel, while aware of the existence of a fire certificate, was not aware of the specific information it contained. A risk assessment had been carried out at the hotel in February 2001. This identified that the storing of combustible material, namely mattresses and bunk beds, in the service shaft was a problem at the hotel. It is agreed (see the statement of agreed facts) that this should have alerted the appellant to the fact that the storage of combustible items such as beds in accessible areas would present a potential fire and smoke hazard. Although not contained in the agreed facts, in his sentencing remarks the learned judge stated that the assessor said he drew this to the attention of a member of the hotel staff at the time. It is an agreed fact that a copy of the risk assessment was not available at the hotel immediately after the fire.
10.
It was apparent as a result of the investigation that staff had a mixed understanding that beds and mattresses were potential fire hazards. Some thought that the main reason they needed to be removed was to prevent tripping and obstruction. There was no evidence of formal training regarding the removal of temporary beds. It was passed to staff by word of mouth. It is also agreed that the fire and health and safety training given to managers in respect of the removal and storage of beds was ineffective and hand over procedures to staff coming on duty in respect of this were inadequate. Staff were unclear as to who was responsible for the removal of temporary beds and there was no clear monitor of company policy.
11.
It is agreed that as a result of these failings the appellant failed to uphold a fundamental principle of fire safety by breaching the unequivocal requirements of the certificate not to store combustible material in corridors. It is also agreed that the risks of storing combustible obstructions in the designated means of escape were foreseeable and the danger obvious. Not only were the defendants' employees and fire fighters put at risk, but members of the public were also put at risk. In this case this resulted in the death of the two elderly guests.
12.
In his sentencing remarks the learned judge stated that the fire was started by an employee who had been asked to remove the beds but instead had set fire to them. The beds should never have been stored in the corridor. The fact that a mattress was found in another corridor illustrated that the placing of beds in corridors was not an isolated incident.
13.
The learned judge considered the decisions in
F Howe and Sons Engineers
[1999] 2 Cr App R(S) 37, and
Colthorp Board Mills Limited
[2002] 2 Cr App R(S) 80 at 359. With regard to the degree to which the company had fallen short of the appropriate standard in failing to meet the reasonably practicable test, a factor that
Howe's
case states should be taken into account, the learned judge stated that here substantially sized combustible items were left in corridors when they could easily have been removed with proper organisation if fire safety had been given the highest priority as it should have been.
14.
Referring to the statement in
Howe's
case that the death of a individual is generally to be regarded as an aggravating factor and the penalty should reflect the public disquiet at the unnecessary loss of life, he stated that here two people were killed and six others put in a position of serious danger. In considering the degree of risk, and the extent of the danger, the judge again referred to the fact that the beds were substantial combustible objects. Some of them had been placed upright which allowed the fire to spread rapidly and with intense heat.
15.
He referred to the fact that the compnay had failed to heed a warning contained in the February 2001 risk assessment about beds as combustibles being stored in an inappropriate place. The failure to heed a warning is one of the aggravating factors mentioned by this Court in
Howe's
case.
16.
The learned judge stated that all three of the mitigating factors set out in
Howe's
case applied in this case. There was prompt admission of responsibility, a timely plea of guilty and the company had a good safety record before this incident. The fire assessment report following the fire stated:
"Generally the fire safety arrangements and conditions at the Bolton Moat House are of a good standard and we also note that the site management takes a responsible attitude to fire and safety management at the property."
Steps had been taken after the fire to remedy the deficiencies which had been drawn to the appellant's attention, in particular checks of the hotel, and in particular corridors and fire escapes, were being undertaken on a daily basis. The breaches in the present case were not in the judge's view deliberate with a view to profit. The judge also considered, as he was required to do, the defendant's resources and the possible effect of any fine on its business. He stated that although the company had sizeable overheads, it was trading profitably with a gross annual turnover of approximately £4 million.
17.
Mr Hilton, who appeared on behalf of the company before the judge and has appeared before us, had indicated to the judge that the anticipated profits for 2004 were just below £1 million. The learned judge stated that the objective of the prosecution was to achieve a safe environment for all members of the public and employees and that where a defendant was a company the fine needed to be large enough to bring the message home not only to those who managed the company but also to its shareholders.
18.
The ground of appeal is that the fines imposed were manifestly excessive in all the circumstances. Mr Hilton submitted that the level of the fines, individually and cumulatively, reflected a degree of culpability which was not present on the facts of the case. In particular he relied on the fact that it was the night porter, the person sent to remove the beds from the corridor, who deliberately set fire to one of them, a matter which was unforeseeable. Generally the consequences of breach of health and safety legislation flow directly from the neglect of duty. In this case, this was not so.
19.
He submitted that, although not precisely on all fours, this case was closer to the facts of
Cardiff City Transport Services
[2003] 1 Cr App R(S) 141 than other cases in which the consequences of the breach flowed directly from the neglect of duty. He submitted that this brought down the level of culpability and, as in the
Cardiff City Transport Services
case, should have brought down the level of penalty.
20.
Secondly, he submitted that there was undue disparity between the fines in the respect of the two offences. The offences were substantially identical. Indeed, the first offence might have been thought to be less culpable than the second offence, because the appellants were aware of the breach and had taken steps to remedy it. They were not even aware of the breach in respect of the first floor mattress and yet the fine imposed in respect of the first offence was three times that in respect of that imposed for the second offence.
21.
Thirdly, he submitted that the judge failed properly to reflect the appellant's financial position and resources in not considering profit margins and the appellant's net profits before tax when fixing the level of fines. While having regard to the turnover for the current year, he appeared to have taken no account of the increased costs that would fall on the appellants as a result of a change in the terms of their lease, which in 2004 became a full repairing lease.
22.
Mr Hilton also submitted that the learned judge had given no thought to the fact that the fine of £400,000 was substantially in excess of the appellant's pre-tax profits of £240,909 for 2003, although in his submissions before us he accepted that the 2004 position, even with the adjustment for the repairing lease, was likely to be better. No precise figure was given to the judge as to the implications of the lease becoming a repairing lease and Mr Hilton was unable to give a figure to us.
23.
Mr Hilton finally submitted that the judge also erred in aligning the appellant with those defendants guilty of the most serious breaches of health and safety legislation. The unusual facts of this case, he submitted, set it apart from those that have attracted comparative levels of fine in recent years.
24.
We deal, first, with the submissions based on the level of culpability in the present case. Mr Hilton, like the judge, started with the statement in
Howe's
case that it is often helpful to look at how far short of the appropriate standard the defendant fell in failing to meet the reasonably practicable test. The agreed facts state that the risk of storing combustible obstructions in a designated means of escape were foreseeable and the danger obvious. The judge's conclusion that here substantially sized combustible items were left in corridors, when they could easily have been removed with proper organisation had fire safety been given a higher standard, was one he was entitled to reach. It is not altogether clear for how long the appellants had been aware of the obstruction on the third floor corridor before instructing the night porter to remove it. Implicit in the judge's words is the conclusion that leaving substantially sized combustible items in a corridor for a considerable period of time, when they could easily have been removed with proper organisation, meant that the defendant company fell well below short of the appropriate standard.
25.
He was, in our judgment, entitled to reach this conclusion on the basis of the agreed facts and for two further reasons. The first is that the breach that formed the second charge showed this was not an isolated incident. The second is that the result of the risk assessment two months before the fire should have alerted the appellant to the fact that the storage of combustible items, such as beds, in accessible areas would prevent a potential fire and smoke hazard.
26.
The failure to heed the warning in the risk assessment also means that we do not accept the argument in Mr Hilton's written submissions that, other than the fatalities, this case exhibits none of the aggravating features adverted to in
Howe's
case. Failure to heed warnings is the first of the particular aggravating features listed at page 43 of the report.
27.
We turn to the comparison made with the culpability and the level of fine in a number of other cases. Mr Hilton relied on the decisions in
Friskies Pet Care UK Limited
[2000] 2 Cr App R(S) 401,
Colthorp Board Mills
[2002] 2 Cr App R(S) 80, and
Fresha Bakeries Limited
[2003] 1 Cr App R(S) 44. Mr Hilton submits that the facts of
Fresha
and
Friskies
were worse than this and those in
Colthorp
were significantly worse.
28.
In
Friskies Pet Care
the serious and obvious breach of duty which led to a single fatality resulted in a fine of £600,000 which this Court reduced to £250,000. It was stated in that case that fines in excess of £500,000 tended to be reserved for cases where a major public disaster occurred. The Court explained what they had in mind is where the breach has put large numbers of people at risk of serious injury or more: see paragraph 26.
29.
In
Colthorp
the appellant had two previous convictions for breach of health and safety requirements and had only partially carried out a programme of risk assessment required by a health and safety inspector. That part which it had completed had identified a moderate risk of a serious accident likely to result in very grave injuries. The appellant nevertheless did nothing about it. The accident in that case resulted in serious injury but not death. This Court reduced a fine of £350,000 to £200,000.
30.
In
Fresha Bakers Limited
, which like this involved a double fatality, employees were allowed into a commercial oven two hours after it had been switched off rather than either the recommended 12 hour period or the planned eight hours, and without checking the temperature gauge. The gauges would have shown the temperature inside the middle of the oven to be 100 degrees centigrade. This Court considered there was no reason on those facts for holding an overall fine of £350,000, as apportioned between two defendants, related companies, to be manifestly excessive. It regarded the case as a very bad one. The job had not been thought through. No risk assessment had been undertaken. Death or really serious bodily harm was inevitable and two lives had been also lost.
31.
Whilst guidance can certainly be obtained from a comparison of the circumstances of cases care must be taken. Those cases were certainly bad cases. But the argument that they were worse cases than this one does not in our view take account of the fact that in the present case the breach occurred in a hotel. It put large numbers of people at risk of serious injury or more. Given the speed the fire spread, it was fortunate that it did not reach other floors and the guests on those floors. The risk was not only to the appellants' employees, but to the hotel guests, some of whom, like those who were overcome, were elderly and would find it difficult to make their way out of the danger area speedily.
32.
It is important in determining the level of penalty in these cases to take account of the degree of risk and the scope of the risk as well as the culpability relating to the particular breach. The potential for really serious injury to large numbers of people in buildings in which people sleep, whether they be hotels or whether they be residential homes, is considerable. As far as
Colthrop's
case is concerned, we consider it not appropriate to make a close comparison between the level of fine in that case and the present one, notwithstanding the aggravating features of the previous breaches and the failure to do anything as a result of the identification of the risk of very serious injuries, because in that case there had been no fatality.
33.
We turn to the fact that it was the employee, who the night manager sent to remove the beds, who ignited them. In the
Cardiff City Transport Services
the Health and Safety Executive accepted that the fatality was not caused by the defendant's want of care. In the present case there is no similar concession by the prosecuting authority. In
Cardiff City Transport Services
two of the company's employees were engaged in moving buses around a depot in readiness for the next day's work. One parked a bus in an allotted space and ran from it without looking around. The other employee was driving a bus alongside and parallel to the first bus. The second employee's bus knocked the first employee to the ground. He struck his head and died from his injuries shortly afterwards. There had been no specific risk assessment relating to pedestrian and vehicles movements. Such an assessment would have revealed the need for high visibility clothing, the enforcement of a one-way system and a lower speed limit.
34.
It was, however, accepted by the Health and Safety Executive that had these three steps been taken the accident in that case would not have been prevented. This is not such a case. Had the beds had not been in the corridor, the employee would not been sent to remove them and this event, which, from the point of view of the company was an accident, but from the point of view of the employee was a serious criminal act, would not have occurred. The steps that were taken by the company were, moreover, not addressing the breach of system. Thus there had been no instructions to remove the mattress on the first floor. Indeed, the company was not aware that it was there. The changes to the system occurred only after the fire.
35.
Nevertheless, we consider that some account should have been taken by the learned judge of the fact that, albeit in an ad hoc way, steps had been taken by the appellant's night duty manager to remove the beds from the third floor corridor. The judge mentioned that the employee had been instructed to remove the beds, but not that this factor affected the culpability of the appellants. We consider that this factor does reduce their culpability, although to a lesser extent than the lack of causality in the
Cardiff City Transport
case.
36.
We turn to Mr Hilton's submission that it is difficult to discern any rational for the disparity between fines for the two counts in the judge's sentencing remarks. He submitted the offences were substantially identical and arose from the same incident and, as we have noted, that the second was in a sense more serious because no steps had been taken to remedy the breach. We do not agree. The offence arising from the bed on the third floor corridor caused two deaths, which, for the reasons we have given, was a significantly aggravating factor. The learned judge mentioned that death is to be regarded as an aggravating factor. Moreover, the two counts did not arise from the same incident. The second offence, although discovered as a result of the investigations undertaken as a result of the fire, was, as stated in the agreed facts, not directly related to the fire.
37.
Finally, we turn to the appellant's resources. It is not disputed that the appellant's pre-tax operating profits for 2004 were estimated at just under £1 million. Mr Hilton has told us that the judge was informed that the figure did not take into account the expenditure that would fall on the appellant in the light of their new leasing arrangements, but that this was not quantified.
38.
In the cases to which we have referred this Court took into account net profit after tax. The Magistrates' Court Sentencing Guidelines for this type of offence state that when computing penalties the court should look at net turnover. In his sentencing remarks the learned judge only referred to the fact that the company was trading profitably with a gross annual turnover of approximately £4 million pounds. He does not refer to the pre-tax profits of just under £1 million or to any reduction from that figure to reflect the new leasing arrangements.
39.
Howe's
case requires courts to take into account the resources of the defendant in determining the level of fine and the effect of the fine on their business. It is important that the court has regard to the pre-tax profits rather than the gross turnover. We consider the judge's omission to have regard to the pre-tax profits of the appellant meant he gave inadequate weight to its financial position in determining the level of the penalty.
40.
In the light of the fact that the appellant had taken steps to address the breach in relation to the third floor, which steps were disastrously frustrated by the criminal act of its employee, and the failure of the judge to take into account the information as to the pre-tax profits of the appellant for the relevant year, we have concluded that the amount of fines was too large. We have concluded that for the first offence the fine should be £175,000, and for the second offence the fine should be £75,000. We therefore set aside the fines imposed and substitute fines of those amounts. To that extent this appeal is allowed.
41.
LORD JUSTICE AULD: Mr Hilton and Mr Copeland, we are grateful to you for your submissions.
42.
MR HILTON: Would you consider a defendant's cost order in the light of this matter?
(
Pause
)
43.
LORD JUSTICE AULD: Yes, there should be a defendant's costs order. We are grateful to you both for your assistance. | ```yaml
citation: '[2005] EWCA Crim 132'
date: '2005-01-20'
judges:
- LORD JUSTICE AULD
- MR JUSTICE BEATSON
- MR JUSTICE WAKERLEY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| 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. | ```yaml
citation: '[2011] EWCA Crim 1174'
date: '2011-05-16'
judges:
- LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
- MR JUSTICE CRANSTON
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No: 201704208 A4
Neutral Citation Number:
[2017] EWCA Crim 2464
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 14 November 2017
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE GOSS
and
HER HONOUR JUDGE WALDEN-SMITH
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - -
R E G I N A
v
THOMAS ANTHONY CORLETT
- - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes
of WordWave International Ltd trading as DTI,
165 Street London EC4A 2DY,
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - -
Mr P Jarvis
appeared on behalf of the
Prosecution
Mr SPW Christie
appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - -
J U D G M E N T
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (
Sexual Offences (Amendment) Act 1992
), or where an order has been made in relation to a young person.
LORD JUSTICE SIMON:
1. The Attorney General seeks leave to refer sentences passed on the offender, now aged 27, at the Crown Court of Bolton on 25 August 2017 under
section 36
of the
Criminal Justice Act 1988
as being unduly lenient.
2. At a plea and trial preparation hearing on 25 January 2017 the offender was arraigned on indictment T20160442. He pleaded not guilty to charges of perverting the course of justice, witness intimidation, dangerous driving, handling stolen goods and making threats to kill. He pleaded guilty to a single offence of criminal damage and the case was then put over for trial on the remaining charges.
3. At a further plea and trial preparation hearing on 26 January the offender was arraigned on indictment T20160441 which contained a single count of handling stolen goods.
4. On 6 June, the first day of the trial, the prosecution obtained leave to add three counts to indictment T20160442: Count 1, assault occasioning actual bodily harm, Count 2, possession of a firearm with intent to cause fear of violence and Count 9, putting a person in fear of violence by harassment.
5. The offender was then arraigned on these charges and re-arraigned on some of the other counts to which he had pleaded not guilty in January. He entered the following pleas: Count 1, assault occasioning actual bodily harm, contrary to
section 47
of
the Offences Against the Person Act 1861
, the particulars being that on 11 December 2016 he assaulted Charlotte McGinty (‘the victim’) thereby occasioning her actual bodily harm. Count 2, possessing an imitation firearm with intent to cause fear of violence, contrary to
section 16
A of the
Firearms Act 1968
, the particulars being that on 11 December 2016 the offender had in his possession an air pistol with intent to cause the victim to believe that unlawful violence would be used against her. Count 3, doing an act tending and intended to pervert the course of public justice, the particulars being that between 10 December and 18 December 2016 the offender contacted the victim and asked her to retract her complaint of assault. Count 5, dangerous driving, contrary to
section 2
of the
Road Traffic Act 1988
, the particulars being that on 27 December 2016 the offender drove a Nissan Juke motorcar dangerously on Golborne Road in Golborne. Count 9, putting a person in fear of violence by harassment, contrary to
section 4(1)
of the
Protection from Harassment Act 1997
, the particulars being that between 10 December and 28 December 2016 the offender threatened the victim with violence on at least two occasions.
6. The offender had previously pleaded guilty to Count 8, criminal damage, the particulars of which were that on 27 December 2016 he had damaged a CCTV system belonging to the victim.
7. The prosecution offered no evidence on Count 4, witness intimidation, Count 6, handling stolen goods, and Count 7, making threats to kill, and not guilty verdicts were entered accordingly.
8. On 25 August 2017 the offender was sentenced in respect of the six counts to which he pleaded guilty on indictment T20160442 and also in respect of the single one count of handling stolen goods on indictment T10160441.
9. The sentences were, 3 months' imprisonment for the offence of handling stolen goods; 12 months' imprisonment consecutive on Count 1, the count of actual bodily harm; 12 months' imprisonment concurrent on Count 2, the offence of possession of an intimidation firearm with intent to cause fear of violence; 3 months' imprisonment consecutive on Count 3, perverting the course of justice; 10 months' imprisonment consecutive on Count 5, dangerous driving; 2 months' imprisonment concurrent on Count 8, criminal damage; 4 months' imprisonment consecutive on Count 9, harassment by putting the victim in fear of violence. The total was a term of 32 months' imprisonment.
10. The court also made the offender subject to an indefinite restraining order to prevent him from contacting the victim and from going within 800 metres of her address.
11. In addition, the court ordered the offender to be disqualified from driving for a period of 2 years and a further 8 months to take into account time left to serve in custody and then until such time as he passed an extended driving test. A victim surcharge order was also made against him.
12. The offender and Charlotte McGinty entered into a relationship in about March 2016. Both she and the offender recognised that he had mental health problems, although the precise nature of those problems was unclear.
13. On 12 August 2016 the owner of a grey Vauxhall Astra parked his car on Kirkham Road in Leigh. He locked it and left it there overnight. When he returned the next morning it was gone. The car was worth about £6,000.
14. On 8 November 2016 police officers received a report of a suicidal male in Rydal Street, Leigh. While en route the officers received a further report that the male had driven off in a Vauxhall Astra. The officers arrived at Rydal Street and spoke to Charlotte McGinty. She said that the offender had driven off in a stolen car with a false licence plate. He was stopped on foot a short distance away. The car was found parked nearby. The licence plates on the car were false. It transpired that this was the stolen Vauxhall Astra.
15. The police arrested the offender. Because of his behaviour he was sectioned under the Mental Health Act. He was released shortly afterwards and on 19 November was interviewed under caution about this offence. He said a couple of men had approached him some weeks before and offered to sell him a car. He thought the deal was "dodgy" but as they only wanted £150 for it he felt it was too good to turn down. The men gave him a key to the car and he gave them the money. These events gave rise to the handling charge. Following this the offender was released on bail.
16. On 11 December 2016 he and Charlotte McGinty were together at her house. He woke up in a bad mood that morning. She went downstairs to make them both a cup of tea. When she came back upstairs with the tea he said he didn't want it and if she left it for him he would throw it at her.
17. She put his tea down and began to leave the room. The offender then launched himself out of bed and grabbed her by the throat with one of his hands. He started to squeeze. She pushed him away and ran out of the door and down the stairs. He shouted after her "It's okay, I'll just fucking shoot you". She turned to look at him and saw he was sitting on the edge of the bed holding an air pistol. She recognised it as his. He had told her some time before he was going to get rid of it.
18. The offender fired the pistol at her. The pellet struck the left side of her torso causing her immediate pain and discomfort. She ran downstairs and grabbed the telephone to call the police. As she was talking, the offender came into the room. He threw her on to the floor and stamped on her arm to make her drop the telephone. She was screaming for help.
19. The offender went to the front door in order to get out of the house but it was locked and he did not have a key. Instead he tore the blinds away from the window in the front room and climbed out and ran off, just as the victim's neighbour came to the front door to see what all the commotion was.
20. The police arrived at her house a short time later. She told them what had happened and then went to hospital for treatment. She was found to have an injury to the left side of her torso. What the judge described as "a nasty weal", as well as bruising to her arms and leg. The offender's possession and use of the air pistol, and his attack on the victim, both in the bedroom and in the front room of her home, were charged as Counts 1 and 2 on the indictment.
21. The police were not able to apprehend the offender straight away; but he continued to contact the victim by telephone, both in calls and texts. In his text messages he told her how much he loved her and missed her. He also begged her to retract her statement to the police and said he would kill himself if she did not do as he asked. This conduct was charged as Count 3 on the indictment.
22. The victim reluctantly agreed to go to the police and withdraw her complaint against him which she did on 17 December. The offender accompanied her. Initially he was arrested but the following morning he was released with a Domestic Violence Protection Notice informing him not to contact the victim.
23. By now she had moved home, but following his release from custody on 18 December he turned up at her new address and begged her to take him back. He reiterated that he would kill himself if she refused to resume their relationship. Fearing that he would hurt himself if she refused, she reluctantly allowed him to stay. She did not want to be with him but felt in the circumstances she had little choice.
24. On 19 November 2016 the owner of a Nissan Juke car was at home. The car was parked on her driveway. Just after midnight she looked through the window and saw the headlights of her car turn on. Someone drove it off her driveway and sped off. She reported this theft to the police.
25. On 20 November, the next day, the offender turned up at Charlotte McGinty's home in this car. He said he had bought it from his cousin.
On 27 December 2016 she and the offender went in this car to visit her mother. On the way he said he needed to stop off and feed his dog which was living with a friend of theirs in Leigh. He asked her for some money to buy dog food but she refused. They started arguing.
26. The offender suddenly said "Fuck you, then" and performed a handbrake turn in the middle of the road and drove back the way he had come. He was driving at about 40 miles an hour in a residential area. He said to the victim "It's all right, it's stolen anyway, so I'll just kill us both". He then pulled the handbrake up again and let go of the steering wheel.
27. The car spun into the wall of a house, causing a considerable amount of damage to the wall, a gate and to the car itself. The victim was not wearing a seat belt, and hurt her right knee in the crash. She dived out of the car and the offender then sped off. This count was charged as Count 5 in the indictment, dangerous driving. The overall damage was estimated to be in the region of £15,000.
28. Charlotte McGinty walked home. As she was approaching her house she saw the offender walking along the street towards her. He said he had parked the car round the back of her house. He also told her he knew she had not been wearing her seat belt, and had hoped that she would go through the windscreen as a result of the crash. The victim told him to pack his things and get out. He packed his belongings and put them in her shed before he called someone to collect him.
29. She stayed inside the house and told the offender through the locked patio door that she was going to see her mother. He then started headbutting the patio window. He also made threats to her and damaged a CCTV system that she had installed in her back garden by cutting the wires. That act of vandalism was charged as Count 8 in the indictment, criminal damage. The cost of the repairs came to about £400.
30. His victim telephoned the police and they arrived a short time later and arrested him. As he was being led away he shouted "I love you, Charlotte". The police took a number of witness statements from her; and she asked them to reopen the investigation into the incident on 11 December with the air pistol.
31. All of the violence and threats directed by the offender towards the victim, to the extent that they did not feature in the other counts in the indictment, were charged as Count 9, harassment.
32. The police interviewed the offender on 28 December 2016. He was asked some more questions about his connection with the Vauxhall Astra. In the time since his previous interview his fingerprints had been found on the false licence plate. He said he could not account for that. He denied stealing the car but accepted handling it, believing it to be stolen.
33. He also admitted sending text messages to the victim in an effort to persuade her to drop the charges relating to what happened on 11 December. However, he denied making any threats to her, threatening to burn down her house, harassing her or going to her home on 18 December. He said he went to his own home to find that his front door was smashed. He then went to a friend's house. When confronted with CCTV images from the victim's home showing his arrival on 18 December at 6.23 in the morning, he changed his account and admitted he had gone to see her.
34. As to the Nissan Juke car, he said he bought this in good faith. He did not know it was stolen. He said that on 27 December the victim had been driving the car when it crashed, not him. He did not threaten her later that day. He accepted that he pulled out the wiring for the CCTV system; but that was the only offence to which he admitted.
35. The offender has seven criminal convictions from four previous court appearances. On 6 April 2009 when he was 18 years old he was sentenced to 34 months detention for two offences of robbery and two offences of having a knife in a public place. On 17 May 2016 he was sentenced to a community order with a curfew requirement for an offence of attempted non-dwelling house burglary. That was the last matter on his record before these offences.
36. There was a pre-sentence report dated 29 June 2017. In his interview with the author the offender sought to minimise his involvement in the offences. In some instances he blamed the victim. He denied deliberately shooting her. He said she grabbed the air pistol during an argument and it went off accidentally. He agreed he had tried to get her to withdraw her complaint. He said she was the one who owned the stolen car. She was driving it and she was the one who crashed it. He pleaded guilty to dangerous driving because he loved her and did not want to put her through the ordeal of a trial.
37. The author of the report gave her opinion that the offender "has little insight into the risk he presents and the physical and psychological harm he is causing to others". He had issues with power and control, and an inability to control his jealousy. He was subject to a police notice not to contact the victim at the time he committed the later offences involving her.
38. There were a number of victim personal statements. She said that she was terrified of the offender because of his unpredictable nature. She described his behaviour towards her as controlling and coercive. She suffered from anxiety and this affected her sleep. She felt safer knowing that he was in prison. She wanted to move on with her life without him in it.
39. At the sentencing hearing the judge considered that there was "an air of artificiality" about the inclusion of Count 2 in the indictment because the offender used the air pistol to cause actual bodily harm to the victim which was the offending in Count 1. He would pass a sentence "for actually firing the air pistol and causing a rather nasty bruise". In his view the assault was the shooting "and therefore the count of possessing an imitation firearm does not really add anything very much to that".
40. Turning to the Sentencing Council's Definitive Guidelines on Assault the judge decided that it was a category 1 case with greater harm and higher culpability on account of the use of an air pistol to cause injuries. That gave a starting point of 18 months' imprisonment with a range of 1 to 3 years. On account of the offender's antecedent history and the use of a weapon, he was minded to move up from that starting point but in the end he chose not to do so for reasons of totality.
41. The judge gave the offender credit of one third for his plea of guilty to Count 1, the assault, and so reduced the sentence to 12 months' imprisonment with an identical concurrent term on Count 2. They were ordered to run consecutively to the sentence of 3 months' imprisonment imposed for the offence of handling stolen goods charged on indictment T20160441.
42. As to Count 3, perverting the course of justice, the judge observed that this was a serious offence in itself. The starting point for such an offence was 4 months' imprisonment. The offender was entitled to credit of 10 per cent which brought that sentence down to 3 months to be served consecutively to the other sentences. By this stage of the sentencing exercise the total sentence was 18 months' imprisonment.
43. In respect of Count 5, dangerous driving, the offence was committed when the offender was on bail for the earlier offences. He intended to terrify the victim and succeeded. In the judge's view this was "a particularly serious offence of dangerous driving". The damage caused was significant too. The sentence after trial would have been 12 months' imprisonment. Affording the offender credit of 10 per cent for his plea of guilty the sentence on that count was 10 months' imprisonment to be served consecutively to the other sentences. At that stage of the sentencing exercise the total sentence was 28 months' imprisonment.
44. Finally, on Count 8, criminal damage, and Count 9, harassment, the judge took them together. The starting point for the criminal damage was 3 months' imprisonment. With credit for the plea of guilty that came down to 2 months. The starting point for the harassment was 6 months' imprisonment. With credit for the guilty plea, and bearing in mind totality, that came down to 4 months' imprisonment. Those two sentences were ordered to run concurrently to one another but consecutively to the other sentences, making a final total sentence of 32 months' imprisonment.
45. For the Attorney General, Mr Jarvis acknowledges that this was not a straightforward sentencing exercise. Nevertheless, he submits that an overall sentence of 32 months for this sequence of offending, even giving such credit as the offender was entitled to, was unduly lenient.
46. For the offender, Mr Christie reminded the court that this was a sentence passed by an experienced judge who had considered the guidelines and who had given appropriate credit. He accepted that the sentence viewed overall was lenient but submitted that it was not unduly so.
47. We have considered the submissions. The most serious offending in this deplorable history of domestic violence and abuse was represented by Counts 2 and 1, Count 2, possession of an imitation firearm with intent to cause fear of violence and the discharge of that imitation firearm causing the actual bodily harm charged as Count 1. The maximum sentence for the firearms offence is a term of 10 years and the proper approach to sentencing for crimes involving firearms and imitation firearms is set out in the well-known passage of the judgment of this court in
Avis
[1998] 1 Cr. App. R. 420, to which we come shortly. At page 427A Lord Bingham CJ observed that
section 16
A of the
Firearms Act 1968
was introduced by amendment "primarily to deter intimidatory use of an imitation firearm". The section itself refers to possession with intent to cause a person to believe that unlawful violence will be used.
48. At page 424B to E the court in Avis set out the four questions, the answers to which, would inform the proper approach to sentence in such cases.
"(1 ) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.
(2) What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be.
(3) With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the more serious offences under
the Act
are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence.
(4) What is the defendant's record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearm offences or crimes of violence."
49. Here there was a real weapon, an air pistol, which the offender had no good reason to have. He had it in his possession with the intent of causing the victim to believe he would use it to commit violence on her. It was loaded and he deliberately discharged it at her causing her actual bodily harm. As the judge said in his sentencing remarks at page 16B: "The fact is that you shot a woman with an air pistol in the course of a dispute and a pursuit of her in the house. That is a serious matter."
50. The judge gave full credit for the pleas to these charges and rightly took into account totality, but even making these allowances, a sentence of 12 months for the offending on Counts 1 and 2 did not reflect the seriousness of the crimes committed against the victim in her own home on that occasion, as well as the violence which proceeded and followed the shooting.
51. We should add that we also see considerable force in the Attorney General's criticism of two of the other sentences. First, the sentence of perverting the course of public justice, (Count 3), a term of 4 months' imprisonment consecutive. The crime resulted in the withdrawal of a true complaint by the victim about the crimes committed against her. Second, the sentence for dangerous driving, Count 5, a term of 10 months' imprisonment consecutive in circumstances where he deliberately drove dangerously with the intention of hurting the victim in a crash in which she was in fact injured. But for the considerations of totality, the offender would have been sentenced to more severe sentences for these offences.
52. In summary, while on bail the offender had submitted the victim to sustained domestic violence involving intimidating her, threatening her, assaulting her, shooting her, putting pressure on her to withdraw her lawful complaint and thereby perverting the course of justice, deliberately hurting her in an act of dangerous driving and damaging her property. We grant leave.
53. The sentence could have been imposed in various different ways to reflect the overall criminality. In our view the starting point on Count 2 should have been in excess of 4 and half years, and with credit for his plea a sentence of 4 years. We substitute for the sentence of 12 months on Count 2 a sentence of 4 years. The other sentences will remain unaffected. The resulting overall sentence will be a term of 5 years and 8 months.
54. In the light of our review of this sentence, and taking into account the terms of
section 35
A and
section 35
B of the
Road Traffic Offenders Act 1988
as amended, we vary the period of disqualification and substitute a period of 50 months of which the discretionary period is 24 months. To that extent, the sentences are varied. The other sentences will remain unaffected. | ```yaml
citation: '[2017] EWCA Crim 2464'
date: '2017-11-14'
judges:
- LORD JUSTICE SIMON
- MR JUSTICE GOSS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2018] EWCA Crim 2754
No:
201802947/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 21 November 2018
B e f o r e
:
LORD JUSTICE HICKINBOTTOM
MRS JUSTICE ELISABETH LAING DBE
MR JUSTICE WILLIAM DAVIS
R E G I N A
v
MARGARET MARY YORK
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
Mr N Lewin
appeared on behalf of the
Appellant
J U D G M E N T
(Approved)
1.
MRS JUSTICE ELISABETH LAING: Mr Lewin appears on behalf of the appellant and the court is grateful to him for his written and oral submissions this morning.
2.
On 12 July 2018, in the Crown Court at Plymouth, the appellant pleaded guilty to an offence of being in charge of a dog which caused injury while dangerously out of control in a public place. His Honour Judge Timothy Rose passed the sentence of a community order with an unpaid work requirement of 150 hours. He also ordered the appellant to pay £1,000 compensation to Jayne Taylor.
3.
The facts of the case, in brief, were that "Molly" was a young Rottweiler dog, 14 months old. The dog was owned by Corinne York who was the appellant's daughter. She had learning difficulties and was profoundly deaf.
4.
In about September 2017 an RSPCA inspector was visiting and Molly, in an unprovoked attack, bit him. He had then given advice to the appellant and her daughter. He had advised them firstly, to have the dog spayed, so as to calm her down. He had also advised them that whenever the dog was taken out in a public place the dog should wear a muzzle. The inspector's advice was followed, in that Molly was taken to the vet to be spayed. She was given stitches by the vet.
5.
On 24 October 2017 Molly needed to be taken to the vet again in order to have those stitches removed. On that morning Corrine York had a hospital appointment for chemotherapy at 11.30 am. The appellant, in order to help out, had agreed to take Molly to the vet for the stitches to be removed. That meant that the context was a stressful situation for the appellant. She was running late. She had checked the collar of the dog the night before and had tightened it. The collar did not have holes and a
buckle; rather it had a clip, which was moved so as to tighten the collar. The appellant said that the collar had not come loose before and although she had checked it the night before she had not checked it again in the morning. She did not have the dog's headpiece or harness but she did have the muzzle. She parked close to the vet surgery and did not think it was necessary to use the muzzle when she was ready to take the dog out of the car because the vets’ was only a short way away from the car. When she opened the car the dog slipped its collar and ran off down the road. It ran up to Jayne Taylor and jumped up at her. The dog bit her through her anorak. The dog then let go and bit her buttock. The appellant ran after the dog calling its name but the dog did not respond. The appellant apparently had not realised how serious the incident was and thought the dog was simply greeting Jayne Taylor by jumping up at this stranger.
6.
Jayne Taylor's arm was bitten down to the bone and there was a time it appears that it was broken, although from the papers it seems there might have been some doubt about that. That is certainly advanced in the grounds of appeal. In any event, she had eight stitches in her arm and stitches were advised not to be put in too tightly in case the arm became infected.
7.
The appellant had taken the dog out before. When she was interviewed she said that she had experienced the dog being boisterous and scratching. However, when she was asked whether the dog had bitten anybody, she said that the dog had not. She did concede that she found it difficult to control the dog on her own when she was out and
that it often took two of them to control the dog if they were out walking the dog together. She also said that she had tried to prevent the dog from jumping up by folding her arms and turning her back on the dog.
8.
There was a victim personal statement before the sentencing judge.
9.
The appellant was of previous good character. There was a "stand-down" pre-sentence report. We have read the transcript of that report. The relevant material, which emerges from that transcript, was that the appellant lived in a mortgaged property and had done so for 15 years. Her elder daughter was at work and supported the appellant, but did not live with her. The appellant worked on a casual basis in a kitchen at Plymouth Sea Centre and was on the minimum wage and earned about £110 a month. She did not receive any benefits. She suffered from a number of physical health problems which were described by the probation officer to the judge. She took a number of medications to manage those. Several years ago she had been diagnosed with depression.
10.
The probation officer also referred to the appellant's eldest daughter, Corrine's, mental health problems. She had always had behavioural difficulties but had never been formally diagnosed. She also had physical health difficulties. She had cancer and was going to hospital for radiotherapy and had nasty burns on her body from that radiotherapy. The appellant was trying to help her and was taking her to those appointments.
11.
Her daughter Corrine was receiving some care from the relevant local authority. However, she was not in supported living and therefore there was pressure on the appellant to take care of her daughter.
12.
Both the appellant and her other daughter had advised her not to get the Rottweiler and to give it training but Corrine could be difficult.
13.
Further relevant material from the stand-down report was that the judge was told that the complainant's actual losses had been £280, time off work (three days at £85.65 per day), parking at the hospital and damage to her coat. The judge said in the course of the transcript:
"... I strongly expect that I won't be able to do that justice in the forum of this Court."
What he meant by that was an award of compensation to compensate Jayne Taylor for the level of personal injury which she had suffered as a result of the dog's attack as opposed to her quantifiable pecuniary losses.
14.
The judge was referred by prosecuting counsel to the sorts of amounts which would be available from the Criminal Injuries Compensation Scheme for injuries of this kind. There was an exchange between the judge and the probation officer at page 3D of the transcript, in which the probation officer told the judge that the appellant did not have any major debts but that her outgoings were more than her incoming earnings, but with the help of her daughter "they do just about cope with their bills". At page 6B the probation officer told the judge: "Clearly she has very little disposable income" and that she would ask for time to pay.
15.
In the course of his oral submissions Mr Lewin told us that he had said to the judge that the appellant would be able to find £5 per week but that it would come from her elder daughter as she, the appellant, could not pay. He had indicated that the appellant was trying her best. She accepted responsibility for the injuries. Her position was that she wanted to make amends for those injuries and that she would do her best to do so.
16.
In the course of his sentencing remarks, which we do not need to say very much about in view of the limited issue on this appeal, the judge observed that it was difficult to put this offence into any particular box in the sentencing guidelines. Taking account of the mitigation and her guilty plea, he passed the sentence to which we have referred having ruled out a higher figure of 250 hours.
17.
The judge then turned to the issue of compensation. He described this issue as "intensely problematic". He understood that the appellant was:
"... not in an easy position and I understand that if I make an order, I have already been told that it may frankly end up with somebody else stepping in to help you out to some extent."
He went on to say that put him in "a difficult judgment area in terms of what to do for the best" (transcript page 6F). He considered that the complainant should be receiving about £2,000 in compensation and, if she were to sue in a civil court for her injuries, she might receive a good deal more than that. Trying to balance the need for compensation against the realities of the appellant's position, he concluded that the appellant should pay the complainant £1,000 compensation. That was to reflect the complainant's economic loss for something towards her injuries as well. A collection order was made and the judge expressly left it up to the Magistrates' Court to sort out the payment regime. He observed that the compensation payment was "at the limit of [the appellant's] means to pay" and that he would therefore reduce the victim surcharge order that would otherwise apply to zero. He also observed that he had given priority to compensation and would not make any order for costs.
18.
The grounds of appeal, in short, are that in the circumstances of this case the compensation order which the judge made was wrong in principle and manifestly excessive.
19.
On the facts of this case, it seems to us that six principles are relevant. First, an offender must give details of her means. Second, before making compensation order, a judge must enquire about, and make clear findings about the offender’s means. Third, before making a compensation order the court must take into account an offender's means. Fourth, a compensation order should not be made unless it is realistic, in the sense the court is satisfied that the offender has or will have the means to pay that order within a reasonable time. Although a compensation order based on the repayment period as long of 100 months has been upheld, it has been said that while a repayment period of two or three years in an exceptional case would not be open to criticism, in general, excessively long repayment periods should be avoided. Fifth, a court should not make a compensation order against an offender without means on the assumption that the order will be paid by somebody else, for example, a relative. Finally and sixth, it follows that it is wrong to fix an amount of compensation without regard to the instalments which are capable of being paid by the offender and the period over which those instalments should be paid but rather to leave those questions for the Magistrates to sort out.
20.
In our judgment, the judge did not observe those principles in ordering the appellant to pay a compensation order of £1,000. He seems to have acknowledged, in the passage to which we have referred, both that the appellant did not have the means to pay and that it was likely, in that situation, that the appellant's elder daughter would in fact in reality be making the payments rather than the appellant.
21.
In all those circumstances, it is our decision that this compensation order was wrong in principle and manifestly excessive. We therefore quash it.
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: [email protected] | ```yaml
citation: '[2018] EWCA Crim 2754'
date: '2018-11-21'
judges:
- LORD JUSTICE HICKINBOTTOM
- MRS JUSTICE ELISABETH LAING DBE
- MR JUSTICE WILLIAM DAVIS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral citation No. [2023] EWCA Crim 932
IN THE COURT OF APPEAL
CRIMINAL DIVISION
CASE NO: 2023 01666/01668/01669/01673 A4
Royal Courts of Justice
Strand
London
WC2A 2LL
Wednesday 19 July 2023
Before:
LORD JUSTICE DINGEMANS
MR JUSTICE BUTCHER
MRS JUSTICE CUTTS
Reference by the Attorney General under s.36 Criminal Justice Act 1988
REX
v
BRIKEL PALAJ
RADIAN LIKA
NIKOLA PALAJ
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MS ALISON MORGAN KC
appeared on behalf of the Solicitor General
MR MICHAEL IVERS KC & MR ALEX ROSE
appeared on behalf of the Offender Brikel Palaj
MR IGNATIUS HUGHES KC
appeared on behalf of the Offender Radian Lika
MR COLIN AYLOTT KC & MR JULIAN WINSHIP
appeared on behalf of the Offender Nikola Palaj
_________
J U D G M E N T
LORD JUSTICE DINGEMANS:
Introduction
1.
This is the hearing of an application for leave to refer sentences to this court which His Majesty's Solicitor General considers to be unduly lenient. It is also the hearing of an application for leave to appeal against sentence on the part of Brikel Palaj.
2.
Brikel Palaj is a 33-year-old man. Radian Lika is a 36-year-old man. They were convicted of murder, and Nikola Palaj, a 29-year-old man, was convicted of manslaughter, following a trial which was heard over the period of 16 January to 9 March 2023 before Saini J and a jury in the Crown Court at Bristol.
3.
On 21 April 2023 Brikel Palaj and Radian Lika were sentenced to life, with a minimum term of 20 years less 326 days spent on remand in the case of Brikel Palaj and 20 years less 324 days spent on remand in the case of Radian Lika, and Nikola Palaj was sentenced to 5 years' imprisonment.
4.
It is submitted on behalf of the Solicitor General that the sentences first, failed to reflect the context of organised criminal activity on the part of the defendants. Secondly, that the terrifying nature of the incident for members of the public who witnessed it and heard it was inadequately reflected in the sentence. Thirdly, that the judge's treatment of self-defence ignored the timeline because it could never be acceptable to do what the first and second defendants had done, which the third defendant had effectively joined into.
5.
It is submitted on behalf of Brikel Palaj, Radian Lika and Nikola Palaj that the judge had regard to the criminal activity leading up to the offence, and that this implicitly or expressly featured in the sentencing remarks. The judge referred to the criminal gang and the fact that they targeted empty premises as their way of working, but also found that they did not intend to use violence. The judge had referred to the effect of the violence on the public. The weight to be attached to each factor was plainly a matter for the judge. These were immensely long sentences in any event, and the self-defence was properly reflected by the judge in his sentencing remarks.
6.
On behalf of Brikel Palaj it is submitted that the judge should have reduced the sentence imposed on him further on the basis of his findings about self-defence because the knives were only taken to the scene because of that self-defence, and although that justifiably led to a 25-year starting point, the increase of 10 years from the usual starting point meant that there needed to be more of a reduction made to the sentences imposed.
7.
We are very grateful to Ms Morgan KC, Mr Ivers KC, Mr Hughes KC and Mr Aylott KC, and their respective legal teams, for all their helpful written and oral submissions.
The factual circumstances
8.
In May 2022 the offenders (and I will refer to them as the “offenders” rather than go through their names each time) were part of a group planning to steal cannabis cultivated by another criminal group who were at a residential address in Bristol. When the plan became apparent to the other group, which was referred to throughout the trial as “Group A”, that other group (Group A) surrounded the third offender, Nikola Palaj, threatening serious violence. The first and second offenders left the scene to arm themselves with knives. They returned and there was an escalation in the violence, during the course of which the deceased was stabbed twelve times. He died shortly after the incident as the emergency services were taking him to hospital.
9.
The violence took place on 24 May 2022. Group A were cultivating the crop of cannabis at 13 Bloomfield Road in Bristol. That is a small, terraced house in a residential street which is a cul-de-sac and the road runs from a Sainsbury's supermarket at one end to a dead-end at the other.
10.
Group A included the deceased, Aranit Lleshi, his brother, Sadik Lleshi (who was also prosecuted for his murder) and Artur Bici. The cannabis that was being grown was estimated by the police to be worth about £95,000. A previous crop had been stolen from the address at the point of harvest some two to three months before the events on 24 May 2022.
11.
Members of Group A were particularly concerned to ensure that the subsequent crop reached the market. They gathered in Bristol from their London homes to ensure that the crop was cut and dried. They arrived a few days before the incident. It is also apparent that some of the cutting had occurred before the murder and that they were determined to find out who was supplying information to others about their cannabis growing.
12.
“Group B” included the first, second and third offenders, together with others. They were all Albanian. The first and second offenders had lived in the United Kingdom for some years. The third offender had only come to the country a few months before the incident.
13.
The first and second offenders gave evidence at the trial to the effect that they had been engaged in the theft of cannabis in various different cities from cannabis houses over the preceding 12 months. They stated they acted on behalf of others who were responsible for planning. Their actions involved staking out a house and keeping it under surveillance to know who was coming and going, and to be able to get in and out of the properties quickly. The judge described both of the groups involved in these incidents as "criminal gangs" in his sentencing remarks, a description which was plainly justified. The offenders did not accept their activities involved violence on previous occasions, but they did accept that they were carrying out their activity as part of a larger organisation. The judge sentenced the offenders on the basis that it “was a lucrative business, but I find that, as far as Brikel Palaj and Radian Lika were concerned, it did not involve violence." The judge made specific reference to the Group B members targeting empty premises.
14.
On 24 May, Group A were in Bristol, partly preparing to process the crop but it also seems partly preparing to find out who was targeting their crop. The offenders were all in Manchester carrying out surveillance on a different property where cannabis was being grown. They did not find an opportunity to break into that house in Manchester because it was occupied and they left. That they were trying to avoid confrontation appears to have been confirmed by various text messages.
15.
Although messages had been exchanged over the previous few days between the offenders and others about cannabis in Bristol, the first and second offenders claimed that the decision to go to Bristol from Manchester was taken as they drove south. The judge observed that the first offender had stolen a crop of cannabis from Bloomfield Road before, and, having been unsuccessful in Manchester, they travelled to Bristol having received a tip off from someone within the growers' gang that the property in Bristol would be unlocked and vacant. Whether they were being set up was not a matter that was ever finally determined on the evidence.
16.
It follows that the accepted purpose of travelling to Bristol was to carry out the theft of cannabis from a property. There was a dispute between the parties as to whether this could be properly described as “organised criminal activity”, and there was evidence that the offenders were under pressure from others to carry out a successful theft.
17.
Group A had become suspicious that a theft might take place and they were there in numbers. It seems that some had also travelled down from London to start cropping the cannabis, and they were in the area of Bloomfield Road on the afternoon and evening of 24 May.
18.
Once they had arrived in Bristol, a member of Group B drove straight to Bloomfield Road. That, as it turned out, was the start of their discovery by Group A. The offenders drove to a nearby shopping centre where they were joined by another member of Group B, who had driven a van down from London. The van was to be used for carrying the crop once it had been stolen. It also contained a number of tools or weapons to be used in the raid for the purposes of cutting the cannabis, but the judge concluded: "I find that the sharp instruments taken by the gang were cutting equipment and not for violent use in confrontations."
None of the items in the van were used during the course of the violence that took place. The van also contained balaclavas in the back of it.
19.
Members of Group A also went to the shopping centre and saw some of Group B, who they identified as being Albanians and identified, correctly, that they were intending to steal cannabis from the property in Bloomfield Road. This led to concern that Group B's presence was to carry out the theft, and when members of Group B left the car park, they were followed by Group A.
20.
The car containing the first and second offenders pulled into the Sainsbury's supermarket at one end of Bloomfield Road. This detour meant that some members of Group A arrived back at Bloomfield Road before the offenders. The Group B van, containing the third offender and another member of Group B, parked in that area at the top of Bloomfield Road slightly out of CCTV coverage. The Group A car also turned into the same parking area, blocking in the Group B van. The occupants of the Group A car got out and went over to those in the van. At this point it seems threats were made and violence was used against the third offender by members of Group A, who was seeking to identify the person who had given information to Group B. Shouting was heard by neighbours, and at some point during this stage in the confrontation the other member of the Group B ran away because of the violence. It seems he was chased for a bit.
21.
It follows that the start of the confrontation began before the first and second offenders were present. Neighbours gave accounts of hearing shouting and angry voices. The first and second offenders were seen to drive down Broomfield Road towards the end of the road. Their vehicle paused for 10 seconds. They then concluded that the third offender was being held by people who appeared to be Albanian. They then left the road and they went to obtain weapons of some sort in order to procure the release of Nikola Palaj.
22.
The first and second offenders drove to Sainsbury's. The first offender got out of the car and walked into the shop. He was followed by the second offender. They went to the kitchen utensils section, where the first offender selected four of the largest knives, two of which were handed to the second offender. They went to the tills where they had to wait behind a person; and we heard details of that from Mr Ivers in his submissions this morning. They went to the tills, and the second offender walked over to the exit and looked out into the car park. He saw a car of a similar style to the Group A car. The two men went directly then to the customer toilets, where they took the knives out of the packaging. Each placed two knives within their clothing and returned to the vehicle.
23.
They then drove back to Bloomfield Road. The first offender got out of the car before it was parked by the second offender. He had a knife in both hands and immediately engaged with and chased members of group A. The second offender parked the car and got out. He was also holding two knives. He entered the turning circle. It seems that the second offender was struck down fairly immediately by members of Group A, and in fact he was stabbed in the back. Very significant violence then ensued between the two groups. Shouts and screams, which the judge described it as being of a "horrifying nature", were heard by neighbours. They described the violence as being very significant, screaming as of animals, fighting between a number of individuals on different parts of the road. The fighting caused, not surprisingly, very significant fear to those who saw it.
24.
During the course of this fighting, the deceased was stabbed twelve times to the face, torso and limbs. The fatal wound was a stab wound to the right arm, which penetrated to a depth of 13 cms and which severed the arteries. The stab wound led to significant bleeding, followed by unconsciousness and then cardiac arrest.
25.
It was not possible to say who inflicted the fatal stab wound. The judge concluded he could not be sure that either the first or second offenders had been responsible for inflicting that wound, but he was sure that both had used the knives that they had purchased earlier. In relation to the third offender, the judge concluded that although he was an active participant in the fighting, he could not be sure that he used any weapons. The judge did conclude that the third offender had joined a fight when his group had arrived with weapons.
26.
The second offender was stabbed in the back using one of the knives which he had in fact brought with the first offender from Sainsbury's earlier, showing again the dangers of carrying knives to the people who carry them, and the third offender sustained a punctured lung alongside other injuries.
27.
The deceased was bundled back into the Group A car by members of his group. He was driven away, but it was clear he was bleeding heavily. He and his brother were dropped off at the side of the road so that they could get help while the rest of Group A made their escape; and in fact they fled back to Albania, it seems, from the evidence. The emergency services were called, but the deceased had lost too much blood to be saved.
28.
The prosecution's case on count 1 was that the offenders were part of a joint attack on the deceased which went far beyond any required act in self-defence. The prosecution's case was that the arrival of the first and second offenders from Sainsbury's, armed with four knives, changed the nature of what was happening between the two groups and dramatically changed the level of violence involved. The judge observed in relation to the issue of self-defence: "The verdicts and the evidence are in my judgment consistent with the jury having found that they fell short of this defence because of the use of excessive force in the situation they faced."
The sentence
29.
A victim personal statement from the brother of the deceased described the impact of his death on the family.
30.
Brikel Palaj and Nikola Palaj had not been convicted of any offences before this offence, but it is obvious from the materials advanced at trial that they had been part of a group who were targeting houses which were empty to steal cannabis.
31.
Radian Lika had two convictions for four offences: possession of Class A drugs and a bail offence, but he had also been sentenced to 9 years' imprisonment for false imprisonment and blackmail in 2013.
32.
A pre-sentence report on Nikola Palaj, who had not given evidence at trial, showed that he was involved in the thefts of cannabis and showed that he was questioning how he had contributed to the death. However, it stated that he was sorry, but there was what was described as an “undertone of victim blaming” in the pre-sentence report.
33.
In sentencing, in addition to the matters set out above, the judge said that he was not satisfied that the offending justified the starting point of 30 years for the first and second offenders which had been submitted on behalf of the Crown. He concluded that the murder was not committed in the furtherance of a robbery but in an attempt to obtain the release of Nikola Palaj. He was satisfied that the offending required a starting point of 25 years as it involved taking knives to the scene.
34.
In relation to the first offender, he did not consider that there were any statutory or non-statutory aggravating factors. He took into account the earlier involvement in the drug thefts. He concluded that there were powerful features in mitigation: (1) the absence of an intention to kill, the context being excessive force in self-defence or defence of others which led to unintended escalation, and that the acts of Group A had “features of an ambush”; (2) the absence of premeditation; (3) the absence of previous convictions, and his conclusion that the first offender was not a man of violence; and (4) there was also remorse. The judge concluded that those factors justified a significant movement downwards, leading to the minimum term of 20 years less days spent on remand.
35.
In relation to the second offender, the judge adopted very much the same approach. The judge observed that the earlier convictions were not for offences of violence and were rather old. He concluded that there were also powerful matters in the second offender's favour: no intention to kill; real reluctance to return to Bloomfield Road a second time when armed with knives; excessive force in self-defence or defence of others; life-threatening injuries; and the acts of Group A had “features of an ambush”.
36.
The judge concluded that those were features justifying a significant movement downwards from the starting point of 25 years to 20 years.
37.
In relation to the third offender, who was convicted of manslaughter, the judge indicated that he was satisfied he had been the victim of violence at the hands of Group A, including the deceased, before the return of the first and second offenders armed with their knives from Sainsbury's. The judge approached the offending on the basis that the jury:
"Rejected your self-defence or defence of others’ pleas, and they were sure you assisted and encouraged the fighting which led to [the] death, and that you intended at least some harm, short of very serious harm. I bear in mind that the incident was over in about 1 minute and there were extreme and life-threatening acts of violence against you by members of Group A. You suffered very serious injuries. As in the case of your co-defendants, I proceed on the basis that … there are elements of excessive force in self-defence or defence of others in your conduct, at least until the later stages of the fighting."
The judge concluded that the offending fell within category C of the offence specific guideline for manslaughter. The judge concluded that a downwards adjustment should be made on the basis of self-defence to a starting point of 5 years. He considered that aggravating and mitigating features balanced one another, and so the final sentence was 5 years.
The relevant sentencing provisions and the guidelines
38.
Schedule 21 of the
Sentencing Act 2020
provides at paragraph 4(1)(a) and (b) that if an offender took a knife or weapon to the scene intending to have it available to use as a weapon the starting point for the minimum term should be 25 years.
39.
Relevant mitigation set out in the Schedule includes an intention to cause serious bodily harm and not to kill, lack of premeditation, and the fact that the offender acted to any extent in self-defence.
40.
The offence specific guideline for a manslaughter has four categories: A, B, C and D. Category A is very high culpability and it involves an extreme nature of category B feature or a combination of category B features. Relevant category B factors are indicated where:
"death was caused in the course of an unlawful act which involved an intention to cause harm falling just short of GBH"; "death was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender." We pause there to note that that is the particular category factor relied on by the Crown. A further feature was: "death was caused in the course of committing or escaping from a serious offence in which the offender played more than a minor role"; and "concealment, destruction, defilement or dismemberment of the body (where not separately charged)."
41.
Category C is medium culpability. That includes: "where death was caused in the course of an unlawful act which involved an intention by the offender to cause harm (or recklessness as to whether harm would be caused) that falls between a high and lower culpability", or
"where death was caused in the course of committing or escaping from a less serious offence but in which the offender played more than a minor role."
42.
Category D, lower culpability, includes: "death was caused in the course of an unlawful act which was in defence of self or others where not amounting to a defence." There were other relevant factors in category D.
43.
Category A has a starting point of 18 years imprisonment. Category B has a starting point of 12 years' imprisonment, with a range of 8-16 years. Category C has a starting point of 6 years, with a range of 3-9 years. Category D has a starting point of 2 years, with a range of 1-4 years' imprisonment.
Leave refused
44.
We record the following matters. First, that this was a sentencing exercise carried out by the judge after he had heard a trial over some 7 weeks from January to March this year. Secondly, the judge made careful findings of fact about which he was sure based on the evidence that he had heard. Thirdly, those findings had to be, and were, consistent with the verdicts of the jury.
45.
It is well established that this court will respect the findings of fact made by a sentencing judge unless those findings are: not based on the evidence; internally inconsistent; inconsistent with uncontroverted facts; irrational; or suffer from similar such defects. Those tests are not easily met, and it was not submitted either on behalf of the Solicitor General nor Brikel Palaj that the findings of fact made by the judge could be challenged on any reasonable basis.
46.
The crucial findings made by the judge in this case included the fact that Group B were carrying out a lucrative criminal business of stealing cannabis crops but that this did not involve violence. The finding that Group B was not involved with violence was soundly based on a fact which the judge had found, namely that Group B had watched a property in Manchester in order to steal a growing cannabis crop but had given up the plan because the house was occupied.
47.
The judge also recorded that it was Group A which was on alert for a potential theft of their cannabis and it was Group A who had initiated contact with Group B. It seems from the judge's findings that there were elements of ambush in the planning of Group A's defence of their cannabis crop and, indeed, a desire to find out who was the person who had given details of the cannabis grows to others. The judge found that Nikola Palaj and another member of Group B had been confronted, and that the other member had managed to escape and run away but Nikola Palaj was caught. The judge found Group A were determined to find out how Group B had come to get the information about the cannabis growing and it seems were intent on extracting that information from Nikola Palaj. There was also, on the evidence (namely the finding of a screwdriver in bushes nearby where Nikola Palaj had been held) the use of a screwdriver; although what was done with it was not made clear in the evidence. It was in these circumstances that Brikel Palaj and Radian Lika went to buy knives in order to secure the release of Nikola Palaj. It does not seem that this was a very well-formulated plan, because when they were first about to leave Sainsbury’s, it seems that the knives were still wrapped, before they then saw members of Group A and went back to unwrap those knives. The judge found that Radian Lika was frightened, but felt he had to go and help Nikola Palaj, the brother of Brikel Palaj. Brikel Palaj and Radian Lika arrived, and then there was violence and screaming and the inevitable death that followed. The victim was stabbed in the course of this fight.
48.
We turn then to the points made on behalf of the Solicitor General. First, that this offending was committed in the context of organised criminal activity leading to conflict between two criminal gangs
.
It is right that this was criminal offending committed in the context of organised criminal activity and that there was conflict between gangs A and B, but the judge had that factor well in mind and it was the factual background against which the sentences for Brikel Palaj and Radian Lika went up to a 25-year starting point because they went to purchase the knives to extract Nikola Palaj from his false imprisonment.
49.
The judge also had well in mind the second point made on behalf of the Solicitor General, which was that this offence was committed in a residential street and would have caused significant fear for members of the public who witnessed the violence. That was obvious from the judge's reference to those matters. This was not a statutory aggravating factor but was obviously a matter which the judge was entitled to weigh in the balance and it is apparent that the judge had regard to it.
50.
The third point, and perhaps the most important point made on behalf of the Attorney General, was that the judge's treatment of self-defence, it was submitted, showed an error of law in that the judge found that there were elements of self-defence. In the course of submissions it was submitted that the law would not allow anyone to carry knives to secure the release of another person being imprisoned by others, and there was a short and interesting discussion about the extent of self-defence and defence of others. All that it is necessary to say in relation to that point is that self-defence and defence of others was properly left by the judge to the jury at the trial and that the judge was perfectly entitled and right to find that there was excessive force for the defence of self-defence to be effective. That does not mean however that the judge was not entitled to make the findings, particularly in the context of a planned ambush, it seems, by Group A on members of Group B, that there were elements of self-defence. In those circumstances, although we understand why the application has been made, we can find no justiciable basis to interfere with the careful findings of fact and assessment of where those findings took the judge in relation to the first and second offenders.
51.
Next, before dealing with Nikola Palaj, we deal with the first offender, Brikel Palaj's application for leave to appeal against sentence. Effectively the same answer that has just been given to the Attorney applies to that application. The judge was best placed to make the proper assessment of where to come down to having regard to the issue of self-defence and the fact that Brikel Palaj and indeed Radian Lika had only purchased the knives (which meant that they ended up with a 25-year starting point) because they were trying to ensure the release of Nikola Palaj. No doubt the judge would have reflected, when calculating the sentence that he imposed, on the fact that in many respects Brikel Palaj and Radian Lika had started the whole process running by being part of the Organised Crime Group trying to steal cannabis. We can see again no justiciable error made by the judge. We refuse leave to appeal against sentence.
52.
We turn then to consider the issue of Nikola Palaj. In so far as it was submitted on behalf of the Solicitor General that the same three submissions as the appeals applied to Nikola Palaj, we have already answered them, but it is necessary to just deal with some specific matters. It is right that there were category B features if one looks at the guideline alone: "death was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender". That was because on the judge's finding, albeit very much at the end of events when Mr Nikola Palaj joined in the fight which was being carried on by Brikel Palaj and Radian Lika with knives, there was a high risk of death or GBH. It is also right to look at category D, which was: "death was caused in the course of an unlawful act which was in defence of self or others", and this was in defence of self, "not amounting to a defence". In those circumstances it is clear that the judge was perfectly entitled, and indeed right, to place this offending in category C, which includes: "where death was caused in the course of an unlawful act which involved an intention by the offender to cause harm ... that falls between high and lower culpability". In those circumstances, the judge having chosen the correct category, it was very much for the judge to apply his findings of fact to the various aggravating and mitigating features that he found. It might be thought that the sentence imposed on behalf of Nikola Palaj was generous, but it is impossible to describe it as unduly lenient.
53.
For all those reasons, we refuse the Solicitor General leave to refer these sentences and we refuse Brikel Palaj leave to appeal against sentence.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400 Email: [email protected] | ```yaml
citation: '[2023] EWCA Crim 932'
date: '2023-07-19'
judges:
- LORD JUSTICE DINGEMANS
- MR JUSTICE BUTCHER
- MRS JUSTICE CUTTS
``` |
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{context}
======
| WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2024] EWCA Crim 550
CASE NO
202301487/B1
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday, 9 May 2024
Before:
LADY JUSTICE WHIPPLE DBE
MR JUSTICE WALL
HER HONOUR JUDGE LUCKING KC
(Sitting as a Judge of the CACD)
REX
V
L
(Non-discharge of Juror and Jury)
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MR P HUNTER
appeared on behalf of the Appellant
MISS A HAMILTON
appeared on behalf of the Crown
_________
J U D G M E N T
1.
LADY JUSTICE WHIPPLE: The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with
section 3
of
the Act
.
2.
The appellant has leave to appeal his conviction on 8 March 2023 at Chelmsford Crown Court following a trial before His Honour Judge Walker of 13 counts of sexual offending against children. No issue arises in relation to sentence.
3.
The focus of this appeal relates to the judge's handling of a juror who became upset during the course of the defence's closing speech. In circumstances which we shall describe the judge discharged a different juror but allowed the trial to continue to its conclusion with the remaining 11 jurors, including the juror who had got upset, in charge. That decision is now challenged by the appellant who argues that at the very least the juror who had got upset should have been discharged, alternatively the trial should have been aborted with the whole jury being discharged.
The facts
4.
The case concerned allegations of sexual offending by the appellant against his daughter (who was the first complainant) and his nieces (the second and third complainants) between 2016 and 2020. Given the limited ambit of this appeal only a short summary of the facts is required.
5.
Complainant 1 said that the abuse started when she was 12 and continued until she was 17. She said that the appellant initially started to slap her on the bottom and then progressed to touching her breasts and vagina. She said that the appellant acted in this way whenever there was an opportunity to do so, mostly when her mother was working night shifts. She said that on one occasion the appellant laid on top of her, held her wrists and hovered his mouth over her nipples without making contact. She also said that she used to come out of the bathroom in her towel and the appellant would remove this so that she was naked. She said that on another occasion the appellant took her towel off, grabbed her wrists, pulled her to the ground and hovered his mouth over her nipples. She said that on two occasions when she was play fighting with the appellant he digitally penetrated her vagina. She said that she told complainant 2 and her aunt what had happened. The allegations were then relayed to her mother and the police were informed. In 2019 she told the police that she did not want to carry on with the investigation but in 2021 she changed her mind. The police informed her that they had new evidence and as a result she decided to pursue her allegations.
6.
Complainant 2 said that when she was about 13 the appellant had sexually abused her by touching her vagina over her clothing, touching her breasts and her vagina underneath her clothing and on multiple occasions digitally penetrating her vagina. He also tried on at least two occasions to make her touch his penis. She said that the appellant would abuse her almost every time she went to his house. She also said that on a couple of occasions she was lying on the bed and the appellant got on top of her while they were both fully clothed and the appellant moved his body and rubbed his penis against her vagina.
7.
Complainant 2 told her mother that the appellant had slapped her bottom but she was embarrassed and did not feel comfortable to disclose the other things that he had done to her. At first her mother did not believe her and called her a liar. Complainant 2 said that complainant 1 had disclosed what had happened to her and then she (complainant 2) made complainant 1 speak to her mother. She did not disclose her own allegations until a year later. She told her boyfriend and later her family and then the police what had happened.
8.
Complainant 3 said that the appellant would slap her bottom whenever no one else was around. She thought that this happened around 3 or 4 times a week. She was 14 years old at the time. She said that on two occasions the appellant touched her breasts and vagina over her clothing.
9.
The prosecution case was that the appellant had sexually assaulted the complainants as alleged. To prove their case, the prosecution relied on evidence from each of the three complainants, evidence from complainant 2's boyfriend about her disclosures to him, evidence from the mother of complainants 2 and 3 about disclosures made to her by complainants 1 and 2, evidence from the mother of complainant 1 about her working patterns and about disclosures made to her by complainants 1 and 2, and evidence from the Officer in the Case.
10.
The appellant denied the allegations. He denied that he had behaved in a sexual manner towards any of the girls. He said that he slapped complainants 1 and 2 on their bottoms when they were children but stated that this was only in a playful way. He said that he stopped doing so when complainant 1 started developing sexually at around the age of 10 or 11. He said that complainant 1's behaviour started to change towards him after she had spent time with complainant 2. She would no longer play with him and did not appear to be as close to him. He did not know why her behaviour had changed. After the first complaint was made in May 2019 he initially did not know what to do. He subsequently decided to go to the police and explain his case. He maintained he was not guilty of the offences and that the complainants had fabricated their accounts. The issue for the jury was whether they were sure that the appellant had committed the offences as alleged.
The juror issue
11.
During the closing speech by counsel for the defence one of the jurors became upset. The judge invited the jury to leave court and the judge subsequently received a note from that juror which said this:
"I have personal experience of similar abuse myself and I find it hard to listen to the defence saying the girls are lying."
12.
The judge then sent a message asking her not to discuss the issue or her note with the other jurors. The judge heard submissions. Counsel for the defence submitted that the juror had made it clear that she was not considering the evidence and was rejecting the defence case and submitted that the juror should be discharged and that further enquiries should be made to establish whether she had discussed her experiences with the other jurors. The prosecution disagreed, saying that the juror should continue.
13.
The judge decided that enquiries did need to be made of the juror. The juror was called into court, which was by this point sitting in chambers. She confirmed on questioning by the judge that she had discussed the reason why she became upset with her fellow jurors, that she had told them that she had suffered abuse as a child as well and how hard it was for the girls and how they felt, and that she could relate to them. She told the judge she had mentioned it several times and said that she could not detach herself from her own life experiences. The judge then asked her this:
"You swore an oath to try the defendant in accordance with the evidence. Do you think you will be able to return verdicts in accordance with that oath?"
14.
To that the juror answered: "Yes." She was then invited to leave court. The court was opened and the judge heard further submissions.
15.
In light of that exchange with the juror, counsel for the defence submitted that the entire jury should be discharged; the harm done could not, he submitted, be cured by way of judicial direction.
16.
Counsel for the prosecution submitted that the juror should not be discharged given that the juror had simply brought her own life experiences with her, as was the ordinary expectation, and under questioning had confirmed specifically and expressly that she was able to remain faithful to her oath. Further, the prosecution submitted that there was no basis to discharge the whole jury.
17.
After taking time to consider, the judge ruled that it was not necessary to discharge the jury or indeed the single juror. He said that the appropriate test in such an application was whether there was a high degree of need to do so and whether a fair-minded and informed observer would conclude that there was a real possibility that a single juror or indeed the entire jury would be biased. The trial had already lasted one week and the jury had heard all the evidence. As to the single juror, she had found it difficult to listen to the defence submissions that the girls were lying and had discussed with the other jurors how she could relate to the girls' feelings but she had said that she felt able to try the appellant in accordance with the evidence and with her oath. Jurors are routinely directed to bring their life experiences to the jury box. They are also told that they must determine their verdicts according to the legal directions and the evidence, which she had indicated she could do. The high test was not met in her case. Her answer to the question should be taken at face value. As to the other jurors, the judge ruled that there had been no indication given by any of the other jurors that they did not feel able to continue to abide by their oath. However the remaining jurors would be asked whether, having heard from this one juror, they were able to continue to try the appellant on the basis of the evidence heard and in accordance with their oaths.
18.
The judge therefore called the jury in and asked them the following question:
"Members of the jury, one of your number has disclosed to me that she has discussed certain life experiences with you both today and during the course of the trial which may be similar to the matters alleged against this defendant. You are aware she became emotional earlier today. She was quite right to write me a note advising me of her circumstances. At the outset of this trial you each swore an oath to try the defendant on the basis of the evidence provided. I need to be satisfied that your verdicts will not be influenced by the life experiences told to you by this juror and that you are able to return verdicts based only on the evidence you have heard in court. I am going to ask you to retire and take a few minutes to consider the following question and provide me with a note simply saying yes or no together with your juror number. Can I return verdicts in this case in accordance with the oath that I swore only in accordance with the evidence I have heard in court and not be influenced by the life experiences which may have been told to me by a fellow juror? The answer will be yes or no."
19.
The jurors retired to address that question on instruction from the judge that it was a secret ballot and their answers would not be discussed. Eleven jurors answered "yes", one answered "no". The juror who answered "no" was not the same juror as had originally become upset. Following further discussion with counsel the judge discharged the one juror who had answered "no". The remaining 11, including the original one juror who had become upset, continued to the end of the trial. As part of his summing-up the judge reminded them that they swore an oath to try the defendant and to return verdicts based on the evidence heard in court and to ignore life experiences shared by the one juror. That panel ultimately returned unanimous guilty verdicts to all counts on the indictment.
Grounds of appeal and opposition
20.
By grounds of appeal drafted by Mr Hunter, who represented the appellant at trial and on the appeal, the appellant argues:
a.
Ground 1. The judge erred in refusing the application to discharge the entire jury. The revelation from one juror that she had been a victim of sexual abuse had affected one other juror who confirmed that she could not remain faithful to her oath. As a result this could have influenced the remaining jurors.
b.
Ground 2. The judge erred when determining that the general rule that all jurors bring their life experiences to the jury was applicable in the appellant's case. The fact that the juror's experiences were so similar to the facts of the case was unfair and placed pressure on other members of the jury who had been directed to keep an open mind and only reached their verdicts based on the evidence adduced in court.
21.
Miss Hamilton represented the Crown at trial and on appeal. She opposes this appeal, submitting that the judge took appropriate steps to ascertain the reason for the juror's distress, made proper enquiries of that juror and the other members of the jury and confirmed that each who remained in charge would try the case in accordance with their oaths. His decision not to discharge the entire jury cannot be criticised. There is no distinction between the experiences that jurors bring to cases involving sexual allegations and other cases. The judge correctly applied the relevant test and the appellant was not prejudiced by his decision to refuse to discharge the jury.
22.
We are grateful to counsel and their respective legal teams for focused and helpful submissions.
Discussion
23.
It is common ground that the judge identified and applied the correct test in law. That test was stated in
R v Gynane
[2020] EWCA Crim 1348
at paragraph 40 as follows:
"A judge only has the power to discharge a juror where there is an evident need to do so. An evident need may arise if a juror displays actual or apparent bias. Jurors bring with them their life experiences. That is one of the strengths of the jury system. Where a particular juror's life experiences are said to have caused him or her to display actual or apparent bias, the test to be applied is that stated in
Porter v Magill
. A trial judge must make a judgement of fact as to whether, in the circumstances of the particular case, that test is met."
24.
Further explanation of that test was given in
R v Skeete
[2022] EWCA Crim 1511
at paragraph 25, drawing again on
Porter and Magill
[2001] UKHL 67
:
"The question the judge had to address in deciding what steps to take was whether a fair-minded and informed observer would conclude that there was a real possibility or danger that the jury would be biased."
25.
We make four preliminary comments before addressing the specific points raised in this case.
26.
First, whether the individual juror got very upset or modestly upset makes no real difference to the analysis. The issue for the trial judge related to that juror's ability to remain true to her oath, at whatever stage she got upset and to whatever extent she manifested that upset.
27.
Secondly, there was no jury screening at the outset of this trial, for obvious reasons. It is accepted as part and parcel of the criminal justice system that jurors are entitled to sit on juries even if they have life experiences which might touch on the matters canvassed at trial. Jurors are not disqualified because of that.
28.
Third, the fact that this juror showed her upset is, in one sense, happenstance. If that juror had been more stoic, so that she had not demonstrated her upset, then there would have been no enquiry, no submissions, no ruling and no appeal. We would never have known about her life experiences, yet she would still have harboured her own emotional responses to the evidence and might well have shared her life experiences, quite properly, with her fellow jurors.
29.
Fourth, the issue in this case was whether these complainants were telling the truth so that the jury could be sure of that. This jury would not have been confused about what was the issue in the case given the judge's clear directions and the evidence that was called. There was no risk of conflation of that issue with the completely different question of whether this particular juror may or may not have been abused as a child.
30.
Against those introductory comments we deal first of all with the judge's ruling in relation to the individual juror. That juror had become upset during defence counsel's speech but not before. She had listened to all the evidence that had gone before, including suggestions put to the complainants in cross-examination that they were lying. She had done so without becoming visibly upset. Her upset only manifested towards the end of the case. Within a short time of becoming upset that juror was separated from the rest of the jury. She provided an explanation of why she had become upset which reflected her own life experiences, namely that she had personal experience of abuse as a child so that she found it hard to listen to the defence saying that the complainants were lying. In further exchanges it was clear that she related to the complainants.
31.
What the juror was describing was her own life experiences affecting her response to the proceedings. As emphasised by the court in
Gynane
, the criminal justice system depends on members of the public performing the role of jurors and bringing their experience of life into the jury box with them. That they have experiences which might in some ways resemble the allegations in a case is, as we have said, not a disqualification from acting as a juror.
32.
The critical issue for the judge at this stage was whether this juror, with the life experiences she described and her responses as she had indicated them, could still remain true to her oath and return a verdict according to the evidence. This juror was asked that question not once but, so it appears, twice - once in chambers and the second time when the whole panel was asked to complete the secret ballot by answering the question in writing. Both times she said that she could fulfil her oath and return a verdict on the evidence. The judge was entitled to take her answers at face value. A fair minded and informed observer would conclude that this juror understood her responsibility as a juror. She stood by her oath and she would reach a verdict on the evidence. In light of her answer there was no need to discharge her from the jury.
33.
The next question is whether other members of the jury might have been influenced consciously or subconsciously by that one juror bringing her experiences of life into the jury room and disclosing those experiences and expressing some sympathy for these complainants. The jury were asked in terms, noting the background of why the question was being asked, whether they could abide by their judicial oath and return a verdict according to the evidence. Eleven said "yes". Again, the judge was entitled to take their answers at face value. The fair-minded and informed observer would do the same. There was no need to discharge those jurors. That one juror answered "no" does not change the position. The remaining 11 jurors had answered truly and fairly to the question as posed.
34.
We doubt that the juror's distress properly comes within the concept of a "jury irregularity" of the sort addressed by the Criminal Procedure Rules in Part 6, paragraph 26M. But the judge's handling of this issue was entirely consistent with the guidance provided in that rule. This was careful and considered handling which ensured that the trial remained fair. This conviction is safe and we dismiss this appeal.
35.
MR HUNTER: I am grateful, my Lady. The Registrar made a point that within the sentence some counts were wrongly passed. I do not know whether I should address you on them now or put it into writing and it can be done administratively.
36.
LADY JUSTICE WHIPPLE: We have discussed this outside because obviously we had seen the issue raised in the Registrar’s note. The defect, as we understand it, is purely technical; it does not affect the length of sentence. So far as an adjustment to sentence may be required, there is not an application for leave to appeal sentence before us so we have no jurisdiction today to deal with it. Therefore, Mr Hunter, I must invite you to take instructions about what, if anything, you want to do about the technical problem and if a decision is taken to try to rectify that problem -- not that I am in a position of giving you advice, you understand -- the right course would be to lodge an application to appeal against sentence on that technical ground.
37.
MR HUNTER: I am very grateful.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE
Tel No: 020 7404 1400
Email: [email protected] | ```yaml
citation: '[2024] EWCA Crim 550'
date: '2024-05-09'
judges:
- LADY JUSTICE WHIPPLE DBE
- MR JUSTICE WALL
- HER HONOUR JUDGE LUCKING KC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
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=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 19
Case Nos: 200701486 B4 AND 200702181 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
H.H.JUDGE DAVID MATTHEWS
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
23/01/2009
Before :
LORD JUSTICE STANLEY BURNTON
MR JUSTICE BENNETT
and
HIS HONOUR JUDGE STEPHENS QC
(sitting as a Judge in the Court of Appeal Criminal Division)
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Between :
THE QUEEN
Respondent
- and -
MARK PHILLIP BILLINGHAM
and
JUSTIN BILLINGHAM
Appellants
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(Transcript of the Handed Down Judgment of
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Rex Tedd QC
for
Mark Phillip Billingham
J W Evans
for
Justin Billingham
Stephen Linehan QC
for
the Respondent
Hearing date : 4 December 2008
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Judgment
Lord Justice Stanley Burnton :
This is the judgment of the Court.
Introduction
1.
Mark and Justin Billingham appeal with leave of the full Court from their convictions in the Crown Court at Birmingham before His Honour Judge Matthews and a jury of the murder of Michael Cutler. This was a retrial after the first jury had failed to agree. The Appellants were both sentenced to life imprisonment with a minimum term of 17 years less time spent on remand.
2.
The evidence against the Appellants consisted mainly of the testimony of Iain Walden, who had pleaded guilty earlier to the murder of Cutler, and Theresa Blanchard. Both Walden and Blanchard had previously made inconsistent statements that were, in the case of Walden, exculpatory of both of the Appellants (or at least not incriminatory of them), and in the case of Blanchard exculpatory of Mark Billingham and which did not unambiguously incriminate Justin. It is the manner in which those inconsistent statements were dealt with in the judge’s summing up to the jury that forms the basis of these appeals. In large part, the appeals concern the effect of
section 119 of the Criminal Justice Act 2003
on previous inconsistent statements of prosecution witnesses.
The facts leading to the trial
3.
The deceased, Michael Cutler, was the boyfriend of Walden’s mother. On the night of Thursday 7 to Friday 8 October 2004 he left The Gate public house with Walden and was driven by car, in which Justin Billingham was also present, to Warrens Hall Park where he was killed by being struck several times with a hammer. Following the killing Walden and Justin returned to Justin’s home address where his neighbour, Theresa Blanchard, was present.
4.
A microscopic speck of the deceased’s blood was recovered from his Rockport boots seized from Mark Billingham’s new home address in Daventry.
5.
Walden was arrested on 8 October 2004 and from that date onwards gave a series of differing accounts as to what had taken place. In police interview on 8 to 10 October Walden denied killing the deceased and stated that he had left him at the entrance to the park. On 11 October he admitted killing the deceased but claimed that he had merely retaliated, having been attacked by the deceased. He said that he had happened to find the hammer in the park during the attack. He made no mention of the Appellants being involved.
6.
Between 20 October 2004 and 9 March 2005 Walden prepared a series of six proofs of evidence with his solicitor. In none of them did he mention that the Appellants had played any role in the attack. During October and December 2004 he gave accounts, which were covertly recorded, to various prison visitors in which he either failed to mention the Appellants at all, or expressly stated that Justin Billingham had no role in the attack, or said that Justin’s role was limited to hitting the deceased just the once. On 17 December 2004 Walden was seen by a psychiatrist and gave an account of the incident in which he did not mention the Appellants.
7.
In February 2005 Walden lodged a Defence Statement in which stated he that Justin had been with him in the car but had played no role in the attack upon the deceased.
8.
Between 14 and 19 July 2006 Walden prepared a written “series of events” followed by a witness statement in which for the first time he implicated the Appellants as playing a joint role with him in the attack upon the deceased. There were some inconsistencies between the ‘Series of Events’ and the witness statement.
9.
Theresa Blanchard provided four witness statements to the police dated 14, 15, 16 October and 13 December 2004. In none of those statements did she mention the involvement of Mark Billingham on the night of the killing. On 27 December she contacted police and subsequently between 29 and 31 December 2004 she provided a further witness statement to police in which for the first time she implicated Mark Billingham in the events of 7October.
10.
In interview Mark Billingham gave an account largely consistent with that given at trial. He did, however, tell the police that he had only owned one pair of Rockport boots.
11.
In a volunteered statement dated 10 October 2004 Justin Billingham stated that he saw Walden on the afternoon of 7 October but that Walden had driven off alone at about 17:20. Justin said he did not see him again that evening which he had spent in the company of Blanchard. In interview on 15 October he made no comment. In a pre-prepared statement under caution he gave an account which was largely consistent, although differing in some of the detail, with that he gave at trial.
12.
The prosecution case
was that both Appellants accompanied Walden on the night of the murder and took part in the fatal attack upon the deceased, knowing that a hammer was used.
13.
The defence case for Mark Billingham was that he was elsewhere at the time of the murder and took no part whatsoever in the killing (9F; 13A).
14.
The case for Justin Billingham was that whilst he accompanied Walden and the deceased on the night of the murder, he was unaware that Walden intended violence towards the deceased. When violence broke out he took no part in it and instead returned to the car. He was unaware of the presence of a hammer.
15.
The case for both Appellants was that Walden had invented much of his account with the probable motive of obtaining credit for giving evidence for the prosecution and playing down his own role in the killing thereby hoping to receive a reduction in his minimum term when sentenced.
16.
Thus the issues for the jury were whether Mark Billingham went in the car to the park; whether either of the Appellants went into the park; whether either of the Appellants took part in the attack upon the deceased and, if so, what they knew about the use of the hammer in the attack.
The evidence at the trial
17.
Walden said that on 7 October 2004 he had been at Justin’s house at 19 Bridge Field Walk from midday, drinking with Justin. When they ran low on drink Walden left the address to look for the deceased to borrow money from him. He eventually located him and borrowed £10 with which he bought more alcohol before returning to Justin’s house. When he got back, Blanchard was also there with her children and they were then joined by Mark. All of the adults were drinking.
18.
Discussion then turned to Michael Cutler. One of the Appellants got him worked up by questioning how he could put up with his parents being separated and his mother having a relationship with him. It was said that Cutler needed to be “taught a lesson”. Both Appellants and Walden were involved in the discussion. They formed a plan to lure the deceased from the pub, where they knew he was going to be, by Walden stating that he had money in the car to repay him for the earlier loan. He said that it was Mark who took a hammer from the back garden and placed it in the car. They all knew the hammer was present. All three men drove off together in the car with Walden driving.
19.
They located the deceased, who was with Walden’s mother, in the second pub they looked in. Walden went into the pub and told the deceased that he had money in the car for him. The deceased left the pub with Walden and when he was outside both Appellants got out of the car and Walden forced the deceased into the back of the vehicle. The deceased asked what was going on and made some effort to resist. Walden punched him in the face. Mark got into the rear of the car with the deceased. Justin said he knew a quiet spot and Walden drove off with Justin navigating. The deceased and Mark were arguing in the back of the car and Mark hit him once or twice with the hammer.
20.
Justin directed Walden to Warrens Hall Park, Walden stopped the car in a nearby road and they all got out of the car with the deceased shouting out to try and attract attention. They took him into the field where the deceased offered Walden £10,000 if his life could be spared. Walden and both Appellants then started hitting him using the hammer, their fists and feet. Mark had the hammer initially and then Walden himself used it. The deceased soon fell to the floor and, realising that he was dead, they threw some brambles over him.
21.
On the way home Justin threw the hammer from the car into a lake. They had to walk part of the way back to Justin’s house as the car ran out of petrol. Walden was covered in blood and Mark had some blood on him. At Justin’s house Mark changed into some fresh clothes that he had there, before leaving the house.
22.
The following day Walden and Justin left the house to get petrol in Blanchard’s car. Walden said that he would take responsibility for what happened if the police got involved as it was a family matter.
23.
Walden said that he had lied to the police and his solicitors in previous accounts he had given regarding the incident. He accepted that he had given various previous accounts to police, solicitors, prison visitors and a psychiatrist in which he had failed to mention the involvement of the Appellants. He said that he had lied in his earlier accounts so as to cover-up for the Appellants.
24.
In cross-examination Walden said that he had decided to cease to cover-up for the Appellants after prison officers had spoken to him and persuaded him to tell the truth and not to take the rap all himself.
25.
Theresa Blanchard, Justin’s neighbour with whom he was having an affair, said that she had returned to Bridge Field Walk at about 19:00 on 7 October. Both Walden and Justin were present in the living room of Justin’s house and were drinking. She thought that Walden had had quite a lot to drink. Mark was also present at the house and he too was drinking. At some point Walden said something about going to pay money to the deceased. At about 22:10 Walden and the Appellants left the house. Walden was agitated when he left. Mark was wearing a pair of boots.
26.
At about 00:15 all three men returned. Walden was covered in blood. She asked them what had happened and Justin said, “I can’t believe I’ve (or possibly “we’ve”) killed the fucker. What’s it like sitting next to a murderer?” She was shocked.
27.
After about 15 to 20 minutes Walden went upstairs and then came down again having changed into fresh clothes, with his blood stained clothes in a holdall. Blanchard did not say in evidence whether Mark said anything at all at the house; he left after about 15 minutes to go to his brother’s house. She and Justin went to bed. Walden slept at the house.
28.
The following morning Justin and Walden left the house together at about 07:30 and returned an hour and a half later. Later in the afternoon she saw Mark at the house and he was singing, “If I had a hammer, I’d hammer in the morning.” There was no further discussion on the following two days as to what had happened on 7 October.
29.
In cross-examination Blanchard said that Mark had been sitting on a deck chair in the room after they returned. She accepted that the first time she had ever mentioned this was in cross-examination at the earlier trial, it having been suggested that there was no chair available for Mark to sit on. She said that there was no blood on Mark’s clothes and he did not appear to be injured. He did not change his clothes. She admitted that she had slept with Justin on the night of the incident after he returned with Walden.
30.
She accepted that she had not made reference to Mark singing, “If I had a hammer” in her statement to police on 29 December. She had originally made no mention of Mark in her statements to police as she had been frightened of repercussions if she had implicated him.
31.
David Walden (whose evidence was read), the father of Iain Walden, stated that his son was a “Walter Mitty” type character who told a lot of lies. He was a heavy drinker and when in drink one never knew whether he was telling the truth or telling lies. Jonathan Walden (whose evidence was also read), the younger brother of Iain Walden, stated that Iain had a tendency to be ‘two-faced’ and a liar. Robin Walden (whose evidence was read), the older brother of Iain Walden, stated that Iain was very aggressive when he drunk and had punched his father two or three times in the face at the time of his parents separating.
32.
K Carter, a forensic scientist, said that the bloodstain found on Mark’s boot was not a weak or diluted stain and if it had been transferred onto the boot after the deceased had been killed then it would have had to have been transferred at a time when the blood was still wet.
33.
Prof. Helen Whitwell
,
a pathologist, stated that in her opinion the deceased died as a result of blows struck with a hammer rather then the injuries resulting from kicks or punches.
34.
Justin Billingham
said that he saw Walden on 7 October. Walden had agreed to buy his Ford Escort car from him. The pair spent the afternoon drinking together at Justin’s house until Walden left at about 16:00. At about 19:00 Blanchard came round to Justin’s house. Walden returned to the house sometime after 19:28 and the three of them drank alcohol and talked. There had been talk about the relationship between Walden’s mother and the deceased and it was clear that Walden was not happy about the relationship. Eventually the drink ran out and Walden returned home. Later that evening Justin drove with Walden in the Ford Escort to look for Walden’s mother and the deceased. Justin understood that the purpose of the expedition was so that Walden could see his mother and get some cigarettes and also to sort out money matters with his mother and the deceased. Walden was agitated and not in a good mood.
35.
Having failed to find them at the first venue they went to The Gate public house. Justin stayed in the car whilst Walden went into the pub. Walden returned from the pub with the deceased who got into the rear of the car. Walden and the deceased were bickering about money and about Walden’s attitude towards his mother. The deceased did not complain about being driven off in the car. Justin did not know where they were driving to (he had forgotten that he said at the first trial that they had been driving to a cash point so that the deceased could get some money).
36.
Walden drove to a road near Warrens Hall Park. Justin had not chosen the route or suggested going to the park. When they parked up there was a heated conversation. They all got out of the car and Walden walked off ahead saying that if the deceased “wanted to make something of it” then they would “sort it out”. Justin walked to the entrance of the park with them. Walden and the deceased continued arguing. There was some pushing and shoving and Walden punched the deceased. Justin told Walden to stop it and returned to the car by himself, thinking that the argument would calm down. The argument had nothing to do with him and he was not involved physically. He waited in the car for 5 to 10 minutes before Walden returned. He did not notice that Walden’s clothes were covered in blood. He asked what had happened to the deceased and Walden said that he had given him a good hiding and left him to catch the bus home.
37.
They then returned to the house. It was only back at the house that Justin saw the blood on Walden. He again asked him what he had done and Walden said that he had “battered” the deceased. Justin changed out of his own clothes, which he subsequently disposed of, as he had panicked.
38.
The following day he and Walden went out to get petrol for the Escort and then Walden drove away. Justin saw Mark that day but did not mention anything about the incident.
39.
Justin had lied in his first statement to police on 10 October to protect himself as he was nervous and scared after seeing Walden on 7 October. The reference in that statement to Mark staying at their brother, Simon’s, house, as opposed to Jason’s house, was merely a mistake and not a deliberate lie. He played no part in the attack upon the deceased. He knew nothing at all of the presence or use of a hammer either in the car or at the scene of the murder. Mark was not with him and Walden that evening. He did not make the remarks back at the house attributed to him by Blanchard. He did not have a discussion with Walden on 8 October whereby Walden agreed to take the blame for the incident.
40.
Mark Billingham said that he had nothing to do with the killing and he was not with Justin on the night of 7 October. At the time of the incident he was house-sitting for another brother, Jason, at 38 Bramble Close and looking after his dog. He was working at the time and usually worked between the hours of 08:00 and 16:00 and always worked a full day on a Thursday. After finishing work he would return to Bramble Close. On 7 October he returned to Bramble Close as usual and stayed there overnight and went to work the following day.
41.
He saw Justin on the 8 October and they went for a drink in the afternoon. They then went back to Justin’s flat where Blanchard was present but in bed. He did not make any reference to a hammer whilst at the house or sing, “If I had a Hammer”. Nobody said anything to him on 8 October about the incident and the first he knew of it was two days later when Justin gave a statement to the police.
42.
He said that he had three pairs of Rockport Boots. The pair on which the blood was found he had left at the Bridge Field Walk address and had not worn them since moving to the Bramble Close address as they were getting worn out and he did not wish to carry them there. He had not been wearing them on 7 or 8 October. He subsequently took them with him to Daventry to get them out of his mother’s way. He said that he should have told the police in interview that he had three pairs of boots and not just one.
43.
Whilst he did not think that Blanchard held any serious grudge against him she was unhappy with him because he had not reciprocated the romantic interest that her daughter had shown in him after they had slept together. He thought it more likely that Blanchard was simply mistaken about the events of 7 October.
44.
David Chater, who lived near Warrens Hall Park, said that between 23:30 and midnight on 7 October he heard a car pull up. He heard shouting and looked out of the window. He saw the driver get out followed by two other men who all walked towards the park with raised voices. He heard three car doors slam in total. About half an hour later he heard he heard the car doors slam again, on this occasion he thought they slammed twice.
45.
Iain Heaford, who also lived near Warrens Hall Park, said that between 23:05 and 23:35 he looked out of his window and saw a number of men, he thought three, by the park entrance. There was some general shouting and then following a loud shout he could see two men by the entrance shouting at each other. One man pushed the other through the park entrance.
The relevant parts of the summing up
46.
Referring to Walden’s evidence, the judge said:
“Mr Walden has admitted that he told a lie after lie after lie to the police, to his mother, to those who visited him in prison, and to the psychiatrist instructed by the defence who went to see him. The prosecution have invited you to say that in spite of that, do you, now, belatedly, he has told the truth.”
47.
The judge then set out at length the evidence given by Walden, and summarised all of the previous inconsistent statements he had made, to which he referred in the above passage, and the statements he had made to his own solicitors, as well as the explanations put forward by Walden for the inconsistencies and changes in his account of the murder. The judge also reminded the jury of the evidence of Walden’s father and his younger brother Jonathan. He told the jury of the possibility that Walden had implicated the Appellants so as to influence his sentence. He continued:
“It has become clear after his four days in the witness box that he lied repeatedly to the police, his mother, the psychiatrist, the people who came to see him in prison. I have reminded you of evidence which plainly shows that he can be aggressive and violent, and his own mother described him as volatile. On his own admission he murdered Mr Michael Cutler upon whom terrible injuries were inflicted with a hammer, and you know that his own family regard him as a liar. Those are matters that you have to take into account when you consider whether he has told you the truth about what happened on the night of the murder.
Plainly, you have to approach the evidence of a man against whom so many criticisms are made with care and with caution. Badly, however, those lies and is violence reflect upon him they do not by themselves mean either that he cannot at this late stage have told you the real truth about the events of October 7 of October 8, nor do they mean that he has not done so. He has given an explanation of the series of lies that he told after he was charged with the murder of Michael Cutler, and how those lies were tailored to fit what he believed the police came to know as their enquiries progressed. He has told you why he lied and about what he says was an agreement reached between him and Justin Billingham, and he has given an explanation, which I've told you about, as to why he said he decided to tell the truth in July of 2006 and not to continue to take the rap for others. His proven history of dishonesty and some violence is evidence that you must, of course, consider carefully when you are assessing his evidence. But, ultimately, it is for you to determine whether his account due last week, and in the previous week, is in fact the true account of what happened on October 7.
You will also have to consider whether in some material respects his evidence is supported by the evidence of Theresa Blanchard and whether her evidence is reliable truthful evidence that you accept.”
48.
The judge then summarised the evidence of Theresa Blanchard, and moved on to deal with the criticisms made of her evidence by the defence. He reminded the jury that she had made witness statements on 14, 15 and 16 October 2004, in none of which had she made any mention of Mark Billingham; she did not do so in a further with the statements made on 13 December 2004, and it was only after she was seen by the police on 29 December that she implicated him in the events of the night of 7 October. The judge said:
“What approach do you take where you come to the conclusion that a witness has said something to you that differs from an account that the witness has given on an earlier occasion and you will recall, I am sure, that there had been a number of occasions in this case when Theresa Blanchard, Iain Walden, Justin Billingham and Mark Billingham have each had it suggested to him or her that on some previous occasion, he or she has said something which differed from the evidence to you. Do you remember that happening from time to time during the case? It may have been the earlier trial, it may have been in a statement to the police and I think on almost every occasion that that's happened, the witness has accepted, after being reminded about it, that he or she had previously said something different. Where that happens you can, of course, take into account any inconsistency between the two accounts and what the witness says about the reason for it. It is for you to judge the importance of any inconsistency between a witness's evidence to you and what that a witness has said on an earlier occasion and it is for you to decide to what extent if at all it affects your judgment of the witness's evidence, but if having looked at the witness's evidence you are sure that one of the two accounts is true, then that's evidence that you can take into account when considering your verdict in the case.”
49.
The judge then summarised Theresa Blanchard's cross-examination, and continued:
“Why, she was asked, hadn't she told the police about Mark Billingham on the 14th, 15th or 16th of October and why had she simply only referred to two men? And her explanation for that was that she'd been frightened to implicate Mark. She said he was the baby of the family and she was frightened of repercussions. She accepted that in her statement on 14 October to the police she said that she had overheard Iain Walden, when speaking to his father I think, make reference to ‘a friend’ and she had taken that refer to Justin Billingham.
...
You will have to assess Theresa Blanchard's evidence with care. The defendants maintain that she has lied to you about Mark Billingham being there at all and that she has either lied or certainly been mistaken in what Justin Billingham had to say when he came back to Bridgefield Walk after the murder. On any view, I suspect that you're unlikely to think that Mrs Blanchard behaved either responsibly or creditably. She took no steps to contact the police about what she had seen and heard and she remained with and appears to supported Justin Billingham at least until the following Monday. If her evidence to you from the witness box is true, then she concealed from the police that Mark Billingham had also been present on the night of the murder until almost 3 months later and you will have to ask themselves why she did that, but at the same time consider the explanation that she has given you. Take into account, in assessing her evidence, what you know about her circumstances, her marriage and her position at that time of being Justin Billingham's girlfriend and decide what extent, if at all, you come to the conclusion that that may have influenced the way in which she behaved and the way in which she conducted herself.
Mark Billingham himself said that he didn't think that Theresa Blanchard had any serious grudge against him, although he did go on to suggest three reasons why she might bear a grudge, which you will have to consider and examine. I think that the three reasons he gave were that there had been some damage done to their father's car. One of their daughters was wanting to move out but because she said she was scared and it was suggested by Mark Billingham that she was annoyed because of his refusal to share any interest in her daughter Kelly. Mrs Blanchard denied that she was even aware of any relationship between Mark Billingham and Kelly. Consider whether any or all of the possible reasons why she might have a grudge against Mark Billingham may have prompted her to make up an account of his presence on that night and thus put Mark Billingham at risk of conviction for murder, or whether that is a suggestion that you dismiss. If you are left unsure that Mrs Blanchard is a truthful and reliable witness, then you must reject her evidence and not rely upon it, but if you are sure that she's told you the truth about who was at 19 Bridgefield Walk on October 7, then it must follow, must it not, that Justin Billingham and Mark Billingham have not themselves been truthful about who was there and you will have to ask yourselves, in those circumstances, why that was. Her evidence is a matter of your careful consideration and assessment, bearing in mind all the points that have been made during the course of cross-examination.”
50.
The judge then summarised the evidence of Mr Chayter and Mr Hayford, and the evidence about Mark Billingham's Rockport boots and what he had said about them. As to the latter, he said:
“ If you are left unsure as to whether the blood came to be on the boot as a result of some accidental contact with wet blood whilst the boot was still at 19 Bridgefield Walk, in other words if you consider that to have been a possibility, then the evidence is of no significance and not evidence against Mark Billingham, but if you rejected Mark Billingham's account that he had left the work boots there and had not taken them with him to Bramble Close and you are sure that he took the boot with him to Bramble Close and sure that he was wearing them on Thursday, October 8, then in those circumstances, the small area of blood is capable of being evidence in the case against him because, of course, it's his case that he didn't go to 19 Bridgefield Walk on the Thursday evening and, in fact, was next to their only after you finish work on the ensuing Friday.”
51.
Having referred to the other forensic evidence adduced by the prosecution, the judge gave the jury a break. In their absence, Mr Parker QC, who represented Justin Billingham in the trial, but by reason of Mr Tedd QC’s absence was also representing the interests of Mark Billingham, raised the question of
section 119
, and reminded the judge that previous statements made by, for example, Iain Walden, were also evidence on which the Defendants relied insofar as they were exculpatory of them. Mr Linehan, for the prosecution, submitted that
section 119
had no application, and that, effectively, the previous inconsistent statements of the prosecution witnesses should be dealt with as they were before
section 119
came into force. He submitted that it was unnecessary for the judge to say anything further. The judge said that he would return to the topic in his concluding remarks.
52.
The judge gave the jury another short break just over an hour later. In their absence, he asked counsel whether there were any matters that they wished to raise. Mr Parker raised none.
53.
Having concluded his summary of the evidence for the defendants, the judge said:
“Fundamentally, in this case you have to make a judgement about the truthfulness and reliability of the evidence of the two witnesses upon whom the prosecution principally rely, Iain Walden and Theresa Blanchard. The defence contended that the evidence of each is not true. Furthermore, the defence suggested that the accounts which Iain Walden was giving to his solicitors in 2004 and February 2005 were much closer to the real truth than the account that is given to you in the witness box. You have to consider that suggestion. It is for you to decide in each case whether the accounts that Iain Walden has given, and the accounts that Theresa Blanchard has given, in the witness box is true and you act upon it only if after considering the whole of the evidence in the case you are sure in each case that it is true.”
54.
At this point, the judge again asked counsel if there was any think they wished to raise in the absence of the jury. Mr Parker said that he did wish to do so, and the jury left the court. In their absence, he again raised the question of
section 119
. He said:
“In my submission, Your Honour should tell the jury that what, for example, Iain Walden has said before is just as much evidence of the truth of its contents as what he says in the witness box and that it is for them to decide, to weigh up what he said before and what he says now to decide which pieces of evidence they rely upon. I am just concerned that otherwise the evidential status of what has been said before is watered down, and that perhaps particularly in the light of Your Honour's remark a moment ago, that the evidence is primarily what they have said in the witness box. In my submission it is, in colloquial terms, up from grabs as to whether it is what he said in the witness box or what he said before. That is my only comment.”
55.
After discussion between the judge and counsel, the jury returned. The judge said to them:
“In case clarification be needed, the defence have drawn your attention during the course of the case to a number of earlier statements made by Iain Walden, either oral or written, to the police, to his solicitors, and to those who came to visit him whilst he was in prison and his conversations were recorded. The defence say that they are inconsistent with the evidence that he has given to you from the witness box. As I hoped I had already made clear, you're entitled to consider all those earlier statements and decide for yourselves whether they are or may be true or whether you are now sure that it is his evidence from the witness box that is the truth. I hope that is clear.”
After further for present purposes immaterial directions the jury retired. In due course they arrived at unanimous verdicts convicting both of the Appellants of murder.
The grounds of appeal
56.
The grounds of appeal of Mark Billingham are as follows:
(i)
The Judge failed to give an adequate direction to the jury as to the effect and application of
section 119 of the Criminal Justice Act 2003
to the previous inconsistent statements of Iain Walden and Theresa Blanchard.
(ii)
The Judge failed to remind the jury of those parts of the previous statements which the appellant had identified as being admissible evidence of the matters stated therein.
(iii)
No
section 119
direction was given by the judge during his summary of the evidence of Iain Walden.
(iv)
The Judge failed to remind the jury that it was the appellant's case that the previous accounts given by Waldon represented the truth of what had occurred.
57.
The grounds of appeal of Justin Billingham are:
(i)
In his directions to the jury, the Judge erred in failing to make any reference to the general effect of
section 119
until well after he had, selectively, reviewed the evidence of Walden and Blanchard and he failed to make any specific reference to the section until prompted to do so by counsel.
(ii)
The judge failed to direct the jury adequately or at all as to the effect of
section 119
and/or the following matters:
(a)
The previous inconsistent statement was just as much evidence as was the testimony from the witness box.
(b)
Careful consideration was needed as to whether reliance could be placed upon what was said in the witness box or in the inconsistent statement.
(c)
Whether the conflict between the oral testimony and the previous statement was so great that the evidence of the witness could not be relied upon at all.
(d)
The reasons why the jury were being given some, but not all, of the previous statements, and the importance of not attaching disproportionate weight to the statements they had been given.
(e)
That they should also rely upon the recollection of the oral evidence and the Judge’s summing-up thereof.
(iii)
The Judge failed to place any direction as to the effect of
section 119
into the context of the evidence to which it related.
(iv)
The Judge failed to remind the jury of all of the relevant parts of inconsistent statements which the Appellant relied upon.
(v)
The Judge failed to remind the jury of a critical part of the evidence of Walden (later retracted in evidence) in which he admitted to arguing with the deceased on the way to the car about his own behaviour towards his own mother.
Discussion
58.
Section 119
of
the 2003 Act
is so far as material as follows:
“
Inconsistent statements
119 (1) If in criminal proceedings a person gives oral evidence and—
(a) he admits making a previous inconsistent statement, or
(b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the
Criminal Procedure Act 1865 (c. 18)
,
the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.
(2) …”
59.
Section 119
reversed the previous rule that a previous statement made by a witness out of court was evidence only if the witness adopted it, i.e. accepted that it was true, when he gave evidence. A typical example was a hostile witness who in cross-examination accepted that his earlier witness statement was true. But if the witness did not accept that his previous statement was true, it was not evidence, and was relevant only to the credibility of his account in the witness box. Even though his previous witness statement was not evidence, the fact that he had made an earlier inconsistent statement might deprive his testimony of credibility. The law can be seen from the standard Judicial Studies Board direction, which was as follows:
“[X has admitted that he] [You may be satisfied that X] had previously made a statement which conflicted with his evidence. You may take into account the fact that he made such a statement when you consider whether he is believable as a witness. However, the statement itself is not evidence of the truth of its contents, except for those parts of it which he has told you are true.”
60.
The effect of
section 119(1)
is clear: it renders previous inconsistent statements made by a witness evidence. The current JSB direction, based on
section 119
, is as follows:
“[X has admitted that he] [You may be satisfied that X] made a previous statement which was inconsistent with the evidence he gave in court. [
Identify the inconsistency.
]
You may take into account any inconsistency [and X’s explanation for it] when considering X’s reliability as a witness. It is for you to judge the extent and importance of any inconsistency. (
If appropriate:
) If you conclude that he has been inconsistent on an important matter, you should treat both his accounts with considerable care.
If, however, you are sure that one of X’s accounts is true [in whole or in part], then it is evidence you may consider when deciding upon your verdict[s].
61.
The similarity between the standard direction (and in particular the last sentence) and the Judge’s direction to the jury in this case cited at paragraph 48 above is sufficiently close for us to believe that he based that part of his summing-up on it.
62.
It is true that the judge did not clearly direct the jury that all of the previous statements of Walden and Blanchard were evidence. However, it is by no means easy to direct a jury on the effect of
section 119
without causing confusion. A jury is entitled to reject a statement in evidence, and to accord it no weight at all, because they do not consider it to be true. That may be because of its inconsistency with previous statements or because of inconsistency with other evidence or simply its improbability or the manner in which it has been given. For a jury to be directed, as Mr Parker suggested to the Judge, and is suggested by Justin Billingham’s grounds of appeal, that a previous statement is just as much evidence as the witness’s testimony in court is liable to confuse them: the jury may take the direction to mean that they are obliged to give the previous statement the same evidential weight as the testimony (and vice versa).
63.
In order to convict the Appellants, the jury had to be sure that the testimony of Walden and Blanchard was true. If they were, it followed that they rejected the truth of their previous inconsistent statements. The fact that, as a matter of the law of evidence, those previous statements were evidence became immaterial at that point. Hence the Judge’s direction modelled, as we think, on the standard JSB direction, “if having looked at the witness's evidence you are sure that one of the two accounts is true, then that's evidence that you can take into account when considering your verdict in the case” was to that extent appropriate. The judge’s final direction, set out above under paragraph 55 above, dealt adequately with the consequences of
section 119
in relation to the evidence of Walden. It was unfortunate that he did not extend it to Mrs Blanchard’s evidence, a consequence, probably, of the fact that Mr Parker referred only to Walden by name in the submission that led to that direction being given. However, the Judge had already given an adequate direction to the jury on the evidence of Mrs Blanchard, in the passage cited above under paragraph 49 above, which was additional to that given in the passage at paragraph 48.
64.
It is for these reasons that we consider that the omission of a direction as to the effect of
section 119
was inconsequential. In fact, the judge dealt at some length with the fact that Walden and Blanchard had made inconsistent statements which were not incriminatory of the Appellants, as the above passages demonstrate.
65.
The remainder of the grounds of appeal contend that there were material omissions from the summing up, and, in the case of Justin, that the Judge should have directed the jury to consider whether the conflict between the oral testimony and the previous statement was so great that the evidence of the witness could not be relied upon at all. We do not think that the judge could be faulted in the latter respect. There had not been a submission of no case to answer at the close of the prosecution case; it is not now submitted that the evidence before the jury was such that the convictions were perverse; and it follows that the judge would have been entitled to reject such a submission.
66.
What is more significant is the submission on behalf of the Appellants that the Judge failed to draw the strings of their case together: to remind the jury not simply that the earlier accounts of Walden and Theresa Blanchard were consistent with and supported the Appellants’ case at trial, but also to remind them of the content of the earlier statements and in what respects they were supportive of their case. Similarly, the judge reminded the jury of the evidence of Messrs Heaford and Chater, but did not say in terms that their evidence was supportive of Mark’s case that he had never been in the car with Justin and Walden when Cutler was taken to the park.
67.
We would agree that the summing-up would have been improved if the judge had drawn together the threads of the defence case as has been suggested on their behalf. However, the jury knew that Walden’s and Blanchard’s previous inconsistent statements were exculpatory of the Appellants, and it was obvious that the evidence of Messrs Heaford and Chater was supportive of Mark’s case. The jury were clearly warned of the need for caution when considering the testimony of Walden and Blanchard, and the need to consider those inconsistent statements. The fact that Walden and Blanchard had changed their accounts was emphasised more than once. In our judgment, the summing-up was adequate. We do not consider that the jury were under any misapprehension as to those matters. We do not find it surprising that the jury were able to reach a verdict on Justin Billingham before reaching their verdict on Mark. Justin’s case, that he had accompanied Walden with Cutler, not knowing where they were going, had played no part in the violence, and had not noticed the blood on Walden until they returned home, and that he disposed of his own clothes out of panic, was not an easy one. Mark had the difficulty of the evidence of Cutler’s blood on his boot and of the inconsistency between what he had told the police in interview as to how many boots he owned and his evidence at trial: an inconsistency that it was difficult to explain away. Having considered the grounds of appeal with the care which they deserve, our conclusion is that both convictions are safe.
68.
We nonetheless consider that the present JSB direction should be reconsidered. Where the previous statement is exculpatory of the defendant, it is sufficient for the jury to conclude that it may be true: the present direction requires the jury to be sure that even an exculpatory statement is true. It would be preferable for the direction to make this distinction. However, we consider that this had no effect on the adequacy of the summing up or the safety of the convictions, since it is clear that the jury concluded that they were sure that the incriminating testimony of Walden and Blanchard was true.
69.
For the reasons given above, these appeals will be dismissed. | ```yaml
citation: '[2009] EWCA Crim 19'
date: '2009-01-23'
judges:
- LORD JUSTICE STANLEY BURNTON
- HIS HONOUR JUDGE STEPHENS QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
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judges: <list of judge full names>
```
=====
{context}
======
| No.
2010/06084/D4
Neutral Citation Number:
[2011] EWCA Crim 1824
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Tuesday 28 June 2011
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE OWEN
and
MR JUSTICE WALKER
- - - - - - - - - - - - - - -
R E G I N A
- v -
Q
- - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Miss E Goodall
appeared on behalf of the Appellant
Mr C Stimpson
appeared on behalf of the Crown
- - - - - - - - - - - - - - -
J U D G M E N T
Tuesday 28 June 2011
THE LORD CHIEF JUSTICE:
I shall ask Mr Justice Owen to give the judgment of the court.
MR JUSTICE OWEN:
1. On 14 October 2010, in the Crown Court at Isleworth, before His Honour Judge Johnson and a jury, the appellant (now 28 years of age) was convicted of assault occasioning actual bodily harm. He was sentenced to three years nine months imprisonment. He appeals against both conviction and sentence with the leave of the single judge.
2. The victim is 6 years of age. In consequence, the provisions of
section 39
of the
Children and Young Persons Act 1933
are engaged. We assume that the appropriate order protecting anonymity was made in the Crown Court, but for the avoidance of doubt we made such an order at the outset of this hearing. It is for that reason that we will refer to the protagonists by their initials.
3. The complainant JE was born on 20 May 2005. He was therefore 4 years of age at the date of the events in issue. He lived at a flat in Shepherds Bush with his mother (RE) and his siblings (AE, then aged 5, and ME, aged 1). The appellant was in a relationship with RE and would regularly spend time with the family.
4. On 22 June 2009 the appellant stayed the night at the address, as did CE (the 16 year old sister of RE). It was the prosecution case that on the morning of 23 June the appellant punished JE for having defecated in his pants by repeatedly slapping and kicking him. That afternoon a neighbour (KY) and her foster sister (IE) visited the flat, saw the injuries to JE and were sufficiently concerned to remove the child whom they took to KY's home. The matter was then reported to Childline, who in turn notified the police.
5. The police went to KY's address and saw the injuries to JE. His older sister AE gave an account of what had occurred. JE was reluctant to speak to the police but said that when the appellant hit him he had fallen to the floor and cut his head.
6. The following morning, 24 June 2009, the boy was examined by a consultant paediatrician, Dr Abrahamson. He recorded extensive bruising and abrasions to both sides of the face, upper neck and both ears. Such injuries were suggestive of slapping as a possible causative mechanism. He also found innumerable pale, circular bruises on the child's back extending from the lower leg to just above the buttock line.
7. The appellant was arrested and interviewed. He submitted a prepared statement in which he described seeing the child in the bathroom where he had "pooed" himself. He had sent him back to bed. He denied hurting him or assaulting him in any way.
8. At trial both the child and his sister AE gave evidence. Their ABE videos were played to the jury and stood as their evidence in chief. Both were then cross-examined via video-link. In his ABE interview JE had stated that the appellant had slapped him. He demonstrated being hit on the face and legs, but was unable to say when or why that had happened. He described being kicked "loads" and being stamped on. Nothing like this had happened to him before. His mummy was asleep downstairs when this had happened and his sister AE was also downstairs. During the interview he asked to see his sister and then had to be coaxed into sitting up and continuing to answer questions.
9. In cross-examination JE maintained his initial account that the appellant had slapped and kicked him. He provided some additional detail in his evidence.
10. In her ABE interview his sister had said that it was when she was watching television with CE downstairs that she had heard the appellant shouting and her brother receiving lots of slaps in the bathroom because he had "pooed" his pants. In cross-examination she said that her brother was quite naughty and sometimes told fibs.
11. The third witness in the flat at the material time was the child's aunt, CE, who was then 16 years of age. It is in relation to her evidence that the appellant's first ground of appeal against conviction arises. She was interviewed by the police on 24 June 2009. The interview was video recorded. However, on 2 February 2010 she made a withdrawal statement indicating that she did not want to give evidence at trial. The statement was in the following terms:
"I would like to withdraw my statement that I made to the police on 24 June. Everything in my statement is true. The reason I would like to withdraw my statement is because I felt pressured at the time to make the statement by [IE] and [KY]. The reason being that they told me that [JE] had a lot of injuries on him, which I never saw. I suffer from nervous breakdowns, diabetes, anaemia and cystic fibrosis. This is all very stressful to me. I do not want to attend court and give evidence. I am very close to my sister [RE] and have not been able to see or speak to her, which is very upsetting. I would like to add that [RE] told me that [JE] did not have any injuries to him when he left the flat on 24 June .... I believe my sister."
12. On 21 September 2010 the prosecution applied for a witness summons to compel CE's attendance at trial. She duly attended at court on 5 and 6 October. She was not reached on 5 October, but on that day the prosecution made an oral application for special measures in relation to her evidence. The application was granted on the following day when she was called.
13. In accordance with the special measures direction, her video interview stood as her evidence in chief. In a long answer, which was uninterrupted by the interviewing officer, she said:
".... I could hear screaming from upstairs. I could tell it was [JE]. It was -- I could hear slapping. It weren't a normal slap, probably constant smacking and like non-stop and I hear him say: 'What is this in your pants?' He said: 'It's pooh, [J], it's pooh'. So I was sat there, I said to myself, pooh, [J] don't pooh himself ever since he was born".
14. Shortly after the commencement of cross-examination CE said that she did not want to answer any further questions, that she felt pressurised. She went on to say that she had been told by the officer in the case, Detective Sergeant Lisa Day, that if she did not want to answer any more questions she should say so to the court. It emerged that during the short adjournment she had seen DS Day, and had told her that she did not want to answer questions. According to a witness statement from the officer, she told CE that she could not force her to answer questions.
15. In any event, the learned judge then intervened and asked the jury to retire. He addressed the witness. She repeated that she did not want to answer any more questions. The following exchange then took place:
"JUDGE JOHNSON: Miss [E], will you please listen to me. You are a witness and a witness has obligations. That means that you do not have a choice as to whether you answer questions, you do have to.
A. Yes, I do have a choice, my choice, my rights, my human rights.
JUDGE JOHNSON: Miss [E], you do not have a choice and if you do not answer the questions then I have the power to punish you. Do you understand that? Now, I am not going to force you to do it right now, I am going to give you a little time to think about it.
A. I am going to be punished for something I do not want to do.
JUDGE JOHNSON: That is the law.
A. That isn't the law.
JUDGE JOHNSON: And I apply the law. So you can have five minutes now to think about the future, but I want you to be aware that if you fail to answer reasonable questions that Miss Goodall wishes to put to you, you are at risk of punishment and that punishment can be serious. So I am going to turn off the screen now, I am going to ask you to stay with the usher and think about your future for the next five minutes."
16. Miss Goodall, who appeared for the appellant at trial as before this court, then raised the question of whether the witness ought to have legal advice to explain the nature of any punishment to her. The learned judge indicated that he thought that that was premature, saying:
"Well, I think this is all a little bit further down the line, Miss Goodall. I simply want her to apply her mind to this knowing that there are sanctions available and if she fails to do this, I am reluctant to start making enquiries of her as to why she is reluctant to do this. I do not know if either of you have any views on that?"
Miss Goodall then drew the attention of the learned judge to the withdrawal statement made in February 2010, to which we have already referred. After further discussion he adhered to his view that it was not necessary for the witness to receive legal advice at that stage. He said:
"Well, everyone knows that I cannot physically make her answer questions. She is a 17 year old girl. She knows that I cannot force her and what I have said is that she does not have a choice, she has to answer them and there are serious consequences if she does not. I am not going to deal with the consequences before she is represented."
17. The court reconvened and cross-examination continued. The witness answered many questions, "I don't know", but she gave substantive answers to others. The cross-examination was robust. It was put to her in terms that the injuries sustained by JE were inflicted after he left his mother's flat. At one stage in the cross-examination the witness became distressed. At another point Miss Goodall put to her part of the contents of the withdrawal statement that she had made on 2 February. She also put to her that she had not been prepared to come to court voluntarily and had attended in response to a witness summons. In re-examination she answered a number of questions, but when invited to comment as to whether or not passages from her video interview in which she described what she had heard in the flat on the night in question were true, she repeatedly said that she did not know.
18. At a later stage in the trial, CE's father was called by the defence. He gave evidence to the effect that CE had told him that she had been threatened by IE and KY and had lied to the police in her original video interview. He had gone with her to Earls Court Police Station both in July 2009 and on 2 February 2010 when she had made her withdrawal statement.
19. At the conclusion of CE's evidence Miss Goodall applied for its exclusion, pursuant to
section 28
of the
Police and Criminal Evidence Act 1984
; alternatively, for the discharge of the jury. The application was refused. It is that refusal that is the subject of the first ground of appeal which is in the following terms:
"(i)
The learned judge's treatment of the witness [CE] amounted to a material irregularity.
(ii)
The learned judge erred in law by failing to exclude the evidence of [CE].
(iii)
The learned judge erred in law by failing to discharge the jury.
(iv)
The learned judge erred in law by admitting the withdrawal statement of [CE]."
20. There were a number of strands to the argument advanced by Miss Goodall in support of the submission that the learned judge should have excluded the evidence of CE, or, alternatively, should have discharged the jury, and that his failure to take either course rendered the verdict unsafe. First, it is submitted that, prior to the calling of CE, the prosecution did not disclose to the defence any express reluctance upon her part to answer questions asked of her. Miss Goodall submits that such disclosure would have permitted an application or enquiry to be made prior to the calling of the witness and thereby militating against the prejudice that she asserts ultimately occurred.
21. There are two points to be made. First, it is far from unusual for a witness to be reluctant to give evidence, particularly in a case such as this where there are plainly conflicting loyalties within the family. But in the event, CE appeared in response to the witness summons, both on 5 October and on the following day, the day on which she gave evidence. Secondly, the defence was well aware of her reluctance to attend as they knew about the withdrawal statement, and they called her father to give evidence about it. They also knew that a witness summons had been issued to compel her attendance. In our judgment it was not incumbent on the prosecution to make any further disclosure as to her reluctance to give evidence in advance of her being called.
22. Secondly, Miss Goodall contends that the learned judge's treatment of the witness when she indicated that she was not prepared to answer any further questions amounted to a material irregularity in the trial process. She submits that he gave an erroneous warning to the witness by his reference to "serious punishment" which "would give rise to the spectre of custody" when, in fact, there is no power to impose a sentence of imprisonment for a witness under 18 who is found to be in contempt: see
R v Byas
(1995) 16 Cr App R(S) 869. She further argued that a witness who is liable to a finding of contempt ought to be afforded the protection of legal representation.
23. In our judgment there was nothing irregular in the manner in which the learned judge dealt with the situation that arose in the course of the cross-examination of CE. He was faced with a situation that arises not infrequently and requires a firm response. It will usually be necessary for the witness to be told that, as a witness in a court of law, he or she is under an obligation to answer questions and does not have a choice in the matter. That is precisely what the learned judge made clear to CE. Furthermore, and having had the opportunity to make an assessment of her from the video interview, in her evidence in cross-examination before the problem arose, and in her feisty response to being told that she had no choice in the matter, he was fully entitled to reinforce his direction to her by pointing out that he had power to punish her if she refused to answer questions. In our judgment the learned judge handled the situation with the requisite blend of sensitivity and fairness. He gave her the opportunity to reflect on what he had said before continuing. His approach cannot be faulted.
24. It is further submitted that the condition and attitude of the witness prohibited the defence from eliciting comprehensive and appropriate responses in cross-examination and that in consequence she was not available for cross-examination in any effective sense. However, it is clear from the transcript that Miss Goodall was able to put the appellant's case forcefully. Furthermore, she elicited a number of answers that provided the basis for submissions to the jury as to the reliance that could be placed upon CE's evidence and that she had been subjected to pressure to fabricate an account to the police. In particular, she accepted in the course of cross-examination that KY and IE had put pressure on her to speak to the police; she accepted that they wanted her to blame the appellant for what had happened and that IE had accompanied her to the police station. She further accepted in cross-examination that she did not want to make the initial complaint or statement, that she did not know if JE's injuries were caused in the flat, and she confirmed that she had not attended court voluntarily and had had to be the subject of a witness summons. In short, the contention that she was not available for cross-examination in any effective sense is, in our judgment, simply not borne out by the transcript of her evidence.
25. Miss Goodall also criticises re-examination by prosecuting counsel. She asserts that it went beyond that permitted by the rules. Her complaint is that it amounted to cross-examination; prosecuting counsel put passages from the video interview to the witness and asked whether or not they were true.
26. Whilst we see some force in the criticism, as it could be argued that prosecuting counsel was simply taking the opportunity to reinforce CE's evidence by repeating what she had said in the video interview, no objection was taken at the time. In our judgment, when her evidence is viewed as a whole, the manner in which the questions were put cannot have caused any real prejudice to the appellant.
27. The final point advanced with regard to the evidence of CE is that the learned judge erred in permitting CE's withdrawal statement to be adduced through the evidence of her father and in the evidence in chief of DC Griffin.
28. However, that submission fails to take account of the fact that it was counsel for the defence who had introduced the evidence as to the withdrawal statement in cross-examination of CE, and then called evidence from her father as to the circumstances in which the retraction statement had come to be made. In cross-examination counsel had been selective in putting the statement to CE. The passage that she put to her did not include the statement that everything in her original evidence was true. The thrust of Miss Goodall's complaint, as it was developed in the course of her submissions, was not so much that evidence as to the full content of the statement went before the jury, but the timing at which it occurred.
29. In our judgment it cannot be argued that the fact that such material went before the jury rendered the verdict unsafe.
30. It follows from that analysis of the specific criticisms made of the manner in which the learned judge handled the evidence of CE, that there is no basis for the submission that he ought to have acceded to the application, either to direct the jury to exclude such evidence from their consideration of the case against the appellant or to have discharged the jury. Furthermore, his direction to the jury as to their approach to her evidence was conspicuously fair and careful. He reminded them of her change of heart, her reluctance to give evidence, and the fact that she had not confirmed her original evidence "with any degree of certainty". He concluded:
".... it follows that as a matter of common sense you should approach her evidence with particular care. If you thought the reason she gave evidence in the way she did was she is not being truthful, for whatever reason, in her taped interview, then clearly the whole of her evidence is suspect and of no value. Likewise, if you accept the evidence of her father, that [CE] had been threatened and had admitted to him that as a result she had given a false statement, not only does this make her statement worthless but it also calls into serious doubt the testimony of [IE]. If you think that it might even be unsafe to rely on her account, taking into account all the evidence you have heard about it, reject her evidence as a whole, ignore it and continue your deliberations by examining the other evidence in the case. If, having given it that careful scrutiny, you are sure that on some or all matters she has been, even at one stage, truthful and accurate, then, bearing in mind the warning that I have given you, you may rely on her evidence."
That is a direction that could not be improved upon. It follows that we find no substance in the first ground of appeal.
31. By ground 2 the appellant contends that the learned judge erred in law by admitting evidence of good character of the prosecution witness IE and the non-witness KY; and secondly, that he failed to give an adequate direction in his summing-up upon the evidence of character that had been adduced.
32. The context in which the point arises is that the defence case was conducted upon the explicit basis that the two young women who removed JE from his mother's flat and reported his injuries to Childline, were themselves responsible for the injuries that he sustained. In cross-examination of IE it was put to her that KY had been in care as a result of assaulting her own sister when she (KY) was 14 or 15, and that KY had slapped IE's children when looking after them. They were allegations repeated by the appellant when he gave evidence. It was further put to IE that she was responsible for repeatedly dislocating her own daughter's elbow and had allowed her access to sleeping pills.
33. Against that background the learned judge properly gave leave for evidence to be adduced as to the appellant's criminal record, which included convictions for assaults on police, minor public order offences and offences of dishonesty. The evidence was given by the officer in the case, DS Day, who also gave evidence that neither KY nor IE had any convictions, although KY had been reprimanded for a public order offence when aged 15, and cautioned for criminal damage when she was 17.
34. It is submitted on behalf of the appellant that the learned judge erred in permitting such evidence to be adduced. In this context Miss Goodall invited our attention to
R v Hamilton
(TLR 25.07.98). That decision was referred to in
R v Mazhar Ali
[2006] EWCA Crim 1976
, in which, in giving the judgment of the court, Maurice Kay LJ said:
"34. We accept that as a matter of general principle and historic doctrine, whereas the good character of a defendant is relevant and admissible, the good character of a prosecution witness is not -- a position described as 'anomalous' as long ago as 1865, in the case of
Rowton
. That doctrine was more recently referred to by Buxton LJ in
R v Errol Hamilton
.... Nevertheless there are cases in which the good character of a prosecution witness may become relevant and admissible, not least because it may go to an issue in the case. ...."
35. It had been put to IE not only that she and/or KY were responsible for the injuries to JE, but that they had also committed criminal acts against children in the past. In those circumstances we are entirely satisfied that the evidence that such allegations had not resulted in criminal convictions was both relevant and admissible. It bore on a central issue in the case.
36. The second strand of the argument with regard to ground 2 is that the learned judge failed adequately to sum up the character evidence. In our judgment the argument is unsustainable. The learned judge gave an impeccable direction; if anything it was favourable to the appellant. He explained to the jury why they had heard about the appellant's convictions. He said:
".... let me explain how this evidence is relevant to your consideration in this case. When the case was being advanced for the defence it was suggested that [JE] was actually harmed once he had left .... his mother's address. Those who were with him were [IE] and [KY] and the defence put it in fairly robust terms to [IE] that if she herself had not caused these injuries alone or with another then she was at least complicit in the assault, the other main candidate for the offence being [KY].
In fairness to those women it would be wrong for you to be let in ignorance about the character of the man making these accusations against these women. You are entitled to have regard to the character of this defendant as revealed by his convictions when deciding what the truth is. I have said that you may have regard to his character; whether and to what extent it assists you, you must judge."
He went on to emphasise to the jury that bad character evidence was simply part of the evidence in the case and that its importance in the case should not be over-emphasised. He also explained why the jury had heard evidence about the women's records, or lack of them, in the following terms:
"The reason you have heard about the women's records or lack of them was so you could know that while these allegations were made they did not result in convictions or any other remedy in the criminal process, save for those matters you heard concerning [KY] -- that is the public order offence and the criminal damage when she was a teenager. You must assess what evidence of bad character against these women you accept. If you do accept some or all of it, it does not prove that one or both was [JE's] assailant but it is there for you to assess when deciding whether it was indeed [the appellant] who was [JE's] assailant."
37. In our judgment this ground of appeal is also without substance. It follows that the appeal against conviction is dismissed.
38. We turn to the appeal against sentence. It is submitted that it is manifestly excessive and that it fell outside the sentencing bracket indicated in the Overarching Principle: Assaults on Children and Cruelty to a Child.
39. Miss Goodall invited our attention to the suggested bracket of 26 weeks to two years custody for assault occasioning actual bodily harm. However, in passing sentence the learned judge identified a number of serious aggravating features. First, the appellant stood in loco parentis to the child. Secondly, he rightly regarded the assault as an abuse of power; JE was particularly vulnerable because of his very young age. Thirdly, he rejected the submission that the injuries sustained by JE were not serious. In the course of his sentencing observations he said:
"One just has to look at the photographs of the number of bruises sustained by [JE] to realise that these were serious injuries."
He added, not surprisingly in the circumstances:
".... these bruises may clear up, but what harm remains in that child no one will ever know."
We, too, have seen the photographs. That is an observation with which we are in full agreement. The learned judge concluded that the assault was "at the very upper end of the scale". Fourth, he was satisfied that the appellant had subjected the child to a sustained beating, evidenced by the large number of bruises and scratches over his face, head and ears, and the injuries to his back. The assault could so easily have resulted in very much more serious injuries.
40. We take account of the relatively young age of the appellant, and of the fact that there were no comparable convictions in his record. But there were no other mitigating features. In the light of the aggravating features to which we have referred, the sentence of three years and nine months imprisonment, although severe, cannot, in our judgment, be said to have been manifestly excessive.
41. Accordingly, the appeal against sentence is also dismissed. | ```yaml
citation: '[2011] EWCA Crim 1824'
date: '2011-06-28'
judges:
- MR JUSTICE OWEN
- MR JUSTICE WALKER
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2011] EWCA Crim 1907
No: 201101551 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday, 7th July 2011
B e f o r e
:
LORD JUSTICE LEVESON
MRS JUSTICE SWIFT DBE
MR JUSTICE GRIFFITH-WILLIAMS
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
DARIUS ANTON JAMES
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7422 6138
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr M Foley
(Solicitor Advocate) appeared on behalf of the
Appellant
- - - - - - - - - - - - - - - - - - - - -
Judgment
1.
MRS JUSTICE SWIFT: On 16th February 2011, at Leeds Crown Court before His Honour Judge Spencer QC, the appellant, who is 21 years old, was sentenced for five offences committed in April 2010. Those offences were possession of a Class A drug (cocaine) with intent to supply, possession of a Class A drug (crack cocaine) with intent to supply, possession of a further Class A drug (heroin) with intent to supply, and possession of a Class B drug (cannabis) with intent to supply. There was also an offence of possession of criminal property. There was a preliminary hearing in November 2010 at which the prosecution papers were not available. There was then a plea and case management hearing on 26th January 2011, at which the appellant pleaded guilty.
1.
The sentence for possession of cocaine was five years 220 days' imprisonment. For the other four offences he was sentenced to the same period of imprisonment concurrent. The total sentence was therefore one of five years 220 days' imprisonment. He appeals against that sentence by leave of the single judge.
2.
On the morning of 4th April 2010 police officers executed a search warrant under the provisions of the
Misuse of Drugs Act 1971
at the appellant's home address. The appellant lived in an attic which was converted into a bedroom, and there were other smaller rooms. The police officers who entered the building saw the appellant leaning out of the bedroom window whilst those officers who had remained outside saw him throw a package the size of a cricket ball onto the roof of the premises. The package bounced off the roof and fell to the ground, where it was retrieved by one of the officers.
3.
The appellant was arrested. His home was searched and the police found £804 in cash, which was the subject matter of the count of possession of criminal property. They also found packages containing cannabis, a dealer's list, a package containing cocaine and three mobile phones. The package he had thrown out of the window was found to contain 64 wraps of drugs. In all the officers recovered 28 wraps of heroin weighing 6.89 grams with a street value of £344, 36 wraps of crack cocaine weighing 7.59 grams with a street value of £569, a package of cocaine weighing 7.28 grams with a street value of £291 and 374.83 grams of cannabis with a street value of just over £1,600. The total street value of the drugs was £2,815. The appellant's mobile phones were examined and one of them contained 57 messages relating to drug dealing sent by the appellant between 1st and 23rd March 2010.
4.
When interviewed the appellant declined to comment, but a prepared statement was read out in which he claimed that all the drugs found were for his own use and that he did not intend to share, give, sell or provide the drugs to anyone else. He stated that he had bought the cannabis in bulk because it was cheaper that way.
5.
The appellant has previously been convicted for a total of 11 offences, all bar one related to drugs. In December 2004 he was sentenced for offences of possessing cocaine, heroin and cannabis with intent to supply. Those offences had been committed on 17th September 2004, the day before his fifteenth birthday. He was given nine month referral orders for each offence. In February 2007 the appellant was sentenced for six further drug-related offences. They comprised two groups of offences. First, there were two offences of supplying crack cocaine and one of supplying heroin. Those three offences were all committed in June 2006, when the appellant was 16 years old. Then there were offences of supplying crack cocaine and heroin and of possessing crack cocaine with intent to supply, which had been committed in October 2006, shortly after his seventeenth birthday. On that occasion he was sentenced to two year supervision orders for each offence concurrent, with a direction that he should undertake an intensive supervision and surveillance programme and be subject to a six month curfew order with electronic monitoring.
6.
There was a pre-sentence report dated 3rd February 2011 before the sentencing court. The appellant had told the author of the report that he had been dealing regularly since January 2010 and would get approximately 20 deals of heroin and crack cocaine delivered twice a day, which he would then sell on the street. By this means he would earn about £100 a day to supplement his benefits. He admitted frankly that he found dealing drugs an easy way of making money. He has never used Class A drugs himself. He used to take cannabis, but no longer does so. Perhaps surprisingly, the author of the report assessed him as being at low risk of re-offending, whilst recognising that a prison sentence was inevitable.
7.
The appellant wrote to the court, expressing remorse and his intention not to re-offend in the future. Since the offences he had moved in to live with his girlfriend and her family and had made attempts to find work.
8.
When sentencing the appellant, the judge noted that, since he had been convicted for a third time of a Class A drug trafficking offence, he fell within the terms of
section 110
of the
Powers of Criminal Courts (Sentencing) Act 2000
, which requires the court to impose a custodial sentence for a term of at least seven years unless the court is of the opinion that there are particular circumstances relating to the offences or the offender which would make it unjust to do so in all the circumstances. The judge considered that there were no such circumstances in the appellant's case. He therefore took seven years' imprisonment as his starting point. However, he said that the appellant was entitled to credit for his guilty pleas and reduced the sentence by 20 per cent, that being the maximum discount for a guilty plea which is permitted by
section 144(2)
of the
Criminal Justice Act 2003
in a case where the minimum sentence is imposed pursuant to
section 110
of
the 2000 Act
. The final sentence was therefore five years 220 days' imprisonment.
9.
There is a prison report before this court which indicates that the appellant is co-operative and generally well behaved. He is working in a production workshop with a view to undertaking a course in some type of building skills in the future.
10.
In his grounds of appeal, Mr Mark Foley, solicitor advocate, who represented the appellant at the sentencing hearing and before us today, contended that the judge was wrong not to find that there were circumstances which made it unjust to impose the statutory minimum term in this case. He identified those circumstances as the appellant's youth at the time the two sets of qualifying offences were committed, the fact that he received non-custodial sentences for each set of qualifying offences and the fact that he had not previously served a custodial sentence. He submitted also that insufficient account had been taken of the appellant's age, his early guilty pleas and his previous compliance with non-custodial sentences. He produced a pre-sentence report which had been prepared for the hearing in February 2007 and which described how the appellant had successfully completed his referral orders, complied well with their requirements and had been co-operative and polite. For that reason she recommended that he remain subject to a supervision order, a recommendation that was accepted by the court.
11.
This is the appellant's third conviction for supplying Class A drugs. His offending appears to have followed a similar pattern on each occasion in that he was provided on a regular basis with a number of wraps or deals which he would then sell on the street. By this means he was able to make a steady income. It was easy money, as he told the authors of the pre-sentence reports prepared in both 2007 and 2011. Although he was aware of the risks he was running, he could not resist the temptation.
12.
It is this kind of repeat offending committed for the purpose of financial gain that
section 110
of
the 2000 Act
is intended to address. There are, however, unusual features in this case. The first set of qualifying offences for the purposes of section 10 were committed when the appellant was aged only 14 years. The second set were committed when he was aged 16 and just 17 years. Even now the appellant is a relatively young man. He has never previously received a custodial sentence.
13.
We consider that those features, and in particular his age at the time of the qualifying offences, constitute particular circumstances relating to the appellant which would make it unjust to impose the prescribed minimum custodial sentence of seven years in his case, and we consider that the judge should have so found. In our judgment, the total sentence passed was excessive.
14.
There is, however, no doubt that a substantial prison sentence was inevitable having regard to the nature of the offences and the appellant's previous convictions for offences of a similar nature. As his advocate has conceded, there is no mitigation available in the offences themselves.
15.
In our judgment, the appropriate sentence after a trial would have been one of six years' imprisonment.
16.
Since we take the view that it would be unjust to impose the prescribed minimum sentence, the limited reduction permissible for a guilty plea does not apply. We therefore take account of the circumstances leading to the appellant's guilty plea. At the preliminary hearing he made it abundantly clear, so we are told, that he intended to plead guilty in the future, although no papers were available on that day and he was not arraigned. He then pleaded guilty at the following plea and case management hearing. In those circumstances we consider it appropriate to give full credit of one third for the appellant's early guilty plea, making a final sentence of four years' imprisonment. The sentences of five years 220 days' imprisonment on each count will therefore be quashed and there will be substituted sentences of four years' imprisonment on each count concurrent. The ancillary orders stand. To that extent the appeal is allowed. | ```yaml
citation: '[2011] EWCA Crim 1907'
date: '2011-07-07'
judges:
- LORD JUSTICE LEVESON
- MRS JUSTICE SWIFT DBE
- MR JUSTICE GRIFFITH-WILLIAMS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 1612
Case No:
200900866/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Monday, 6th July 2009
B e f o r e
:
LORD JUSTICE KEENE
MR JUSTICE HOLMAN
THE RECORDER OF NOTTINGHAM
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
DAVID EDWARD LEEKS
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr R Bryan
appeared on behalf of the
Applicant
Mr A McGee
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE HOLMAN: This is an application for leave to appeal against conviction which has been referred to the Full Court by the Registrar of this court.
2.
The fundamental issue on this application is as to the validity of a count which was added to an indictment without the court making an order for amendment as required by section 5(1) of the Indictments Act 1915. On the facts and in the circumstances of this case, the point might be regarded as technical in the extreme. However, as Lord Bingham of Cornhill said at paragraph 17 of his speech in the case of
R v Clarke and McDaid
, to which we will refer more fully later:
"Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place."
3.
The essential background facts to this application are as follows. On 18th September 2006 this applicant was driving his car in Basildon in Essex. A pedestrian began to cross the road from the applicant's left-hand side. The car struck the pedestrian, who died shortly afterwards in hospital.
4.
It has never been in issue that the applicant had shortly beforehand been drinking alcohol at a pub. He said as much to witnesses at the scene. Moreover, when police arrived he was asked to, and did, supply a specimen of breath at the roadside which was positive. He was arrested and taken to the police station. Here, however, he refused to provide any further specimen for testing for the volume of alcohol in his blood. Initially the applicant was charged on an indictment which was, and is, a completely valid indictment, properly signed by an officer of the court. It charged a single count, namely causing death by careless driving and refusing to provide a specimen of breath contrary to section 3A(1)(c) of the Road Traffic Act 1988. The particulars of the offence were that the applicant:
"... on the 18th day of September 2006 caused the death of [the victim] by driving a mechanically propelled vehicle on a road... without due care and attention and within 18 hours after that time was required to provide a specimen of breath, pursuant to section 7 of the Road Traffic Act 1988 but without reasonable excuse failed to do so."
5.
This indictment was fixed for trial in the Basildon Crown Court, due to start on Monday 8th October 2007. The indications were that the applicant proposed to plead not guilty. Although we do not know all the details, it seems that at one stage a serious issue was being raised with regard to causation of the accident itself.
6.
It appears that the victim also had a considerable quantity of alcohol in his blood, and the suggestion was that he had, in effect, darted into the road at so late a stage that it would have been impossible for the applicant to avoid the collision, even if he had driven with complete care and attention.
7.
The case was listed "for mention" on Friday 5th October 2007 before His Honour Judge Clegg who sits regularly at the Basildon Crown Court and who seems to have been identified by then as the trial judge. As we understand it, part of the reason for that "mention", which had been listed on the application of the defence, was due to certain issues as to outstanding disclosure, to which we need not refer.
8.
However, it is plain that as the date for trial drew close, the prosecution and in particular their intended trial counsel, Mr Caudle, had become increasingly concerned as to whether they could properly prove the case that was alleged in the indictment. The reason for that was that there had, or may have, been certain irregularities at the police station, such that the police were not lawfully and regularly requiring the applicant to provide a further specimen. Thus they might not have been able to prove that he had failed to do so "without reasonable excuse". The way in which the prosecution inclined to face up to that problem was to seek to add a second count to the indictment, namely one of causing death by careless driving when unfit through drink, contrary to section 3A(1)(a) of the Road Traffic Act 1988.
9.
As regrettably some times happens, different counsel were actually present at court on 5th October 2007, from the intended trial counsel. Mr Caudle was not present and instead Mr Wyatt appeared on behalf of the prosecution. It is quite plain that before they went into court that day Mr Wyatt, on behalf of the prosecution, and Mr Paxton, who was appearing that day on behalf of the defence, had some discussion about this proposed added and alternative count. The applicant himself was not present at court at all that day which, as we have said, was simply listed "for mention". From transcript Volume I, one sees following taking place:
"MR PAXTON: In terms of the indictment, your Honour will have seen----
JUDGE CLEGG: I do not have an indictment. I have a piece of paper that says indictment and there is absolutely nothing on it.
MR WYATT: Your Honour, I can pass up what is, unfortunately, a provisional indictment. I spoke to Mr Caudle this morning, who was instructed in this case....
JUDGE CLEGG: Right. Just let me have a look at this [viz plainly referring to what was handed up and described as a provisional indictment]. Causing death by careless driving and refusing to provide a specimen.
MR WYATT: If I can interrupt your Honour, it is Count 2 that will form the subject matter of the final indictment. Mr Caudle has advised that Count 2 be added in substitute of Count 1, but something has been lost in the translation and it has been added as an alternative, which is not correct. The final indictment, which will be ready on Monday, your Honour, will be Count...
JUDGE CLEGG: I do not know why the Crown are making difficulties for themselves.
MR PAXTON: Your Honour, in fairness, I will not go through all the factual history or the history of Mr Caudle's and my conversation recently, but actually when one examines the procedure in detail at the station Mr Caudle has, in my view rightly, observed that there are difficulties.
JUDGE CLEGG: I see.
MR PAXTON: He has come to a conclusion -- in fact I have seen different difficulties but come to the same conclusion -- and he indicated to me about two weeks ago that the Crown were going to amend the indictment and proceed on that second count. So there has been some discussion. I do not have my client here today, that was our request, and so I cannot say that I formally agree to the amendment, but that is a matter that can be resolved on Monday.
JUDGE CLEGG: Yes ..."
The discussion in court on the Friday then passed to other matters. Pausing there, one can plainly see that nowhere in the passage that we have quoted was Judge Clegg actually asked to make a ruling or decision, or to make an order for the amendment of the indictment, and quite plainly he did not do so. In that passage Mr Wyatt had referred to "a provisional indictment". He had said that the "final indictment ... will be ready on Monday" and Mr Paxton had referred to the issue of amendment being "a matter that can be resolved on Monday".
10.
Monday 8th October was, as we have said, the date fixed for trial. On this occasion, however, different counsel appeared for the prosecution, namely, Mr G King. Before a jury was empanelled, the defence sought from the judge a ruling on the question whether or not the prosecution could adduce in evidence before the jury, on the proposed new count, the readout obtained when the breath test was administered at the roadside. The Crown plainly wished to rely on the actual readout and the actual volume of alcohol in the applicant's blood that that readout indicated. The defence, on the other hand, contended that the essence of the charge was that he was "unfit to drive through drink"; and that although it was open to the prosecution to adduce evidence that he had drunk alcohol and was unfit to drive, they could not, on that count, adduce the actual readout itself. There was very considerable argument on this point extending to some 37 pages in transcript.
11.
It is right to say, and Mr McGee on behalf of the Crown presses this point very strongly upon us today, that the whole of that argument is plainly predicated on an assumption that the court either has made, or will make, an order under section 5(1) of the Indictments Act 1915, permitting an amendment to add the count. However, at no stage at all during the transcript of the argument itself was the court formally asked to make that amendment, and at no stage did the judge do so. His ruling appears at page 37F of the transcript. Judge Clegg began by saying:
"In this case the defendant is charged with an offence contrary to section 3A of the Road Traffic Act 1988..."
Pausing there, in that opening sentence the judge was not identifying whether the offence was one arising under paragraph (c), or paragraph (a) of subsection (1), but referring only generically to section 3A of the Act. At page 38B to E, he said:
"I need not go into a great deal of detail, but it would appear that mistakes were made at the police station, as a result of which counsel for the Crown has decided not to proceed for an offence under section 3A(1)(b)[sic] - which is causing death by careless driving having consumed so much alcohol that it exceeds the prescribed limit of alcohol in breath - but for an offence under 3A(1)(a), namely that the defendant at the time was unfit to drive through drink or drugs.
Because there is no Lion intoximeter reading, because there is no blood alcohol analysis, the Crown now seek to rely on the readout from the roadside breath device. It is to be noted they say that they are entitled to do that by any admissible means available to them."
12.
Pausing there, Mr McGee on behalf of the Crown today very strongly relies on that passage and submits that it is implicit within it that Judge Clegg either has already made an order permitting the amendment, or is proposing to do so; or even implicitly by that very passage is doing so.
13.
Plainly, however, there is no express reference to the judge exercising any such power in that paragraph. The passage is merely a recitation of the decision of the Crown not to proceed under one paragraph but, rather, under another. In our view it is a more accurate description of that passage that the judge makes an assumption that leave has been given, rather than that he actually implicitly grants leave. The judge then continued with his ruling and at the end of it simply ruled as follows:
"Accordingly I rule that it would be inadmissible for the Crown to seek to adduce the readout from the roadside breath test device. However, it would be perfectly proper - and indeed Mr Paxton concedes this - for them to adduce evidence that a roadside test was administered, that the defendant failed it, and that that constitutes an indication that the proportion of alcohol was likely to exceed the prescribed limit, but it cannot actually be determinative of that issue. That is my ruling."
14.
It might have been expected that following on that ruling the trial would then have got underway on 8th or 9th October 2007. However, other events had also taken place outside the courtroom on the morning of Monday 8th October 2007, which led the defence to seek to argue that the whole trial was now tainted by an abuse of process.
15.
It is not necessary for us to say much about that, for it is not germane to what we have to decide today, but explains the subsequent chronology. In essence, it seems that there was a period, perhaps only of minutes, during the morning of 8th October 2007 when the representative of the Crown Prosecution Service had said that the prosecution would accept a plea to a lesser offence, simply of driving without due care and attention. That intimation was rapidly withdrawn, but it led the defence to submit that it was now an abuse of process to proceed on the proposed more serious count. This in turn led to decisions that the abuse of process argument would have to be heard on an altogether different occasion; a different advocate would have to represent the prosecution; statements would have to be made as to what was said by the various actors that morning; and that it was preferable that the abuse of process ruling should be made by a different judge and therefore at a different court. So it came about that the abuse of process argument was only heard and ruled upon about a year later in the Chelmsford Crown Court by His Honour Judge Ball QC. He ruled against the defence abuse of process submission and the case was fixed for trial in the Chelmsford Crown Court on 4th November 2008. As we understand it, it was still the intention of the applicant at the start of that day to plead not guilty in reliance on the issue as to causation that we have indicated. Apparently, when he arrived at court, or went into the courtroom, and saw relatives of the deceased, the applicant was so struck that he decided at the very last minute to change his plea to one of guilty.
16.
By now, there was what we will call a piece of paper in circulation that was headed "indictment". It has all the appearance of an indictment and contains upon it two counts. The first count is a repeat of the count that was in the original indictment that we have already quoted in full. Count 2 charged:
"CAUSING DEATH BY CARELESS DRIVING WHEN UNFIT THROUGH DRINK contrary to section 3A(1)(a) of the Road Traffic Act 1988.
PARTICULARS OF OFFENCE.
[The applicant] on the 18th day of June [sic, but it should have said September] 2006 caused the death of [the victim] by driving a mechanically propelled vehicle... on a road... without due care and attention and at a time when he was unfit to drive through drink."
That piece of paper is nowhere signed by an officer of the court and does not contain anywhere upon it any endorsement pursuant to section 5(2) of the Indictments Act 1915 that the original indictment had been amended.
17.
We have now at Volume VI a transcript of the arraignment itself. It proceeded as follows:
"THE CLERK OF THE COURT: Would you stand up, please? David Edward Leeks, you are charged with causing death by careless driving and refusing to supply a specimen of breath ----
MR CAUDLE: No, that is the wrong indictment.
JUDGE BALL: No, it is the wrong indictment. There should be an indictment dealing with 'whilst unfit'. A copy is coming.
THE CLERK OF THE COURT: David Edward Leeks, on this indictment you are charged with causing death by careless driving when unfit, contrary to section 3A(1)(a) of the Road Traffic Act 1988, in that on the 18th day June 2006 you caused the death of [the victim] by driving a mechanically propelled vehicle, on a road... without due care and attention at a time when you were unfit to drive through drink. Do you plead guilty or not guilty?"
THE DEFENDANT: Guilty.
THE CLERK OF THE COURT: You plead guilty. Please sit down."
Mr Caudle then referred to the error in the date, which should have specified September rather than June and that, in effect, was corrected. Following the plea of guilty the judge proceeded to sentence this applicant to 2 years' imprisonment and disqualified him from driving for 7 years. There has never been any subsequent attempt to seek to appeal from that sentence. So it might have seemed that this matter ended.
18.
However, on 14th January 2009 His Honour Judge Ball QC, who had presided on 4th November 2008 and who is the resident judge of the Chelmsford Crown Court, wrote a letter or memorandum which he circulated to all relevant people and bodies including the Registrar of this court. It begins:
"When court staff were dealing with the paperwork connected with the final disposal of this case it came to their attention that no form of a signed amendment to the indictment existed. I have conducted a detailed research of the court files and the various hearings, and I have obtained transcripts of the hearings at Basildon Crown Court when the issue of the amendment was raised and formed part of the discussion about the progress of the case. Whilst it is apparent that from a very early stage all parties agreed that the indictment would be amended by the addition of a second count alleging 'death by careless when unfit' [section 3A(1)(a) Road Traffic Act 1988] it appears that no formal application was ever made to add this count, either at Basildon or Chelmsford Crown Court, nor was it ever formally endorsed as having been added. It was to this count that the defendant entered his plea of guilty on 4th November 2008.
Although there may be arguably significant distinctions between this case and the leading authority of R v Clarke and McDaid ... it seems right that we bring this state of affairs to the notice of the parties as soon as possible ..."
So it is that this application now comes before us today.
19.
Section 5 of the Indictments Act 1915 (as amended) provides as follows:
"5(1)Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice ...
(2)Where an indictment is so amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment shall be treated for the purposes of the trial and for the purposes of all proceedings in connection therewith as having been signed by the proper officer in the amended form."
20.
We have set out at length all the relevant passages in the various relevant hearings that took place in this case. It is plain that in none of them did the court, whether Judge Clegg in Basildon or Judge Ball in Chelmsford, expressly make any order at all for the amendment of the indictment. Perhaps for that very reason, no note was ever endorsed on the indictment of any order for amendment having been made.
21.
On behalf of the applicant, Mr Bryan, who appeared for him at the final hearing on 4th November 2008, makes the short submission that what took place in this case became simply a nullity. His client was arraigned and pleaded guilty to an imaginary indictment, with a supposed count upon it which in reality never lawfully existed because no court had ever made an order for the amendment. He relies in particular on the authority of the House of Lords in
R v Clarke and McDaid
[2008] UKHL 8
. There is, undoubtedly, a factual and analytical distinction between that authority and the facts and circumstances of the present case. In the case of
R v Clarke and McDaid
a full trial on pleas of not guilty took place upon an indictment which turned out never to have been signed at all until a late stage of the trial. The House of Lords held that in those circumstances the indictment itself and all that subsequently followed had to be treated as a nullity. After an examination of the statutory provisions relevant to that case and considerable authority, Lord Bingham of Cornhill said at paragraph 19:
"It is necessary to ask a second question. What did Parliament intend the consequence to be if there were a bill of indictment but no indictment? The answer, based on the language of the legislation and reflected in 70 years of consistent judicial interpretation, is again inescapable: Parliament intended that there could be no valid trial on indictment if there were no indictment...."
In this case there plainly was, and remains, a valid indictment, namely the original indictment signed by an officer of the court and containing the single count that we have quoted and described. Mr Bryan submits, however, that the essential proposition to be drawn from
Clarke and McDaid
must apply with equal force when a count has purportedly been added without any judge or court exercising a discretion under section 5(1) of the Indictments Act 1915, and actually making an order for the amendment as that subsection requires. He submits that the piece of paper which was in circulation at the hearing on 4th November 2008 and which was handed to the clerk, from which she put a charge to this applicant, was ultimately speaking no more than simply a piece of paper.
22.
On behalf of the prosecution, Mr McGee stresses, first, that there is the factual and analytical distinction between
Clarke and McDaid
and the present case. In that case, the whole proceedings were never founded on any indictment at all, whereas in the present case the proceedings were, and remained, founded on a valid indictment, namely the original indictment. He says, and we do not demur, that there is a spectrum of errors and irregularities that may occur in relation to indictments and the contents of indictments. They range from the fundamental, such as an indictment not being signed at all, which render the proceedings a nullity, to minor procedural errors which may readily be corrected. He submits that the facts and circumstances of the present case fall towards the minor rather than the fundamental end of that spectrum.
23.
In regard to the fact that there was no endorsement of any order for amendment on the indictment, as section 5(2) requires, he refers to the case of
R v Ismail
(1991) 92 Cr App R 92
. In that case it appears that a judge had made an order under section 5(1) for amendment of the indictment, but a note of that order was never endorsed on the indictment itself, as section 5(2) requires. As to that, this court said at page 95 of the report:
"It is true that that step [viz endorsement] was not taken as it should have been. It is suggested by counsel for the appellants that that indicates this was not an amendment but was a fresh indictment. We do not take that view. We take the view that was an oversight on the part of the staff. It certainly is not an oversight which in itself invalidates the amendment which we find to have been made."
24.
We, for our part, completely accept that approach in relation to the matter of endorsement, as required by section 5(2). Endorsement is a purely administrative act which is required to be done by staff of the court, pursuant, and indeed in obedience, to an order by the court made pursuant to subsection (1). There is no element of discretion and it seems entirely appropriate and correct that a mere administrative failure to carry out that mechanical step should not render the amendment and subsequent proceedings on it a nullity. So, in the present case, the fact of itself that there was no endorsement on the indictment is not, in our view, in any way fatal to what subsequently occurred.
25.
However, the requirements of subsection (1) are entirely different. That subsection requires the court itself to exercise a discretion and positively to make an order. Mr McGee submits that there is "a wealth of inferential material that the court gave implied leave to amend." He bases that, in particular, on the events of Monday 8th October 2007. He submits that the whole argument that took place that day about reliance upon the readout from the roadside breath test can only have had any sense or purpose if Judge Clegg already had made, or at any rate intended to make, an order for amendment of the indictment. He says, correctly, that all parties expected and intended an amendment to be made; that all parties acted as if the amendment had been made; and that the applicant voluntarily pleaded guilty to the intended count 2 on 4th November 2008.
26.
It appears that the researches of counsel have not been able to identify any authority on the question of what is the effect when all parties, including the judge, anticipated that an order would be made for amendment but, by oversight, one never was made. We have to make a decision ourselves on the matter. We are clearly of the view that such an error falls at the fundamental rather than the minor end of the spectrum referred to by Mr McGee. It is true that there is a factual and analytical distinction between the situation in this case and that in
Clarke and McDaid
; but ultimately, in our view, the principle and approach has to be the same. Amendment of an indictment is a serious matter and not a mere matter of formality. Section 5(1) clearly requires the court itself to exercise a discretion, and positively requires the court to "... make such order... as the court thinks necessary..." In our view, even if this may be described on the facts of this case as a technicality, it is a technicality of the kind referred to by Lord Bingham of Cornhill in the quotation with which we began this judgment. Further, as Lord Brown of Eaton-under-Heywood said in his speech in
R v Clarke and McDaid
at paragraph 40:
"But the problem is easily enough avoided and will only occur if the Crown is at fault. In any event Parliament can always alter the position if it chooses."
27.
There is little doubt that what happened in this case would not have happened if there had been continuity of counsel between the 5th and 8th October 2007, or between those occasions and 4th November 2008. If Mr Caudle or Mr Bryan or His Honour Judge Ball on 4th November 2008 had not thought that there had already been an order for amendment of the indictment, such an order could plainly have been made by Judge Ball himself on 4th November 2008. But neither he nor Judge Clegg ever made such an order.
28.
In our view, this plea of guilty and the subsequent conviction on the plea and the sentence are all founded on a nullity. We accordingly grant leave to appeal and quash the conviction and sentence. We stress that that leaves in place the original valid indictment upon which the prosecution may now seek to proceed with or without further application for amendment.
29.
MR BRYAN: May I mention one thing in relation to that? My recollection is that although there was that valid indictment, I think no evidence has been offered on that, so there is nothing really left of that.
30.
MR MCGEE: That is entirely right my Lords. In light of that, in light of your Lordships having quashed this conviction on the basis that it is a nullity, the Crown makes an application for a write of venire de novo in this case?
31.
LORD JUSTICE KEENE: The appellant has, of course, served I think about 8 months so far, has he not?
32.
MR MCGEE: He has.
33.
LORD JUSTICE KEENE: But on the other hand also disqualified for 7 years. That will fall as well if there is no retrial. What do you want to say about a retrial?
34.
MR BRYAN: This case is now coming up for 3 years old, the facts of it. There has been a lot of difficulties, none of which emanated from the appellant himself and as your Lordship observed he has been in custody since 4th November 2008 and it has substantially...
35.
LORD JUSTICE KEENE: It is a serious case though where somebody died as a result where your client, clearly as a result of his plea, was acknowledging his unfitness through drink to be driving at the time.
36.
MR BRYAN: I cannot dispute that. It just seems a little unfair and again to put him through the process.
37.
MR JUSTICE HOLMAN: You anticipated he would be. We have seen either an advice from you or a letter from your instructing solicitor. I cannot put my fingers on it, I think I find it now.
38.
MR BRYAN: Your Lordship is quite right.
39.
MR JUSTICE HOLMAN: Which plainly says the only effect is that the prosecution no doubt will come back again. I am just looking for it?
40.
MR BRYAN: In fact my submission is that it is not for this court to make an order in that respect. The court has made the order on the conviction then it is for the prosecution to decide whether they want to recharge him or not.
41.
LORD JUSTICE KEENE: The prosecution is asking us to make an order for retrial. We need not go into that. We will make an order for retrial. The indictment must be preferred by the Crown. We give leave for that fresh indictment to be preferred. The appellant, as he now is, must be arraigned on that fresh indictment within 2 months of today. Venue to be determined by the presiding judge of the south eastern circuit? (Pause) Venue to be determined by the presiding judge of the south eastern circuit or one of the presiding judges. Is there anything further anyone wants to raise?
42.
MR BRYAN: My Lord yes the procedure now will take again many, many, many months. May I ask for--
43.
LORD JUSTICE KEENE: I do not see why it should take many, many months. This matter is clear in everyone's mind I would hope. Are you asking for bail?
44.
MR BRYAN: Yes. I know there has been an application. Anything on bail?
45.
MR MCGEE: In the circumstances...
46.
LORD JUSTICE KEENE: He had bail until he pleaded. (Pause) Yes, we will grant bail. Was it unconditional below?
47.
MR BRYAN: I believe it was.
48.
LORD JUSTICE KEENE: That is right. Unconditional bail. Thank you both very much indeed. (Pause) Did you hear that, Mr Bryan, raising the question of reporting restrictions pending the retrial. Are you making any application in that respect?
49.
MR BRYAN: I am not making--
50.
LORD JUSTICE KEENE: We have had a highly technical argument today, not one which is likely to cause any potential prejudice.
51.
MR BRYAN: I have no submissions.
52.
LORD JUSTICE KEENE: Very well. Thank you for raising it. | ```yaml
citation: '[2009] EWCA Crim 1612'
date: '2009-07-06'
judges:
- LORD JUSTICE KEENE
- MR JUSTICE HOLMAN
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2020] EWCA Crim 124
Case No:
201902062 C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HHJ SHANKS
T20180277
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Wednesday 12
th
February 2020
Before:
LADY JUSTICE THIRLWALL DBE
MRS JUSTICE CHEEMA-GRUBB DBE
and
HHJ WENDY JOSEPH QC (sitting as a judge of the CACD)
-
- - - - - - - - - - - - - - - - - - - -
Between:
ROBERT ODUM-TOLAND
Appellant
- and -
REGINA
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Ms Emma Goodall
for the
Appellant
Mr Toby Fitzgerald
for the
Respondent
Hearing dates:
Tuesday 21
st
January 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
THIRLWALL LJ:
1.
This is the judgment of the Court.
2.
Robert Odum-Toland is 33 years old. On 3
rd
May 2019 after a trial he was convicted by an 11-1 majority of Conspiracy to Possess Prohibited Firearms with Intent to Endanger Life. That was Count 1 on the indictment. He had pleaded guilty on 16
th
April to Count 2, Conspiracy to Possess Firearms, a plea which was not accepted by the Crown and the trial ensued.
3.
At the same trial, his co-defendant, Jorel Edgecombe, was convicted of Count 2. The jury were unable to reach a verdict in respect of Count 1 in his case. A retrial took place at a later date and he was convicted of Count 1.
4.
Both men were sentenced on 4
th
October 2019 to 15 years imprisonment.
5.
This is Odum-Toland’s appeal against conviction which he brings with limited leave of the single judge.
6.
We understand that Edgecombe has now lodged an application for leave to appeal against both convictions arising out of the two trials. His grounds have not yet been considered by Single Judge and we understand there are no grounds in common with this appeal. We proceed accordingly.
7.
There are three grounds of appeal brought with the leave of the single judge. There is no renewed application for permission to appeal in respect of a further ground
FACTS
8.
It is an unusual feature of this case that most of the prosecution case was agreed. The appellant and Edgecombe were friends. In December 2017 Edgecombe lived at 88 Lowther Drive. When he was arrested in May 2018 he was living at 25 Pinnell Road, London SE9.
9.
Edgecombe was the subject of a police surveillance operation. It was an agreed fact that on 6
th
December 2017 he was seen going into Pinnell Road. It was further agreed that on 8
th
December police seized a package from a Fedex driver. The box had come from the U.S. and was addressed to Wyatt Young at 25 Pinnell Road. It contained a number of soft toys, inside three of which were hidden 9mm handguns: the first, a Smith and Wesson, the second, a Ruger, and the third, a Sig Sauer.
10.
On the morning of 8
th
December Edgecombe was seen again going into 25 Pinnell Road. He was seen using his mobile phone. At around midday the appellant arrived at Pinnell Road driving a Mercedes motor vehicle that belonged to Edgecombe. He too was seen using his phone. He stayed in the car and remained on the road for about an hour. At 12:53, Edgecombe came out of 25 Pinnell Road and got into the Mercedes. He was in the car for 12 minutes before returning to the house. The Mercedes remained in the vicinity.
11.
On 11
th
December the police intercepted and seized another package from Fedex which had been sent from the same address in the U.S. and was also addressed to Wyatt Young at 25 Pinnell Road. In this box two more handguns (a Taurus and a Sig
Sauer) were found wrapped in paper and concealed inside a Mickey Mouse soft toy. Also recovered from inside a Disney Cars box were 20 rounds of live 9mm ammunition which were suitable for use in the Smith and Wesson firearm seized from the earlier package and five live rounds of .380 Auto ammunition suitable for use with the Sig Sauer firearm.
12.
The same morning the appellant arrived at Pinnell Road in the Mercedes and used his mobile phone. He went to number 25 and returned to the car with Edgecombe. They drove away and returned an hour later. Edgecombe went inside and the appellant waited outside in the car for another hour before driving off. He returned 10 minutes later.
13.
On the same date, the appellant went to the Fedex depot to see what had happened to the two undelivered parcels. He returned again in the afternoon and made two subsequent phone calls in his attempts to obtain the undelivered packages.
14.
Between 6
th
and 12
th
December the appellant and co-accused contacted one another a total of twenty times by phone.
15.
On the afternoon of 19
th
December police conducted observations at Landmann House. At 12:50 a man carrying a box pushed the intercom and went in. At 13:25 a Parcelforce delivery man went to the communal door holding a box bearing the address of 22 Landmann House. He went into the address and left subsequently without the box. At 13:52 the appellant left the address and collected a black Nike holdall from the boot of the Mercedes car and went back into Landmann house. At 14:00 he left the address carrying the black holdall which he placed into the boot of the car before driving from the estate. At 14:20 he was stopped by police whilst in the car. He was found to be in possession of a phone on which Google Maps was in use with the destination address set as 88 Lowther Drive.
16.
From inside the black holdall police recovered two revolvers (a Ruger .22 calibre and an RG .38 special calibre), two self-loading pistols (a Smith and Wesson .40 calibre and an MP-25 .25 auto calibre), four live rounds of .25 Auto calibre cartridges suitable for use with the MP-25, thirteen live .40 Smith and Wesson cartridges in a pistol magazine, and a further large quantity of live .40 calibre Smith and Wesson cartridges.
17.
In the light of this evidence, all of which was agreed, it is unsurprising that the appellant pleaded guilty to Count 2.
18.
In addition to the evidence to which we have already referred, the Crown also relied on evidence of many WhatsApp messages between the appellant and Edgecombe, discovered following the seizure of the appellant’s phone. On 31
st
August 2017 the appellant provided Edgecombe with the address at 22 Landmann House. On 3
rd
December he sent him a picture of five handguns with a message indicating that guns of this type would be arriving that week and that Edgecombe needed to tell people to have payment ready as they would be sold on a ‘first come, first served’ basis. The following day the appellant sent another message indicating that they were ready to make some money. Edgecombe provided the appellant with his bank details. The appellant provided him with parcel tracking information and sent him further pictures of firearms.
19.
Investigators established that the person in the U.S. responsible for dispatching the Fedex parcels was a Maurice (‘Mo’) Taylor, who would later plead guilty to the illegal export of firearms. From 23
rd
September 2017 onwards the appellant was in contact with Taylor via WhatsApp. Taylor sent him photographs of firearms and asked him which one he wanted, to which the appellant replied, “Either one don’t matter. Revolver would be my last option tho”. Different addresses were provided to Taylor, including the Landmann House address, Edgecombe’s home address and two other addresses linked to him. Taylor continued to send the appellant photos of different firearms. During October they shared tracking information and on 24
th
October the appellant sent Taylor a photo of a handgun with the caption, “Made it bro”. Cell-site evidence suggested that the appellant and Edgecombe were together when the appellant sent Taylor photographs of guns that had arrived.
20.
Throughout November the two men continued to exchange messages regarding the on-going importation of firearms, which were to be concealed in soft toys, and those exchanges appeared to relate to a shipment delivered by Fedex on 27
th
November. Further messages during December clearly referred to the importation of firearms and there was speculation as to why the intercepted packages had not arrived. The messages sent to Taylor by the appellant included the following: “What else in the line-up for the future? Them things will move.”; “Them 2/3 week could be at least $2 - 3K/week for you if them things could get in rotation like that thru here”; “Damn, that’s a whole lot of dollars to be made”; “Muhfuckas want them shells”; “yeah everybody asking for shells on that one”; “I got a guy keep bullshitting me saying that he’d grab it without the shells but ain’t getting back to me”; following a reference to a 9mm: “As many 9’s as you can get. Them seem to be in high demand”; following an offer of an AK assault rifle: “Let’s wait on getting the choppers over here. Pistol money is cool for now”; “Whatever pistols there are, grab and send them through”; in respect of a picture of a revolver: “Yeah, it’ll sell. Anything else? Get as many as you can. These joints will be gone today.”; and “You holding onto that 380? Whatever you get, grab it and it’ll sell here. Wanna get a nice consistent rotation a them joints”.
21.
On 3
rd
April 2019 Taylor was interviewed by United States authorities. He said that he was friends with the appellant’s girlfriend and it was through her that he began communicating with the appellant. The appellant had told him that club bouncers and security companies were looking for guns. He was aware that the appellant had already been arrested because the appellant’s girlfriend had told him so. He had never heard of Edgecombe.
22.
It was accepted by the Crown that the police had not uncovered any evidence as to onward supply of the guns during the course of their investigation and nor had they found any links to gangs or organised crime.
23.
As evidence of the necessary intent, the prosecution relied on the following factors:
i)
The nature of the firearms: They were prohibited, they were small and easily concealed, and they were accompanied by ammunition. They were guns designed for endangering life and possibly killing people.
ii)
The circumstances of the importation: They were smuggled into the country with children’s toys, sent to different addresses, and had no accompanying paperwork. Nobody who wanted to acquire a firearm for legitimate purposes would want to acquire weapons which had arrived in the UK by such means.
iii)
The nature of the WhatsApp messages: These showed that the appellant just wanted some weapons to sell, rather than being concerned about what type, and that was because criminals would have little interest in the details of the weapon so long as it could be concealed and could shoot.
24.
The defence case was that the appellant had no intention that the firearms would go to criminals to be used in crime to endanger life.
25.
The live issue for the jury in the appellant’s case was whether he had agreed with Edgecombe and/or Taylor that the imported handguns would be sold to criminals who they intended would use the handguns in a way which would endanger life as and when the occasion required.
KEY DEFENCE EVIDENCE
26.
In his first Defence Statement, the appellant blamed Edgecombe for everything that had happened and stated that Edgecombe must have borrowed his phone and was responsible for sending the WhatsApp messages. By the time he gave evidence he said that Edgecombe had given him the address at 25 Pinnell Road. He had pleaded guilty to Count 2 because he had formed a conspiracy to possess handguns here with both the co-accused and Taylor.
27.
In evidence and in his second defence statement, he stated that he had initially talked to Taylor about importing cannabis from California. A package was sent which he expected to contain cannabis but in fact contained other items that were not supposed to be sent by international mail such as a knife and lighter fluid. He discussed with Edgecombe and Taylor the fact that these items had got through customs. He became aware from people in the UK that guns were valuable here and he shared that information with the other two men. He decided that Taylor would find the guns for him in the United States and the latter started shipping the firearms to him in the UK. Taylor and his father were both ill and so Taylor wanted to make money. Edgecombe had financial problems with his landlords. The appellant passed the firearms on to Edgecombe for onward sale. Taylor and Edgecombe did not know each other. The appellant played no role in the onward sale of the guns after the co-accused had taken possession.
28.
He knew about guns as he had lived in the United States, he had owned guns there, and he knew about the regime in place there in relation to guns. He had lived in the UK since 2012 and had not been involved with guns here, had not owned one here, nor did he really know about the legalities of the matter in the UK. He was told by Edgecombe that the guns were going to be sold to military and security personnel and others with licences, i.e. people who were entitled to have the guns for recreational use, target shooting, hunting etc. There was a market in collecting this kind of item. Edgecombe had given him information about purchases and told him that he had a friend who was in the security business who had a firearms licence. He understood that a licence holder was entitled to hold firearms but he did not know until after his arrest that handguns were prohibited. He accepted that they were cutting corners, eliminating paperwork, and not doing things through the proper channels. It was
easier for them to source the firearms that way and he assumed that the buyers would get the firearms cheaper than if buying through official channels.
29.
He had no intention that the firearms would go to criminals and be used in crime to endanger life. He had no connection with criminals or gangs or anything like that and, to the best of his knowledge, nor did the co-accused.
30.
The reason he had falsely blamed Edgecombe for everything in his first Defence Statement was that he was trying to find out at that stage whether the co-accused was some kind of police informer.
31.
Edgecombe gave evidence that he knew that the appellant was bringing guns into the country but, contrary to the appellant’s evidence, he had no involvement in the enterprise. The jury disbelieved him. It is not necessary to consider any further detail of his evidence save to say that he said that on 19
th
December he was unwell and, so far as he was concerned, the appellant was coming to his house to take him for some treatment. It was not to deliver guns.
32.
He knew that handguns were illegal in the UK and he knew that private security firms were not entitled to have guns.
33.
The judge delivered his summing up in two parts. The first was at the conclusion of the evidence and before speeches. This part of the summing up included written directions. After speeches he continued with the balance of the summing up, which was oral only.
GROUNDS OF APPEAL
34.
In summary, there are three grounds:
i)
The direction given to the jury in respect of circumstantial evidence was wholly inadequate.
ii)
The hearsay direction in respect of Taylor’s account in interview was defective.
iii)
The direction given in respect of lies told in the appellant’s first Defence Statement was defective.
35.
We have received helpful written and oral submissions from Ms Goodall for which we are grateful. We also received a comprehensive Respondent’s Notice from Mr Fitzgerald who also made oral submissions.
Ground 1: The direction in respect of circumstantial evidence
36.
Ms Goodall submits that the direction on circumstantial evidence should have been provided to the jury in writing, as the Crown Court Compendium advises. We agreed that it would have been better had the direction been written down but the question for us is whether or not the direction was sufficient.
37.
Ms Goodall submits that the judge should have set out each piece of evidence relied on, the inference the Crown argued should be drawn from it and the appellant’s account/explanation and what inference he argued should be drawn.
38.
The judge said at 13D-14E:
“Before I turn to the nitty-gritty of the evidence let me make some general comments about evidence. The first thing is: there are really two types of evidence, although it is really a spectrum. But there are two types: there is what is called direct evidence of a crime, so someone comes to court and says, ‘Yes, I saw Mr A hit Mr B over the head with a hammer. I actually saw it.’ Or some CCTV might record it. That is direct evidence of the crime being committed. But there is also what is called circumstantial evidence, members of the jury, and in common with many, perhaps most criminal cases, in this case the prosecution relies to a great extent on circumstantial evidence. What does that mean? The prosecution point to various circumstances and they say if you put them all together, various facts, if you put them all together you can be sure of a particular conclusion that they ask you to draw; i.e. to put it another way there are circumstances from which you can draw an inference. It’s the same thing. Now, for example, let us take a piece of circumstantial evidence: the fact that Mr Edgecombe was in Pinnell Road on 8 December driving up and down, or whatever exactly it says in the admissions. That in itself does not tell you anything at all. The point is you combine some circumstances which may lead you to a conclusion. Now, that is a perfectly permissible way to proceed, members of the jury, as long as you are sure of the circumstances that you are putting together and you are sure of the conclusion that you consider it leads to. And I say this, members of the jury, in common with many or most criminal offences the prosecution rely to some extent or to a greater extent on the circumstantial evidence, particularly in a case of conspiracy for obvious reasons; it is not very often that someone has tape-recorded the conversation that amounted to the making of the agreement to commit the offence, for example. It is very often a matter of inference from a number of circumstances which put together the jury decide lead them to a sure conclusion, but there must have been an agreement for example. When you are dealing with people’s states of mind, what they intended, what they knew, that kind of thing, almost inevitably unless they give direct evidence about what was in their head you are going to be working on the basis, are you not, of inference and circumstantial evidence? Even if it is as simple as hitting someone over the head. What was their intent? Was it to cause really serious harm? That is a matter of inference from what they did. But when you are looking at more complicated intent it might involve what they did, what they said, what they did afterwards, what they said afterwards which can lead you to a conclusion about what people knew, what they intended, whether they were dishonest and so on. All those kind
(sic)
of things are based on inference. …”
39.
In cases involving predominantly circumstantial evidence, the Crown seeks to prove often stage by stage a number of pieces of circumstantial evidence which, taken together may lead the jury to a certain conclusion. Here the facts were all agreed. The inference the jury were being asked to draw from them was that the appellant had the requisite intent. In the direction immediately following the one we have quoted the judge identified and set out in detail the defendant’s account and the need to be sure of things if they were deciding against a defendant. He then went on to summarise the evidence of the appellant which he said showed that the Crown were not correct in the inference they were inviting the jury to draw.
40.
Then at 21B-G:
“But then, members of the jury, you have got direct evidence, if you like, from Mr Odum-Toland himself. He told us that he pleaded guilty to Count 2 because he was guilty and that was because he had formed a conspiracy to possess the handguns here with Maurice Taylor and Mr Edgecombe. He said initially Mo had talked about importing cannabis but in fact it contained all that junk, the lighter fluid and so on, the pocket knife, and other junk which could not be transported by mail. That brings us back, does it not, to entry one in the WhatsApp messages? Because here is that address and there is also a picture, says Mr Odum-Toland, of the contents of that first package that had got through with a pocket knife and lighter fuel. Then he said, ‘I discussed with Mo and Mr Edgecombe that items had got through Customs. I became aware guns were valuable in the UK. I was told by people in the UK. I shared that information with Mo and Mr Edgecombe and I decided that Mo would find the firearms for me and he started shipping firearms over here. Mo was ill and his father had cancer. He wanted to make money. Mr Edgecombe was going through financial problems with his landlords. Mo sourced the firearms. I was to pass them on to Mr Edgecombe for onward sale. Edgecombe and Mo did not know eachother. I didn’t tell the other the other’s name. I did not in turn have any role in the onward sale of the firearms.’ That is a summary of his evidence at the outset. But his position is that Mr Edgecombe was part of the conspiracy, Mr Edgecombe was the seller and that Mr Edgecombe received the handguns and also gave Mr Odum-Toland information about what to get or to source from America.”
41.
In a break in proceedings, at page 26F, Ms Goodall properly invited the judge to add to the direction that they should not engage in guesswork or speculation or in theorising about matters which had not been proved on the evidence.
42.
The judge agreed to add that later in the summing up, which he duly did at page 29:
“So what does the prosecution rely on? Well, of course, entirely on inference and circumstantial evidence. I was asked to say at this stage – in fact, I was going to say it later on but I will say it at this stage when we come back to inference and circumstantial evidence, that when you are deciding a case on the basis of circumstantial evidence, so you are saying ‘We are sure, putting together all these circumstances, of this conclusion’, you must not indulge in guesswork, speculation, or theorising, You have to have a secure basis for saying, ‘These circumstances lead us to be sure of this conclusion’, in this case that that was the intent.”
43.
The judge went on to set out all the evidence of circumstance and the appellant’s response to it.
44.
On the unusual facts of this case we are satisfied that the judge’s direction in respect of circumstantial evidence was adequate. We reject this ground.
Ground 2: Hearsay direction in respect of the evidence of Taylor.
45.
The complaint is here that the hearsay direction was defective because the Judge did not direct the jury in the clear terms of the Crown Court Compendium by reminding them of the burden and standard of proof in respect of this evidence and that the weight that should be attached to the evidence was a matter for them.
46.
Taylor had given a statement to the American authorities in which he had said that the appellant had told him that club bouncers and security companies were looking for guns. The prosecution did not accept that Taylor was telling the truth when he said this. The evidence was relied on by the appellant. It was his case that he believed that club bouncers and security companies were looking for guns. The judge said that the jury had not seen Taylor cross examined on the statement nor had it been given on oath. He also pointed out why Taylor might have said this was the case since it was unlikely he would admit supplying guns for onward supply to criminals. The judge went on to comment “It does to some extent confirm the Appellant’s position.” and then said “if you think that what Mr Odum-Toland told you about what he knew and intended in relation to what was going to happen to the guns then he is not guilty on Count 1.” Miss Goodall points out that he should have added “or may be true”. She is right about that but it is important to look at that direction in the context of the whole summing up in which the judge repeatedly made clear that it was for the Crown to prove the appellant’s intention so that they were sure of it. See in this regard paragraphs 58 to 60 below.
47.
Ms Goodall submits that the jury should have been told that if they were sure that what Mr Taylor had said in his statement was untrue then they should not rely on it, otherwise they were entitled to accept that the appellant had said this to Mr Taylor.
The judge said in terms that the statement confirmed the appellant’s position. We do not think that the words “to some extent” dilute the direction so as to lead the jury into error and Ms Goodall did not submit that they did.
48.
We reject this ground.
Ground 3: The direction given in respect of the appellant’s first Defence Statement was defective
49.
The appellant served a defence statement dated 8
th
August 2018 in which he claimed ignorance of the nature of the items being imported and blamed his co-defendant for deceiving him. It was accepted that this was a lie. It is necessary to set out salient contents of the statement:
“1. The defendant neither took part in the importation of any firearms or ammunition, nor knowingly possessed any firearms or ammunition.
2. The defendant infers that his erstwhile friend Jorel Edgecombe (JE) was responsible for the importations. ….
…
7.
The defendant used to permit JE to use his phone, sometimes for protracted periods, and it is now clear that JE had taken advantage of this facility to arrange the importations…..Whilst the defendant was aware of the existence of some message from someone called Mo in his Whatsapp account, he assumed they were intended for JE and never read them.
8.
[Referring to the address to which the first package was sent.] This was the address of defendant’s partner. The defendant had no knowledge of the delivery of the package and does not know why JE used his partner’s address. Neither he nor his partner had received any packages at the address, and he assumes that the package was intercepted on delivery by JE or someone else acting on his behalf. In some of the photos of guns [within the served evidence] the defendant recognises the background to be a workplace in JE’s home.
9.
The sender of several MoneyGram payments was called Angelina Booker. Ms Booker is the defendant’s partner. The defendant and his partner sent money to the US on JE’s behalf at his request, believing it was destined for the mother of JE’s children.
10.
The defendant accepts visiting the Fedex office on 11
December in order to enquire of two packages. He did so at the
request of JE. JE drove the Mercedes to the depot. It follows that [a witness]’s recollection that the defendant was driving is mistaken. He had no idea that the packages contained guns; instead thinking that they might have been Christmas presents.
11.
On 19
th
December the defendant agreed to transport a package for JE to his (JE’s) address …The defendant collected it from the address of JE’s friend at Landmann House. He believed that it contained cannabis but has pleaded guilty [sic] possession the firearms and ammunition because he accepts that he was in construction possession of them.”
50.
After the appellant pleaded guilty to Count 2 he served another Defence Statement and ultimately gave evidence at trial that was broadly consistent with the second Defence Statement.
51.
He was cross-examined by prosecution counsel about the false content of the first Defence Statement. It appears that there was no application to put the Defence Statement itself before the jury.
52.
There must have been some reference to the point in closing speeches. However, we have been told that the trial judge was not invited to direct the jury in any particular way as to the proper approach to the change in the appellant’s account between the first Defence Statement and the second or the explanation he had given about it. The judge did not provide any written direction on the topic nor canvass submissions on how the jury was to be directed. It would have been wise to have done the latter.
53.
Towards the end of the summing up, after the judge had summarised the defence evidence, the following passage appears,
“Well, the prosecution say he is lying about what he was intending to do, and that is for you to resolve. I am not going to go into what points they might rely on, except they did rely on the fact that in his defence statement he blamed everything on Mr Edgecombe. He said Mr Edgecombe must have borrowed his phone and Mr Edgecombe was responsible for all the messages and so on. He gave an explanation for that which was that at that stage he was trying to find out whether Mr Edgecombe was some kind of police informer so that is why the defence statement was put in that way. But that is a point for you to consider and if you think that there is no good reason for lying in the defence statement that may be a factor that feeds into your decision about Mr Odum-Toland’s evidence as a whole.
But, members of the jury, let me say this, even if you reject Mr Odum-Toland’s evidence and you say this is not true what he is telling us, you have still got to go a bit further and say, ‘We reject this evidence and we are sure that his intention was in fact that very stringent test that I have mentioned.’ So it is not enough to simply to say, ‘we’re sure he’s not telling us the truth’, you have to look at everything and be sure that it goes a bit further and intention was actually that very high intention that I have mentioned.”
54.
No point was taken before the jury was sent out to deliberate. However, Miss Goodall argues that this direction was inadequate because it lacked a reiteration of the burden and standard of proof and failed to make clear that if the appellant’s explanation for the lies in the first Defence Statement may be true, they could not add to the evidence against him. She refers once more to the Crown Court Compendium and the suggested directions where an adverse inference from failures in defence disclosure, pursuant to s.11 Criminal Procedure Investigations Act 1996, is sought by the prosecution. This, however, was not such a case. The prosecution did not rely on an adverse inference; rather, the focus of the prosecution attack during the relevant part of the cross-examination was that the appellant had lied and then changed his account to a fresh lie which he set out in his second Defence Statement and persisted in at trial. The question for this court is whether the jury was given adequate directions on how to approach the question of the lies.
55.
Mr Fitzgerald’s position is that it was unnecessary for the judge to give any fuller direction at this point at all and, in any event, ‘the very stringent test’ would have been understood by the jury to be a reference to the burden and standard of proof which they had in writing. On this latter point Miss Goodall submits that the judge’s previous references in the summing up to a ‘stringent test’ was limited to an evaluation of the specific intent which the prosecution had to prove in Count 1, rather than the burden and standard of proof.
56.
Immediately before outlining the evidence relied on by the prosecution to support the main issue in the case against the appellant on Count 1 the judge said, at page 29B-C:
“It is not sufficient for him just to be indifferent, negligent or even reckless about the use that will be made of the firearm. So, it is a stringent test of intent and you have to be sure that that intent was shared by, whichever you are looking at, Edgecombe or Odum-Toland, and at least one other person. Because to be a conspiracy there has to be an agreement and there also has to be an agreement that it will happen, and that intent is held by at least the two people who are party to the agreement. So, it is a stringent test and you have to be sure of those things before you convict either defendant of it.”
57.
We are satisfied that the judge’s reference to a stringent test encompassed the burden and standard of proof. But what of the reliance on lies? The Crown Court Compendium is freely available to all advocates and judges and it is clear from other parts of the summing up that the judge was fully familiar with the use that can be made of this valuable resource. In any case, the judge must tailor his directions to the trial before him. Another pertinent matter is whether counsel raised any issue with the judge. In this case Miss Goodall did ask for the jury to be reminded of a factual matter, namely that a police officer had told the court that there was no evidence of any onward use of any of the firearms concerned in the case but she did not raise any other point in the summing up. An omission such as this is not dispositive of an
appeal predicated on alleged errors in a summing up but it is nonetheless to be borne in mind.
58.
It is necessary to look at the summing up, in this relatively short trial, as a whole, to see whether the failure of the defence to seek, or for the judge to provide, any further specific direction as to how the jury should approach the issue at this point amounted to a material misdirection. At an early stage in the second half of the split summing up the judge directed the jury about the defence evidence in general terms (at page 15CD):
“So when it comes to that kind of issue, whether someone is giving truthful evidence here in the witness box, it is you the jury who have to decide where the truth lies bearing in mind of course the burden and standard of proof, which, as I have explained to you, you have to be sure of things if you are deciding against a defendant…” 59.
A little later:
“The final thing on what is called live evidence, so witnesses coming and telling you relates to lies, members of the jury. If someone tells a lie about something and you think that is not true for sure, that does not mean they are lying about everything, so you do not just throw out someone’s evidence completely because you think they have lied about that aspect; you have to look at each issue and think well, how does that reflect on how credible we find their evidence on whatever the other issue is. But one lie does not eliminate someone’s evidence completely, that is the point.”
60.
When reminding the jury of the appellant’s evidence that he had believed that the guns were destined for legitimate collectors or security-type personnel with the necessary licences the judge said:
“…that is what he told you was his belief. If you think he may be telling the truth in that respect he is not guilty, is he of having that intention that is a requirement of guilt on Count 1.”
61.
He had to return to the issues of lies on a number of occasions during his summary of the evidence given the cut-throat nature of the case between the two defendants. While he at no point gave a full
Lucas
direction incorporating the rubric that people may lie for a number of reasons, including ones unconnected with guilt of the offence charged, he was not asked nor was he required to do so because this was a case which turned wholly on the jury’s assessment of the credibility of the appellant as to his state of mind and, as we have seen, the judge scrupulously directed the jury that a rejection of his explanation for the contents of the first Defence Statement was not enough to prove the case against him and at the most, would be ‘a factor that feeds into your decision’. This was the critical direction in this case. Furthermore, we are satisfied that there was no danger in light of the entirety of the directions provided, that the jury would use a conclusion that the appellant had lied in that Defence Statement as a short-cut to his guilt.
CONCLUSION
62.
We have accepted that the judge could have taken a more systematic approach but we are not satisfied that, viewed overall, the summing up was confusing or inadequate, or that it rendered the trial unfair or conviction unsafe.
63.
Almost all the evidence was agreed.
64.
The account given by the defendant as to his beliefs and intentions was highly improbable. This was not a case simply of omitting paper work, these guns were being disguised in children’s toys.
65.
We accept that the police could find no evidence of gang-land connections. We can think of no sensible basis upon which it could be thought by anyone that law abiding citizens would want to have in their possession prohibited firearms. We reject without hesitation the proposition that the appellant did not know what the rules are in this country about the use of handguns. This was lawbreaking of a high order.
66.
We are quite satisfied that the conviction is safe.
67.
The appeal is dismissed. | ```yaml
citation: '[2020] EWCA Crim 124'
date: '2020-02-12'
judges:
- HHJ SHANKS
- LADY JUSTICE THIRLWALL DBE
- MRS JUSTICE CHEEMA
- HHJ WENDY JOSEPH QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation No:
[2023] EWCA Crim 783
CASE NO 202300026/A2
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday 22 June 2023
Before:
LORD JUSTICE LEWIS
MR JUSTICE MORRIS
SIR NIGEL DAVIS
REX
V
TG
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MR E MIDDLETON
appeared on behalf of the Appellant
_________
J U D G M E N T
LORD JUSTICE LEWIS:
1.
The provisions of the Sexual Offences (Amendment) apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
2.
On 8 December 2022 in the Crown Court at Worcester, the appellant, whom I shall refer to as TG, was sentenced to an extended determinate sentence of 23 years and nine months, comprising a custodial element of 15 years and nine months and an extension period of eight years, for an offence of rape of a child under 13. The appellant was also sentenced to three years to be served concurrently for an offence of distributing indecent images of a child. No separate penalty was imposed in respect of four other offences involving the distribution of indecent images of a child and three offences of making indecent images of a child. The appellant appeals against sentence with the leave of the single judge.
3.
The facts can be stated shortly. The appellant raped his own five-year old daughter. He drugged her, he carried her upstairs to her bedroom and he raped her vaginally. He filmed the rape. He ejaculated as he withdrew his penis from the child's vagina. The appellant had experimented with different drugs in order to decide which drug to use to sedate and relax his five-year old daughter. That was count 1 on the indictment.
4.
Count 2 was an offence of distributing seven indecent video clips, that is seven clips of the rape. He did that for the following reasons. The appellant wanted to be admitted to an internet group of people interested in extreme sexual abuse of young children and to gain access to a website depicting extreme images of sexual abuse of children. In order to be admitted he had to provide original images of an extreme nature. The appellant therefore filmed the rape of his daughter. He put a piece of paper with his internet user name on the child's chest during the rape to identify him as the rapist. He then sent the video clips of the rape of his daughter to the person running the website. Count 3 involved distributing a Category B indecent image of his daughter. Counts 4, 5 and 6 involved the possession of indecent images of other children. The appellant had downloaded to his telephone 655 Category A images of children, of which 43 were moving images. That was count 6. Count 4 involved 536 Category B images, of which 19 were moving images. Count 5 involved 2,460 Category C images, of which 15 were moving images. The average age of the children in the images appeared to be between three and seven years old. They also included images of a baby and a one-year-old. One of the Category A images was of the anal rape of an 18-month-old baby. Another was of the vaginal rape of an eight-year-old and another the vaginal rape of a 10-year-old.
5.
Counts 7 to 9 related to the distribution of some of those images. In total 61 images were distributed, including 41 Category A images (40 of which were moving images). Two of those images involved a child under the age of two who was showing clear signs of distress. The images were sent to six individual users and two groups, one with 84 and one with 211 participants respectively.
6.
The appellant had no previous convictions but had cautions for battery in 2001 and assault occasioning actual bodily harm in 2015. There was a pre-sentence report. That assessed the appellant as presenting a very high risk of serious harm. The author said that the appellant gave no impression of any ability to empathise with the feelings of the victims in the photographs or even his own daughter.
7.
The sentencing judge in his remarks described how the appellant had drugged and then raped his daughter and how he had circulated a video of the rape on the internet. He explained why the appellant had done that, in order to gain access to a specific group who were into extreme child abuse. The judge said that the appellant had sacrificed his own daughter in order to gain acceptance into this group of people. The judge referred to the fact that the appellant had used file sharing accounts to exchange indecent images of children. He noted the physical pain and distress of some of the victims, as that was obvious from the images involved. He said that the psychological harm would only be fully known about in future years as the appellant's daughter and the other children inevitably came to realise that there were images of them on the internet.
8.
In terms of the Sentencing Council guidelines for rape of a child under 13, the judge considered that the case fell into Category A in terms of culpability because of the significant degree of planning and the use of drugs to sedate the victim. The harm, the judge considered, fell at least into Category 2 because the child was particularly vulnerable due to her personal circumstances. The starting point for a 2A offence would be 13 years with a sentencing range of 11 to 17 years' imprisonment.
9.
The sentencing judge considered however that the offence could be put into Category 1A because of the extreme impact caused by a combination of the Category 2 harm factors. Those other factors included the extreme psychological or physical harm, the additional degradation and the fact that the incident was probably sustained. The starting point for a Category 1A offence is 16 years with a range of 13 to 19 years' custody. In any event, the judge said, even if this was treated as a Category 2 offence, there were aggravating factors which would require a significant upward adjustment and would result in a sentence equivalent to a Category 1A sentence. The distribution of the video clips of the appellant raping his daughter were separately indicted and would itself merit a starting point of six years with a range of four to nine years within the guideline for that offence. The circumstances of the distribution of the video would be an aggravating factor and that would push the sentence for that offence towards the upper end of the range, that is nine years.
10.
So on either basis the judge considered that the appropriate sentence would fall within the range of sentences for a Category 1A offence even before other aggravating factors were considered. These other factors included the fact that the appellant had specifically targeted a vulnerable victim, the location of the offence - she was raped in her own home where she should have been safe - and the fact that the appellant ejaculated over her. Those would push the sentence to the top end of the range for a Category 1A offence which would be 19 years. There was little mitigation. The lack of previous convictions for sexual offences carried little weight bearing in mind the circumstances. There was no remorse. The sentencing judge concluded that the appropriate custodial element, taking into account the aggravating factors and the limited mitigation would be one of 18 years for count 1 and as counts 2 and 3 had been taken into account in fixing that sentence no separate penalty would be imposed for those offences.
11.
The other offences however involved different children. The most serious offence was count 7. The images distributed included those of a child under the age of two. Those images were sent to a number of individuals and the two groups with the 84 and the 211 participants. The judge said that the starting point for that offence would be three years' imprisonment with a range of two to five years’ imprisonment. Some of the victims exhibited pain and distress which was an aggravating factor which would require an upward adjustment for that offence to four years. The sentences for the other offences in two to nine would be commensurately lower.
12.
The sentencing judge then decided that he would treat count 1 as the lead offence and impose a sentence which reflected the offending for that count, counts 2 and 3 and the other offences and to impose concurrent sentences or no separate penalty for all the other offences. That would result in a custodial element before reduction for the guilty plea of 21 years. As the appellant had pleaded guilty at the pre-trial and preparation hearing the custodial element of the sentence would be reduced by 25 % to 15 years and nine months. He found that the appellant was a dangerous offender within the meaning of the relevant provisions of the
Sentencing Act 2020
as he posed a high risk of serious harm to members of the public by the commission of further offences. He considered that an appropriate extended licence period would be eight years. He therefore imposed a sentence of 23 years and nine months, comprising a custodial term of 15 years nine months and an extension period of eight years in relation to count 1.
13.
Mr Middleton, in his written and oral submissions on behalf of the appellant, submitted that the judge was wrong to treat this as a Category 1A offence. He submitted that the judge was wrong to regard the situation as one where there was an extreme impact caused by a combination of Category 2 factors; there was no evidence of severe psychological harm at present and future psychological harm is unknown; the placing of the label of the appellant's internet user name did not amount to additional degradation as the child was asleep having been sedated and was unaware of what had happened. Further, there was no evidential basis for concluding that the incident was sustained. The only evidence was the video clips. They only showed the incident lasting 44 seconds and there was no evidence as to whether or not the offence lasted longer than that and, if so, how much longer. He therefore submitted the judge was wrong to treat this as a Category 1A offence. He should have treated this as a Category 2A offence with a starting point of 13 years and a range of 11 to 17 years. He submitted that the fact that the rape had been filmed should properly be treated as a factor making it culpability A and did not justify raising it to Category 1A. Further, and in any event, he submitted that the custodial element before the reduction for the guilty plea of 21 years was four years above the top of the sentencing range for a Category 2A offence and two years above the top of the range for a Category 1A offence. In all the circumstances, submitted Mr Middleton, the sentence was manifestly excessive.
14.
First, it is right to consider how the judge reached the sentence. The judge considered that the appropriate custodial element for count 1 before a reduction for guilty plea and taking account of counts 2 and 3 would be 18 years. He reached that figure by one of two routes. The first was that the offence fell within Category 1A, because of the extreme impact of the combination of harm factors; the second route was the need to reflect the offending on counts 2 and 3, together with the aggravating features, which would result in a sentence equivalent to the upper end of the sentencing range for a Category 1A offence. We recognise that there is scope for doubt as to whether or not on the evidence the extreme impact of the combination of harm factors would justify moving the offence from Category 2A to Category 1A. We have no doubt whatsoever that the alternative second way of approaching the sentence was correct and cannot be criticised. If this were a Category 2A offence the starting point would be 13 years with a range of 11 to 17 years' custody. There would have to be a very significant upward adjustment to reflect three other sets of factors. First, there were a number of culpability factors and, as the guideline recognises, in a case of particular gravity reflected by multiple features of culpability that would result in an upward adjustment from the starting point. Here there were multiple factors: the significant planning, the use of drugs to sedate the victim and the abuse of trust. The appellant raped his own daughter.
15.
Secondly, there were aggravating factors: the specific targeting of a child, the location (the rape took place in the child's own home) and thirdly, the appellant ejaculated. Those aggravating factors would have required a further upward adjustment from the starting point.
16.
Thirdly, the sentence was fixed to reflect not only the offending in count 1 and the rape, but also the offending contained in counts 2 and 3. We do not consider that the judge was required to deal with the distribution of the video clips of the rape of his daughter as if that was simply a factor going to culpability under count 1 as it involved the recording and sharing of the images of the rape. The offence had been separately indicted. It reflected a distinct course of conduct, the filming of the rape of the child and the distribution of that image to others and it was a means of gaining access to a group and a website for those with an interest in extreme sexual abuse of children. Any sentence would have to reflect that separate offending behaviour.
17.
In the circumstances therefore the judge was entitled to consider that the custodial element of the sentence for the rape of a child under 13 must reflect those three sets of factors. The judge was entitled to conclude that a sentence equivalent to the top of the range for a Category 1A offence was appropriate. That was a custodial element of 18 years for the offending in counts 1, 2 and 3 - 19 years reduced by one year to reflect the mitigation.
18.
The additional three years reflected the very different and very serious offending on counts 4 to 9 and count 7 in particular. That involved the distribution of a large number of images, including Category A images, of other children. The judge was entitled to approach that by imposing a longer custodial element for count 1 and imposing concurrent sentences or no separate penalty for counts 4 to 9. That resulted in a custodial element of 21 years which, reduced by 25 % to reflect the early guilty plea, resulted in a custodial element of 15 years and nine months. That was proportionate and justified in relation to the overall offending which included the rape of his five-year old daughter with a number of aggravating features, the production and distribution of a film of the rape and the offending involving the images of the other children. The judge was entitled, given the nature of the offending and having regard to the views of the author of the pre-sentence report, to find that the appellant was dangerous within the meaning of the relevant sentencing provisions and to impose an eight-year extended licence period.
19.
In all the circumstances, therefore, the sentence for count 1 of 23 years and nine months comprising a custodial element of 15 years and nine months and an extension period of eight years is not manifestly excessive. We dismiss this appeal.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400
Email: [email protected] | ```yaml
citation: '[2023] EWCA Crim 783'
date: '2023-06-22'
judges:
- LORD JUSTICE LEWIS
- MR JUSTICE MORRIS
- SIR NIGEL DAVIS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2011] EWCA Crim 985
Case No:
201005999 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 5 April 2011
B e f o r e
:
LORD JUSTICE RICHARDS
MR JUSTICE RODERICK EVANS
RECORDER OF CARDIFF - HIS HONOUR JUDGE NICHOLAS COOKE QC
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
SARDAR SUNDAS
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr R Thukral
appeared on behalf of the
Appellant
Mr R Meikle
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE RICHARDS: This is an appeal against conviction on a count of having an offensive weapon, contrary to
section 1(1)
of the
Prevention of Crime Act 1953
. The appellant was convicted of that offence by a majority of 11 to 1 on 8 October 2010 following a trial at Isleworth Crown Court presided over by Mr Recorder Radcliffe. She was subsequently given a conditional discharge for two years.
2.
The present appeal is brought by leave granted by Dobbs J.
3.
The circumstances of the alleged offence were that an altercation arose between the appellant and a Ms McCardle at the car park of a shopping centre in Uxbridge. The appellant had parked her car. Ms McCardle, who was trying to park in an adjacent bay, criticised her parking. Ms McCardle's evidence was that the appellant overreacted and lost her temper, an argument developed, obscenities were used and the appellant took what was described as a diminutive baseball bat from her car and said to Ms McCardle, "Come on then". We are told that the baseball bat was a souvenir bat about the size of a police truncheon.
4.
In her own evidence the appellant accepted that an altercation had taken place but gave a materially different account of the incident. She said that she was upset by Ms McCardle's use of racist obscenities and that as she was walking to the back of her car Ms McCardle said to her, "Go back to your country", and threatened to beat her up. The applicant, on her account, feared for herself and her unborn child. She got out the bat on the spur of the moment without really thinking and held it by her side.
5.
We should mention that there was a separate count of common assault in relation to the appellant striking a police officer on the hand with her wing mirror when she drove off, but the appellant was acquitted on that count and we think it unnecessary to say anything further about it.
6.
The focus of the appeal is the judge's directions to the jury in relation to the ingredients of the offence of having an offensive weapon.
Section 1
of
the 1953 Act
provides in sub-
section (1
):
i.
"Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence ..."
7.
By sub-section (4) "offensive weapon" means "any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person".
8.
Having given conventional directions on the burden and standard of proof, the Recorder turned to the indictment and referred to the elements of the offence. He said that there was no dispute as to the first two elements: that the appellant took the baseball into her hand, and did so in a public place. As to the third element, he said that there was no evidence that the baseball bat was made or adapted for causing injury to the person, so the jury could dismiss that aspect from their minds completely. He went on to say, as it is recorded in the transcript:
i.
"The crucial question is what her intention at the time she lifted up that bat to cause injury to Ms McArdle if the need arose."
9.
That is how the transcript reads. It is plainly inaccurate. The Recorder may well have said, and evidently meant, that the crucial question was whether the appellant's intention was to cause injury at that time.
10.
After the passage we have quoted, the Recorder explained the kinds of things the jury should consider when considering the question of intent, and correctly directed the jury that intent to cause injury would not be proved by an intention to frighten Ms McCardle or to make Ms McCardle think that the appellant might use the item.
11.
He then proceeded to draw the jury's attention to the words "without lawful authority or reasonable excuse", which, as he observed, appeared at the start of the particulars in the indictment and were words he had missed out when going through the three elements he had dealt with so far. He continued in these terms:
i.
"Now before considering whether she had the intent alleged you will ask whether she had a reasonable excuse for her taking the bat into her hand. Remember, the question is not whether she had a reasonable excuse for carrying it in her car for the previous two months. So the vital time you are concerned with is when she actually reaches into the car and takes the bat from the car. So you may think forgetfulness that she had the bat in the boot for two months is not relevant to the question of whether she had a reasonable excuse at the time she picked it up from the car ...
ii.
On the element of reasonable excuse -- and I stress only on that element -- the burden of proof passes to the defendant to show on a balance of probabilities that she had a reasonable excuse. If you think that she did have a reasonable excuse, on the balance of probabilities, you will not find that she lacked that reasonable excuse. If, on the other hand, you are satisfied that she probably did not have a reasonable excuse for her possession of that bat, then you will find that she did not have a reasonable excuse and that that defence does not avail her.
iii.
Now possession of the bat as a teaching tool in [Tae Kwon Do] may be a reasonable excuse for carrying the bat in the car, but at the moment she picks it out of the boot such a reasonable excuse cannot apply can it because the nature of the use changes from a teaching tool to something else does it not particularly because it is not suggested that she was giving Miss McArdle a lesson in [Tae Kwon Do]."
12.
That is all that the Recorder had to say about the relevant count in the indictment. He went on to consider count 2 and other matters.
13.
The submission advanced by Mr Thukral for the appellant is a simple one. It is that the Recorder erred in failing to direct the jury that it was only if they found that the appellant had an intention to cause injury at the material time that the issue of reasonable excuse arose. On the way he left the case for the jury, it was open to them to convict on the basis that they found no reasonable excuse for the appellant taking the bat into her hand, irrespective of any finding of intent on her part. That, it is submitted, was a material misdirection which rendered the conviction unsafe.
14.
For the Crown, Mr Meikle submits that the conviction is not unsafe. He says that the Recorder correctly directed the jury that it was necessary for the prosecution to prove that the appellant had an intention to cause injury to the person, and it must have been clear to the jury that before they could convict the appellant they had to be satisfied so as to be sure that the appellant had such an intention. Only if they were so satisfied would they have to turn to consider any defence of reasonable excuse.
15.
Mr Meikle submits that, in any event, the question of reasonable excuse was not really argued and was otiose to the case. He says that if the prosecution had proved an intention to cause injury, it is difficult to see in what circumstances the defence of reasonable excuse could be satisfied, save perhaps in a case of extreme self-defence. When one looks in the round at what the jury had to decide, the fact is that they must have been sure in reaching their verdict that the appellant had the requisite intent.
16.
It seems to us that Mr Thukral plainly has the better of the argument. The problem in this case is that the Recorder directed the jury in terms that before considering whether the appellant had the intent alleged they should ask themselves whether she had a reasonable excuse for taking the bat into her hand, and that it was for the appellant to prove on the balance of probabilities that she had a reasonable excuse. He ended his directions on the ingredients of the offence with his discussion of reasonable excuse and without spelling out at any point that even if the appellant lacked a reasonable excuse she could not be convicted unless the jury were sure that in taking the bat into hand she intended to use it to cause injury.
17.
In our judgment, there is a very real risk that the jury may have been led into thinking that a finding that the appellant had failed to prove reasonable excuse was determinative against her. It is true that a careful analysis of the particulars of the offence, taken together with the directions given by the Recorder, would have made it sufficiently clear that a finding of intent was also required, but there can be no assurance that the jury engaged in an analysis of that kind rather than taking at face value the Recorder's unqualified direction to consider the question of reasonable excuse first.
18.
Nor are we persuaded that the jury will in practice have left the question of reasonable excuse altogether on one side or should have left it one side. It seems to us that the matter was in principle raised by the appellant's account of what happened. She was suggesting in effect that she took the bat in hand in self-defence.
19.
In any event, we are sufficiently troubled by the terms of the summing-up that we feel unable to conclude that this conviction was safe.
20.
Accordingly, we allow the appeal and quash the conviction. | ```yaml
citation: '[2011] EWCA Crim 985'
date: '2011-04-05'
judges:
- LORD JUSTICE RICHARDS
- MR JUSTICE RODERICK EVANS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No: 2002/04303/Z5 & 2002/04304/Z5
Neutral Citation No:
[2003] EWCA Crim 2668
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MIDDLESEX GUILDHALL
HHJ Smith
Royal Courts of Justice
Strand, London, WC2A 2LL
16 October 2003
Before :
LORD JUSTICE RIX
MR JUSTICE DOUGLAS BROWN
and
SIR RICHARD TUCKER
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
- and -
Rafiq PETKAR & Martin FARQUHAR
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Patrick Roche
for the appellant Petkar
Mr Jeffrey Clarke
for the appellant Farquhar
Mr Richard Milne
for the Crown
Hearing dates : 20
th
June & 25
th
July 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Rix:
1.
These are the appeals of Rafiq Petkar and Martin Farquhar who were convicted on 17 June 2002 in the Crown Court at Middlesex Guildhall before HH Judge Smith and a jury, at a re-trial, by majority verdicts of 11:1 on two counts of theft. On 28 June 2002 both were sentenced to 5 years imprisonment on each count concurrent. A third count against Petkar of concealing or transferring the proceeds of criminal conduct was left on the file.
2.
Petkar appeals against conviction with the leave of the full court and renews his application for leave to appeal against sentence. Farquhar’s renewed application for leave to appeal against conviction came before us on 20 June 2003 at the same time as Petkar’s appeal. Since that renewed application raised in part the same ground as that on which Petkar had already been given leave to appeal, we granted leave to Farquhar for that (and two other) grounds and were compelled to adjourn the hearing of Petkar’s appeal part heard so that what had then become two linked appeals could be taken together. Fortunately, this court could be reconstituted without too much delay and we heard the two appeals together on 25 July 2003. We then gave leave for a further ground of appeal to be raised by both appellants, arising from the recent decision of this court in
R v. Jones and Jenkins
[2003] EWCA Crim 1966
(6 June 2003). At the close of the hearing we announced our decision that both appeals were dismissed with reasons to be reserved. We then proceeded to give Petkar leave to appeal against sentence and allowed that appeal, substituting a sentence of 4 years and 6 months for the original 5 years. Our reasons for these decisions are now contained in this judgment.
The structure of the trial
3.
Petkar and Farquhar were both employees of the Industrial Bank of Japan (“IBJ”) in the City of London until October 1998 in the case of Petkar and December 1998 in the case of Farquhar. At that time Petkar was 37 years old and Farquhar 28. On 27 November 1998 Farquhar transferred £420,000 from IBJ to an account at Barclays Bank in the name of Graceland Investments Limited, of which Petkar was the sole director. Barclays sent the money back to IBJ’s account with the Midland Bank on 1 December, but while that was in train and before that had happened, on 30 November Farquhar transferred a further sum of £420,000 from IBJ this time to a personal account in the name of Petkar at the Halifax.
4.
Farquhar did not dispute that he had made both transfers, nor did Petkar deny that he had received them. However Petkar’s case was that he believed that the money belonged to Farquhar himself and came from Farquhar’s own bank, the Jyske Bank, and had been transferred to him to invest on Farquhar’s behalf. Farquhar’s case, on the other hand, was that he knew the transfers were dishonest but that he acted under the duress of Petkar and his associates. Theirs was thus a full cut-throat defence, for each defendant’s evidence, if believed, was deadly to the other; but the failure of any one defence did not automatically put the co-defendant in peril. Farquhar’s defence of duress could fail absolutely without harming Petkar in the slightest. Similarly Petkar’s defence could fail without impinging on Farquhar’s case of duress.
5.
Following the first transfer to Graceland’s account there was a same-day transfer over to Petkar’s personal account at Barclays. Following the second transfer, a total of £310,000 was taken out in cheques or drafts or electronic transfers on 1 December 1998, much of that in payments to gambling casinos. In the event the only sums recovered following Petkar’s arrest was a balance of £21,526 in Petkar’s Halifax account and a further sum of £91,762 to the credit of Petkar’s trading account with Refco Overseas, a broker based in Bermuda: a total of £113,288. That £91,762 with Refco was what remained of a total of £125,000 transferred by Petkar to Refco: the balance of £33,238 had gone to fund margin losses previously incurred by Petkar on his own trading. What had happened to the remaining £273,474? Petkar’s evidence was that £40,330 had been spent on himself, either in settlement of outstanding bills or in fresh spending: this sum could be substantiated by reference to documents. He also accepted a certain amount of cash spending. All in all, he accepted that £198,000 of the £420,000 had been either spent on himself or transferred to Refco, but he maintained that the balance of £222,000 had been given back to Farquhar, at his request, in cash, in stages between 3 and 13 December 1998. These transfers were not documented. Two cash withdrawals from the Halifax account of £18,000 on 3 December and £24,000 on 9 December were both said by Petkar to have been handed over to Farquhar as part of this process.
6.
That was the evidence at trial. At the time of his arrest and first interview on 31 December 1998, however, Petkar told the police, when asked what had happened to the money, that it had all been returned to Farquhar. He explained that the money had been sent to him by Farquhar from Jyske to trade with, but that he had returned it all. He would have profited from the trades generated had the matter proceeded, but as it was all the money had been returned. He was also asked if he had had a written contract with Farquhar concerning the terms on which he was to deal with the money, and he said that he did not.
7.
A fortnight later, however, on 15 January 1999, Petkar contacted the police to inform them that not all of the money had gone back to Farquhar. He then gave them the essentials of the information we have set out above and faxed them a copy of the statement of his Halifax account. The information that he then provided to the police remained his case at trial. The Crown did not dispute that some £222,000 or approximately half of the £420,000 had been provided in cash to Farquhar. Thus at trial Petkar accepted that what he had told the police originally about returning all the money to Farquhar was a lie. Farquhar denied receiving anything, and there was no direct evidence, other than Petkar’s, that he did.
8.
Petkar also accepted that he had lied in telling the police on the day of his arrest that he had no contract with Farquhar. In fact a document dated 30 November 1998 and purporting to be signed by Farquhar (there was ambivalent evidence at trial from two handwriting experts called by the defendants respectively as to whether the signatures were genuine or not) was already at that time in the hands of Petkar’s solicitor, Mr Murrell, and had been since 21 December. Mr Murrell was to give evidence that the contract came to him in connection with a dispute between Petkar and Barclays over the return of the first transfer and Petkar’s subsequent closure of all his Barclays accounts. That contract was not, however, disclosed to the prosecution until April 2000.
9.
Farquhar, however, denied receiving any of the money. He had tendered his resignation to IBJ on 27 November 1998, the date of the first transfer, but had been asked to work out his notice. His last day at IBJ was 9 December. He left for Ireland on 12 December and arrived unannounced at the home of his girlfriend, Karen Sweeney, in Dublin on 13 December. He was later to say that he left to escape the attention of Petkar. He did not return to England until April 2001, nearly two and a half years later, after learning, as he said, from a friend who had watched the Irish equivalent of “Crime Watch” that he was wanted in connection with “something about London or the UK” but he did not know what. At that time Petkar was shortly due to stand trial.
10.
Following his return he contacted the police through his solicitor and was interviewed. He began by denying any knowledge whatsoever of the two transfers of £420,000. (They had been made using the passwords of colleagues at IBJ.) Indeed, he claimed not to have known Petkar other than through limited contact within the work setting and denied any friendship or association with him. He denied asking Petkar to invest money on his behalf. He denied receiving any money from Petkar. When, however, the police informed him that they held transcripts of phone calls between him and Petkar and wished to question him about them, he declined on the advice of his solicitor to answer any further questions. Thus he made no admissions and said nothing about duress at that time.
11.
His defence of duress was first exposed at a plea and directions hearing on 13 June 2001.
12.
On 15 July 2001 there was an alleged incident at his home, where pellets holes were found in his front door. The next-door neighbour had heard nothing, but the next day a cartridge case was found. The police attended. On 25 September 2001, the night before he was due to give evidence at the first trial – which had been adjourned to accommodate him being prosecuted together with Farquhar – there was another alleged incident involving Farquhar and his car: three discharged rounds were found in the road, one bullet was found in the car’s head rest, another bullet had gone through the head rest, and a third bullet mark was found in the road. The police again attended. As a result the first trial had to be aborted: hence the need for a retrial. There followed a police investigation, conducted independently of the police force involved in the prosecution, into whether the shootings were the responsibility of Petkar, as Farquhar alleged, or whether they were arranged by Farquhar himself in an attempt to pervert the course of justice. The investigation proved inconclusive and led to no prosecutions. At the retrial the Crown therefore considered itself required to take an entirely neutral attitude to these events, and cross-examined neither defendant about them. However, the officer in charge of the investigation, DS Beverley Mills, was tendered for cross-examination and each defendant gave evidence and was cross-examined on behalf of the other about these incidents; and in all other respects the Crown clearly set before the jury its evidence that Farquhar had been a willing actor not driven by duress.
13.
Among that evidence were the tape recordings and transcripts of telephone conversations between the two defendants in the period between 26 November and 5 December 1998. Their voices were identified. Thus on 27 November at 1631 Farquhar is talking to a friend by the name of Mike and says: “Going, everything is gone to plan, mate…I just resigned…There’s a lot going on, I’ll tell you when I see you.” When asked whether he had another job, Farquhar replied: “Yea, and some other things as well.” 27 November was the day of the first transfer and Farquhar’s resignation. On 30 November, the day of the second transfer, Petkar telephones Farquhar at 1054 and says: “Go into another room and call me back. I have a small problem, they’ve returned the 420 back to Midlands [IBJ’s bankers].” At 1140 the same day Petkar rings Farquhar again and says: “I just spoke to Barclays again this morning, just a few minutes ago, and they have returned the funds this morning, so they definitely will show up this morning or this afternoon or during the day some time.” Farquhar replied: “Yea so you still want me to make them do the thing again today…” At 1447 Farquhar called Midland Bank, asked if the £420,000 paid to Barclays the previous Friday was back into the IBJ account with the Midland and gave new instructions for the second transfer. On 1 December at 0906 Farquhar rang the Midland to chase whether the first transfer had come back. At 1016, during a conversation between Petkar and Farquhar, there is a reference to “everything is fine” and “you know our money”.
14.
We will refer to other aspects of the evidence below.
15.
The main ground of appeal in the case of both appellants relates to the judge’s directions pursuant to
section 34 of the Criminal Justice and Public Order Act 1994
. At the conclusion of the evidence and prior to final speeches during a discussion on the law the judge indicated that he intended to give the jury a
Lucas
direction on lies and a
section 34
direction in respect of both defendants. There was no objection at that stage. During final speeches the Crown, then as now represented by Mr Milne, did not deal with the question of adverse inferences; but Mr Roche, then as now counsel on behalf of Petkar, did, giving them reasons why they should not hold Petkar’s lies in interview about the existence of the contract and the return of all the money against him. It is not clear what Farquhar’s counsel, then as now Mr Clarke, said on this subject in his final speech, but we will assume, with some hesitation, that he took the same line. On 14 June 2002, after final speeches but immediately before the summing up, Mr Roche on behalf of Petkar addressed the judge to the effect that he should direct the jury not to draw adverse inferences, alternatively to be precise as to the adverse inferences which might be in play. The judge rejected the first submission, and said he would be guided by the model direction set out in
Archbold
which Mr Milne drew to his attention. In the course of discussion, however, the judge had expressed concern about the multiplication of merely possible inferences. He said:
“I think that as long as I tell the jury the framework of law and remind them of the salient facts, I don’t think it’s desirable for me to suggest a lot of inferences which might not be in their mind anyway.”
The grounds of appeal
16.
Two grounds of appeal are shared by both appellants. The first, which I shall call ground 1, is, as we have just indicated, that the judge’s
section 34
direction was defective. Five complaints are made:
(i)
that the judge failed clearly to identify the relevant inferences which the jury might draw;
(ii)
that the judge failed to warn the jury that they should not convict wholly or mainly on the strength of an adverse inference;
(iii)
that the judge failed to direct the jury that they could only draw an adverse inference if satisfied that the prosecution had established a prima facie case;
(iv)
that the judge failed to direct the jury that they could only draw an adverse inference if they concluded that the only sensible explanation for the defendant’s failure to mention the salient fact was that he had no answer at the time or none that would stand up to scrutiny; and
(v)
the judge failed to remind the jury of the explanations given by the appellant for the appellant’s failure to mention facts.
17.
In all, it was submitted on behalf of both appellants that these defects either singly or in combination fundamentally flawed the judge’s
section 34
direction.
18.
The second ground shared by both appellants (“ground 2”) is that the judge failed to give the jury an appropriately structured, or indeed any, warning about the danger of relying on the evidence of each defendant as against the other: see
Jones and Jenkins
.
19.
The other two grounds concern only Farquhar. One relates to the way in which the judge introduced in his summing up the evidence which Farquhar’s grandmother, Mrs Winifred Wells, gave by way of statement admitted, following her death, under
section 23 of the Criminal Justice Act 1988
. The judge said that her statement “is not accepted and has not been tested in court”. Mr Clarke submits that the judge was wrong to say that the statement was not accepted in circumstances where, although it was not accepted by Petkar, the Crown was merely neutral (“ground 3”).
20.
Finally, Farquhar relies on some new evidence of Petkar’s accounts which only emerged after conviction in the course of confiscation order proceedings against him. A previously undiscovered personal account of Petkar came to light at the Royal Bank of Scotland (“RBS”), Ealing branch. Investigation showed that between October 2000 and June 2002 a total of some £177,000 had passed through this account. Mr Clarke submitted that these sums could explain the disappearance from sight of (at any rate a large part of) the £222,000 which Petkar said he had handed over to Farquhar in December 1998; and that if the jury had known of these sums they might have been more willing to accept Farquhar’s case that he had received none of the stolen money (“ground 4”).
21.
Before we turn to each of these four grounds in turn, we need to say something further about the evidence given at trial.
The prosecution evidence
22.
Witnesses from the IBJ gave evidence about the two defendants and the bank’s operations. Petkar had been employed as a consultant from 1996 to 31 October 1998, when his contract expired, working on complex derivative problems. Farquhar worked in a different department, known as the cash management team, which was concerned with backroom preparation of accounting journals and matching of payments. He had commenced work with the bank on 6 July 1998 as a temporary, became a permanent member of staff shortly thereafter, and resigned, as we have said, on 27 November 1998. He was regarded as intelligent and hard working. He was not authorised to make payments.
23.
A witness from Barclays Bank, Mr Sones, gave evidence about the first transfer and the circumstances in which that was returned. Barclays was suspicious about it, and Mr Sones spoke to Petkar requesting its return. By the time that Mr Sones had been advised that it could not be refused, Petkar said he had made alternative arrangements and wished to close his Barclays accounts, which he did on 30 November. In the circumstances all the arrangements which Petkar had made to deal with the money had to be reversed or alternatively were not acted on. Among those arrangements were instructions dated 30 November to make the following transfers: £100,000 to Petkar’s account with Citibank; £100,000 to Petkar’s account with the Halifax; £150,000 to Refco for “margin requirements”; and £26,000 in repayment of two loans. A critical question in the light of Petkar’s defence was whether there was any evidence that he knew that the first transfer had come from IBJ and not Jyske. Mr Sones said he was aware that the money had come from IBJ but was unable to say whether that had been discussed with Petkar. However, a letter generated by these transactions, which also involved sending a cheque to Petkar, referred to IBJ. Petkar accepted receiving the cheque, but not the letter. The letter was not found at Petkar’s home; but Mr Sones was confident that he had sent it with the cheque: it was the letter which carried Petkar’s address in a window envelope. A Barclays bank statement for the Graceland account, dated 2 December, detailing the transfer as coming from IBJ was found at Petkar’s home: but Petkar said he would have filed it without even looking at it.
24.
There was also evidence about Petkar’s visits to casinos. These had increased in early December, and on one occasion he had Farquhar with him as his guest. And on 3 December he had bought himself a Mercedes and paid £4,000 as a deposit, using the transferred funds to do so among other use of those funds for his spending, and debiting his Halifax account for future instalments due in respect of finance for the car.
25.
Ms Sweeney’s statement was also admitted under
section 23
of
the 1988 Act
, because she had refused to come over from Ireland to give oral evidence. She said that Farquhar had turned up on 13 December 1998 and stayed about a fortnight. She expressed surprise that he had left his job at IBJ, and he said that he had a claim, but she was not sure what that was a reference to. He paid six months rent in advance for an apartment and was flashing money around. He suggested she should tell her mother that if the police came looking for him, she did not know him.
26.
There was also evidence that in Ireland Farquhar opened a TSB account in the name of Mark Holland, assisted by a false job reference, a copy of a non-existent account in Rotterdam, a false accountant’s report and a copy of a false passport. He then changed his name on 25 February 2000 by deed pole to Ferguson, using an accommodation address in Croydon and used that name in forming a publishing company. He subsequently reverted to the name of Mark Holland in buying a house on 29 January 2001.
Petkar’s evidence
27.
Petkar said that he had worked for some years in trading in financial markets. He had set up two companies of his own, one (Gracelands) for trading in derivatives and the other (Magenta Forex) for trading in foreign exchange. He had dealings with Refco. He had got to know Farquhar at IBJ. They talked about trading: Farquhar was interested and wanted to become a dealer. Farqhuar told him that he had money “outside” which he wanted Petkar to invest for him. Petkar gave him details of his bank accounts. A week before 27 November 1998 Farquhar phoned him (Petkar had left IBJ by then) to say that he was going to transfer £420,000 of his own money to him, from Jyske. He was pressed on how he could have thought that a young man in a relatively junior position at IBJ had so much money of his own: he replied that Farquhar had told him that he was just killing time at the bank and that he believed him.
28.
As for the contract, Petkar said that was signed by Farquhar on 30 November in a bar in Piccadilly. Its termination date reflected the fact that the money would be needed for at least a year.
29.
He was asked why the first transfer to Graceland had been transferred immediately to his personal account. His answer was that it was much easier to transfer money that is one’s own rather than a company’s. He was asked to explain the payment instructions generated by the first transfer: he said that having missed a projected deal because of the trouble with Barclays, he was going to use the money himself, and would repay Farquhar “from some fund or other”. Farquhar would probably have objected, but would have accepted it after he had explained how it would come back from a future trade. “I would have repaid every penny. I had the whole thing on a spreadsheet in my computer, which the police took, and now it is no longer accessible.”
30.
He explained the large amounts of money paid to casinos out of the second transfer in the form of drafts as a device to enhance his credit, especially with potential clients: he denied that it was an attempt to launder the money.
31.
He said that large amounts of cash had been paid to Farquhar. Despite the request to invest the £420,000 on Farquhar’s behalf, Farquhar had within a day or two of the second transfer requested him to return £100,000 in cash. The first tranche was handed over on 3 December, the same day he had withdrawn £18,000 from his account in cash. £143,000 of cash was generated from the casinos. He met Farquhar several times at night, mostly at his own flat, to hand the cash over, in all £222,000.
32.
He was asked about a letter he had written to the Financial Services Authority (FSA) on 15 December, in which he said that he had only one client (a Mr Zimmerman). He said nothing about Farquhar. He admitted that was a lie.
33.
On 30 December he wrote another letter, this time to the Halifax, in which he said that the £420,000 was a short-term loan from Farquhar, since repaid. He admitted that was also a lie.
34.
It was only on 31 December that he discovered that the money had come from IBJ. That morning, after finding that his Halifax account had been frozen, he phoned head office and learned that that had been done at the request of IBJ. So he spoke to IBJ, who told him that the money had come from it. He spoke to a senior manager, Kevin Merry, at IBJ several times that day. He told him that he had returned all the money to Farquhar and that he had nothing to do with it. At that very time he still had over £100,000 of IBJ’s money. On the same day he was arrested and interviewed by the police and also told them that he had returned all the money to Farquhar, and that he had no contract with him, only a verbal arrangement. All this were also lies.
35.
Why had he lied? The judge summed up his explanations as follows (at 49/50):
“The reason I was saying that I had none of the money was I was trying to distance myself from the situation. I lied at that time but everything I have said in court was the truth…
“I was telling [IBJ] that I was not a party to this theft and I was going to help them to recover the money. I suppose I would have gradually told them that I had some of it with me or available. Kevin Merry, however, never did call me in. I asked him what I should do and he [said]: Sit tight where you are.”
“I lied during the interviews. I did them without a solicitor when I said that all of the – money had gone to Martin Farquhar. I said that because that was the same that I said to [IBJ]. So I continued with that lie.
“The reason I told the police I had no written contract over the investment was because of my problems with the [FSA]. I was frightened and I did not want to show anyone the contract.”
36.
As for Farquhar’s defence of duress, he denied it. He denied having anything to do with the holes in Farquhar’s front door or with the car. He was never called for a police interview in respect of these incidents.
Farquhar’s evidence
37.
Farquhar said he had always worked in financial markets since leaving school, and wanted to become a dealer in shares and options. He got to know Petkar, was impressed by the Reuters screen that he had on his desk, and let him know of his ambition to become a trader. Petkar said he would put in a good word for him. They visited bars in the West End together, and went to casinos some three or four times. One night Petkar introduced him, albeit not by name, to a couple of black guys, who he thought were called Gary and Ritchie. He told him they were proper criminals, and had been involved in armed robbery. The week before 27 November Petkar had invited him to his flat. Gary and Ritchie were there.
38.
Petkar led the conversation, talking about an investment scheme. After a while Gary interrupted: “Fucking tell him!” At this Petkar said that he wanted him to transfer money from IBJ for a few days, when it would be returned. He refused, not sure whether it was some kind of personality test. Gary took out a knife and started chopping cocaine, then waved the knife in front of him, threatening him if he did not do what was asked. Petkar explained that it would only be for a few days, and it was his job to tidy up the paperwork afterwards. Before he left, Gary grabbed him by the hair and threatened him again. A few days later he saw the two men outside his home, where he lived with his 82 year old grandmother, Mrs Wells, and was again threatened.
39.
All the details of the two transfers were given to him by Petkar, albeit the decision to use his colleague’s password was his own idea: “I did not want my name all over the payments.” He resigned not out of fear of Petkar, but as a way of getting out of the problem. He was pleased to learn that the first transfer had failed. However, Petkar spoke to him on his mobile, ranting and raving, to get him to make the second transfer and threatening to send “the boys” to kick shit out of his nan. As for the transcribed phone-calls, Petkar could make himself sound nice, and he, Farquhar could sound brave.
40.
He went to Ireland to get away from Petkar, but also as the one place “where you could find me”. The false names he used there thus had nothing to do with hiding from the police: to get a house it was necessary to use a “credit package” in the name of Mark Holland, and the change to Ferguson was because he did not like the name Farquhar. He never told Ms Sweeney to tell her mother that she did not know me.
41.
As for his police interview on his return to England, he merely wished to say as little as possible, to be non-committal.
Ground one: the
section 34
direction
42.
Section 34
provides:
“(1) Where in any proceedings against a person for an offence, evidence is given that the accused –
“(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, sub-section (2) below applies.
“(2) Where this sub-section applies – …
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.”
43.
This provision has given rise, in the light of authority, to a model direction recommended by the Judicial Studies Board of some elaboration, which is set out in
Archbold
, 2003, at para 15-334 as follows:
“1. Before his interview(s) the defendant was cautioned. He was first told that he need not say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he might say might be given in evidence.
“2. As part of his defence, the defendant has relied upon
(here specify the facts to which the direction applies)
. But [the prosecution say/he admits] that he failed to mention these facts when he was interviewed about the offence(s). [If you are sure that this is so, this/This] failure may count against him. This is because you may draw the conclusion from his failure that he [had no answer then/had no answer that he then believed would stand up to scrutiny/ has since invented his account/has since tailored his account to fit the prosecution’s case/
(here refer to any other reasonable inferences contended for)
]. If you do draw that conclusion, you must not convict him wholly or mainly on the strength of it; but you may take it into account as some additional support for the prosecution’s case and when deciding whether his [evidence/case] about these facts is true.
“3. However, you may draw such a conclusion against him only if you think it is a fair and proper conclusion, and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies; second, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer from him.
“4.
(Add, if appropriate:)
The defence invite you not to draw any conclusion from the defendant’s silence, on the basis of the following evidence
(here set out the evidence)
. If you [accept this evidence and] think this amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.”
44.
The fifth paragraph deals with an alternative or additional paragraph to deal with the situation where legal advice to remain silent has been relied upon, as it was in the case of Farquhar. In the present case, however, no complaint is made on behalf of Farquhar about the judge’s direction from this point of view, although it was much briefer than the model direction.
45.
The judge, following a direction on lies which Petkar had sought to make in itself the subject matter of a ground of appeal, but on which he did not obtain leave to appeal, gave a
section 34
direction in the following terms:
“The next thing is what happens if a person is being questioned by the police, the modified right of silence, so to speak, we had for the last five or six years. If a person is proceeded against for an offence, as both defendants were, and when they are questioned by the police if one or either of them fails to mention a fact relied on in his defence in the trial: if it is something which in the circumstances at the time you take the view he could reasonably have been expected to mention under questioning, then, you may draw inferences from the fact that he did not mention it.
“And I do not want to be specific here but such inferences where he had not thought it up, he had not decided on his defence, he had not decided whether to make use of that particular thing, it is entirely a matter for you.
“Examples here, and they are only examples, the fact that Mr Petkar failed to mention the contract, although it seems that the solicitor had a copy or that he had not repaid or he had not passed on the whole of the money to Mr Farquhar.
“In Mr Farquhar’s case, he did not mention the threat of the two men, Ritchie and Gary, at all. Said he knew nothing about the transactions. Those are examples of how this might apply here.
“It does not affect the right of silence in the sense that nobody has to answer questions and the prosecution must still prove the case against them and they have got to have something by way of evidence, other than merely…that the defendant did not mention part of his defence. And it is for you to decide whether it is right to draw any inference, you do not have to.”
46.
It will be straightway observed that the judge did not in that direction refer to the matters of explanation relied on by the defendants for their silence or lies, as per para 4 of the JSB model. He did, however, refer to them elsewhere, in summing up each defendant’s evidence as a whole (see paras 35 and 41 above). It is submitted on behalf of the appellants that that is not good enough.
47.
We have been referred to a number of authorities about the
section 34
direction. Thus in
R v. Condron
and Condron
[1997] 1 Cr App R 185 this court said at 195A that it was desirable that a direction should be given along the lines previously indicated in
R v. Cowan Gayle and Riccardi
[1996] QB 373 at 381 as necessary in a direction under section 35 of the same Act concerning a defendant’s silence at trial. Lord Taylor of Gosforth CJ had there identified five “essentials”:
“1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice…
3. An inference from failure [to give evidence/to mention a fact] cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence…
5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to [cross-examination/scrutiny], they may draw an adverse inference.”
And in
R v. Argent
[1997] 2 Cr App R 27 at 32/33 Lord Bingham of Cornhill CJ analysed
section 34
as requiring six formal conditions, of which the fifth and sixth are relevant to mention: namely (5) that the alleged failure by the defendant must be to mention any fact relied on in his defence; and (6) that the failure is to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention. Those two matters are of course taken directly from the language of the statute.
48.
In the light of Petkar’s 15 January 1999 disclosures to the police relating to the disposition of the £420,000 (correcting his earlier lie at interview that all the money had been returned to Farquhar) Mr Roche on behalf of Petkar drew our attention to the relevance of the following remark of Stuart-Smith LJ giving this court’s judgment in
Condron
at 197E:
“Moreover, it is always open to an accused person who has failed to mention some important fact at interview, to communicate it to the police at any time before trial; but unless it is done promptly, it is unlikely to rebut any inference which might otherwise be drawn.”
49.
In
R v. Birchall
[1999] Crim LR 311, a case on section 35, the judge had failed in his direction to remind the jury that they had to find a case to answer before drawing any adverse inference from the defendant’s silence at trial (the fourth of Lord Taylor’s five essentials in
Cowan
). The appeal was allowed, since after the consideration of new evidence this court did not consider the Crown’s case called for an answer. However, this court, presided over by Lord Bingham CJ, referred, in the language of the report’s extract, to the model directions in these terms:
“The Court was reluctant to countenance the view that direction of a jury called for the mouthing of a number of mandatory formulae, and departure by the trial judge from a prescribed form of words would by no means always justify the upsetting of a jury’s verdict. However, standard directions were devised to serve the ends of justice and the Court must be astute to ensure that these ends were not jeopardised by failure to give directions where they were called for. The drawing of inferences from silence was a particularly sensitive area…”
50.
In
R v. Chenia
[2002] EWCA Crim 2345
(1 November 2002) on the other hand, where a
section 34
direction again failed to contain the fourth essential relating to a case to answer, Clarke LJ said this (at para 53):
“It would in our view have been desirable for the judge to include a direction of the kind suggested, namely that no question of drawing an adverse inference could arise unless the jury were sure that there was a case to answer. However, we do not think that this trial could possibly be held to be unfair or the conviction unsafe on that ground. That is because no jury could possibly have concluded that there was no case to answer on the facts.”
51.
In the light of the current model JSB direction, it might be said that, in addition to or else in amplification or clarification of the statutory conditions emphasised in
Argent
and the five essentials emphasised in
Cowan
and
Condron
, the following matters should be set before a jury in a well-crafted and careful direction:
(i) The facts which the accused failed to mention but which are relied on in his defence should be identified: see para 2 of the model direction and
Chenia
at paras 87/89, where Clarke LJ said that this requirement must be approached in a common-sense way.
(ii) The inferences (or conclusions, as they are called in the direction) which it is suggested might be drawn from failure to mention such facts should be identified, to the extent that they may go beyond the standard inference of late fabrication: see para 2 of the model direction.
(iii) The jury should be told that, if an inference is drawn, they should not convict “wholly or mainly on the strength of it”: see para 2 of the model direction and
Murray v. United Kingdom
22 EHRR 29
at 60, para 47. The first of those alternatives (“wholly”) is a clear way of putting the need for the prosecution to be able to prove a case to answer, otherwise than by means of any inference drawn. The second alternative (“or mainly”) buttresses that need.
(iv) The jury should be told that an inference should be drawn “only if you think it is a fair and proper conclusion”: para 3 of the model direction. This is not stated in the statute, but is perhaps inherent in that part of it emphasised in Lord Bingham’s sixth condition. In
R v. McGarry
[1999] 1 Cr App R 377 at 383G this court glossed that condition as requiring a jury “not arbitrarily to draw adverse inferences”.
(v) An inference should be drawn “only if…the only sensible explanation for his failure” is that he had no answer or none that would stand up to scrutiny: para 3 of the model direction, reflecting Lord Taylor’s fifth essential in
Cowan
. In other words the inference canvassed should only be drawn if there is no other sensible explanation for the failure. That is analogous to the essence of a direction on lies.
(vi) An inference should only be drawn if, apart from the defendant’s failure to mention facts later relied on in his defence, the prosecution case is “so strong that it clearly calls for an answer by him”: para 3 of the model direction. This is a striking way to put the need, reflected in Lord Taylor’s third and fourth essentials in
Cowan
, for a case to answer. A note, note 16, to the JSB guideline explains that it reflects “a cautious approach”.
(vii) The jury should be reminded of the evidence on the basis of which the jury are invited not to draw any conclusion from the defendant’s silence: see para 4 of the model direction and
R v. Gill
[2001] 1 Cr App R 11
at paras 30/31. This goes with point (iv) above, because it is only after a jury has considered the defendant’s explanation for his failure that they can conclude that there is no other sensible explanation for it.
(viii) A special direction should be given where the explanation for silence of which evidence has been given is that the defendant was advised by his solicitor to remain silent: see para 5 of the model direction.
52.
We now turn to the five defects of which complaint is made by Petkar, and mutatis mutandis by Farquhar (see para 16 above). We immediately observe that no complaint is made about Lord Taylor’s first two essentials, or Lord Bingham’s fifth and sixth statutory conditions, or points (i), (iv), (vi), or (viii) which we have derived from the model direction. Complaints are, however, made about Lord Taylor’s third, fourth and fifth essentials, and about points (ii), (iii), (v) and (vii) above.
53.
The first complaint, which reflects point (ii) above, is that the judge failed clearly to identify the inferences which the jury might draw. In this connection Mr Roche and Mr Clarke (the latter, for efficiency, essentially adopted the submissions of the former) relied on
R v. J.O.
(CACD, 9 June 2000, unreported) where
Tuckey LJ said (at paras 20/22):
“20. Once the preconditions to the operation of
section 34
are satisfied the jury are entitled to draw:
“such inferences from the failure as appear proper.”
“21. The usual inference which the jury are invited to draw is that at the time of the interview the defendant had no answer to the allegations being made against him or none that would stand up to questioning. In other words, his subsequent defence is a late fabrication or one which has been tailored to fit the prosecution case. But the prosecution in this case did not invite the jury to draw such inferences. In his directions to the jury the judge does not say what inference the jury could properly draw if they decided to do so. We think he should have done. He should have reminded the jury of the inference which the prosecution invited them to draw along the lines of the specimen direction.
“22…It was incumbent on the judge in his summing-up to identify the relevant inference.”
54.
J.O.
was a case where the accused of 16 had given a no comment interview on the advice of his solicitor. At trial the accused waived privilege and his solicitor gave evidence that the accused had given him before interview a very similar account of the incident to that which the defendant had himself given the jury at trial. The judge failed to tell the jury that they should only draw an inference against him if it was something which he could reasonably have been expected to mention. That was the critical defect found in the direction, but there was also the failure to identify the relevant inference referred to in the citation above. In the circumstances, it is not perhaps surprising that this court there found the conviction to be unsafe.
55.
In the present case, however, we do not think that there is force in this first complaint. The judge did illustrate as possible inferences that “he had not thought it up, he had not decided on his defence, he had not decided whether to make use of that particular thing”. However, he also said that he did “not wish to be specific here” and that ultimately any inference “is entirely a matter for you”. Possibly deliberately, he did not cite expressly the standard inferences which are found in both paragraphs 2 and 3 of the model direction, viz that “he had no answer at the time or none that would stand up to scrutiny”, which derive from within Lord Taylor’s fifth essential in
Cowan.
On reflection, we think that these inferences, which are evolved historically from the section 35 direction, are more suited to the case of a no comment interview than to the interviews given by either of the appellants here (although they would, we suppose, match Farquhar’s complete failure to suggest a defence based on duress). It can also be said that these standard inferences, perhaps for the very reason that they reflect a situation where an accused has effectively said nothing at all at his interview, if drawn, are likely to be particularly damning. In this case, on the other hand, the examples of inference cited by the judge well matched the significance of the appellants’ individual interviews seen against their ultimate cases at trial. The inferences suggested by the judge are of the kind which might contribute to a jury being satisfied of guilt, but are not in themselves so critical. Although the judge would have been entitled to have pointed out that Farquhar’s failure to mention a case of duress at his interview, if viewed by the jury as something which he could reasonably have been expected to mention, could well have invited the inference that “he had no answer at the time or none that would stand up to scrutiny”, there is always the problem in cases involving co-defendants of moulding a direction which does not expose one defendant more sharply than the other.
56.
An example of a case in which the inference canvassed was not the standard “no answer then or none that would stand up to scrutiny” is
R v. El-Delbi
[2003] EWCA Crim 1767
(20 June 2003), where (at paras 79/81) this court accepted the inference of “had not had a chance to prepare his story” as being its equivalent.
57.
We conclude that although it was unsatisfactory for the judge to leave other possible inferences in the air, this complaint, if it stood by itself, would not cause us to regard the direction as a whole as defective. However, it is closely connected with the fourth complaint, to which we come below.
58.
The second complaint is that the judge failed to tell the jury that they should not convict wholly or mainly on the strength of an inference. This reflects Lord Taylor’s third essential, and point (iii) derived from the model direction. Mr Roche submitted that the judge’s language that “the prosecution must still prove the case against them and they have got to have something by way of evidence, other than merely…that the defendant did not mention part of his defence” was unsatisfactory and insufficient. If it is so, it is because of the absence of that “or mainly”. On balance we conclude that the language “must still prove the case against them” goes well beyond merely telling the jury that there must otherwise be a case to answer, and therefore that the judge’s direction in this respect meets the spirit of what is required.
59.
The third complaint is that the judge had failed to direct the jury that they could only draw an adverse inference if they were satisfied that the prosecution had made out a prima facie case (see Lord Taylor’s fourth essential from
Cowan
). We consider that this requirement was well taken care of by that part of the judge’s direction which has been quoted in the previous paragraph. We reject this third complaint.
60.
The fourth complaint is that the judge failed to direct the jury that they should only draw an adverse inference if they concluded that the only sensible explanation for the defendant’s failure to mention something was that he had no answer at the time or none that would stand up to scrutiny. Mr Roche referred to Lord Taylor’s fifth essential, to para 3 of the model direction (see point (v) above) and to
R v. Daly
[2001] EWCA Crim 2643
,
[2002] 2 Cr App R 14
at para 13, where Kennedy LJ said:
“Turning to the second ground of appeal, we accept that if the jury was to be permitted to draw an inference a careful direction was required, for two interrelated reasons. First, there were matters on which the defendant was entitled to rely to explain the silence at interview, despite the form of the caution administered to him. [
Sc
Secondly,] At that stage he had not seen the video film, he was therefore unaware of the full weight of the prosecution case against him and in the light of his solicitor’s advice he may have been understandably reluctant to admit a lesser but still serious offence. That made it particularly important in this case for the judge to say to the jury that they should only be prepared to draw an adverse inference if satisfied that the only sensible explanation for the appellant’s failure to give in interview the explanation which he gave in his defence statement and at trial was that at the time of the interview he had no answer to the charge, or none that would stand up to questioning and investigation. It was important that the jury not be left at liberty to draw an adverse inference notwithstanding that it might have been satisfied with the plausibility of the appellant’s explanation for his silence (see
Condron v. United Kingdom
(2001) 31 E.H.R.R. 1
at paragraph 61 and
R. v. Betts and Hall
[2001] 2 Cr. App. R. 251, at paragraph 48).”
61.
The essence of this complaint relates to that part of the direction which insists that
no
inference should be drawn (see under para 45 above as to the possible inferences) unless there is no sensible explanation for the relevant failure to mention facts subsequently relied on. In the present case there is nothing in the judge’s direction which reflects this requirement. And yet the defendants did put forward explanations for their failures, even if it would be understandable if the judge did not consider that they amounted to much. This complaint moreover goes together with the fifth complaint, which is that the judge should have reminded the jury of those explanations, which he only did in a separate part of his summing up where he dealt with the defendants’ evidence and without relating that material back to the earlier direction on the right to silence.
62.
We think that there is substance in the combination of these complaints and that this amounts to a misdirection, even though this case was quite unlike
Daly
. There the accused made no comment at all in his interview, in circumstances where he was so advised by his solicitor and because his difficulty was that although he accepted presence and theft of some cards, he did not accept the theft of cash, nor any threat of violence.
63.
The question therefore arises whether this misdirection undermines the safety of the convictions, but before we reach that question we will consider the other grounds of appeal.
The second ground: a warning against the evidence of a co-defendant.
64.
The judge gave no direction at all to the jury about how they should regard, in the case of each defendant, the evidence of his co-defendant. He did, however, give a full direction about treating each of the defendants separately. He said:
“Now, you do obviously need to make separate decisions on each defendant and each count…
“As I have said, each defendant in effect blames the other and says the other is guilty. But that does not mean that if you decide to acquit one of them and then move on to consider the position of the other, you must find the other guilty.
“What you need to do really is to consider each defendant separately and consider the evidence for and against him and make your decision. Up to you which order you decide to take them in. You may find that they are both guilty or one or the other or you may not be sure about either.
“If you end up saying, “Well, on a particular £420,000 occasion I can’t be sure that Mr Petkar knew that this money came from [IBJ]. On the other hand, we cannot be sure that what Mr Farquhar did was not done through fear”: well, then, you do not have to find someone guilty. You must acquit them both because each is entitled to a separate decision as if they – almost as if they were in the dock alone.”
65.
At the time of this summing-up, the JSB model direction 26 headed “Defendant’s Evidence – Effect on Other Defendants” stated that where a defendant gives evidence in his own defence which damages a co-defendant’s case or tends to implicate a co-defendant in the commission of the offence for which he is being tried, the jury should be warned about that evidence in some such terms as the following:
“The defendant A has given evidence which [damaged B’s case] [tended to show that the defendant B was involved in some way in the commission of the offence(s) which you are trying.] Examine that evidence with particular care for A, in saying what he did, may have been more concerned about protecting himself than about speaking the truth. Bear that in mind when deciding whether you can believe what A has told you about B.”
66.
Of course, where each of two co-defendants gives such evidence, it might on that basis be thought that the judge would have to mould his direction to give matching warnings in favour of B against the evidence of A, as above, and in favour of A against the evidence of B. However, note 2 to this model direction read as follows:
“2. The above direction should not be given where co-defendants give evidence against each other. See
R v Burrows
[2000] Crim LR 48.”
67.
Prior to the
Criminal Justice and Public Order Act 1994
, it had been held that where one defendant gave evidence incriminating his co-defendant, just as in cases where an accomplice gave evidence for the prosecution, a full corroboration warning was desirable:
R v. Prater
[1960] 2 QB 464
. That authority, however was questioned in
R v. Knowlden and Knowlden
(1983) 77 Cr App R 94
, where it was held that that was not a rule of law but ultimately in the discretion of the judge: and that “the customary clear warning to examine the evidence of each co-defendant with care because each has or may have an interest of his own to serve” would in most cases suffice to ensure that the jury regarded the evidence in question with proper and adequate caution:
per
Watkins LJ at 100. In
R v. Cheema
(1994) 98 Cr App R 195, where the authorities were fully reviewed, Lord Taylor CJ said (at 202) that –
“The rule of practice that some warning, but not necessarily a full corroboration warning, is required where a witness,
e.g.
a co-defendant, may have a purpose of his own to serve was reaffirmed in
Knowlden
…”
and the passage at 100 from the judgment of Watkins LJ was cited.
68.
In
Burrows
, however,
Cheema
was distinguished. There two defendants were accused of possession of cocaine with intent to supply. The cocaine was inside a capsule within an Easter egg. Each defendant blamed the other for putting it there, and professed his own ignorance and innocence. Both were convicted and one appealed: his sole ground was that the judge had not warned the jury that particular care was required when one accused gave evidence against another. The brief report states:
“
Held
, dismissing the appeal, that the judge had faced a stark difficulty. Any warning would have had to apply to both defendants, and would have meant directing the jury to treat each defendant’s evidence with caution, just because it inculpated the other. That might have led to a complaint that the jury had not been allowed to approach the case with open minds. It was impossible in this case to give the normal warning. He did, however, underline the extreme care with which the jury should approach the allegations against each defendant, and in the circumstances the court could see no lack of safety in the verdict.”
69.
A note on the case by Professor Birch analysed the judgment in
Cheema
and continued (at 49/50):
“For all of these reasons, then, the right course of action in such a case was considered to be to steer what Lord Taylor called a “middle course”, giving a milder form of warning to the jury that the co-accused might have an axe to grind (or words to that effect). It does not appear that his Lordship would have exempted from this the case where the whole thrust of A’s evidence is to [place] blame on B (quite the reverse) and it is far from clear that he would have been persuaded to change his mind, at the time, if the facts were such that B’s evidence was equally damning of A. But that was before the law was changed: the “axe to grind” warning is no longer a “middle course”. Nowadays a
Makanjuola
warning, which might well take this form, is the most that can be given where an accomplice gives evidence for the prosecution. Thus it could well be that the case of the cut-throat defences equally requires a degree of reading down. Lord Taylor was an enthusiast for the abolition of corroboration warnings (see
Cheema
at p.205) and might well have ruled differently had
the 1994 Act
been in force.
“Be that as it may, the solution of the present case is clearly right if common sense is the guide. Most juries would already be distinctly unimpressed by a tale of grown men eating chocolate eggs, discarding the toys and, as if by chance, discovering an immediate use for the linings. When the point is reached at which the two linings become confused I certainly found it hard to stifle a giggle, and, had I been a juror, there would have been no need for me to be warned that both men might be trying to save their own skins by landing the other in it. Where the risk is so obvious, but the accused still hopes for an acquittal, the warning could be said to be prejudicial in that it comes too close to telling the jury what to find. Better to say nothing.”
70.
However, that two views of this are possible is indicated by the comment on
Burrows
of
Archbold
at para 4-404n:
“The reason given was that such a direction might indicate that the judge has formed a view about the way in which the evidence of each defendant should be approached. However, as argued at
Criminal Law Week
99/29/9, it is submitted that this reasoning is unconvincing. It also seems inconsistent with previous authority.”
71.
Since then there has come the recent authority of
Jones and Jenkins
. There two defendants were convicted of murder. On the prosecution case it was joint enterprise; Jones’ case was that both had indeed attacked the victim, but had caused him only minor injuries and that the fatal injuries had been caused later, perhaps in a road accident; Jenkins’ case was that he had been present but not participant in any way, but in his evidence he acknowledged that the victim’s injuries were serious (at para 9). Auld LJ described these as “modified cut-throat defences” (para 3). One of the grounds of appeal raised by Jones (but not by Jenkins) was that the judge had failed to give the “conventional” warning of the danger of accepting possibly self-serving evidence of one defendant incriminating a co-defendant.
72.
Auld LJ said as follows:
“37. Mr Harrington [counsel for the Crown] submitted that the approach in
Burrows
is to be preferred to that in
Cheema
in the circumstances of this case, because
Cheema
was not a direct cut-throat case, whereas
Burrows
was…
“38. Mr Harrington also submitted that the judge’s general directions to the jury as to how they should approach the evidence in this case sufficed in the circumstances. He referred to: the judge’s direction…as to the need for separate treatment of the cases for and against each defendant, to his general direction…as to the need to consider the credibility of each witness in the case and whether it is self seeking or given to protect or to reflect badly on one defendant rather than another; and to his direction…as to the need for the jury to take the same care in their consideration of the evidence of each of the defendants as they did in respect of any other witness in the case. Those three directions, submitted Mr Harrington, taken together, were sufficient for the purpose.
“39. Whether the defences are “mirror-image” cut-throat defences, the law, since
R v. Prater
…has been that some such warning should normally be considered and given.
Burrows
was a case in which, as Judge LJ, giving the judgment of the Court said, “the difficulty facing the trial judge was somewhat stark”. Any warning he might have given applied equally to each of the two co-defendants, whose cut-throat defences were almost a mirror-image of each other. Each had given evidence casting all possible blame on the other. It may be, as Judge LJ said, that within the confines of that particular case, the trial judge could not warn the jury to approach the evidence of each defendant with care because he had an axe to grind, without indicating to the jury that he had formed an adverse view about the way in which it should be approached by the jury. Though, why that was so, even in the particular circumstances of that case, is not readily apparent to me.
“40. A judge, even in a case of a mirror-image cut-throat defences, in the separate interest of each defendant, should be able to tailor a warning about the evidence of each against the other in a way that would not indicate that he, the judge, had formed an adverse view as to the defence of one or other or both. Even though the cross allegations are inextricably bound up in the defences of each, it is for the judge, in a neutral way, to give the jury such assistance as he can in their evaluation of the credibility of the evidence of each defendant as it is of that of all the witnesses in the case, whether for the prosecution or the defence.
“41. We see no reason to depart from the approach of this Court in
R v. Knowlden & Knowlden
…and confirmed in
Cheema
, that a judge, in exercising his discretion as to what to say to the jury should at least warn them, where one defendant has given evidence adverse to another, to examine the evidence of each with care because each has or may have an interest of his own to serve.
Cheema
was, as Mr Aubrey has observed, a cut-throat defence.
“42. There was also, as Mr Aubrey commented in argument, a particular need for some such warning in this case, where Jenkins, unlike Jones, had refused to answer questions in interview and was therefore able, if he wished, to tailor his defence to the facts in evidence.
“43. In our view, the failure to give such a warning was a serious omission and unfairly prejudicial to Jones’ defence, and also, though possibly to a lesser extent, to that of Jenkins. Accordingly, we do not consider that the general directions as to evidence of the judge to which Mr Harrington referred us were sufficient for the purpose.
“44. Our attention has been drawn to current guidance of the Judicial Studies Board in the form of a note to its specimen direction No 26, which advises a form of warning to a jury where one defendant has given evidence which may have an adverse effect on a co-defendant. The guidance in the note is that such warning should not be given where co-defendants have given evidence against each other. The authority given for that proposition is
Burrows
.
“45. It follows from what we have said that we consider that no such general principle can be extracted from the case of
Burrows
, where it is plain from Judge LJ’s judgment that the Court was heavily influenced by the facts of that case.
“46. Mr Aubrey has ventured an approach, which may be appropriate in many or most cases where a trial judge has to consider what if any warning to give where co-defendants have given evidence against each other. It seems to us to accord broadly with the general observations we have made about the principles derived from
Knowlden & Knowlden
and
Cheema
, subject always of course to what justice demands on the particular facts of each case.
“47. Mr Aubrey suggested that a judge, when dealing with the case against and defence of each co-defendant, might consider four points to put to the jury – points that would not offend any sense of justice and certainly would not cast the judge in the light of one who has formed an adverse view against either or both co-defendants. First, the jury should consider the case for and against each defendant separately. Second, the jury should decide the case on all the evidence, including the evidence of each defendant’s co-defendant. Third, when considering the evidence of the co-defendants, the jury should bear in mind that he or she may have an interest to serve or, as it is often put, an axe to grind. Fourth, the jury should assess the evidence of the co-defendants in the same way as that of the evidence of any other witness in the case. That seems to us to be a useful – and suitably focused – approach when judges are faced with this particular problem, and we commend it.”
73.
Mr Roche and Mr Clarke naturally relied strongly upon all of these remarks. Mr Milne sought to distinguish them, on the basis that the present case was covered by
Burrows
. He accepted that in this case, unlike
Burrows
, the judge had not even warned the jury to approach the evidence of each defendant against the other with extreme care: but he nevertheless submitted that the full warning suggested by this court in
Jones and Jenkins
(as to which it was only the third constituent that was missing in the present case) involved the jury in mental gymnastics with a consequent danger that the value of each defendant’s evidence in his own defence was watered down: this was particularly important to Farquhar, for only he could give evidence as to duress in his own defence. He submitted that the judge in this case faced the dilemma of the judge in
Burrows
and had given an adequate direction; and that in any event, although not stated explicitly, the fact that each defendant had an axe to grind must have been obvious to the jury.
74.
We consider that there is much force in these submissions from Mr Milne, but also that it would be undesirable for us to depart, even if it were open to us to do so, from the decision of this court in
Jones and Jenkins
, and even though Auld LJ did qualify his remarks by reference to what justice demands on the particular facts of each case. We would, however, venture our concerns in this way. First, we would regard the danger of a warning regarding the evidence of cut-throat co-defendants not so much that which was canvassed and dismissed in
Jones and Jenkins
, namely that it may indicate to the jury that the
judge
had formed an adverse view as to their defences, but rather that it serves to devalue the evidence of both co-defendants in the eyes of the
jury
. It might be said that if the jury should regard the evidence of each defendant with a somewhat jaundiced eye on his “interest to serve” or his grinding axe, that goes far, in a real cut-throat defence, to undermine the defence of each.
75.
Secondly, we wonder whether Auld LJ’s third constituent to his direction (the warning) lies easily with his fourth constituent: and thus whether the distinction which a warning to be wary of a co-defendant’s evidence is really designed to elucidate is that between evidence in a co-defendant’s own defence (which has to be treated like that of any other witness) and evidence which incriminates the co-defendant. Of course, and this was the problem faced in
Burrows
, sometimes it is impossible to distinguish between the two. In this case, for instance, how could Farquhar give evidence in his own defence concerning duress inflicted on him by Petkar and his associates without thereby directly incriminating his co-defendant? And how could Petkar give evidence in his defence, namely that of innocent receipt of moneys to invest, without saying that Farquhar had told him that the moneys were his own to dispose of and thereby directly incriminating Farquhar? In other cases, however, the incriminating evidence may not be directly connected with a defendant’s defence, and, interestingly, the example that can be given comes from
Jones and Jenkins
itself. The evidence of Jenkins that he had not participated in the assaults on the victim did not incriminate Jones at all: it was not as if Jones was saying that he was not a participant and it was all down to Jenkins. Jones’ defence was rather that whatever he (and Jenkins) had done was not serious and not the cause of death. What incriminated Jones was Jenkins’ admission, presumably in cross-examination, that the victim had received serious injuries. But that was not a necessary or direct part of his defence at all; nor is it at all clear why that admission may have been seen as serving his interests or grinding his axe. In these circumstances it might have been said that a warning in favour of Jones against his co-defendant’s evidence might have been unfair to Jenkins. Considerations such as these suggest that the moulding of such warnings to the particular facts of each case are very difficult.
76.
In sum, however, we consider there was a misdirection in failing to give any warning of any kind as to how to regard the evidence of each defendant in as much as it incriminated the other, albeit by no means as serious a misdirection as it might have been if this case had not been of a real cut-throat variety, in its own way not unlike
Burrows
.
Ground three: Mrs Wells’ statement
77.
This ground concerns only Farquhar. Mrs Wells had died between the first trial and the retrial. Her statement was therefore admitted into evidence under
section 23
of
the 1988 Act
. What she there had to say was directed in support of Farquhar’s defence of duress. She told of a number of phone calls from a man asking after her grandson: on one occasion the man asked if he was in Ireland and then said: “I am coming round to see you. I think it is time we had a chat.” She replied that she would call the police. She was frightened and changed the locks. These phone calls ended in July 1999. She also told of an incident when she saw a man, whom some 11 months later in court on 13 June 2001 she claimed to recognise as Petkar, sitting in a parked car about 70 yards away. She told her grandson about these things after his return to England.
78.
Farquhar’s complaint is that the judge introduced her evidence in his summing up with the words that it was “not accepted”, when that was true only on the part of Petkar, while the prosecution was merely neutral. It is submitted that the judge should have made this clear, especially as the burden of disproving the defence of duress lay on the prosecution. The judge said:
“No question of being unwilling to come to court but again this statement is not accepted and has not been tested in court.”
79.
In our judgment, however, the judge was concerned to mark the difference between the statements read under
section 23
(such as Mrs Wells’ and Ms Sweeney’s), where there had been an issue as to their admissibility argued under sections 25/26, and other statements which were in truth “accepted” as dealing with matters which were not in dispute and which were therefore read under
section 9 of the Criminal Justice Act 1967
. The judge had made clear in each case as the various statements were read their difference in status, and in his summing-up he briefly did the same. Thus when he got to Ms Sweeney’s statement, he said:
“You heard a statement read out from her. This one and one other [ie Mrs Wells’], which I will come to later, of course [are] different from all of the agreed statements that were read to you because this one of Karen Sweeney is not agreed so you have to consider what she says in it, bearing in mind it has not been tested in cross-examination in court…”
80.
We think that in this context the judge’s description of Mrs Wells’ statement as “not accepted” is sufficiently accurate. It was not agreed. And even if the prosecution’s attitude to Mrs Wells’ evidence in itself was neutral, in as much as that evidence was relied on to support a case of duress the prosecution was certainly not neutral. We therefore reject this ground of appeal.
Ground four: the new evidence relating to Petkar’s RBS account at Ealing.
81.
Petkar’s RBS account at Ealing showed the following. It was opened on 2 November 1999, with a deposit of £200. That was 11 months after the second transfer. The account then remained dormant until October 2000, when a further £50 deposit was made. It was now nearly two years after the transfers from IBJ. Then between October 2000 and 11 June 2002 there are 21 transfers into the account totalling some £177,000. Mr Clarke submits that these £177,000 may represent the greater part of the £222,000 which Petkar said went to Farquhar and which cannot otherwise be accounted for.
82.
The 21 transfers fall into three main divisions. First, there were seven deposits between 19 October 2000 and 6 March 2001 of sums between a maximum of £7,500 and a minimum of £745.05 and totalling some £26,000, admittedly from unknown sources. Secondly, there then followed two much larger transfers of £30,000 each, one on 8 March 2001 and the other on 3 April 2001. These came from Petkar’s Magenta Forex accounts. There were two such accounts. One was opened on 25 March 1999, the other on 7 March 2001. These accounts had large sums paid into them by named individuals or companies: Mr Clarke does not rely on any of those deposits as being from an impugned source. Between 1 September 2000 and 7 March 2001, that is to say during the period of the first seven transfers into the Ealing account, the first Magenta Forex account was dormant, the other had not yet been opened. It would seem therefore that those seven transfers totalling some £26,000 perhaps came from some other account being operated by Petkar, which has not come to light. Thirdly, there were a further twelve deposits between July 2001 and June 2002 of sums between £20,000 and £509. These are in the main traceable to Petkar’s personal account at the National Irish Bank (“NIB”), which was opened on 8 June 2001 with a transfer of IR£359,000 from the second Magenta Forex account. In one or two instances the paperwork to render the NIB account as the source is missing, rendering the attribution less than certain, but the pattern suggests that these were also sourced from NIB and thus ultimately from the Magenta Forex accounts.
83.
The court received a full file of accounting documents to explain these matters, together with a witness statement from DS Douglas Reeman, who conducted the police investigation into Petkar’s financial affairs for the purpose of the confiscation order proceedings. The court, and Mr Clarke, also had the opportunity of questioning DS Reeman.
84.
The overall effect of this material, therefore, is that the most that can be said is that transfers of some £26,000 only are from an unexplained source, and even those transfers occur some two years or so after the IBJ transfers. The Ealing account itself remained dormant for almost two years after the IBJ transfers. The court is therefore satisfied that the new material relied on by Farquhar, when seen in the context of all the new material which has come forward as a result of the confiscation order proceedings against Petkar, does not afford any ground for allowing the appeal. We do not think that this material, if it had been available to the jury, would have affected their view of the case in the slightest.
Safety of the convictions
85.
We return therefore to the question of the safety of the appellants’ convictions, in the light of our findings that there have been misdirections under the first and second grounds of appeal discussed above.
86.
Mr Roche and Mr Clarke pressed on us their submission that in the light of those misdirections the court ought to find the convictions to be unsafe. They were able to point to a number of authorities to illustrate that submission, for instance
Gill
at para 32 and
Daly
at para 13, and
Jones and Jenkins
itself.
87.
In our judgment, however, the misdirections we have found do not affect the safety of these convictions (nor, we might say, although no separate argument has been raised by reference to article 6 of the European Convention of Human Rights, do they render the trial unfair): see
R v. Francom
[2001] 1 Cr App Rep 17 at para 50 and
Chenia
at paras 58/59. The evidence against the appellants was overwhelming and we are satisfied that on the whole of the facts and with correct directions of law the only reasonable and proper verdicts would have been ones of guilty.
88.
Thus in the case of Petkar, he accepted that he was the recipient of £840,000 (twice £420,000, before the first transfer was returned). He must have known that these monies came from IBJ and could not have come from Farquhar’s own funds. Farquhar was only 28 and a relatively junior employee, who had not been working long at IBJ. The letter and statement from Barclays Bank told him that the money came from IBJ. On the basis that he was honest, he must have taken an interest in where so large a sum of money had come from, especially as he was concerned with the return of the first transfer. His explanation for the receipt of the money was that it was with him to invest for Farquhar for at least a year: nevertheless he immediately makes arrangements, in the case of both transfers, for spending large sums on himself or on repayment of his own debts, or for passing large sums through the hands of casinos. That in itself was wholly dishonest. Unaccountably, Farquhar requests the return of large sums, amounting in all to £222,000: those sums are returned in cash in such a way as to leave no trace. No receipts are obtained from Farquhar. The whole transaction, for not far short of half a million pounds, is done in the most unbusinesslike of ways, and without any documentation – other than may be found in the contract, whose terms are never carried out, and about which Petkar admits lying in his interview. In addition to that lie, there was the lie about having returned all the money to Farquhar, repeated to the Halifax, IBJ and the police.
89.
Although this whole appeal has been premised on the basis that those lies amounted to failures to mention facts, they were in truth not so much failures to mention facts as lies about matters which were discussed. As such they were covered by a
Lucas
direction which has not been the subject matter of this appeal and which told the jury in terms that a lie was “only relevant if you are sure it was told because he realised he was guilty” and that “People may tell lies for reasons which have nothing to do with the offence”. The jury were reminded about the explanations given by Petkar for those lies, even if that was done as part of the facts rather than directions of law. In these circumstances we view the judge’s misdirection in connection with
section 34
as being less serious than it might otherwise have been.
90.
As for Farquhar, he admitted transferring the money and his only defence was duress. There is no complaint on this appeal about the directions regarding that defence. The evidence against him was equally overwhelming. The transcripts are wholly inconsistent with his acting under duress. Although he ascribed his departure to Ireland as an attempt to avoid Petkar, he did not so explain his use of a false name to open a bank account and buy a house or the change of his name to Ferguson. Moreover, Ms Sweeney’s evidence was also very damaging, although we bear in mind that she had refused to come to England to give evidence and was not available for cross-examination. He also had to admit many lies: his pretence that he knew nothing about the transfers, for instance, or that he barely knew Petkar. Such lies, apart from their significance in themselves as redolent of guilt, were inexplicable if his true defence was duress. One then comes to his failure to mention the subject of duress at his interview: that is perhaps the one true example of a failure to mention a fact relied on by way of defence, but it is in its context a damning one. He had been away in Ireland for nearly two and a half years when he chose to return. He did so voluntarily and in his own time, as he says, even if his return was provoked by learning of the television programme which mentioned him. It is he, through his solicitor, who contacts the police. He is an intelligent man. It is inconceivable, in the absence of evidence of some telling explanation, that after all that time, and with the assistance of legal advice, he did not mention duress at the outset of his interview and well before the raising of the recorded and transcribed telephone conversations brought his interview to an end on his solicitor’s advice. What then was his explanation for not then mentioning his defence of duress, even in outline? In effect there is no explanation at all: at most it is a pretence that he did not even know why the police had an arrest warrant for him, as he had heard, and that “I said as little as possible in the interview. I was pretty noncommittal”. This barely counts as an explanation, and goes very far to undermine the defect in the judge’s direction.
91.
As for a
Jones and Jenkins
warning, even on the basis that one was needed, we think that on the facts of this case the absence of one was venial. As Professor Birch said in her note on
Burrows
: “there would have been no need for me to be warned that both men might be trying to save their own skins by landing the other in it”. It is inconceivable that the jury did not understand the situation in the same way. In any event, as they had been told, the real decisions they had to take, subject to the burden of proof, rested on the credibility of each defendant’s own evidence: in the case of Petkar whether he might have thought that Farquhar was an extremely wealthy young man who had really agreed to invest his own money with him for a year and then almost immediately asked for a little over half of it back; and in the case of Farquhar whether he might have been forced to steal from his employer against his will.
92.
For these reasons we dismissed both appeals.
Petkar’s appeal against sentence
93.
We therefore reached the renewal of Petkar’s application for leave to appeal against sentence. This was entirely based on the delay to Petkar’s trial which had arisen out of Farquhar’s absconding to Ireland. Farquhar had been hiding there for nearly two and half years, from December 1998 to April 2001. There was then a further delay, while a trial which was finally going ahead against Petkar alone was put back to accommodate Farquhar’s return from Ireland. In the event the trial was itself put back a further nine months for reasons connected with an alleged defence of duress on the part of Farquhar which failed. Mr Roche therefore submitted that there had been a delay of nearly three and a half years through no fault of Petkar’s own.
94.
In
R v. Clark
[1998] 2 CAR 137 at 140E/F long delay “say, of over two years” between being confronted with dishonesty and the start of trial was cited as a matter of mitigation personal to an offender. We thought that there was sufficient in this point to merit a discount of 6 months in the case of Petkar on the five year sentence handed down to Petkar and Farquhar alike by the judge. We therefore gave leave to appeal and allowed the appeal to that extent. | ```yaml
citation: '[2003] EWCA Crim 2668'
date: '2003-10-16'
judges:
- LORD JUSTICE RIX
- MR JUSTICE DOUGLAS BROWN
- SIR RICHARD TUCKER
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2012] EWCA Crim 501
Case No:
201106439 D1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Lincoln Crown Court
His Honour Judge Morris
201106439D1*4
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
15/03/2012
Before:
LORD JUSTICE AIKENS
MR JUSTICE FIELD
and
HIS HONOUR JUDGE COOKE QC
- - - - - - - - - - - - - - - - - - - - -
Between:
Regina
Respondent
- and -
Chinn
Appellant
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr. S Moore-James
(instructed by
The Crown Prosecution Service
) for the
Respondent
Mr. AK Montgomery
(instructed by
Morgan Rose Solicitors
) for the
Appellant
Hearing dates: 21st of February 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Aikens:
The issue raised on this appeal.
1.
This appeal concerns the circumstances in which a party to criminal proceedings can rely on
section 120(3), (4), (5)
and
(6)
to introduce, as evidence of the matters stated therein, the previous written statement of a witness, when the witness states in her oral evidence that she cannot now independently remember various specific facts set out in the written statement. We heard oral argument from counsel on 21 February 2012. We reserved our judgment. Subsequently we sought from counsel further written submissions on aspects that had not been the subject of oral argument.
2.
This is an appeal against conviction by Michael Chinn, now aged 37, which is brought with the leave of the single judge. On 7 November 2011 after a trial before the Recorder of Lincoln, HHJ Morris, and a jury at Lincoln Crown Court, the appellant was convicted of one count of unlawful wounding, contrary to
section 20
of the
Offences Against the Person Act 1861
. The appellant was acquitted of a further count of unlawful wounding by direction of the judge who, at the conclusion of the prosecution case, upheld a submission of “no case to answer” in respect of that charge.
3.
On 12 December 2011 the appellant was sentenced to 15 months imprisonment, with 35 remand days to count towards that sentence.
The Facts and the oral evidence of Ms Inglis
4.
The two charges arose from an incident in a nightclub in Spalding, Lincolnshire, during the night of 30 September/1 October 2010. Two young women called Cheri-Leigh Lincoln and Meghan Davies were struck on the head and wounded by objects that had been thrown from a distance. The appellant was acquitted of wounding the first but convicted of wounding the second. The prosecution case was that the appellant had, in each case, thrown a glass bottle at the young women, one after the other.
5.
At the trial Ms Lincoln gave oral evidence. She accepted that she had been drinking. She said that the appellant had been looking for a fight with Ms Davies’ brother, Michael. Bouncers had taken the appellant towards the exit. Ms Lincoln thought that the appellant had gone away. Then something flew through the air and struck her on the head and she bled. She thought that it had come from the appellant and she rushed over to him in the bar area. She shouted at him “that fucking got me” but he did not respond.
6.
Ms Davies also gave oral evidence. She said that she had been out with the appellant on a few dates. She had spoken to him at the club. He did not get on with her brother, Michael, and a few words were exchanged between them. Her evidence was that the appellant then walked off and came back with two men and offered to fight her brother but the two men pulled the appellant away. Suddenly she heard a commotion and as she turned she saw the appellant. Her evidence was that then a glass came through the air and struck her head. She said that it was the appellant who had thrown the glass.
7.
Inconsistencies between what she had said in her oral evidence, what was set out in her witness statement to the police and what was in the police officer’s notebook were put to her in cross examination. She accepted that she had told the officer that she had seen the appellant throw a bottle at Ms Lincoln but that she had not mentioned this in her evidence. She said in evidence that she could not now remember seeing how her friend was injured.
8.
There was a third witness, Ms Inglis, who gave oral evidence from behind a screen. In summing up the judge said that the jury might regard her as “
the closest you will get to an independent witness
”: transcript at 16A. Only a few hours after the incident Ms Inglis had given the police a witness statement in the usual form in accordance with
section 9
of the
Criminal Justice Act 1967
.
In this statement she had described the appellant and what he was wearing, which she said was a blue coloured chequered shirt, but she stated that she could not remember what else he had on. She described a verbal altercation between the appellant and Michael Davies. She also said that she was talking to her friends. Her witness statement then continued:
“…
I looked around to the double doors that are the main entrance and exit to the club, I could clearly see Michael Chinn was stood at these doors and threw what I believe to be a glass bottle, this bottle has narrowly missed my head and has struck Megan Davies to her head causing a large cut to her forehead….The whole incident lasted no more than two minutes at the most from where Michael Chinn was shouting at Michael Davies to when he threw the glass bottle towards the group. I did not have any obstructions in my view and whilst it was dark inside there was various coloured lighting which provided ample light of the whole bar area”.
9.
Ms Inglis’ oral evidence at the trial was that she had been drinking, that she saw the appellant and Michael Davies having an argument and that she saw men pulling the appellant away towards the exit. Counsel for the prosecution then asked her whether the appellant left and she said that she could not remember because it was so long ago. She said that she had looked at her statement and she stood by what she said but she could not remember now. She was asked about Ms Davies being hit and whether she could remember how that was caused and she said she could not remember.
10.
Counsel for the prosecution then asked Ms Inglis whether she had made a statement on1 October 2010 and whether matters were fresh in her memory then and she said yes. Counsel asked if Ms Inglis could be given a copy of her statement and the judge agreed to that being done. Just before doing so, the judge commented to the jury that “
it is not a memory test, members of the jury
”. Counsel asked Ms Inglis to read parts of the statement and then asked her if she could recall how events unfolded that evening and she said “
I still can’t remember him doing it now. I can’t
”: see transcript of Ms Inglis’ evidence page 7B.
11.
The judge then asked the witness what she had told the police when she gave her statement. Ms Inglis replied: “
Yes I seen him throw a bottle and it missed me and it hit – I didn’t see it hit Cheri-Lee but it hit Megan
”: transcript 7H, and she confirmed that “he” meant the appellant.
12.
After some further questions, counsel for the prosecution asked Ms Inglis: “
what made you inform the police, as you did, that the bottle had been thrown by Michael Chinn
”? Her answer was: “
Because from this I seen him do it, but I don’t want to say what I can’t see in my head now. I can’t remember him doing it now
”. Ms Inglis confirmed that when she made the statement the events were clear to her and that she had told the truth in her statement. A little later on, counsel for the prosecution put to the witness: “
when you saw Michael Chinn, in your statement at any rate you said that he threw something at Mandy, sorry Miss Davies, not Mandy
”: to which the answer was “
Yes
” and then she confirmed that was Megan Davies: transcript 10F.
13.
Counsel for the defence then cross-examined Ms Inglis. His first question was to suggest that the version of events that she had given to the police in her statement was mistaken in that Mr Chinn (the appellant) did not throw a bottle at Miss Davies. Ms Inglis replied “
I can’t remember now, no. It was over a year ago. At the time I stand by my statement. I would never have lied
”. Counsel then suggested that because of poor light, the situation, the speed of events and so forth, she might be mistaken. Ms Inglis’ reply was: “
Not looking at my statement, no
”. She confirmed that she could only rely on her statement and that she now had no memory of some aspects of what had occurred. She could not remember whether the object thrown was a bottle, tumbler or some other type of glass.
14.
Counsel for the defence then said that he did not have to take her through the statement because she had read it before she gave evidence and she agreed. Counsel then said: “
a couple of things emerge from it
” and he asked Ms Inglis about what she had said in her statement of the appellant throwing an object when he was standing at some doors and her description of him doing things in terms of throwing objects. She accepted that is what she said in her statement: see transcript page 12 E. The witness was then shown a video clip of events and Ms Inglis was asked further questions, by reference to the video clip, about what she had said in her statement about where Mr Chinn was standing. The witness was then asked where she was standing at the bar and then some questions in relation to the assault on Ms Lincoln. Counsel then asked questions in relation to the attack on Ms Lincoln. He then returned to the attack on Ms Davies: “
…in the statement you speak of a bottle, don’t you. I appreciate you say you can’t remember it, but you speak of a bottle, Yes?
”. Ms Inglis’ answer was: yes but she could not now remember.
15.
After some further questions about the incident and afterwards, counsel asked Ms Inglis whether she remembered what Mr Chinn was wearing. Ms Inglis’ response was: “
Only because I’ve seen in here that I said he had a blue shirt on, but I can’t remember that
”. Counsel said: “
Very well, I’ll leave it then
”. There was no re-examination.
16.
It will be noted that there was no express objection by counsel for the defence to the witness looking at her witness statement in an attempt to refresh her memory, although it is clear that this exercise did not, in fact, do so. Nor, at that time, was there any discussion (with or without the jury being present) on the question of whether any particular statements in the witness statement were admissible as evidence of the truth of the matters stated therein or even a general discussion of the status of those statements as evidence.
The Judge’s Rulings and his summing up
17.
At the end of the prosecution’s case counsel for the appellant submitted that there was no case to answer on both count 1 (relating to the wounding of Ms Lincoln) and count 2 (relating to the wounding of Ms Davies). As already noted, the judge accepted that submission in relation to count 1 but he rejected it with regard to count 2. We do not have a transcript of his ruling.
18.
Counsel for the defence also submitted that the judge should discharge the jury in relation to count 2. The basis for this was that the passages in Ms Inglis’ witness statement that had been put to her and so put before the jury ought not to have been admitted in evidence, because the conditions governing the admissibility of those statements, as set out in
section 120(4)
and
(6)
of the
Criminal Justice Act 2003
, had not been met. The judge rejected that submission. He said that he would tell the jury to treat her evidence very carefully, bearing in mind how it came out. The judge said:
“
I am of the view that this evidence would have come in by one route or another and I will give a direction to the jury in the defendant’s favour along the same lines as one would have given if it was evidence that had come from a hostile witness”.
19.
When the judge summed up to the jury he summarised Ms Inglis’ evidence and then he posed the question: how do you approach her evidence? The judge directed the jury that the evidence of Ms Inglis about what occurred “
with the help of her statement – in effect repeating what is in it – is still evidence in the case which you can consider alongside the evidence she gave about what she could recall without the use of her statement”:
transcript page 18D.
20.
The judge then said that it was for the jury to decide whether Ms Inglis had really forgotten the main events of that evening or whether she was now saying that she could not remember because what she had originally said in her statement was not true or her loss of memory was for some other reason. It was for the jury to assess her as a witness. The judge reminded the jury of the defence argument that Ms Inglis had apparently remembered other events that evening in her oral evidence but now said that she could not remember the key event: and the submission that this difference in her memory was not credible.
21.
The judge then continued, at page 19B-G of the transcript:
“If you are of the view that it is just not feasible to have forgotten the important middle bit – if I can call it that – then yes, one approach is to treat her evidence as unreliable, and therefore worthless.
It is open to you, however, to reach a contrary view. Her evidence that she has given with the use of her statement is evidence you are entitled to rely on if, after careful consideration, you think it is right to do so.
If you are sceptical of her loss of memory but, nonetheless, consider her otherwise a truthful and reliable witness, and you are sure she was telling the truth in her statement to the Police, then you can use that evidence that she, in effect, regurgitated from her statement.
Alternatively, as the Defence invite, if you are sceptical of her memory loss, you are equally entitled to reject her as a reliable witness entirely, and regard her statement and, indeed, the oral testimony to you, and that what is the defence invite you to do. Those are all matters for you.”
The relevant provisions on hearsay evidence in the
Criminal Justice Act 2003
(“the CJA”) and the Criminal Procedure Rules
22.
The relevant provisions of the CJA are contained in Chapter 2 of Part 11 of
the Act
, which deals with Hearsay Evidence. That chapter enacted (with some modifications) the recommendations of the Law Commission set out in its
Report on Evidence in Criminal Proceedings: Hearsay and Related Topics
of June 1997 (Cm 3670). The statutory provisions make some far-reaching changes to the common law on the admissibility of hearsay evidence in criminal proceedings.
23.
The relevant provisions for the purposes of this appeal are
sections 114(1), 115, section 120 (1), (3), (4), (5), (6) and (7)
and
section 139(1).
We have set them out in an Appendix to this judgment.
24.
The broad effect of Chapter 2 of Part 11 of the CJA is that a previous out of court statement of a witness who is called to give oral evidence in criminal proceedings is hearsay evidence if the aim of adducing the statement in evidence is to prove the “matters stated” in it within the meaning of
section 114(1)
and
115
of
the Act
. Any statement not made in oral evidence in criminal proceedings is admissible as evidence of any matter stated in it (within the meanings of
sections 114
and
115
) only if one (or more) of the four conditions set out in
section 114(1)
is applicable. Those are: (1) that one of the provisions of Chapter 2 of Part 11 of
that Act
makes that statement admissible; (2) that any rule of law specifically preserved by
section 118
of
the Act
makes that statement admissible; (3) that all parties to the proceedings agree to that statement being admissible; or (4) that the court is satisfied that it is in the interests of justice for that statement to be admissible. In the last case the court has to consider (at least) the nine listed factors set out in
section 114(2)
before deciding whether it would be in the interests of justice to admit the hearsay evidence it is proposed to admit.
25.
Section 139
reformulates the circumstances in which a person giving oral evidence in criminal proceedings about any matter may refresh his memory of that matter from a document made or verified by him at a previous time. It is generally accepted that the statutory provisions enlarge the previous common law rules.
26.
The Criminal Procedure Rules set out procedural rules for dealing with hearsay evidence at a trial. There are no rules that apply directly to
section 120
of the CJA. That section itself clearly contemplates that there may be opposition to a previous statement of a witness being admitted as hearsay evidence. If there is then, obviously, a trial judge has to rule on the issue of admissibility in accordance with those provisions before the evidence can go before a jury.
The Grounds of Appeal and the arguments of the parties
27.
The principal ground of appeal is that Ms Inglis’ oral evidence was clear: at the time that she gave her oral evidence to the jury she had no independent recollection of the key issue of whether or not she had seen the appellant throw a glass bottle at Ms Davies. She was only able to confirm what was in her statement, which she said was the truth. Her witness statement was to the effect it was the appellant who had thrown a glass bottle at Ms Davies. Mr Montgomery, who appeared for the defendant at the trial and who appeared for the appellant before us, submitted to us that the evidence contained in Ms Inglis’ witness statement made to the police on 1 October 2010 was not admissible because it was a previous out of court statement by that witness which was hearsay and that none of the relevant conditions of
section 120
of the
CJA 2003
were satisfied so as to make the statements in the witness statement admissible as evidence of fact as if those facts had been given directly in oral evidence by Ms Inglis.
28.
Mr Montgomery also submitted that it was wrong for the judge to have questioned Ms Inglis and thereby introduced the evidence contained in her witness statement.
He further submitted that the judge should have acceded to a submission of no case to answer on count 2, on the basis that such evidence as there was that the appellant had thrown the glass bottle at Ms Davies was of a tenuous character because of inherent weakness and vagueness, such that a jury, properly directed could not reasonably convict. He relied upon the fact that the complainant, Ms Davies, had changed her account many times and her oral evidence at the trial was inconsistent. If, as he submitted should have happened, the statement evidence of Ms Inglis had not been admitted, then there was no or insufficient prima facie evidence that the appellant had thrown a bottle or glass at Ms Davies, so that, as with Count 1, the case should not have gone to the jury.
29.
For all these reasons, Mr Montgomery submitted that the conviction on count 2 was unsafe and so the appeal should be allowed.
30.
Mr James-Moore, who appeared for the prosecution at the trial and for the Crown before us, submitted that that the evidence derived from Ms Inglis’ witness statement was admissible by virtue of
section 120(4)
and
(6)
of the
CJA 2003
.
In this regard he submitted that there was no authority for the proposition that
section 120(4)
and
(6)
applied only where the matters sought to be adduced as evidence of the matter stated were “routine”, as suggested in the commentary in
Archbold
(2012 ed) at
11-39.
31.
Mr James-Moore also submitted that the evidence would have been admitted as a result of the witness being declared “hostile” in which case the evidence would have been admitted pursuant to
section 119
of
the Act
. He submitted that there was no need for any application to treat the witness as “hostile” because of her adoption of the contents of her statement. But if there had been such an application then it would have been granted and the evidence in her statement would have been admitted as evidence of the matters stated therein.
32.
Lastly, Mr James-Moore submitted that the judge gave proper directions to the jury on how they should approach the evidence of Ms Inglis. Therefore, if, (as he submitted was the case) the judge was correct to say that the evidence would have been admitted in full “
by one route or another”,
then the conviction was safe so that the appeal should be dismissed.
Issues that arise on this appeal
33.
When the prosecution (with a little aid from the judge) led the evidence of what Ms Inglis had stated in her witness statement, Mr Montgomery did not object to that course either then or at the end of her evidence in chief. The first time he really objected was at the close of the prosecution case when he asked the judge to dismiss the jury in relation to count 2.
34.
However, in our view this is not a case where we should hold that evidence in the form of Ms Inglis’ witness statement was admitted by agreement. It plainly was not. Mr Montgomery was, we think, somewhat wrong-footed by the way the witness statement was introduced. It is common ground that as no application was made to adduce this statement under
section 114(1)(d),
therefore the statement was not admissible under that provision. It is also common ground that
sections 118
of
the Act
does not apply in this case.
35.
In our view
section 119
is not relevant because there was never, at any stage, any suggestion that Ms Inglis had made a previous statement that was
inconsistent
with her oral evidence at the trial. There was never an application to treat her as a “hostile” witness and, on the basis of the transcripts before us, it is difficult to see how she could have been so treated. In any event, even if there had been such an application, the question of the admissibility of statements in Ms Inglis’ witness statement as evidence of the matters stated therein would still have to be dealt with in accordance with Chapter 2 of Part 11 of the CJA and that would inevitably bring the issue back to
section 120
in this case.
36.
The prosecution hoped that Ms Inglis’ memory would be refreshed by getting her to look at her witness statement in the hope that she could then give oral evidence that it was the appellant who threw a glass bottle at Ms Davis. The prosecution failed in its primary object because Ms Inglis made it plain in her evidence in chief that even after she had re-read her witness statement, she still had no independent recollection that the appellant was the person who threw a glass bottle at Ms Davies. That much was accepted by Mr James-Moore before us.
37.
So the principal issue that arises on this appeal is whether, in the circumstances of this case, the statements in Ms Inglis’ witness statement to the effect that it was the appellant who threw a glass bottle at Ms Davies were admissible as evidence of those matters stated. There is a preliminary point: was Ms Inglis entitled to use the witness statement that she had made on 1October 2010 in an attempt to refresh her memory in accordance with
section 139(1)
of
the Act
? The remaining questions are: do the provisions in
section 120(3)
,
or
120(4)(b) and (5)
or
120(4)(b)
and
(6)
apply in this case and, if one or other does, what are the consequences?
Discussion of the Issues.
Section 139(1)
of the CJA
38.
Was Ms Inglis entitled to examine her witness statement in an attempt to refresh her memory? We think that she was. She stated in her oral evidence that the document recorded her recollections of the matter at an earlier time, viz. when she made it shortly after the incident. It is plain that, objectively speaking, her recollection of the matters was likely to have been significantly better at that time than it was at the time of her oral evidence one year later. Therefore the conditions set out in
section 139(1)
(a) and (b)
of the CJA were fulfilled. Both counsel accepted before us that this was the case. Yet it is equally clear that Ms Inglis’ evidence was that her memory was not refreshed. She said she had no independent recollection of the vital issues of whether the appellant threw anything at Ms Davies and, if he did, what it was.
39.
So the next question is: do any of the provisions of
section 120(3)
, (4)
and
(5)
or
(4)
and
(6)
of the CJA apply in this case so as to make admissible the relevant statements in Ms Inglis’ witness statement?
Section 120(3)
.
40.
Both Mr Montgomery and Mr James-Moore were inclined to argue that
section 120(3)
did not apply so as to make admissible statements made in Ms Inglis’ witness statement given on 1 October 2010. Both counsel accepted that the prosecution had attempted to use the witness statement to refresh Ms Inglis’ memory whilst she gave evidence in chief. Both also accepted that this effort failed with regard to the vital issues. They also accepted that Ms Inglis was cross-examined on the witness statement. But, as we understood the argument of Mr Montgomery, he submitted that neither the statement that the appellant had thrown a glass bottle at Ms Davies nor the whole document (viz. the witness statement) was “
in consequence”
received in evidence in the proceedings, because the statement about the appellant and him throwing a bottle was in evidence from the moment that Ms Inglis confirmed that what she had said in her witness statement on those issues was the truth. We understood Mr James-Moore to agree with this analysis. Therefore, it was submitted, what happened in this case did not accord with the necessary conditions set out in
section 120(3)
to admit Ms Inglis’ statement (either in whole or part) as evidence of matters stated therein.
41.
Although Chapter 2 of Part 11 of the CJA sets out a new code on the admissibility of hearsay evidence in criminal proceedings, unfortunately it is still necessary to look at the old common law position to understand how
section 120(3)
came to be drafted as it was. Broadly speaking, the common law position was that previous consistent out of court statements by witnesses were inadmissible as evidence of the facts stated in them. They were hearsay evidence and they did no more than confirm what the witness said in oral evidence in court. The prohibition on adducing such evidence was known variously as “the rule against self-corroboration” or “the rule against narrative”. However, if a previous statement of a witness made in an out of court document was used to refresh the witness’s memory when giving oral evidence and the witness was then cross-examined on another part of the document which part the witness has not used for the purpose of refreshing his memory, then the document became an exhibit in the trial. The statements in the document did not become evidence as such, except insofar as the witness confirmed those parts of the document put to him. Otherwise the document only went to the witness’s consistency, but not as evidence of the truth of its contents: see
R v Virgo
(1978) 67 Cr App R 323
; R v Sekhon
(1987) 85 Cr App R 19
.
42.
The intent of the Law Commission was to change the law, as is clear from para 10.82 of its Report. The recommendation (no 39) was set out in the following terms at para 10.82:
“We recommend that a statement made by a witness in a document which is used by the witness to refresh his memory, on which the witness is cross-examined, and which as a consequence is received in evidence, should be admissible as evidence of any matter stated in which oral evidence by the witness would be admissible”.
43.
It is a little unclear whether it was the intention of the Law Commission that, in those circumstances,
all
of the statements in the document used to refresh his memory would be admissible if they would have been so as oral evidence, or whether the admissible evidence is confined to those parts of the document on which witness was asked to refresh his memory. Those parts of the document on which the witness was cross-examined and which he accepted as being the case would be admissible as evidence of those facts anyway.
44.
The wording of
section 120(3)
is a little difficult to follow. The opening words of it are “
A statement made by a witness in a document-“.
Then sub-paragraph (a) sets out the first condition – “
which is used by him to refresh his memory while giving evidence”.
The word “
which”
in that paragraph must refer back to “
a document”,
because it is the document which is used to refresh the witness’s memory.
Moreover, it is clear that this sub- paragraph contemplates that the document has to be used by the witness to refresh his memory while giving evidence in examination in chief, given the subsequent reference to cross-examination in sub-paragraph (b). Sub-paragraph (b) does not follow the old common law position in that it does not specifically stipulate that there must be cross-examination of a part of the document which was
not
used by the witness to refresh his memory. The sub-paragraph simply says “
on which he is cross-examined”.
The word “
which”
in that sub-paragraph must also refer to the document and, we think, to the whole document. Given the plain wording of that sub-paragraph there is no room for any implied limitation to a part of the document. We think that sub-paragraph (c) must be intended to reflect the common law rule that where there had been cross-examination then the document would become an exhibit in the trial; hence the words “
in consequence [is] received in evidence in the proceedings”.
Thus, consistently with sub-paragraphs (a) and (b), the word “
which”
in that sub-paragraph must also refer to the document as a whole. The last part of
section 120(3)
refers back to the first words of the sub-section. So the thing that “
is admissible as evidence of any matter stated of which oral evidence by [the witness] would be admissible”
must be the “
statement made by the witness in a document….”
. But if the document contains several “statements”, plural, then those statements will be admissible as evidence of the matters stated in them of which oral evidence by the witness would be admissible, provided that those “statements” in the document were used by the witness to refresh his memory. The document itself will not be given to the jury, even though it is an exhibit, unless the court specifically permits it: see
section 122.
45.
We think that our construction is consistent with the explanatory notes to the CJA. In relation to
section 120
,
it states:
“Other previous statements by witnesses. This section makes other previous statements admissible as evidence of the truth of their contents (not merely to bolster the credibility of the witness’s oral evidence) in the following circumstances:…subsection (3) applies to the situation where a witness is “refreshing his memory” from a written document. If he is cross-examined on the document and it is received in evidence, the
statement
will be evidence of any matter contained within it…”.
(Emphasis provided).
46.
This court considered the ambit of
section 120(3)
in
R v Pashmfouroush
[2006] EWCA Crim 2330
.
The circumstances in that case were different from those in the present case because statements in an out of court witness statement were only put to the witness in cross-examination and the issue was whether the prosecution was entitled to re-examine on parts of the document not put to the witness in cross-examination. We think that nothing in the analysis of
section 120(3)
by Richards LJ at [23]-[26] of the judgment is inconsistent with our analysis. As we understand the sentence in [25] where Richards LJ says that the question of whether an out of court document should be received in evidence at the trial in the first place “
is subject to the former common law rules”,
he is referring to the matters we have set out at [41] above. As we understand it, Richards LJ was not purporting to deal with the
admissibility
of statements made in out of court documents as evidence of the matters stated. That point is, of course, now dealt with in
section 119
and
section 120(3)
and
(4)
to
(7)
of the CJA.
47.
But what if a re-reading of a previous out of court document
fails
to refresh the witness’s memory when giving oral evidence at the trial, as clearly happened in this case? It seems to us that in those circumstances
section 120(3)
cannot apply to make admissible as truth of the matters stated any or all of the statements made in the written document. This is for two principal reasons. First,
section 120(3)
contemplates that the witness
does
refresh his memory by examining the relevant statement in the out of court document. The effect of that is that his
oral
evidence about the facts of which he has refreshed his memory are admissible oral evidence in the normal way. The novelty in
section 120(3)
is that those statements in the document used to refresh the witness’s evidence also become admissible evidence of the matters stated therein.
48.
Secondly, the situation where the witness has made a previous statement when the matters were fresh in his memory but he does not remember them at the time of the trial, even when he has attempted to refresh his memory, is dealt with specifically by
section 120(4)
and
(6).
Those provisions contains particular conditions, (which we will examine below), which must be fulfilled before that previous statement becomes admissible as evidence of the matters stated. It would, in our view, subvert the statutory scheme if
section 120(3)
could be used to make a previous written statement admissible as evidence of the matters stated without requiring that the conditions set out in
section 120(4)
and
(6)
be fulfilled.
49.
Accordingly, we have concluded that counsels’ intuition, although not perhaps their reasoning, is correct:
section 120(3)
does not apply in this case.
Section 120(4)
and
(5)
50.
Section 120(4)
stipulates that a previous statement by a witness (which does not have to be in a document for the purposes of this sub-section) is admissible as evidence of the matter stated of which oral evidence by him would be admissible if one of three conditions set out in the succeeding sub-sections are satisfied. In addition, there are two pre-conditions, set out in
section 120(4)
(b).
These are that witness has to have
“indicated”
, whilst giving evidence, that to the best of his belief he made the statement concerned and also that to the best of his belief that statement stated the truth.
51.
Both counsel accepted that the two pre-conditions set out in
section 120(4)
(b)
are fulfilled in this case. It is clear from Ms Inglis’ oral evidence in chief that she indicated that she had made the witness statement of 1 October 2010 and that it stated the truth.
52.
So, for
section 120(5)
to apply, the question is whether Ms Inglis’ witness statement which narrates the events of the night of 30 September/1 October 2010 and states that it was the appellant who threw a glass bottle at Ms Davies is admissible because it is a statement that
“identifies or describes a person, object or place”
within
section 120(5)
.
This possibility was not the subject of oral argument before us. However, we decided that this section could be relevant and so we invited counsel to make further written submissions, for which we are grateful.
53.
Mr Montgomery submitted that Ms Inglis’ statement could not be made admissible using
section 120(5)
because it is principally a statement which describes a narrative of events, in the course of which (admittedly) it says that it was the appellant who threw a glass bottle at Ms Davies. Mr Montgomery submitted that
section 120(5)
applied solely to statements which only identified a person, object or place and did no more than that. He said, rhetorically, that if a statement that identified a person, object or place in the course of a more general narrative was admissible under
section 120(5)
,
then what would be the purpose of having the further safeguards set out in
section 120(6)
,
viz. that the court is satisfied not only that the witness
does not remember the matters but that he cannot reasonably be expected to remember them well enough to give oral evidence of them in the criminal proceedings?
54.
Mr James-Moore was inclined to support this view. He submitted that
section 120(5)
was designed to assist witnesses specifically to identify or describe a person, an object or a place, but not to do more than that. Mr James-Moore referred us to the Explanatory Note to
section 120
of
the 2003 Act
and to an article on the hearsay provisions in the
CJA 2003
by Mr Gregory Durston in the 2005
Criminal Law Review
page 206. The latter commented (at 211):
“There is, however, uncertainty as to how much “surrounding” detail might be admitted under this provision. For example, if the description of an object was made in the body of a police statement, to what extent would it be ripped from its context, even if this made it hard to evaluate?”.
55.
We accept that the precise scope of
section 120(5)
is not entirely clear from the statutory wording. We do not like having to go back to the pre-existing common law to try and work out the possible ambit of the sub-section, which is, after all, part of a new statutory code on hearsay evidence in criminal proceedings. But we accept that this exercise may assist in construing the sub-section. At common law a previous identification (particularly of the accused) was admissible as evidence of that fact at trial. Originally the rationale was that this could neutralise the argument that a witness only identified the accused because he was in the dock. The type of previous identification admissible was extended to out of court “photofits” by the complainant of the accused or a complainant’s description that enabled a police artist to sketch the accused’s likeness. But if a witness saw a lorry involved in an incident and noted its registration number, then gave the number to a policeman who had not seen the lorry, the evidence by the policeman of his note of the lorry’s number plate was held by the Divisional Court to be inadmissible hearsay: see
Jones v Metcalfe
[1967] 1 WLR 1286
.
56.
The Law Commission approved the “previous identification” exception to the hearsay rule, but thought that it should be extended to cover descriptions as well as identifications and also believed it should apply to descriptions or identifications of objects and places as well as people: see paras 10.46 – 10.52. The effect of
section 120(5)
is, clearly, to reverse
Jones v Metcalfe.
57.
We see some force in the argument of Mr Montgomery that it cannot have been the intention of Parliament that
section 120(5)
could be so broad that it could be used to circumvent the safeguards set out in
section 120(6)
. However, in order to work out the precise scope of
section 120(5)
we think it is necessary to look more closely at its purpose. The previous statement of a witness will have identified or described a person, object or place that is connected with an alleged offence or other relevant event. A description of a person, object or place that is made in a vacuum is of no use in criminal proceedings. The description or identification has to be put in the relevant context because the person, or object or place is being described or identified for a particular purpose in the criminal proceedings. Thus the witness may say in the statement that it was Mr X who was at the ABC Bar on a certain day at a certain time. That statement identifies Mr X in this way because it is that identification at that place and time that is relevant; probably to an alleged offence at the ABC Bar at a particular time. The same must be true of an object and a place.
58.
Thus, we conclude that
section 120(4)
and
(5)
can be used to admit parts of Ms Inglis’ witness statement, but not the whole of it. The parts that describe the appellant and identify him as being the person who was in the nightclub and then threw a glass bottle that hit Ms Davies are, in our view, admissible under
section 120(5)
.
But other parts of the narrative in the witness statement that go beyond identifying or describing the appellant and the fact that it was him that threw the glass bottle, are not admissible under
section 120(4)
and
(5).
59.
We should add here that
section 126(2)
of the CJA provides that nothing in
that Act
prejudices the power of a court to exclude evidence under
section 78
of the
Police and Criminal Evidence Act 1984
(“PACE”). In certain circumstances, eg. where the only evidence of identification of an accused is that contained in a hearsay statement sought to be adduced by the prosecution under
section 120(5)
,
the defence might argue that it should be excluded on the grounds that its admission would so adversely affect the fairness of the proceedings it should not be admitted. That point was not argued before the judge or us in this case.
60.
Further, in a suitable case, the judge has the power under
section 125
of the CJA to stop a case after the close of the prosecution if he is satisfied that the case against the defendant is based solely or partly on a statement not made in oral evidence in the proceedings and that such evidence is “so unconvincing” that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe. As we understood it, Mr Montgomery did not base his application to the judge of “no case” on count 2 on the provisions in
section 125.
Nor was that argument advanced before us. Indeed, Mr Montgomery expressly accepted that if Ms Inglis’ statement was admissible under
section 120
,
then there was a case to go to the jury on count 2. Implicitly, therefore, Mr Montgomery must have accepted that he could not have mounted an argument under
section 125.
Section 120(4)
and
(6)
61.
These provisions were at the centre of the oral argument between Mr Montgomery and Mr James-Moore. In our view the conditions of
section 120(6)
could have been fulfilled in this case. The witness statement was made when the matter was fresh in the memory of Ms Inglis, because the witness statement was given on 1 October, only hours after the incident. Her evidence was that, at the time that she gave her oral evidence, she did not then remember the relevant events of the night of 30 September/I October 2010, viz. whether the appellant threw a glass bottle at Ms Davies. She said that her reason for saying this was that it was now over a year ago and the facts were no longer in her head. There was therefore material in her evidence for the judge to have reached a conclusion that Ms Inglis could not reasonably have been expected to remember those matters well enough to give oral evidence of them at the trial.
62.
But we are not prepared to say that the witness statement of Ms Inglis was admissible under
section 120(4)
and
(6)
because it is clear that no one at the time considered that subsection or its applicability or whether the two cumulative conditions in
section 120(6)
had, in fact, been fulfilled. The first condition is that the statement was made when the matters stated were fresh in the witness’s memory and he cannot now remember them. This will not often be contested, but if it is, then it is for a judge to decide the issue. It was not done in this case. But, in his closing speech to the jury, Mr Montgomery submitted to the jury that Ms Inglis must have remembered the events but chose to say otherwise in her oral evidence.
63.
The second condition is that the witness cannot reasonably be expected to remember the matters stated in the previous statement well enough now to give oral evidence of it. This may well be disputed. If it is then the judge must make an assessment and give a ruling on the point. The assessment will depend (amongst other things) on the characteristics of this particular witness, the nature of the particular incident, the circumstances in which it occurred and also other factors such as what has happened to the witness between the time of the incident and the trial. The judge has to take all relevant factors into account then decide, objectively, whether that witness could reasonably be expected to remember the relevant matters at the time of the trial well enough to give oral evidence of them at the trial. The judge did not do that exercise in this case. Again, it was Mr Montgomery’s submission to the jury that Ms Inglis could, reasonably speaking, have been expected to remember those events well enough to have given oral evidence of them.
64.
We do not accept that
sections 120(4)
and
(6)
were intended to apply only when the matters sought to be adduced are “routine”. There is nothing in the statutory wording to limit the scope of the provisions in that way. Nor is that limitation referred to in the Law Commission’s report. The admissibility of previous statements under
section 120(4)
and
(6)
will depend solely on whether the statutory criteria, as analysed above, have been fulfilled.
65.
Despite the lack of any specific rules in the CPR on the point, we would suggest that the correct way to have dealt with the situation which arose in this case, where
section 120(4)
and
(6)
might apply, is as follows: once the witness had said she could not now remember whether it was the appellant who had thrown the glass bottle and that her statement did not refresh her memory, counsel for the defence should have been asked whether he objected to the witness statement (or identified parts of it) being adduced as evidence of the relevant matter stated in it. If he said that he did object, then, in the absence of the jury, the witness should have been asked why she did not now recall the matters that were in her statement. Counsel for the defence could then have cross-examined on both the alleged failure of memory and the alleged reasons for it. If there were any further arguments about excluding the evidence on grounds based on
section 78
of the
Police and Criminal Evidence Act 1984
,
(see
section 126(2)
of the CJA),
then those should have been addressed then. The judge should then, in the absence of the jury, have ruled on those matters and, if he had accepted the submission that the witness statement should be adduced (or a relevant part of it), it would then have been adduced in the presence of the jury. Those matters would then have been evidence of the matters stated as if they had been adduced directly in oral evidence.
66.
In such a case when the judge sums up he will explain shortly why the jury can consider the written material, stating why, in the case of this matter and this witness, she could not reasonably be expected to remember that matter well enough to give oral evidence in the proceedings. No reference to hearsay evidence or the statute itself need be necessary. The judge will also, of course, direct the jury to consider the reliability of the witness’ earlier recollection of the subject matter of the statement that has been admitted and emphasise that it is for the jury to decide on the weight that they attribute to the evidence in the previous statement.
Conclusion on admissibility under
section 120
and consequences.
67.
For the reasons set out above, we are satisfied that the statements in Ms Inglis’ witness statement that identified and described the appellant and the fact that it was him who threw a glass bottle at Ms Davies are admissible pursuant to
section 120(4)
and
(5)
in the circumstances of this case. Other parts of the witness statement were not admissible under those provisions. They were not admissible under
section 120(4)
and
(6)
because the proper procedure had not been adopted in this case where, we are prepared to hold, the defence did object to the admission of Ms Inglis’ witness statement.
Section 120(3)
does not apply on the facts of this case.
68.
It is, perhaps, regrettable that the judge should have intervened as early as he did and in the manner that he did. But no harm was done because the previous statement of Ms Inglis that the appellant had thrown the glass bottle at Ms Davies was admissible for the reasons we have given. Insofar as the judge’s intervention forms a separate ground of appeal, we see no merit in it.
69.
As the relevant matters in Ms Inglis’ statement were properly before the jury as evidence of those matters, then, as Mr Montgomery properly conceded in argument, there was a prima facie case to go to the jury. Accordingly, the judge was correct not to accede to the submission of no case to answer on count 2.
70.
Furthermore, the judge was correct not to discharge the jury, although not, perhaps, for the precise reasons that he gave. In our analysis, not all of Ms Inglis’ witness statement should have been before the jury, although if the judge had gone through the exercise contemplated by
section 120(6)
further parts than the description and identification of the appellant might have been. However, in our view the jury had not heard any inadmissible evidence of importance. Ms Inglis did give oral evidence that she could remember other relevant matters that surrounded the key fact that it was the appellant who threw the glass bottle at Ms Davies.
71.
In addition, in our view there can be no criticism of the judge’s direction to the jury on how they should consider the oral evidence of Ms Inglis and her evidence contained in her witness statement. If anything it was overly favourable to the appellant.
72.
There is, however, one further point which we wish to mention on the summing up, although it was not identified in the grounds of appeal, nor was it the subject of argument before us. The principal issue at the trial after count 1 had been withdrawn from the jury was whether it was the appellant who threw a glass or glass bottle or tumbler at Ms Davies. The appellant accepted that he was present at the nightclub. He was well known to both Ms Davies and Ms Inglis, who gave evidence that they recognised him and saw him there. It was put to both of them that they had been mistaken in identifying the appellant as the person who threw the object that hit Ms Davies. It might be said that, in such circumstances, the prosecution case was based on the witnesses’ recognition of the appellant as the perpetrator and so called for some kind of
Turnbull
direction, at least in an adapted form. None was sought or given in this case. It was not and is not suggested that the conviction was thereby rendered unsafe.
73.
On the very particular facts of this case we are satisfied that even an adapted
Turnbull
direction was not needed; its absence did not make this conviction unsafe. However, in other cases which turn wholly or partly on identification evidence and the accused has been identified in a statement adduced under
section 120(4)
and
(5),
or
(4)
and
(6),
a judge will have to consider whether some sort of
Turnbull
direction is needed and, if appropriate, give one in a suitably adapted form.
74.
Having considered all the points raised, we have concluded that the conviction of the appellant was safe.
Disposal
75.
Accordingly, this appeal must be dismissed.
Appendix
Extracts from Chapter 2 of Part 11 of the
Criminal Justice Act 2003
(
sections 114
, 115, 120(1) and (3)to (6) and 139(1)).
114
Admissibility of hearsay evidence
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
(a) any provision of this Chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by
section 118
makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
115
Statements and matters stated
(1) In this Chapter references to a statement or to a matter stated are to be read as follows.
(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.
(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—
(a) to cause another person to believe the matter, or
(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.
120
Other previous statements of witnesses
(1) This section applies where a person (the witness) is called to give evidence in criminal proceedings.
(3) A statement made by the witness in a document—
(a) which is used by him to refresh his memory while giving evidence,
(b) on which he is cross-examined, and
(c) which as a consequence is received in evidence in the proceedings,
is admissible as evidence of any matter stated of which oral evidence by him 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.
…………….
139
Use of documents to refresh memory
(1)
A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if-
(a)
He states in his oral evidence that the document records his recollectio nof the matter at that earlier time, and
(b)
His recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
…………….. | ```yaml
citation: '[2012] EWCA Crim 501'
date: '2012-03-15'
judges:
- LORD JUSTICE AIKENS
- HIS HONOUR JUDGE COOKE QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2012] EWCA Crim 2064
Case No: CA 2011: 07004, 07005, 07017, 07171, 2012: 00134, 01424, 02053 (C5)
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BASILDON CROWN COURT
HH Judge Jonathan Black
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/10/2012
Before :
LORD JUSTICE PITCHFORD
MR JUSTICE KING
and
MR JUSTICE BLAIR
- - - - - - - - - - - - - - - - - - - - -
Between :
Godwin Chukwnaenya Ezeemo,
Reliance Export Limited,
BJ Electronics Limited,
Chika Ezeemo,
Joseph Benson,
Orient Export Limited,
Nnamdi Chinedu Ezechukwu
Appellants
- and -
R
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
F McGrath
(instructed by
Ennon & Co. Solicitors
) for the
1st Appellant
F McGrath
(instructed by
Joseph Hill & Co. Solicitors)
for the
2nd and 7
th
Appellant
6
th
Appellant
was not represented and did not attend
D Barry
(instructed by
Shepherd Harris, Solicitors)
for the
3
rd
and 5
th
Appellants
G Ross
(instructed by
Gans & Co. Solicitors)
for the
4
th
Appellant
J Goudie QC, S Mehta and H McCann
(instructed by
The Environment Agency
) for the
Respondent
Hearing date: 25 September 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
1.
The appellants, natural and legal persons, appeal against conviction with a certificate of leave granted by the trial judge, His Honour Judge Jonathan Black.
The trial
2.
On 17 October 2011 at Basildon Crown Court the appellants faced an indictment containing 21 counts charging them with offences of transporting waste, specified in Article 36(1) of the European Waste Shipment Regulation 1013/2006 (the “EC 2006 Regulation”), namely wastes listed as hazardous in Annex V (or mixed wastes), that were destined for recovery in Nigeria, a non-OECD country, contrary to
regulation 23
of the
Transfrontier Shipment of Waste Regulations 2007
(the “UK 2007 Regulations”). The appellants had pleaded not guilty on an earlier occasion to similar counts contained in an amended composite indictment. The judge ordered severance of several counts concerning other defendants and the trial proceeded against the appellants upon a separate trial indictment.
3.
The trial indictment was arranged so as, with one exception, to charge the principal offence in the odd numbered counts. In the case of the natural defendants, the even numbered counts were alternatives. The alternative counts charged the defendant as an officer of a body corporate whose offence was committed with the consent or connivance of the defendant, or was attributable to the neglect of the defendant, within the meaning of regulation 55(1) of the UK 2007 Regulations.
4.
On 14 and 15 November 2011 at the close of the prosecution case the judge ruled that there was evidence to go to the jury that each of the appellants (i) was involved in the transport (ii) of waste (iii) destined for recovery in Nigeria. The judge ruled (iv) that the offence was one which imposed strict liability in that the prosecution was not required to prove against any defendant knowledge that the product transported was waste within the meaning of
regulation 23
.
5.
On 15 November, the appellants Godwin Ezeemo, Nnamdi Ezechukwu, Orient Export Limited and Reliance Export Limited changed their pleas as follows: Godwin Ezeemo pleaded guilty to counts 4, 8 and 14 (original indictment 12, 14 and 21 respectively). Nnamdi Ezechukwu pleaded guilty to counts 12, 16 and 19 (original indictment 16, 22 and 24). Orient Export Limited pleaded guilty to counts 3, 5, 7, 9, 13 and 20 (original indictment 1 – 4, 7 and 10). Reliance Export Limited pleaded guilty to counts 11, 15 and 17 (original indictment 5, 8 and 9). Those pleas of guilty were accepted by the prosecution and the jury was discharged from reaching further verdicts in the cases of those appellants. The trial proceeded in the cases of the appellants Chika Ezeemo, Joseph Benson and BJ Electronics Limited. On 28 November 2011 the jury returned the following verdicts: Chika Ezeema was found not guilty upon counts 3, 4, 5, 6, 7, and 8 (original indictment 1 – 3 and 12 – 14). He was found guilty upon counts 9, 13 and 20 (original indictment 4, 7 and 10). Joseph Benson and BJ Electronics Limited were found guilty upon counts 1 and 17 (original indictment 9 and 32).
6.
At a sentence hearing held on 13 December 2011 the appellants were sentenced as follows: Godwin Ezeemo, a fine of £1,000 upon each count (total £3,000), surcharge £15, 6 months imprisonment in default. He was ordered to pay £3,000 towards the prosecution costs. Chika Ezeemo received a conditional discharge upon each count. Orient Export Limited was fined £1,000 upon each count (total £6,000). Nnamdi Ezechukwu was fined £1,000 upon each count (total £3,000), ordered to pay the surcharge of £15, 6 months imprisonment in default, and ordered to pay £3,000 towards the costs of the prosecution. Reliance Export Limited was sentenced to fines of £1,000 (total £3,000) and ordered to pay £3,000 towards the costs of the prosecution. Joseph Benson was fined £7,000 upon count 1(9) and £4,000 upon count 17(32) (total £11,000) and was ordered to pay the surcharge of £15, 12 months imprisonment in default. He was ordered to pay £7,000 towards the costs of the prosecution. BJ Electronics Limited was ordered to pay identical fines and £7,000 towards the costs of the prosecution.
7.
The trial judge granted a certificate pursuant to
section 1(2)(b)
Criminal Appeal Act 1968
in these terms:
“I certify that the case is a fit case for appeal against conviction on the ground that at the close of the prosecution case I ruled that
regulation 23
Transfrontier Shipment of Waste
Regulations 2007
(
SI 2007/1711
) created an offence of strict liability. The defence has submitted throughout that Parliament could not have intended to create an offence which could be committed by such a wide range of individuals and/or companies involved in the export of waste electrical items abroad without there being some degree of intention on the part of those involved. These regulations set out to criminalise the breach of article 36 of the European Union Waste Shipment Regulations 2006.
At the same time I made rulings on what, for the purposes of the Regulations, constituted ‘waste’ and the meaning of ‘destined for recovery’ both of which concepts are issues that the defence will seek to have determined by the Court of Appeal as part of the proceedings on appeal.”
Issues in the appeal
8.
The issues which have been raised in this appeal which we shall describe as the grounds are:
(1)
Was the judge correct to rule and to direct the jury that if they were sure the owner had discarded (got rid of) an electrical item at a civic amenity site (i) the item became waste for the purposes of the indictment and (ii) did not cease to be waste until something was done to it to stop it being waste, and (iii) when deciding whether something had been done to stop the item from being waste the intention of the defendant as to what should be done or was going to be done with the waste was immaterial?
(2)
Was the judge correct to rule and to direct the jury that there was evidence capable of proving that the waste was destined for Nigeria for the purpose of “recovery”?
(3)
Was the judge correct to rule that the offence was one of strict liability requiring no proof of knowledge that the product transported was waste or an intention to transport waste to Nigeria for recovery?
The legislative background
9.
For many years the European Community has taken steps to co-ordinate the efforts of Member States to secure the environmentally protective management of ‘waste’. In his opinion to the European Court of Justice in
ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer
(“ARCO”) C – 418/97,
[2002] QB 646
at page 650, paragraph 8, Advocate General Alber said:
“The concept of waste underlying Community law on waste is defined in article 1(a) of Directive 75/442. According to that definition, "waste" means "any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard".”
In fact, the word used in the 1975 Directive was ‘disposes’. It was changed to ‘discards’ by the amendment in Directive 91/156 to ensure common terminology in Member States (see the Opinion of Advocate General Jacobs in
Tomesi
(C-304)
[1997] 3 CMLR 673
at page 676, paragraphs 7 and 12).
10.
In 1989 the Parties to the Basel Convention lodged its text with the Secretary General of the United Nations. One of the objects of the Convention was to address the problems caused by the export of waste to developing countries. Council Regulation (EEC) No 259/93 was adopted on 1 February 1993. It required the supervision and control by Member States of shipments of waste within, into and out of the European Community. Adoption of the principles of the Basel Convention and subsequent amendments to EEC 259/93 led to its replacement by the EC 2006 Regulation. Art 50 of the EC 2006 Regulation provided:
“1. Member States shall lay down the rules on penalties applicable for infringement of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive....”
Art 36(1) provided:
“1. Exports from the Community of the following wastes destined for recovery in countries to which the OECD Decision does not apply are prohibited:
(a)
wastes listed as hazardous in Annex V
.....
(d)
mixtures of hazardous wastes and mixtures of hazardous wastes with non-hazardous wastes not classified under one single entry in Annex V...”
11.
Pursuant to powers given by
section 2(2) European Communities Act 1972
and Schedule 2, paragraph 1A and in compliance with the EC 2006 Regulation, the Secretary of State introduced the
Transfrontier Shipment of Waste Regulations 2007
, coming into force on 12 July 2007 (“UK 2007 Regulation”).
Regulation 23
provides:
“23. A person commits an offence if, in breach of Article 36(1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply.”
12.
Regulation 5 explains the meaning of “transports”:
“5(1) Any reference in these Regulations to transport includes consigning for transport.
(2) Any reference in these Regulations to a person who transports waste includes the following persons-
(a) the notifier;
(b) any transporter of waste, by land or otherwise-
(i) into or in the United Kingdom; or
(ii) from the United Kingdom;
(c) any freight-forwarder; or
(d) any other person involved in the shipment of waste.”
Regulation 4(2) provides:
“(2) Expressions used in these Regulations that are also used in the Community Regulation have the same meaning in these Regulations as they have in the Community Regulation.”
13.
The definitions relevant for current purposes are to be found in Art 2 of the EC 2006 Regulation which incorporates several of the definitions provided in Art 1(1) of the Waste Framework Directive 2006/12/EC of 5 April 2006 (“WFD”):
By Art 1(1)(a) ‘waste’ means
“any substance or object in the categories set out in Annex 1 which the holder discards or intends or is required to discard”.
It will be noted that the European Community continues to adopt the definition of waste it has consistently applied since 1991 (see paragraph 9 above).
By Art 1(1)(b) ‘producer’ means
“anyone whose activities produce waste (‘original producer’) and/or anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste”
.
By Art 1(1)(c) ‘holder’ means
“the producer of the waste or the natural or legal person who is in possession of it”
.
By Art 1(1)(f) ‘recovery’ means
“any of the operations provided for in Annex II B”.
14.
The recovery operations listed in Annex II B include “R4 Recycling/reclamation of metals and metal compounds” and “R5 Recycling/reclamation of other inorganic materials”.
The prosecution case and evidence at trial
15.
There was no dispute at trial that Nigeria was a non-OECD country (Organisation for Economic Cooperation and Development), or that the relevant objects were destined for Nigeria. The prosecution case
was that between the 13
th
November 2008 and the 23
rd
October 2009 the defendants ‘transported’ mixed hazardous electrical waste for ‘recovery’ in Nigeria. The waste was shipped in eleven general purpose shipping containers (with a maximum payload of between 25,000 and 28,000 kilograms). Approximately 158,990 kilograms (159 tonnes) of hazardous waste was exported in the containers. The containers were loaded with hazardous cathode ray tube televisions and fridge/freezers containing ozone depleting substances and compressor oil. They had been collected from civic amenity or waste disposal sites and taken to collecting points where they were loaded into containers. Other non-hazardous items were found in some of the containers. Upon opening the containers the front rows of equipment were seen to be stacked and wrapped in cling film. This was ‘a front’ because the remainder of the items were packed without any means of protection from damage in transit. Seven of the containers destined for Nigeria were intercepted at Tilbury and Felixstowe prior to export. The other four containers were intercepted at Antwerp, Belgium. Eight of the containers were exported through the services of Orient Export Limited and its company ‘officers’ Godwin Ezeemo and Chika Ezeemo. The other three containers were sent through Reliance Export Limited and its company officer Nnamdi Ezechukwu who also worked for Orient Export Limited. BJ Electronics Limited and its company ‘officer’ Joseph Benson operated a site from which two of the containers were loaded for export.
16.
Count 1
(Joseph Benson and BJ Electronics Limited): In the summer of 2008 Mr Vincent of Greenpeace met with Mr Mansfield, a Sky News journalist. They obtained an old cathode-ray television which was professionally disabled rendering it beyond economic repair in the UK. The television was fitted with a tracking device and left at a civic amenity site in Basingstoke at which members of the public were invited to dispose of unwanted electrical goods. The television was, with other items, collected by lorry and taken to BJ Electronics’ warehouse in Walthamstow. At the yard it was placed in a shipping container and delivered to Tilbury docks. The container was shipped to Tin Can Island, Lagos, delivered to Alaba Market and unloaded. Alaba Market is the largest market for electrical goods in Lagos. There were many shacks around the market and Mr Mansfield visited three or four of them. He saw fairly skilled electrical engineering work being carried out on appliances. Mr Mansfield and Mr Vincent filmed the unloading, identified their television and purchased it as evidence.
17.
There is a market for second-hand electrical appliances. Witnesses gave evidence that the practice in the trade was to PAT test (portable appliance test) an appliance. The purpose was to ensure that the appliance was properly earthed. A Sky engineer gave evidence that Mr Vincent’s television could not be economically repaired in the UK. It would not produce a picture, only sound. However, by replacing the tube base panel and soldering wires into place it could be made to work.
18.
Adebole Odugbesan, director of legal services of the National Standards Enforcement Agency in Nigeria gave evidence that the importation of cathode-ray televisions and used refrigerators, working or not, was unlawful if they contained ozone depleting substances. Used appliances were prohibited unless they were functional.
19.
Counts 3 and 4
(Orient Export Limited, Godwin Ezeemo): Container ACLU9623438 was detained at Tilbury docks. It was subsequently examined at the yard in Dereham where it had been loaded. The first two rows of cathode-ray televisions, 42 in number, were neatly stacked and wrapped in cling-film. PAT labels were attached. The rest were neither stacked neatly nor protected. Some of the televisions were obviously damaged with broken or cracked screens, and/or power cables cut. Photographs of the contents were taken and exhibited. The shipment was booked by Orient Export Limited bound for Lagos. On the booking document the goods were described as “used households” and “non-hazardous”. Three further containers containing what appeared to be waste electrical equipment were found at the Dereham site. They were owned by Orient Export Limited. The seller had dealt with “Godwin”. The ‘waste’ was collected from civic amenity sites using ‘waste transfer’ notes. The waste was exported using Orient as shipping agents.
20.
Count 5
(Orient Export Limited): Container GCNU4665711 was detained at Tilbury docks. When it was opened engineers found it full of used electrical equipment including cathode-ray televisions. The first three rows were PAT labelled. The rest of the load was loose and unpackaged. Several items were damaged and power cords were missing. The fact that an item was PAT tested did not imply that it was functional. The order for export was placed by Orient Export Limited for delivery to Lagos. The contents were described in the booking form as “used households” and “non-hazardous”.
21.
Counts 7 and 8
(Orient Export Limited and Godwin Ezeemo): Container INKU5619514 was inspected at Tilbury. It contained used cathode-ray televisions and computer equipment some of which were damaged. Detailed inspection of some items showed them to be either capable or incapable of repair at reasonable cost. Photographs were taken and exhibited. A further container was examined. It contained similar items. Some of the items had PAT labels attached to them. The majority of items were not protectively packaged and only the first three rows were labelled. Many had missing or cut power leads. The shipping agent for delivery to Lagos was Orient Export Limited. The booking form was completed as before.
22.
Count 9
(Orient Export Limited and Chika Ezeemo): Container CAXU9276890 was examined. It was similarly packed. The shipping was booked by Orient Export Limited in similar terms.
23.
Counts 11 and 12
(Reliance Export Limited and Nnamdi Ezechukwu): Containers GCNU4600644 and CAXU9591504 were examined at Tilbury docks. They were similarly loaded with used and damaged electrical and the unloading process was photographed. Some of the items were labelled as “Skip”, “Faulty” or “Scrap”. This time the shipping agent was Reliance Export Limited and the booking form was completed as had the others by Orient Export Limited. The Reliance contact was named as Nnamdi.
24.
Counts 13 and 14
(Orient Export Limited, Godwin Ezeemo, Chika Ezeemo and Nnamdi Ezechukwu): A container, ZCSU8267631, was returned to Felixstowe from Antwerp where it was en route to Nigeria. On inspection the contents comprised used and damaged electrical equipment packaged as had been the earlier loads. They were photographed and the photographs exhibited. The booking request was made by Orient Export Limited and the form similarly completed.
25.
Counts 15 and 16
(Reliance Export Limited and Nnamdi Ezechukwu): Similar findings were made in respect of container ZCSU8503362, also returned by Belgian customs. The booking was made by Reliance Export Limited and the form similarly completed.
26.
Counts 17 and 19
(BJ Electronics Limited, Joseph Benson and Nnamdi Ezechukwu): TRLU6766264 was another container returned from Belgium. The container was similarly packed although some items in the inner rows had been wrapped in cling-film. Photographs were taken and exhibited. The documents revealed that the container had been loaded at BJ Electronics Limited and the shipping agent was Reliance Export Limited. The booking form had been similarly completed by Reliance.
27.
Counts 20
(Orient Export Limited and Chika Ezeemo): Container FCIU8745793 was the fourth to be returned by Belgian customs. On inspection it was found to be similarly packed. The contents were photographed and the photographs exhibited. The shipping agent was ‘Chika’ at Orient Export Limited and the booking form was similarly completed.
28.
In each case the jury received evidence of examination by expert engineers of random contents of the containers. A significant proportion of the items examined were damaged beyond repair and some were said to be dangerous. We need not summarise the evidence concerning the responses of individual appellants. Neither Chika Ezeemo nor Joseph Benson gave evidence. It was Mr Benson’s case that he was a dealer in used electrical equipment. He had employed a part time consultant, Mr O’Brien, to advise him in his relationship with the Environment Agency. Mr O’Brien gave evidence. He said he understood that Mr Benson was in the business of recycling electrical equipment.
29.
Mr O’Brien agreed that when a television was taken to a waste disposal or civic amenity site it was waste from the original owner. A television of the cathode-ray tube type if waste at all was hazardous waste. If a discarded television was kept and nothing was done to it then it remained waste until something was done to change that state. He agreed that only functionality testing was adequate if the holder was to treat the item as non-waste. To his knowledge it had not been possible since 2002 to export electrical waste unless a functionality test had been carried out to demonstrate that the appliance functioned. He knew that Mr Benson had a licence to reuse and recycle televisions. He understood that damaged goods were sent to another waste management site. Mr Benson had told him that he was supplying re-usable goods to others. Mr O’Brien had advised him to ‘improve his act’ but both of them were still learning about the process and their intention was to improve over time. Mr O’Brien was shown Mr Benson’s waste management licence application form of January 2007 which stated, “The delivery of all electronic equipment to be assessed, tested, sorted and stored into working material. Each and every component is tested for use or repair.”
30.
When Mr O’Brien first started to advise Mr Benson there was no PAT test carried out. He said that the PAT test was a step forward. In Mr O’Brien’s opinion it had been permissible in March 2008 to export PAT tested goods to Nigeria. He accepted that the Environment Agency had never said that PAT testing would be sufficient, only that it would be an improvement. He accepted that a letter from the Agency in June 2008 did refer to the revised Correspondence Guidelines. The guidelines (paragraphs 12 to 16) set out what was required for testing and record-keeping.
31.
It will be seen that there was an abundance of evidence that very substantial quantities of white electrical goods, in particular cathode-ray televisions and computer monitors, in various states of repair were being shipped by the defendants to Lagos in Nigeria. It was a plain inference that the loads were camouflaged by wrapping and labelling the first three or so rows within the containers, thus concealing a vast quantity of loose and damaged goods. Even if the cling-wrapped items had been PAT tested, that did not imply that they were in working order. The expert examinations which had taken place demonstrated that functionality testing would have revealed in many cases the opposite. It was an overwhelming inference that in substantial measure no functionality testing had taken place. The booking forms submitted to the shippers did not disclose the containers as waste but as used household items. The inference was available to the jury that those responsible for the export of the containers, while pretending that they were exporting usable electrical goods for re-sale, were in fact exporting hazardous waste. The jury could infer that the financial motivation for this export was a market in Lagos for white electrical goods capable of repair and/or for spare parts for that purpose.
Ground 1: ‘waste’
32.
It was not in dispute at trial that BJ Electronics and others were collecting waste from civic amenity and similar sites. The appellants’ case was that by visual inspection and selection at the waste amenity sites and PAT testing at the yard, by the time the goods were consigned for delivery to Nigeria, they were no longer waste. The intermediate ‘holder’ of the waste had no intention of ‘discarding’ the electrical items collected. He processed and tested the electrical goods for re-use. Whether he achieved that aim was not in point. What mattered was whether he had discarded or intended to discard the goods within the meaning of Art 1(1)(a) of the EC 2006 WFD (paragraph 13 above). BJ Electronics was the only ‘processor’ before the court in the current trial. Not all of the electrical goods alleged in the indictment to have been waste had been collected by BJ Electronics (which was involved only in counts 1 and 17). Other collectors or ‘holders’ identified in the evidence were not before the court and none gave evidence. Upon counts 1 and 17 and upon each of the other counts in the trial indictment the prosecution relied upon an inference, from the condition of the goods on inspection of the contents of the containers in which they were consigned for shipping to Nigeria, that they remained waste in the hands of the collectors and shippers. The first issue for the learned judge was, therefore, whether there was evidence from which the jury could properly infer so that they were sure that in the hands of the collectors the electrical goods remained waste. The second issue was whether the prosecution was required to prove that the collector
intended
to discard
the goods.
33.
The meaning of the term “discards or intends...to discard” has been the subject of much discussion both in Luxembourg and the UK. The European authorities were examined by Carnwath LJ, as he then was, in
R (OSS Group Limited) v Environment Agency and DEFRA
[2007] EWCA Civ 611
,
[2008] Env LR 8
(Lord Clarke MR, Carnwath and Maurice Kay LJJ). Carnwath LJ noted at paragraph 55 of his judgment, with which the other members of the court agreed, that the use of the subjective test, while useful when examining the product in the hands of the ‘producer’ of waste, may not be apt to define the status of the material in the hands of a subsequent holder of the material for recycling or re-processing. At paragraph 57 Carnwath LJ noted with some irony the opinion of Advocate General Alber in
R (On the Appn of Mayer Parry Recycling Ltd) v Environment Agency
[Case C-444/00
, [2004] Env LR 6,
[2004] 1 WLR 2644
(paragraph 108, 109):
‘‘108. The Court of Justice has thus refused to make classification of a material as waste dependent on its economic value, its fitness for reuse . . . or the environmental hazards posed by it . . . The holder’s conduct can be appraised only with regard to his intentions, a fact which causes the body applying the law considerable difficulties.
109. The Court of Justice solves this problem by inferring an intention to discard the substance from objective indicators; in doing so it has regard both to all the factual circumstances and to the aim of the waste Directive . . .’’
34.
At paragraph 13 of his judgment Carnwath LJ expressed the “general concept” of the discard of waste as getting rid of something which is unsuitable, unwanted or surplus to requirements. Examples are given in Annex 1 to the WFD and the Waste Catalogue 2000. The Waste Catalogue at 16.02 includes the hazardous residues of electrical goods (see also paragraph 40 below).
35.
As to the “objective indicators” for the discard of goods Carnwath LJ listed at paragraph 14 the following conclusions reached by the European Court of Justice which we include for their full effect notwithstanding that not all are relevant in the present context:
“i)
The concept of waste ‘‘cannot be interpreted restrictively’’ (
ARCO
para.[40]).
ii)
Waste, according to its ordinary meaning, is ‘‘what falls away when one processes a material or an object, and is not the end product which the manufacturing process directly seeks to produce’’ (
Palin Granit Oy
(Case C– 9/00) [2002] Env LR 35,
[2002] 1 WLR 2644
, para.[32]).
iii)
The term ‘‘discard’’ ‘‘covers’’ or ‘‘includes’’ disposal or recovery within the terms of Annex IIA and B (
Inter Environnement Wallonie
(
Case C-129/96
)
[1997] ECR 1-17411
, [1998] Env LR 623, para.[27];
ARCO
para.[47]); but the fact that a substance is treated by one of the methods described in those Annexes does not lead to the necessary inference that it is waste (
ARCO
paras [48]–[49]).
iv)
The term ‘‘discard’’ must be interpreted in the light of the aims of the WFD, and of Art.174(2) of the treaty, respectively:
a)
The protection of human health and the environment against the harmful effects caused by the collection, transport, treatment, storage and tipping of waste; and
b)
Community policy on the environment, which aims at a high level of protection and is based on the precautionary principle and the principle that preventive action should be taken (
Palin Granit Oy
para.[23]).
v)
Waste includes substances discarded by their owners, even if they are ‘‘capable of economic reutilisation’’ (
Vessoso & Zanetti
(
Case C-206/88
) [1990] E.C.R. I -1461 para.[9]) or ‘‘have a commercial value and are collected on a commercial basis for recycling, reclamation or re-use’’ (
Tombesi
(
Case C-304/94
)
[1997] ECR 1-3561
, [1998] Env LR 59, para.[52]).
vi)
In deciding whether use of a substance for burning is to be regarded as ‘‘discarding’’ it is irrelevant that it may be recovered as fuel in an environmentally responsible manner and without substantial treatment (
ARCO
para.[73]).
vii)
Other distinctions, which may be relevant depending on the nature of the processes, are—
a)
between ‘‘waste recovery’’ within the meaning of the WFD and ‘‘normal industrial treatment’’ of products which are not waste (‘‘no matter how difficult that distinction may be’’) (
Wallonie
para.[33]);
b)
between a ‘‘by-product’’ of an industrial process, which is not waste, and a ‘‘production residue’’, which is (Palin
Granit Oy
paras [32]– [37]—see further below).”
36.
Carnwath LJ summarised the effect of Luxembourg authority at paragraphs 56 and 59 of his judgment, and declared how the aims of the WFD should be applied in the courts of England and Wales:
“56. Understandably, the court has held that a material does not cease to be waste merely because it has come into the hands of someone who intends to put it to a new use. But that should not be because it still meets the Art.1(a) definition in his hands; but rather because, in accordance with the aims of the Directive, material which was originally waste needs to continue to be so treated until acceptable recovery or disposal has been achieved. Unfortunately the court has consistently declined invitations to develop workable criteria to determine that question. Instead, it continues to insist that the ‘‘discarding’’ test remains applicable, even where the ‘‘holder’’ is an end-user such as Epon, whose only subjective intention is to use, not to get rid of, the materials in issue....
59. In other words, although the Court continues to pay lip-service to the ‘‘discarding’’ test, in practice it subordinates the subjective question implicit in that definition, to a series of objective indicators derived from the policy of the Directive. What is required from the national court is a value judgment on the facts of the particular case in the light of those indicators.”
37.
In the view of the Court of Appeal in
OSS
, therefore, the test of whether goods or material remained waste in the hands of a holder subsequent to the original ‘producer’ was an objective one since otherwise the policy of the Directive would be defeated. The court’s judgment in
OSS
has been the subject of examination and application in subsequent appeals in the criminal courts. In
Environment Agency v Thorn International UK Ltd
[2008] EWHC 2595 (Admin)
,
[2009] Env LR 10
the prosecution appealed by way of case stated to the Divisional Court against the Magistrates Court’s decision to acquit Thorn of keeping controlled waste contrary to
section 33 Environmental Protection Act 1990
. For the purpose of the section ‘waste’ had the same meaning as that provided in Art 1(1)(a) of the WFD. The justices found that Wincanton retrieved unwanted electrical goods from retailers who received them from customers buying new goods. Wincanton sorted the items into those which were functioning or capable of repair and those which were not. Those in the first category were offered for sale. Thorn inspected items in the first category, made their selection and took them to their workshops for repair or refurbishment as necessary. They were then offered to the public for sale. Any item found to be beyond economical repair was disposed of to a licensed waste carrier. The justices found that no hazardous waste was stored at Thorn’s premises.
38.
The Environment Agency argued that the justices could not properly have concluded that the items selected by Thorn were not waste. First, on the evidence they were undoubtedly waste when they were discarded by their owners on their purchase of new goods. Second, they remained waste until repaired or refurbished for resale.
39.
Having considered
ARCO
and
OSS
Moses LJ, with whom Blake J agreed, pointed out that the question at issue in those cases was whether something which was waste had ceased to be waste. He continued at paragraph 21:
“21...The question whether something has ceased to be waste is not determined by considering whether those subjecting it to the process of reclamation intends to discard it or not, because if that was the question, then undoubtedly it would cease to be waste at the moment when those subjecting it to such a process had the intention to reuse it. Rather, the question of whether something which is undoubtedly waste ceases to be waste is determined by whether the cycle of repair or restoration is complete. To that extent I agree with the submissions advanced on behalf of the Environment Agency...”
The court was thus agreeing with Carnwath LJ’s analysis in
OSS
. The issue whether a product ceased to be waste had to be judged upon objective criteria having regard to the policy aims of the WFD and not by the intention expressed at any particular moment of the holder of the product.
40.
The court distinguished
ARCO
and
OSS
on the facts. Moses LJ continued at paragraph 21:
“21...But in the instant case, the focus must be concentrated on the logically prior question of whether these electrical goods were waste at all. True it is that the holder within the meaning of the Directive, the consumer, no longer wanted the particular item in question. In some cases, no doubt, the electrical item would be as good as new, but was no longer needed either because it was too old or was not suitable. There is no specific finding in this case by the justices as to whether the items had been discarded at that stage. The test as to whether an item is discarded was set out in
Inter-Environnement WallonieASBLvRegion Wallonne
(C-129/96) [1997] E.C.R. I-7411 as follows:
‘‘The general concept is now reasonably clear. The term ‘discard’ is used in a broad sense equivalent to ‘get rid of’; but it is coloured by the examples of waste given in Annex I and the Waste Catalogue, which indicate that it is concerned generally with materials which have ceased to be required for their original purpose, normally because they are unsuitable, unwanted or surplus to requirements.’’
41.
The court proceeded to hold that under the contractual arrangements between Wincanton’s suppliers and their retail customers for receipt of the used goods, the details of which were not known, the justices were not
bound
to find that they had been discarded [22]. Even if they had been discarded it was open to the justices to find that by the time Thorn had undertaken its process of selection they were no longer waste [26].
42.
We do not detect in the reasoning of the Divisional Court any support for the appellant’s argument that the prosecution was required to prove that any subsequent holder of the goods intended to discard them as the original owner had discarded them. Moses LJ expressed the contrary view at paragraph 21 of his judgment (at paragraph 39 above). He found only that on the evidence the justices had been entitled to infer that goods had not been discarded by the consumers and that, if they had, they were entitled to infer that having undergone two processes of selection, first by Wincanton and second by Thorn, they were no longer waste.
43.
The meaning of waste was again considered by the Divisional Court in
Environment Agency v Inglenorth
[2009] EWHC 670 (Admin)
,
[2009] Env LR 33
(Sir Anthony May, President, and Dobbs J). The owner, Mr Evans, had demolished a large greenhouse at his garden centre in Standish. He engaged a haulier, the respondent, to carry the rubble to another garden centre site in his ownership in Cheadle in order to form the base of a car park. The haulier was charged with the unlawful deposit of controlled waste contrary to
section 33 Environmental Protection Act 1990
. The justices found that at no stage had the owner discarded the rubble as waste. He intended to retain and use it in the same form that in which it had left the Standish garden centre. The Environment Agency appealed. The court held that the justices were in the particular circumstances of the case entitled to find that the rubble was not waste because it could not be inferred the rubble had been discarded by its owner, Mr Evans. At paragraph 21 of his leading judgment, Sir Anthony May stated the question to be answered:
“21...the main question in the present case was whether the material delivered to Mr Evans’ Cheadle site should be classified as waste and that the answer to that was primarily to be inferred from Mr Evans’ actions and that those depend on whether or not he intended to discard the substances in question.”
This is another case in which the point at issue was whether the owner or producer discarded or intended to discard the product. The justices were entitled to find that the product was not discarded. The haulier was simply performing the task of transferring the product for the use to which Mr Evans was putting it. It was not a case in which the court was considering the intention of a subsequent holder of the material.
44.
In
W, C and C
[2010] EWCA Crim 927
the farm owners (C and C) and their manager (W) faced an indictment in the Crown Court charging them with offences of knowingly permitting the deposit of controlled waste and disposing or keeping controlled waste contrary to
section 33(1) Environmental Protection Act 1990
. Considerable quantities of soil and subsoil were excavated from a hotel development site and utilised by the defendants for constructing the base for an extension and a cattle shed on the farm owners’ land. The trial judge found that there was no case to answer since the prosecution had not proved that the soil was waste. The prosecution appealed under
section 58 Criminal Justice Act 2003
. The issue for the Court of Appeal was whether the defendants had a case to answer. McCombe J, as he then was, gave the judgment of the court. Having considered the authorities he said at paragraph 34:
34.
We conclude, like the Court of Appeal in Northern Ireland [in
Department of the Environment v Felix O’Hare and Another
[2007] NICA 45
], that excavated soil which has to be discarded by the then “holder” is capable of being waste within the Act and, in any individual case, ordinarily will be. Having become waste it remains waste unless something happens to alter that. Whether such an event has happened is a question of fact for the jury. The possibility of re-use at some indefinite future time does not alter its status: see
Palin Granit
, and indeed
ARCO
. Actual re-use may do so (
Inglenorth
), but only if consistent with the aims and objectives of the Act and of the Directive: (c.f.
O’Hare
), the principal ones of which are the avoidance of harm to persons or to the environment, as set out in the recitals to the Directive. Which of those aims and objectives are relevant to an individual case will depend on the cases presented by the parties. In this case, for example, the main concern maintained by the Crown is for the environment around the village where the respondents’ farm lies (as a Special Area of Conservation) and visual amenity in the area generally. Matters which, in our judgment, are readily capable of assessment by a jury in deciding whether any material in issue is in fact “waste”.
45.
The appeal was allowed because the trial judge had withdrawn both questions from the jury. At paragraph 36 McCombe J continued:
“36. In the first place, he was in error in assessing the status of the materials entirely by reference to the respondents as “holder”[s]: see paragraph 9 of the judgment, last sentence. The hauliers were also clearly “holders” of materials which it was open to the jury to find to have been waste from the moment of excavation at the neighbouring farm and requiring to be discarded by the land owners as “holders”. The additional question was whether what the jury could find to be “waste” from the moment of excavation to the moment immediately prior to deposit on the respondents’ land ceased to be so because of the intended and actual use of it by the new holders. That too, in our judgment, was a question of fact for the jury.
37. Secondly, the judge fell into error, we think, because he then concentrated entirely upon the intentions of the respondents to put the material to immediate use and found that it could not be waste because there was not the slightest element of discarding in the use to which they put it immediately after the deposit: see paragraph 18. At the close of the Crown’s case there was to our minds undoubtedly evidence to go to the jury which would entitle them to find that these materials were waste that were required to be disposed of by the producers and by the hauliers and that the respondents had been paid to relieve that need on their part. If satisfied, on that material, that this was waste at that stage, the further question that remained for the jury was whether, having regard to the aims of the Directive, the materials ceased to be waste, no longer being discarded by anyone, which was being subjected to acceptable recovery or disposal.”
The court treated the issues for the jury as questions of objective fact, namely whether the soil had been discarded and, if so, whether anything had occurred subsequently in the hands of the respondents to change its status. That required an examination of the use to which it was put. Although the test to be applied was couched in terms of an intention to put the material to immediate use McCombe J was speaking of events which had taken place and the objective decision for the jury was whether in the light of those events the material had been and remained waste.
46.
The decision in
W, C and C
was considered by the Court of Appeal in
Evan Jones and Another
[2011] EWCA Crim 3294
. Surplus soil and subsoil from a pipeline excavation was hauled by the appellants to other land where it was tipped. The hauliers were convicted of depositing controlled waste contrary to
section 33(1) of the Environmental Protection Act 1990
. On appeal the complaint was that the judge had misdirected the jury by saying:
“In law, an intention to pass on to another that material for that other to use it, nor even an intention to sell, does not amount to such alteration of status by way of intended use as to remove the material from the category of waste. It remains waste in the hands of the haulier up to and including this deposit of it. Further, it remains waste thereafter unless and until some event happens which you can say there is a sufficient proportion to have altered it.”
47.
The court (Toulson LJ, Davis J and HH Judge Bevan) concluded that the jury had been misdirected. Toulson LJ explained at paragraph 13:
“13...In our judgment the correct analysis is, as was put by Davis J in argument and is supported by paragraph 36 of the judgment in
W, C and C
, that at the time when B is about to deposit the material on C's land, the conduct of B in bringing the material to that point, coupled with the purpose of C in receiving the material, is capable of bringing about a change in the status of the material for the purposes of the relevant statutory regime, so that at that time the material will have ceased to be waste, subject to the nature of the material and subject to the nature of the intended reuse and its potential environmental impact. Accordingly, we accept the submission that the judge's direction was a misdirection.”
In both
Evan Jones
and
W, C, and C
the material had been deposited on other land. As we read the judgment in
W, C and C
, when the material had been re-used the question for the jury was whether its nature had been changed. This involved considerations such as the aims of the WFD. In this regard, we suggest, the court in
W, C and C
was following earlier authority, particularly
Palin Granit
and
ARCO
as explained by Carnwath LJ in
OSS
(see paragraph 36 above). In
Evan Jones
the court was considering the status of the material in the hands of the
haulier
, not the owner of the land on which the material was deposited. Both the haulier’s and the landowner’s purpose in receiving the material was relevant to the jury question whether the status of the material had changed. That was a question of fact for the jury and not a question of law for the judge. The judge had elevated the ‘indicators’ which it was for the jury to assess to directions of law.
48.
With this lengthy review of authority, we now consider the submissions made to the trial judge. First, Mr McGrath argued, as he did to this court on behalf of the appellants Godwin Ezeemo and Nnamdi Ezechukwu, that by reason of recital (5) to the EC 2006 Regulation (in light of OECD Council Decision C(2001)107/Final, “in order to harmonise waste lists with the Basel Convention and to revise certain other requirements, it is necessary to incorporate the content of the Decision in Community legislation”), the definition of waste used in Art 2 of the EC 2006 Regulation should be read with the definition of waste in the Basel Convention, incorporated by the OECD Council in its C(2004)/20 amendment to C(2001) 107/Final. The 2004 amendment to C(2001) 107/Final reads:
“WASTES are substances or objects...which:
(i)
are disposed of or are being recovered; or
(ii)
are intended to be disposed of or recovered; or
(iii)
are required, by the provisions of national law, to be disposed of or recovered.”
Mr McGrath argued that since the edition of C(2001) 107/Final current at the time when the EC 2006 Regulation came into effect (14 June 2006) contained the 2004 amendment, the Regulation must be taken to have incorporated the amended definition of waste.
49.
Mr McGrath explained what he submitted is the effect of such a construction of the Regulation. Annex IIA to the WFD describes ‘Disposal Operations’ and Annex IIB describes ‘Recovery Operations’. If what the collectors and shipping agents were engaged in was simple re-use of electrical goods, that activity was not properly described as disposal or as recovery, in which case it was not waste within the meaning of the Basel Convention. The judge rejected this argument on two grounds, first that the UK 2007 Regulations were specific as to the meaning to be given to terms also used in the EC 2006 Regulation (see paragraph 12 above) and, second, that the OECD Decision dealt only with the management and movement of waste within and between OECD countries. We respectfully agree with the judge and reject Mr McGrath’s argument. We would add an additional reason: the European Court has adopted an autonomous meaning for the term ‘waste’ which it has applied since 1991. It has held that re-use does
not
exclude material from the definition of waste (see paragraph 35(v) above and paragraph 58 below). If it had been the intention of the European Parliament and Council to abandon its historical definition of waste with the consequences for which Mr McGrath contends, we have no doubt it would have said so in Art 2 of the EC 2006 Regulation.
50.
Secondly, Mr McGrath argued that the terms ‘intends to discard’ and ‘intended to be disposed of or recovered’ describe a state of mind of the holder of the goods or material for the time being. That is, he submits, a state of mind which requires proof. The other appellants, by Mr Ross on behalf of Chika Ezeemo, and by Mr Barry on behalf of Joseph Benson and BJ Electronics, join with Mr McGrath in arguing that the test to be applied by the jury was, at least in part, subjective. The judge found that there was evidence fit for the jury to conclude whether the person who left an electrical item at a civic amenity or waste disposal site was discarding it within the meaning of
regulation 23
of the UK 2007 Regulations. There was, we have observed, no real dispute about this and we agree that it was an inevitable conclusion. The dispute arose upon the issue whether goods which had been discarded
remained
waste. As the judge put the appellants’ case succinctly at page 8 of the transcript of his ruling:
“The defence contend that each of these cases [
Thorn
and
Inglenorth
] is authority for the proposition that a waste item does not remain so until its character is changed by a process of, for example, recycling, and that process has been concluded; rather, depending on the circumstances, an item that is originally a waste item can change its status if it is the intention of the holder at the time to do something with it which will alter that status from waste to something else.”
The judge concluded that
Thorn
and
Inglenorth
were distinguishable from the present case on their facts. Having also considered, in particular,
OSS
and
W, C and C
the judge ruled that on the facts of the present case there was evidence fit to go to the jury for a decision whether the items recovered from the containers and removed to the collector’s premises were waste and, furthermore, he informed counsel that he would direct the jury that the intention of the holder of the items for the time being was irrelevant.
51.
We have already pointed to a consistent line of authority in which it has been held that once a substance or object has been discarded (and has therefore become waste) the question whether it has changed its status is one of objective fact. However, the fact of which the jury must be sure (by
regulation 23
applying Art 2 of the EC 2006 Regulation) is that the substance or object is one which the “holder discards or intends...to discard”. It will be seen that in composing suitable directions to the jury the scope for contradiction and confusion to which Carnwath LJ drew attention in
OSS
immediately arises. How is the trial judge to direct the jury as to the meaning of those terms when they do not at first sight mean what they say (see paragraphs 36 and 37 above)? The answer, it seems to us, is that the trial judge must adapt his directions to the jury so as eliminate the apparent contradictions between the words used and their purposeful interpretation. On the facts of the present case these collectors/holders had loaded the containers for consignment to Nigeria. The issue whether they had ‘discarded or intended to discard’ the objects within the containers could only be resolved by answering the question whether what they had done to those objects before loading rendered them non-waste. What matters is whether the holder takes some action or intends to take some action with respect to the items which has changed their status. Whether the holder discards or intends to discard the items is judged by what he did with them and not by his subjective belief that he was discarding them (or would be discarding them) or not.
52.
The terms of appropriate directions upon the issue of waste will depend upon the circumstances of the case. In the present case there was little doubt, but it was for the jury to decide, that the original owner discarded or got rid of the electrical item as “unsuitable, unwanted or surplus to requirements” (paragraphs 34 and 40 above). In the cases of Joseph Benson and BJ Electronics Limited, it was argued that their process of selection and testing for re-use rendered the waste non-waste. They neither discarded the items (but selected and sold them for sale and re-use), nor intended to discard them (but to select them for sale and re-use). We agree with the trial judge that their intention in the abstract was immaterial. Their intention had to be judged against the results of the process to which they were subjected. What the jury had to decide was whether the process to which it was claimed the items were subjected did in fact have the effect of rendering them non-waste. If they did not, upon an objective consideration whether the holder had discarded the objects, there was only one possible conclusion – they were simply passing on the objects for sale in Nigeria and, therefore, discarding them.
53.
The judge explained to the jury in ordinary language that the word ‘discard’ in context meant getting rid of unwanted household goods either because they did not work, or because they were outdated technologically, or because they no longer suited. He continued:
“If you find that you are satisfied so that you are sure that the items that ended up in the containers, the subject matter of these counts, were discarded by the original owner at the civic hall waste amenity site, I direct you as a matter of law that those items became waste at that moment and that they remained so until something was done to stop them from being waste.”
The judge proceeded to direct the jury as to whether what they had seen of the contents of the containers assisted them in resolving the question whether the discarded items may have ceased to be waste. He said:
“It is perhaps not too surprising that a trade has grown up wherein household items which are discarded by the original owner but which can be used again are recovered ... either to be sold on in this country or to other countries around the world where the local population has not yet caught up with the same level of consumerism as more developed countries exhibit. There is nothing wrong in such a trade provided that the goods being sold on … are in such a state that they are capable of performing the function for which they were first manufactured and that they are safe to be re-sold. A word which has been used to describe that throughout this trial is ‘functional’.
54.
The judge reminded the jury that it was the prosecution case that, unless the item concerned had undergone a process of selection and/or repair which ensured that it was functioning, it must have remained waste; that the prosecution relied upon the ‘Correspondence Guidelines” to illustrate the kind of process which would bring that change about, namely visual inspection for damage and a functionality test and, if necessary, repair to ensure that it was working. It was, the judge said, for the jury to decide but:
“... if you are looking for something that provides you with a basis upon which you can make a decision whether or not electrical items have been shown to be functional you may well take the view that the revised correspondence guidelines, especially at paragraphs 12 to 16, provide you with that basis.”
The jury was reminded that they had been invited to draw inferences from the contents of the containers which they had viewed in photographs and from the expert evidence as to what was found upon detailed inspection and testing. The judge concluded upon this issue:
“You must decide whether the prosecution evidence is sufficiently strong on these matters for you to draw the inferences that nothing was done to the items at the various sites where they were taken ... If it is not sufficiently strong you need to consider whether you can draw any inference and what that inference might be.”
55.
The judge helpfully provided the jury before they retired with a written route to verdict which, upon the issue of waste, read:
“
(2) Are you satisfied so that you are sure that the items in the container(s) in the count you are considering were ‘waste’ when they arrived at the collector’s premises?
•
If you find that the items were discarded by the original owner at the civic amenity waste site, I direct you that the items became waste at that moment; and
•
That they remained so until something was done to them to stop them from being waste;
•
The prosecution case is that visual inspection and selection would not be enough;
•
The defence case is that a combination of visual inspection and selection is sufficient to alter the status of an item from ‘waste’ so that when it arrived at the collector’s premises, it had ceased to be waste.
If you are unsure, your decision must be not guilty
However, if you are sure, move on to question 3
(3) Has ‘anything been done’ to the items by the collectors that is sufficient in your judgment to change the status of the waste to non-waste?
•
Prosecution and defence agree that if you find as a matter of fact that waste items were in the container, then the items were hazardous waste;
•
As a matter of law, I direct you that the intention of any of the defendants as to what should be done or was going to be done with the waste is immaterial;
•
The prosecution case is that PAT testing is not enough and there should be a test for functionality to determine whether the item is working
•
The defence case is that visual inspection, PAT testing and selection by the buyers is sufficient to change the status of an item from waste;
•
If you find that something was done, it must have been sufficient to bring the process within the list of recovery operations within Annex IIB of the Waste Framework Directive (copied to you by the prosecutor in his closing speech)
If you are unsure, your decision must be not guilty;
However, if you are sure, move on to question 4”
56.
This document encapsulated the judge’s ruling as to the law and left to the jury the competing cases as to whether on the facts the collectors had changed the status of the items from waste to non-waste. It seems to this court that the judge’s directions were sufficient in law and fairly presented. The jury was not concerned with a stage in time before these electrical items were loaded into their containers and merely stored on site awaiting consignment. The evidence was focused upon the contents of containers which had already been loaded and consigned for shipment. The question was whether the items in the containers had been discarded. The jury was, therefore, examining the question not what it was intended should happen to them but what had happened to them before they had been loaded. This was a question of fact for the jury to resolve. We do not rule out that there will be cases in which proof of the
intention
of the holder is necessary. This, in our view, was not one of them. The judge rightly directed the jury that they should examine the question whether the items had been subjected to any process, such as inspection, testing and/or repair, which may have changed their status. Furthermore, and in any event, we have no doubt that the jury concluded that the appellants were passing on for sale large volumes of broken and hazardous electrical equipment which could lead to only one conclusion, namely that the holders discarded or intended to discard that equipment. We reject the first ground of appeal.
Ground 2: ‘destined for recovery’
57.
The issue raised is whether the prosecution could prove that the process to which the items were ‘destined’ in Nigeria was ‘recovery’. As we have said at paragraph 13, recovery means any of the operations provided for in Annex IIB of the WFD 2006. The operations listed in Annex IIB include recycling and reclamation of metals, metal compounds and other inorganic materials. The appellants contend that the prosecution was unable to establish that what occurred in Nigeria was a recovery operation rather than mere re-use. The prosecution contends that the list of operations in Annex IIB was to be construed generously so as to give to Art 36 its intended effect. We agree. The recitals to the EC 2006 Regulation include:
“(28) It is also necessary, in order to protect the environment of the countries concerned, to clarify the scope of the prohibition of exports of hazardous waste destined for recovery in a country to which the OECD Decision does not apply, also laid down in the Basel Convention. In particular, it is necessary to clarify the list of waste to which that prohibition applies and to ensure that it also includes the waste listed in Annex II to the Basel Convention, namely waste collected from households and residues from the incineration of household waste.”
It was not in issue at trial that if the contents of the containers were waste within the meaning of
regulation 23
, it was hazardous waste.
58.
The list of recovery operations in Annex IIB embraces the processes of reclamation, or of recycling, or of use for another purpose of wastes or the residue of wastes. Art 3 of the WFD requires Member States to take appropriate measures to encourage:
“(b)(i) the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials; or (ii) the use of waste as a source of energy”.
Thus, contrary to the appellants’ contention, the WFD recognises re-use of waste as a possible form of ‘recovery’ of waste. Art 5 requires Member States to take measures to ensure that its waste is recovered with minimum danger to health and the environment, and to prohibit the abandonment, dumping or uncontrolled disposal of waste. It seems clear that the objective of Art 36 of the EC 2006 Regulation is to protect non-OECD countries from the same dangers by prohibiting the export of hazardous waste to those countries for recovery.
59.
The prosecution case was that significant numbers of waste electrical objects, packed into the containers, were destined for the market for second-hand goods in Nigeria. Contrary to the defence case the majority were not suitable for re-use without undergoing a process of reclamation comprising repair or regeneration. In the case of a cathode-ray tube television, for example, the reclamation of inorganic material within it would be achieved by enabling the television for continued use. We agree with the trial judge that generously and properly construed the operation on which the prosecution relied did fall within Annex IIB.
60.
As to the evidence in support of the nature of the operation alleged by the prosecution the jury had the evidence of Mr Vincent and Mr Mansfield together with their video film. We agree with the judge that the jury was entitled to infer that all these containers were destined for a similar operation. Without it there would seem to have been no commercial sense in the export.
Ground 3: strict liability
61.
The respondent asserted that
regulation 23
created a strict liability offence which required no proof that the transporter of waste knew, believed or suspected that the containers contained waste or that the waste was destined for Nigeria for recovery. The appellants’ argument was advanced before us by Mr McGrath supported by Mr Ross and Mr Barry. They argue that the defendant must be proved to have known that the container contained waste and be proved to have ‘predetermined a course of events which would lead to the item undergoing a recovery process in a non-OECD country”.
62.
For ease of reference we repeat the words of
regulation 23
:
“23. A person commits an offence if, in breach of Art 36(1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply.”
Art 36 states that exports from the Community of identified wastes for recovery in non-OECD Decision countries “are prohibited”.
63.
There are four elements to the offence which, on the face of the words used, require proof: (1) transport by the defendant (2) of waste whose export from the Community is prohibited by Art 36, (3) that is destined for recovery (4) in a non-OECD country. No state of mind by the defendant, such as knowledge or suspicion is required by the words used unless it is to be presumed. The words used do not require that the defendant “predetermined a course of events”, only that he transported waste that was “destined for recovery” etc. The word “transports” includes “consigning for transport” (regulation 5(1)) and a person who “transports” waste includes a notifier (the person who gives notification of the shipment under EC 2006 Regulation procedure), a transporter, a freight-forwarder, or any other person involved in the shipment of waste.
64.
HH Judge Black gave interlocutory rulings as to the effect of
regulation 23
which were the subject of appeal to the Court of Appeal in
KV and Others
[2011] EWCA Crim 2342
(Hughes LJ, Vice-President, Hickinbottom J and Cranston J). Giving the judgment of the court, Cranston J, at paragraph 2, identified the first issue:
“2. The issue before us is whether the judge was correct in ruling at a preparatory hearing for the trial that
regulation 23
of the UK Regulations and article 36 of the EU Regulation catch all those who are involved in transporting waste for export, from the point of origin where waste is collected and stored for onward transmission to another country, through to the point where the waste is delivered to that country. In reaching that conclusion the judge rejected defence submissions that a defendant only exports waste at some later point, at the extreme when the waste shipped by him leaves the European Community. The judge also rejected submissions that
regulation 23
is in breach of European Union law and is ultra vires, and that that regulation is disproportionate and consequently unlawful.”
65.
The court held that
regulation 23
properly reflected the terms, aims and objectives of the EC 2006 Regulation. It covered all stages of an ‘export’ of waste “commencing once the waste is destined for [a non-OECD] country at its point of origin, and continuing until the waste reaches its ultimate destination”.
66.
The appellants, including the present appellants, also argued that:
“39...The creation of a strict liability offence, punishable by up to two years imprisonment, which can be committed by such a wide range of individuals and organisations, is not proportionate. The scope of regulation 5(2) would include arrangers, freight-forwarders, persons who transport waste to the point of embarkation, the operator of any port facility and their sub-contractors, those who load the container on a ship, and the shipping company and their employees. There is nothing in the UK Regulations, it is said, to protect individuals who are not culpable for the harm caused by any wrongful shipment of waste.”
67.
There was some reluctance at the Bar during the present appeal to accept that in the interlocutory appeal they were advancing the opposite argument from that for which they now contend, namely that
regulation 23
does create an offence of strict liability. In view of the terms in which Cranston J expressed the arguments advanced we have difficulty accepting that this is not a new and contradictory argument. That does not mean that it should fail. The court proceeded on the assumption that a strict liability offence had been created, observing that the words of
regulation 23
and Art 36 appeared to support such a construction. The court gave its conclusions on the issue of proportionality as follows:
“40. In general there is no issue of proportionality under EU law with respect to strict liability offences:
Case C-326/88
,
Public Prosecutor
v
Hansen
[1991] ICR 277
, [14]. The defendants point out that there are none of the standard defences in the UK Regulations to the commission of an offence under
regulation 23
, which one would expect if
regulation 23
was a strict liability offence: cf.
Environmental Protection Act 1990, s. 33(7)
.
Hansen
, they point out, was a case involving a fine, not imprisonment. In response the prosecution refers to the offence which an employer commits under
section 33(1)(a)
of the
Health and Safety at Work Act 1974
for failure to discharge any of the duties set out in
sections 2
-7 of that Act. We note, however, that some of those duties are qualified by terms such as reasonable practicability.
41. The judge assumed that strict liability was what was intended by the drafters of the UK Regulations. The phraseology of
regulation 23
compared with, say, regulation 36 of the EU Regulations, quoted earlier, supports that conclusion. The contrary has not been argued before us. Assuming that this is an offence involving strict liability, it does not, in our judgment, fail for disproportionality for that reason. Sentence in a court in England or Wales is at large and discretionary; there is ample power in the court to avoid imprisonment, or indeed serious punishment, if a defendant has genuinely offended entirely without fault. The theoretical possibility of a transporter of waste being duped into transporting it without any means of knowing he is doing so would exist also if the offence were limited in the way contended for by the defendants to physical crossing of the last Member State boundary. For both environmental and public health reasons, the handling of waste is very closely managed under EU Regulation 1013/2006 and the international instruments to which we have referred, the Basel Convention and the OECD decision. That involves imposing considerable duties of supervision and enquiry on those who handle such material.
Regulation 23
catches anyone breaching article 36(1), anyone involved in a prohibited export. That is a wider category than notifier, which is just one of the categories falling within regulation 5, where transport and person who transports are defined. As we have found, when
regulation 23
prohibits transport of waste in breach of article 36(1), it states what article 36(1) intended. The UK regulations do not widen the scope of article 36(1) but merely give effect to it when read in conjunction with the definitions in article 2 of the EU Regulation. We are not persuaded by the defendants’ arguments that
regulation 23
, coupled with regulation 5, is disproportionate.”
68.
The appellants now contend that it cannot have been the intention of Parliament to create an offence which, without fault, could result in criminal liability for all those who contributed to the transport of an unlawful shipment. We observe that the imposition of precautionary duties upon those who are responsible for goods destined for export was regarded by the court in
KV and Others
,
at paragraph 41, as a proportionate performance of the UK’s duties under the EC 2006 Regulation.
69.
It is a presumption of the law of England and Wales that an offence at common law or under statute requires
mens rea
unless by necessary implication
mens rea
is excluded. The principles to be applied when considering ‘necessity’ were summarised by Lord Scarman in
Gammon (Hong Kong) Ltd v Att-Gen of Hong Kong
[1985] AC 1
(PC):
“(1)
[T]here is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
(2)
the presumption is particularly strong where the offence is truly criminal in character;
(3)
the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;
(4)
the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern. Public safety is such an issue;
(5)
Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.”
The subject matter of the argument in
Gammon
was a Hong Kong Building Ordinance which, the Privy Council held, created offences of strict liability in pursuit of public safety which strict liability was calculated to promote.
70.
As we have observed, the UK 2007 Regulations represent the performance by the UK of its Community obligations under the WFD and the EC 2006 Regulation, in particular Art 50 of the EC 2006 Regulation (paragraph 10 above). The EC 2006 Regulation created a procedural framework for the safe shipment of waste which included at Titles II and III requirements for prior written notification of a proposed shipment, the provision of information, the making of a written contract between the notifier and consignee, the provision of financial guarantees, conditions for consent by the competent authority, the keeping of documents, a requirement for take-back of an illegal shipment, and supervision and control of shipments by the competent authority. Title IV (including Art 36) created a series of prohibitions against export of waste to certain countries. Table V created a series of prohibitions against the import of waste from certain countries.
71.
The scheme of the UK 2007 Regulations is to create a series of offences comprising breaches of the requirements of the EC 2006 Regulation. For example, regulation 17 provides that “a person commits an offence if he fails to comply with Art 49(1)” (which requires management of shipments of shipments of waste in an environmentally sound manner and without endangering human health). Arts 19 and 20 penalise a person who transports waste without meeting procedural requirements of the EC 2006 Regulation. Art 21 provides that a person commits an offence if he transports waste destined for disposal in a third country in breach of Art 34 (which prohibits certain exports). Art 22 creates an offence if a person who transports waste fails to comply with Art 35 procedural requirements or destinations. Art 24 creates an offence if a person transports waste without complying with the procedural requirements of Art 38. Similar offences are created by regulations 25 – 35 for breaches of Arts 40-48. Regulations 37 - 39 provide that an operator of a facility commits an offence if he fails to meet certain procedural requirements of Arts 10, 15, 16, 18, 20 and 22. Parallel offences are created in respect of consignees, laboratory operators, notifiers and persons who arrange the shipment of waste.
72.
All of these offences use the language of close regulation in pursuit of the safe management and shipment of waste. The offences are created for failure to take the procedural steps required by the EC 2006 Regulation or the taking of a step which is prohibited by the Regulation. In our judgment, this is the language of strict liability.
73.
There are, however, notable exceptions. Regulation 36 provides:
“36. If the operator of a facility knows or has reasonable grounds to suspect that waste brought to that facility is an illegal shipment of waste, he must notify the competent authority immediately and comply with their instructions and failure to do so is an offence.”
Regulation 53 creates an obstruction offence which may be committed by intentional obstruction, giving information known to be false or misleading, or failing without reasonable excuse to give assistance or information or to produce a record. Regulation 54 creates an offence of making statements known to be false or misleading for the purpose of obtaining consent to shipment or approval of a financial guarantee, or endeavouring to obtain such consent or approval by deception. Where, therefore, the offence is not constituted solely by a failure to take the necessary procedural step, or by the taking of a step which is prohibited, the draftsman has explicitly defined the
mens rea
required for the offence.
74.
Finally, regulation 57 provides:
“57. Where the commission by any person of an offence under these Regulations is due to the act or default of some other person, that other person is guilty of the offence and a person may be charged with and convicted of an offence by virtue of this regulation whether or not proceedings are taken against the first mentioned person.”
Regulation 57 implies that the first mentioned person may commit an offence under the regulation without fault on his own part, due to the act or failure to act by the second mentioned person. This is consistent with the respondent’s case that at least some of these offences are offences of strict liability. Regulation 57 does not appear to be apt to apply to an offence which requires specific intent such as obstruction or falsely obtaining consent or approval. It may apply to failures contrary to regulation 36 and certainly seems apt to apply to breaches of procedure or prohibition which may arise due to the act or default of another. What the regulation does not do is absolve the first mentioned person for his lack of fault. Regulation 57 permits the Environment Agency to charge either or both at its discretion.
75.
By regulation 58, on summary conviction for an offence under the regulations, the sentence is a fine up to the statutory maximum or imprisonment not exceeding 3 months or both. On indictment the penalty is a fine or imprisonment not exceeding 2 years or both. By regulation 59, however, the Agency is authorised, in lieu of prosecution, to issue a fixed penalty notice by payment of which criminal liability is discharged. We conclude that the offences created by the regulations are truly regulatory in nature, not aimed at the public in general but at those who operate in the business of collection and disposal of waste. They are designed to protect the environment and public health.
76.
We have considered the question what would be the
mens rea
required for the offence created by
regulation 23
if the presumption is not displaced. The appellants contend that it must be knowledge of (1) the holder’s discard of or the intention to discard the substance or item within the meaning of Art 1(1), (2) the process to which the substance or item was destined, and (3) its country of destination. In the absence of specific words defining a lesser culpability, such as “having reasonable cause to suspect” we agree that the
mens rea
of the transporter would have to be knowledge of these material facts. If that were so the offence could not be proved unless the prosecution could establish against any of those defined as transporters that he had personal knowledge of the intentions of others and/or had inspected the loads. In our judgment, if this were to be the requirement of
regulation 23
the regulation would be substantially deprived of its intended effect, which was to deter those in the business of handling such material for export from taking risks with the environment.
77.
In our respectful opinion, the provisional view expressed by the court in
KV and Others
is correct. The offence created by
regulation 23
is an offence of strict liability. We recognise, as was submitted, that this construction has the effect of catching those who may have no personal knowledge that a container contains waste or that the contents of the container were destined for recovery in a non-OECD country. One of the reasons for imposing strict liability is, as Lord Scarman said in
Gammon
to promote greater vigilance among those who undertake activities which may cause harm to the public. The obligation which the regulations place upon transporters is to take care to acquire knowledge of the cargos they are transporting. If they do not they take the risk of breach.
78.
We have been concerned at the breadth of reach of
regulation 23
to those who may play a comparatively minor and innocent role in the transport of waste. In
Jackson
[2006] EWCA Crim 2380
, Hooper LJ said:
“Whilst it is always possible to adumbrate situations which would appear to be covered by a statutory provision and yet could have manifestly unjust results, one has to rely on the good sense of Prosecuting Authorities and the overall supervisory role of the courts to avoid such a situation developing. Likewise of course the penalty actually imposed in any particular case can reflect the actual degree of culpability involved in a particular case.”
We agree.
79.
We conclude that the learned judge made no error of law and the verdicts are safe. The appeals are dismissed. | ```yaml
citation: '[2012] EWCA Crim 2064'
date: '2012-10-16'
judges:
- LORD JUSTICE PITCHFORD
- MR JUSTICE BLAIR
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 2556
Case No:
2008/02997/C4
IN THE HIGH COURT OF JUSTICE
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
Mr Justice Andrew Smith
T20027338
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
03/12/2009
Before :
LORD JUSTICE GOLDRING
MR JUSTICE FOSKETT
and
RECORDER OF NORWICH
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between :
NAJAR HUSSAIN
Appellant
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR Jerome LYNCH QC and Mr Anwar RAMZAN
for the
Appellant
Mr Alastair MACDONALD QC
(instructed by
The Treasury Solicitor
) for the
Respondent
Hearing dates : 4 November 2009
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Goldring :
1.
On 30
th
July 2003, following a trial at Leeds Crown Court the appellant was convicted of conspiracy to commit arson with intent to endanger life (Count 2) and 8 Counts of manslaughter (Counts 3-10). He was sentenced by Mr Justice Andrew Smith to 14 years imprisonment on Count 3 and 18 years imprisonment on the Counts of manslaughter. He had previously pleaded guilty to a Count of conspiracy to commit arson (Count 11) for which he was sentenced to 2 years imprisonment. All sentences were to run concurrently. The jury acquitted him of murder on Counts 3 to 10. On the judge’s direction he was found Not Guilty of conspiracy to damage property (Count 1).
2.
There were co-defendants. Shaied Iqbal was convicted of conspiracy to commit arson (Count 2) and of murder on Counts 3 to 10. He had pleaded guilty to Count 1 (conspiracy to destroy property). Shakiel Shazad was convicted on Count 2 and of manslaughter on Counts 3 to 10. He was convicted also on Count 11. Arif Siddiq pleaded guilty to conspiracy to destroy property (Count 1). So too did Intizar Hussain. It is unnecessary to refer to those who were acquitted.
3.
The issue in the appeal is whether fresh scientific evidence relied upon by the appellant renders the convictions on counts 2-10 unsafe.
The facts
4.
At shortly before 2am on 12
th
May 2002, 40, Osborne Road in Huddersfield was deliberately attacked by fire. Petrol, and petrol bombs consisting of milk bottles filled with petrol, were used. Most of those inside were killed. Eight people died. They included children. It was at 1.57am that emergency calls in respect of the fire were first received.
5.
The occupants of the house were members of the Chishti family. They had been asleep when the fire had been set. Although the trial took some weeks, the basic issues were not complicated. The motive for the attack was said to be revenge. Iqbal believed that one of the occupants of the house, someone called Ateeq-Ur-Rahman, had been spreading rumours that he was in a relationship with a woman called Mobeen Mumtaz. The prosecution alleged that the appellant and some of his co-defendants were recruited by Iqbal to set light to the house. We shall concentrate on the evidence insofar as it was alleged to implicate the appellant.
6.
On 11
th
May 2002, in the hours leading up to the fire, Iqbal telephoned the appellant. He asked if he had a petrol container. He said that he did. He had had it for a couple of months having bought it from a petrol station with Iqbal’s credit card, he said for no particular reason. Prior to that night it had not been used. Iqbal asked him to fill the container with petrol. The appellant said he and Intizar drove to a garage nearby in Huddersfield on Lockwood Road (“Lockwood’s”). The appellant filled the container with petrol. They went to a garage called Sam’s Autos in Viaduct Street in Huddersfield. The appellant gave Iqbal the container of petrol. It was somewhere past 10.30pm. The appellant remained there for about 4 hours off and on. He said in evidence he had been inside only for very brief periods. There was, said the appellant in evidence, conversation in which Iqbal said something about somebody “fucking with his girl”, that “the motherfucker fucked with the wrong person” and that he was going to deal with him.
7.
According to Siddiq, (who had pleaded guilty to Count 1 and gave evidence for the prosecution), Iqbal said they were going to set light to a car. The appellant said he had heard Siddiq shouting for some milk bottles. Shazad put on rubber surgical gloves. He took handfuls of metal fixing nuts from a container in the garage which he told them would make the fire burn quicker. He put the nuts inside milk bottles. The milk bottles were partly filled with petrol. Pieces of cloth were cut up and stuffed into the necks of the milk bottles. According to Siddiq, Iqbal and Shaied Mohammed placed the milk bottles into a cardboard box in the back of a black Nissan Micra. According to Siddiq and Intizar Hussain, (who also pleaded guilty to Count 1 and gave evidence for the prosecution), the petrol bombs were going to be thrown at a car parked outside 40 Osborne Road. Those to be involved in the attack on the car were Iqbal, Shazad, the appellant and Shaied Mohammed. Surgical gloves were taken to lessen the risk of fingerprints being found, they said.
8.
According to the appellant, at some point when still at the garage, Iqbal said, “let’s go and see if my man’s awake.” The appellant said that he didn’t know what Iqbal was talking about. Iqbal, Shaied Mohammed and Intizar Hussain went in Intizar’s car. About 20 minutes later they returned. A light was on at the house. Iqbal spoke of going on a mission; he said, according to the appellant in evidence, “we’re going to go and burn somebody’s car down;” that the car they were going to burn belonged to Ateeq.
9.
A police car came down the road. Iqbal shouted to hide the petrol bombs. The appellant said that was the first time he knew about them. He had had nothing to do with the making of them. He agreed that some of the 5 litres of petrol that he had purchased from Lockwood’s had been used in making the petrol bombs. In other words, there is no doubt that at least some of Lockwood’s petrol was in the petrol bombs.
10.
Iqbal put 4 bottles into the Micra car. The appellant, as he said, put his container with the remains of the petrol in it, in the boot. Shaied Mohammed put a metal bar in the boot. The appellant said did not know what the items were to be used for or that the objective was set fire to more than just one car.
11.
The appellant and Iqbal went off to put some petrol in the Micra. The appellant paid for it. He said he did so because he was asked to. On their return to Sam’s Garage, Iqbal and Mohammed again went in the Micra to see “if my man’s awake or not”, according to the appellant. On their return Iqbal said that the lights were off. One of them said, “let’s go;” the appellant said he thought that meant go and burn the car. He said he did not know where the car was and had never before heard of 40, Osborne Road.
12.
Both Siddiq and Intizar Hussain said that the petrol bombs were going to be thrown at a car parked outside 40, Osborne Road.
What happened at Osborne Road
13.
They drove off in 2 cars, the Micra and Intizar Hussain’s Honda Accord. They parked near to Osborne Road. When they got there, the appellant said that he was told his role was to pour petrol over cars outside Osborne Road and set light to them. He agreed. Iqbal, Shaied Mohammed, Shazad and the appellant went to Osborne Road. Intizar Hussain and Siddiq remained in the motor cars. The petrol bombs, the container of petrol and the crowbar were taken out of the boot. The appellant took the container. He and the others were given some gloves. He said he thought the others would not go through with the plan. He was prepared to pour petrol onto a car in the street and set light to it. According to the appellant when they arrived at 40, Osborne Road, Iqbal put the milk bottles on a wall. The appellant said he asked Mohammed which car he was to burn. He was told to set fire to all 4 cars outside the premises. He walked up to one of them and started to pour petrol over it. As soon as he did so he heard a bang. The front window of 40, Osborne Road was being smashed by Mohammed with the metal bar. The petrol bombs on the wall had been lit. Iqbal was by them. Iqbal threw a petrol bomb through the window. He then threw another one. Mohammed picked one up and threw that through the window. Iqbal threw another one in. The petrol bombs had gone into the living room. It was on fire. The appellant said he was scared and ran off. By then, he had not done anything. His petrol container still had a nozzle on it. He said he did not pour any petrol into the house.
14.
Abdul Majeed lived at 21, Osborne Road. He was disturbed by the noise coming from his parents’ house. He looked out and saw the living room window of the house was broken. There were flames inside. What he saw is apparent from the cross-examination of the appellant by the prosecution.
“[Abdul Majeed] said he could see the backs of men…? Yes.
No. 1 man was on the grass next to the bush…? Yes.
…He was 2 yards from the window when I saw him. He was Asian…He threw something at the window. The window was broken. The room was on fire. I could see flames…?
[The appellant said number 1 was Mohammed].
“…[Abdul Majeed] said that No 2…was on the pathway in the garden closer to the gate, quarter of the way in from the gate…He also threw something into the front room window. It went in. The fire increased…
[The appellant said number 2 was Iqbal].
[The appellant said Shazad was behind him standing by the gate]. Shazad did not throw anything.
…[Abdul Majeed said in respect of man number 3 that] “I assumed he put something in the letter box, because inside the door I could see the flames going up. Man number 3 was close to the door, the door was closed.” Can you help us with who man number 3 is? No…it was not me.”
15.
The appellant accepted that someone had poured petrol through the letterbox. He agreed that only he had a container from which 2 to 3 litres of petrol could have been introduced into the house through the letterbox and that he had flung the container away. He said had the petrol in his possession throughout. When he left the scene it had petrol in it and the nozzle was attached. No petrol was in fact poured to any car in 40 Osborne Road. When he threw the container away petrol dribbled from it. Then it poured out.
16.
According to Abdul Majeed, the four men ran off together.
Events after the attack
17.
The appellant threw away the petrol container and the surgical gloves. They were later found nearby. The appellant’s fingerprint was on the container. His fingerprint was on one of two pairs of 5 pairs of gloves found. The gloves with the appellant’s fingerprint on it showed traces of petrol containing an additive to petrol known as MTBE.
18.
Although he was very angry about what had happened, the appellant said he did not contact the emergency services. He thought someone he had seen would do so.
19.
Siddiq said that the appellant and Shazad got into Siddiq’s car. The appellant was swearing and said “what the fuck happened? Why didn’t you wait for me? These lot threw one through the door and one through the window and never gave me a chance to do the car.” If true, those words are evidence of, among other things, a joint enterprise by the four of them to attack the cars and the house.
20.
The appellant said that next day Iqbal and Shazad came to his house. The appellant learned that 7 or 8 people had died in the fire. He said he had been upset and crying when he learned that. A group, including Iqbal, Shazad, Intizar Ahmed and the appellant went to Bradford. Iqbal suggested they should get their alibis together. The appellant said he told Iqbal he didn’t need one as he played no part in burning the house. He said in evidence his intention was to put it straight to the other men that he had had nothing to do with death of 8 people in the fire. He said that after the attack he consorted with those involved because he wanted to sort it all out. He was afraid to go to the police.
21.
The appellant destroyed his telephone SIM card and got rid of his mobile phone. He caused his clothing and his Nike trainers to be burned.
22.
The appellant said at no time did he enter into any agreement to attack the house, to injure or cause the death of any person. He played no part in any such scheme.
Iqbal’s evidence
23.
Iqbal denied he had knowledge of the true nature of the mission. He said, among other things, that the appellant had assisted in the preparation of the petrol bombs. The appellant would be the one who would pour petrol through the letter box. He said he saw the appellant drawing the petrol container back from the letter box. The appellant placed two of the lit petrol bombs inside the living room through the window. As they ran down an alleyway the appellant threw away the petrol container.
The appellant’s arrest and events thereafter
24.
He was arrested on 14 May 2002. He made no comment when interviewed. He was subsequently charged. He was interviewed again in May and July 2002. He made no comment.
25.
On 9 June 2002 the appellant was visited in prison by a man called Iklaq Hussein. He told Iklaq Hussein that he had given the petrol container to Shakiel Shazad two days before the fire.
26.
Prior to 27 November 2002 the drivers gave their accounts. The appellant asked to be interviewed again. He gave an account consistent with that of the drivers: that the only agreement to which he had been party was to set light to vehicles.
The scientific evidence
27.
The prosecution relied upon Dr. Swann and Dr. Large. The defence relied on Dr Candy.
The undisputed evidence
40, Osborne Road
The seats of the fire
28.
An accelerant was used. It was believed to be petrol. There were two separate seats of fire. The first was in the living room under the window and behind the settee. The living room window had been broken before the fire had started. Milk bottle glass had been found in the living room. Glass was also found outside the house in the front garden. At least 4 bottles had been used.
29.
The second seat of fire was in the hallway. Only the letterbox remained of the UPV front door. The most intense area of burning in the hall was in the area of the doormat recess inside the front door. There was intense burning all the way up the banisters and the stairs. There was no sign of milk bottle glass in the hall or outside in the area of the front door.
The hallway
30.
Before the fire in the hall was started an accelerant such as petrol was introduced. It was ignited a short time after it was introduced; Dr Candy suggested probably within 2 or 3 minutes, not more than 5. Dr Swann said that for the fire to have had the intensity it did, the petrol would have had to have been present for a sufficient period of time.
MTBE and TAME
31.
MTBE and TAME are petrol additives. Some petrol contains only MTBE. Some contains only TAME. Some contains both, some neither. It was accepted at the trial that the Shell petrol sold by Lockwood’s (and bought by the appellant) contained MTBE. It did not contain TAME. Mr. Jerome Lynch QC, who represents the appellant, accepts that in this appeal.
Some exhibits seized
32.
Metal fixing nuts were found in the living room and in the garden. They were consistent with those found at Sam’s Garage.
33.
A fixing nut (SAM/10) was found to the left of the front door. It revealed the presence of MTBE. The respondent no longer relies on the presence of MTBE on this nut.
34.
Samples of petrol were taken from the living room and from the base of the milk bottle (SAM/31) found in the living room. Analysis revealed the presence of MTBE. That is not surprising in the light of the rest of the evidence.
35.
There were traces of petrol detected in the debris in the hallway. MTBE was detected in the space at the top of the bags (the headspace) containing three samples from the hallway: SAM/6 (burnt debris including the letterbox from the doorway), SAM/16 (carpet and underlay from the hallway) and SEL/15 (some floorboard from the hallway). Dr. Large said about SEL/15:
“Close inspection of the data revealed the presence of some petrol containing isooctane [a component of petrol], MTBE and possibly also a trace of TAME.”
36.
SAM/13 and SAM 17, two other samples from the debris in the hallway, indicated neither MTBE nor TAME.
The source of the TAME in SEL/15
37.
The experts considered the possible origin of the TAME in SEL/15. They all rejected the suggestion that it might have come from petrol walked into the house by firemen or others attending the scene or that it came from shoes in the hall. Although not accepted formally, that is effectively the position adopted in this appeal. Dr Large (for the prosecution) considered whether the TAME might have come from a milk bottle that had previously contained petrol with an additive but concluded that petrol would not last for the required time in a container as petrol evaporated quickly.
38.
The explanation supported by the expert witnesses was that there might have been two separate petrols introduced into the hall: one with TAME, one without. In Dr Large’s opinion there would have been much more of the petrol without TAME than of petrol with it. The petrol without it (and with MTBE) could have come from the green container. The petrol with TAME could not. Dr Candy (for the defence) was of the opinion that the trace of TAME in the one sample from the hallway was likely to have come from petrol recently introduced into the house within 24 hours before the fire. He too was of the opinion that it was possible that two kinds of petrol were introduced into the hallway.
39.
The traces of petrol found in the container which the appellant had throughout the incident revealed the presence of MTBE, but no trace of TAME.
The disputed scientific evidence at trial
40.
Dr Swann experimented with pouring liquids through a letterbox similar to that at 40, Osborne Road. He found that it was possible to pour an accelerant from a normal petrol container such as the appellant’s without much spillage unless the container was withdrawn before it was empty. He found it was not possible to pour more than a tenth of a pint of liquid from a bottle and that it was likely that liquid so poured would have spilled down in front of the door. It would have been a time consuming way to introduce an accelerant from bottles: a litre of petrol would have required 20 full bottles. Dr Candy said that 2 or 3 litres might have been introduced.
How the petrol was ignited
41.
Dr Swann said that if poured through the letterbox leaving no drops, it would have been possible to ignite by lighting a taper and putting this through the letterbox. However, some drops might run down the door and onto the stones beneath and on to the doorstep. That could have been lit with a naked flame such as a cigarette lighter, match or a taper. The petrol on the outside of the door would have ignited and burned through to the inside, thereby igniting the petrol inside.
42.
Dr Candy agreed that was possible. He considered that the picture of someone approaching the door furtively and introducing petrol that way did not appear to fit the circumstances. It was more likely that a petrol bomb had been thrown at the front door. The spillage of petrol in the door area caused the fire from the bomb to be drawn through the letterbox into the hall which then ignited the accelerant inside. Dr Candy said that the location of the metal nuts (found away from the living room windows and by the front door), suggested to him that a petrol bomb might have been launched at the front door, although no bottle glass was found in the area of the door.
43.
In opening the case, the prosecution suggested that one of the defendants used the petrol container to pour petrol through the front door without pointing specifically to the appellant. In the summing up the judge said that:
“[The prosecution] say that you can be sure that the rest [of the petrol from the container] was poured through the letterbox, and that you can reject [the appellant’s] account of what happened in Osborne Road.”
44.
The defence submitted that no one contradicted the appellant’s account of what happened in Osborne Road. It relied upon the presence of the TAME in SEL/15 as indicating that petrol which could not have come from the appellant’s container had been introduced through the front door. That suggested another source of petrol having been poured through the letterbox that night. As for the MTBE, that might have come into the hall on the shoes of Mohammed (upon whose shoes which were seized after these events, was found evidence both of MTBE and TAME). The presence of petrol with MTBE and without TAME was explicable by Dr Candy’s opinion that one of the milk bottles could have been thrown at the front door.
What the judge said about the scientific evidence
45.
As Mr. Lynch accepts, the judge clearly and fairly summarised the expert evidence. He put those areas in which there was disagreement into context. As he put it [46/10]:
“I have already said it is for you to decide whether it assists you to reach your verdicts to explore this difference of opinion between the experts. If it does, then the considerations I have been putting before you are no doubt matters that you will weigh. If it does not, and you so decide, then you can leave this question aside, but Mr. Swift [the appellant’s defence counsel] in particular asks you to pay careful attention to this evidence, for reasons that I will come back to when I remind you of the [appellant’s] defence…”
The direction on joint enterprise on the counts of murder
46.
As relevant to the appellant, the judge said:
“If [a defendant] was there when someone else or other people committed the offence, and what was done was fundamentally different from anything he realised might be done, he is not responsible for their actions…if a defendant was there to help set fire to a car, and he did not realise, or might not have realised…that the house was to be burned by his companions, that defendant will not be responsible…for the burning of the house, and…the deaths that resulted…Unless, taking each of these three defendants separately, you are sure either that he was personally involved in burning the house, or that he was party to a venture to burn the house, and realised that the others, or one of the others, might do it, you must find him not guilty of the murder charges. That is because, in those circumstances, you could not be sure that he was a participant in the venture that caused the deaths.”
47.
In other words, as the judge left the case to the jury, it was not necessary to resolve the areas of disagreement between the experts, neither was it necessary, in order to convict the appellant, for the jury to be sure that he poured petrol through the front door. The conviction of Shakiel, who on the appellant’s evidence was further away from the house than the appellant, and did nothing directly as far as setting the fire was concerned, must have been on the basis of a joint venture, in which those who left the cars and went together to Osborne Road, took part.
The grounds of appeal.
48.
Mr. Lynch’s submissions can be encapsulated in the following way. On the basis of the fresh evidence, (which we have heard
de bene esse
), it is clear that all the previous experts failed to consider possible contamination of the exhibits taken from the hallway. Once the jury concluded, on the basis of what it now transpires was flawed expert evidence, that the appellant introduced petrol through the letterbox, it is inevitable that they would not believe anything he said about his state of mind; about the nature of the venture in which he was participating.
49.
Mr. Lynch accepts that the petrol sold by Lockwood’s contained MTBE. That petrol was put into the milk bottles (which could explain the presence of MTBE in samples of the milk bottles from the sitting room). It would explain the presence of MTBE in the petrol in the container which the appellant took to the scene. However, submits Mr. Lynch, there was no reliable evidence that petrol containing MTBE was introduced through the front door. The finding of MTBE in exhibits from the hall might be due to contamination. If the finding of MTBE in the area of the hallway was real, its conjunction with TAME (in SEL/15) rules out petrol from the container as a source. In so submitting, the appellant relies on the evidence of Mr. Howarth, an expert in the field of incident reconstruction and fire investigation, and, to some limited extent, on the evidence of Ms. Peplar, a consultant with M-Scan, who has instructed by the respondent. Mr. Lynch does not accept Ms. Peplar’s conclusions in significant respects. (Dr. Large, who was at M-Scan, died some years ago).
Ms Peplar’s graph
50.
Ms. Peplar has helpfully provided the court with a graph entitled “MTBE peak area corrected.” It sets out what she describes as the “Normalised relative concentrations of MTBE within the headspace of the exhibits…” The graph is simply a means of comparing the amounts of MTBE as between one exhibit and another on a uniform basis. It does not set out absolute quantities. Although as a graph it suggests substantial differences in amounts of MTBE as between one exhibit and another, Ms. Peplar accepts that those comparative amounts are based on what in every case are very small traces of MTBE. Mr. Howarth emphasised how small the traces were. He suggested that it would not be appropriate to rely on the relative differences, which he described as completely negligible. Ms Peplar disagreed, but indicated that a tolerance of plus or minus 30% should be used in respect of levels illustrated.
51.
Although we are conscious of the points made by Mr. Howarth, in our view, provided the very generous tolerance of plus or minus 30% is taken into account, it is appropriate to rely on the relative amounts of MTBE as between different exhibits as spoken to by Ms. Peplar. The original analysis, upon which she relies, was completed by Dr. Large using specialist equipment in a laboratory experienced in dealing with the sort of analysis of the exhibits carried out here. We accept Ms. Peplar’s evidence to that broad effect.
Contamination
52.
Mr. Howarth’s opinion is that is that there is evidence that the presence of MTBE in the exhibits from the hallway was, or may have been, a product of widespread contamination. He bases his opinion in particular on a series of control samples which were analysed by Dr. Large. A control sample is a sample of air from an area (for example the scene) to show (in that case) that the scene, or the sort of bags used to remove items from the scene, was free of contaminants. Ideally, there would, in the present context, be no MTBE (or petrol) in such a control bag. Mr. Lynch does not pursue any suggestion that the possible source of any contamination was the nylon bags which were used.
53.
The control bags in particular relied upon by Mr. Howarth were:
(1)
CE/45, a control sample taken, it seems, on 27 May 2002 at Huddersfield Police Station. It remained in the store room of the police station until 24 July 2002, when it was sent to the M-Scan laboratory.
CE/45 was found to contain MTBE, TAME and white spirit.
(2)
SAM/2, a control sample taken on 12 May 2002 from outside 38 Osborne Road. It remained in the store room of the police station until 14 May 2002, when it was sent to the FSS laboratory, where it remained until 14 June 2002, when it was returned to the police store room where it remained until 16 June 2002, when it was sent to M-Scan.
SAM/2 was found to contain MTBE, TAME and white spirit.
(3)
SEL/2, a control sample taken on 13 May 2002 outside 40 Osborne Road. It remained in the store room of the police station until 14 May 2002, when it was sent to the FSS laboratory, where it remained until 14 June 2002, when it was returned to the police store room where it remained until 16 June 2002, when it was sent to M-Scan.
SEL/2 was found to contain MTBE and white spirit.
(4)
DSS/1 was a control sample taken in room 5 of the Forensic Science Service (“FSS”) laboratory on 14 May 2003. It was sent to Huddersfield Police Station on 14 May 2002. It remained there until 14 June 2002, when it was sent to M-Scan.
DSS/1 was found to contain MTBE.
(5)
DSS/2 was a control sample taken in room 29 of the FSS laboratory on 21 May 2002. It was sent to Huddersfield Police Station on 22 July 2002. It remained there until 24 July 2002, when it was sent to M-Scan.
DSS/2 was found to contain MTBE.
(6)
DSS/3 was a control sample taken in room 5 of the FSS laboratory on 19 July 2002. It was subsequently sent to Huddersfield Police station. It was sent to M-Scan on 24 July 2002.
DSS/3 was found to contain MTBE.
54.
We shall take each or each set of exhibits in turn.
55.
Ms. Peplar accepted that the air in the police storeroom was to some extent contaminated. CE/45 reflected that. She explained how that might have happened. Between 24 May 2002 and 26 February 2003 there was kept in the storeroom AG/2, a fuel sample taken from a BMW. It was found to have leaked into its nylon bag. It was never analysed. The leak was noticed when a second sample of petrol (AG/3) was taken from another BMW. As far as Ms. Peplar knows, that was the only leak from a bag. Because there had been the leak from AG/2, CE/45 was taken, as seems to us most likely, in the police storeroom. In Ms. Peplar’s opinion the nylon bag packaging of AG/2 was the most viable source of cross-contamination of CE/45. CE/45 gave a benchmark for assessing the level of possible contamination of other exhibits by AG/2 at the police station. She therefore has disregarded those exhibits in which the concentration of MTBE is the same or less than in CE/45, plus or minus 30%. That would rule out SEL/15 as having any significance. It would also rule out another hallway exhibit to which we have not so far referred, SAM/18 (the wooden floor and carpet from the hallway). Of the exhibits in the hall which contained MTBE, that would leave in SAM/6 and SAM/16.
56.
In Mr. Howarth’s opinion that will not do. CE/45 contained contaminated air. That meant the air in the police store contaminated. Other items in the store could have been. It could not be said whether the source of that contamination was by ingress of a liquid, into the largely impermeable nylon bag or was airborne; that is to say, vapour out of one bag and into another. It could not be said how near the source of the contamination the air in CE/45 was taken. The further away it was, the less would be the extent of contamination from that source. CE/45 could understate the extent of contamination.
57.
Further, CE/45 contained white spirit. White spirit would not be a component of petrol (for example from AG/2). That suggests another source of contamination. Ms. Peplar agreed said that she could not determine the source of the white spirit in CE/45.
58.
In Mr. Howarth’s opinion, the most appropriate ceiling should be the most contaminated item, namely SAM/2. That would rule out all the items from the hallway. It was significant, in Mr. Howarth’s opinion, that CE/45 and SAM/2 shared the same three constituents. It suggested contamination in the storeroom from more than one source containing those constituents.
59.
In Ms Peplar’s opinion CE/45 was less likely to have been contaminated by a liquid. The contents of CE/45 were present in the storeroom. There was no evidence of front end loading (see paragraph 61 below). The absence of front end loading suggested that the source of the contamination resulting in the finding in respect of CE/45 was not far away from where CE/45 was taken. In other words, CE/45 represents a safe benchmark.
60.
In Ms. Peplar’s opinion SAM/2 was not contaminated at all. Although taken as a sample, it amounted to real evidence. SAM/2 was taken at the roadside at the rear of the scenes of crime van at 10.50 AM. What was captured in the bag came from the environment at the time.
61.
Ms. Peplar excluded cross-contamination at the police station as the source of the contents of SAM/2 because of the absence of what she described as front end loading. She explained what she meant. If there is cross-contamination by vapour from one nylon bag passing into and contaminating another nylon bag, she would expect the most volatile components of petrol to migrate “preferentially” from the first bag to the second. That would be reflected by the contaminated bag having a disproportionate amount of most volatile components. SAM/2 did not. It revealed a petrol trace consistent with a real sample.
62.
Although Ms Peplar made plain her opinion regarding front end loading in her report, Mr. Howarth was not able to deal with it.
63.
As to the white spirit, Ms Peplar indicated that it could come from a variety of sources, the most common of which was brush cleaner.
64.
Ms Peplar’s opinion regarding SEL/2 was the same as SAM/2. She however went back on some suggestions made in her report. First, she accepted that she had mistakenly believed that SAM/2 contained TAME. That was a misreading of the evidence. (Mr. Howarth too did not appear to pick this up in his reports). Second, in her report she had said that the slightly lower reading regarding SAM/2 as compared with SEL/2 in what she thought was the same specific location, indicated the evaporation over time of a petrol spillage (of the same petrol). That was “highly significant” as an indication that SAM/2 and SEL/2 were real results. She was plainly wrong about that. The constituents of the two exhibits were not the same. They were not collected from the same place. She stood by what she had said regarding front end loading and the reality of results. She would have expected different profiles if the results were due to cross-contamination. She thought it “extremely unlikely” that contamination in the storeroom could explain the SAM/2 and SEL/2 results.
65.
Ms. Peplar suggests there is another indicator of the absence of widespread contamination such as suggested by Mr. Howarth. SAM/6, which contained MTBE, was taken at 13.15 on 12 May 2002. SAM/13, which was seized at 13.55 from an area in the hallway where petrol would be expected, contained no MTBE. SAM/16, which contained MTBE, was seized at 14.10. SAM/17, again from the same broad area, was seized at 14.15 and contained no MTBE. If there was contamination, suggests Ms. Peplar, how is it that SAM/13 and SAM/17, taken from similar areas at about the same time are not contaminated with MTBE?
66.
Ms. Peplar makes another point. The absence of residue on SAM/13 and SAM/17 are apparently real results. The presence of MTBE on SAM/6 and SAM/16 are similarly real results. It suggests that MTBE was introduced into the hallway.
67.
Moreover, if SAM/2 and (as she believed at the time, SEL/2) were a product of contamination, the petrol that contaminated them was different from that on SAM/6 and SAM/16.
68.
In our view, although there were unsatisfactory aspects to Ms. Peplar’s evidence, it seems to us she made a number of powerful points which rebutted the suggestion of widespread contamination advanced by Mr. Howarth.
69.
First, we accept her evidence regarding front end loading and SAM/2 and SEL/2. In our view these exhibits reflect the reality at the time when they are taken. They are not contaminated. There is no basis for using SAM/2 as a benchmark.
70.
Second, if there were widespread contamination, in particular of the items from the hallway, we would expect SAM/13 and SAM/17, taken from the same area within a short space of time, similarly to be contaminated. They were transported and/or stored with the other exhibits. SAM/13 and SAM/17 have every appearance of being real results. That suggests that the findings in respect of SAM/6 and SAM/16 are similarly real results.
71.
Further, the absence of such components in SAM/48 (soil collected between the door and window of 40 Osborne Road) suggests that cross-contamination had not occurred.
72.
Third, given the very wide margin of error taken into account by Ms. Peplar, we are persuaded that she is right about taking CE/45 as the benchmark for possible contamination.
DSS/1, DSS/2, DSS/3
73.
We deal with these separately, for reasons which will become apparent. In our view, there is nothing to suggest that these exhibits played any, or any significant, part in possible contamination of the hallway exhibits, the issue in this appeal.
74.
These are 3 control bags from FSS. Their contents were, as we have said, obtained at FSS on the different dates, in the first two cases when exhibits containing MTBE (at a lower level than DSS/1 and 2) were being opened. DSS/3 was taken because of Dr. Large’s findings at M-Scan in regarding DSS/1 and 2. Dr. Large in his report said that they indicated:
“Low level gasoline contamination in working atmospheres.”
75.
Mr. Howarth suggests the contamination might have occurred at the police station or the FSS laboratory. Ms. Peplar suggests that logically the source of contamination in these exhibits was different from possible contamination of other bags in storage. Petrol in the environment at FSS was a distinct possibility.
76.
In our view, as Dr. Large originally suggested, it is highly likely that there were traces of petrol in the atmosphere at FSS when these samples were taken. It seems to us as a matter of common sense almost inconceivable that the findings in these three exhibits had anything at all to do with the police station. Indeed, DSS/3 was only in the police station for one day. These findings do not suggest widespread contamination such as advanced by Mr. Howarth. They do not, as it seems to us, affect the validity of the findings regarding the exhibits from the hallway.
Some other matters mentioned by Mr. Howarth in his reports
77.
A number of other possible sources of contamination were mentioned by Mr. Howarth in his reports. Some seem to us far-fetched. They were not emphasised by Mr. Lynch. We mention some of them merely in outline for completeness.
78.
He suggested possible contamination at M-Scan, the possible use of contaminated bags, widespread environmental contamination at the scene (for example by generators or vehicle engines running nearby or upwind), during transport between these parties and possible contamination from laboratory solvents.
79.
He disagreed with Dr Large’s belief that nylon pouches were normally considered impermeable to the migration of vapours. Although he did not check for front-end loading, he said that oxygenated compounds such as MTBE and TAME, which are both highly volatile, may pass through nylon more easily than other components of petrol. He said that no assessment of the suitability of nylon bags for MTBE or TAME was apparent in the literature. He said that it could not be ruled out that the findings relate to no more than background levels of MTBE and/or TAME. MTBE has been shown to accumulate in air ground water and occasionally in drinking water.
80.
These further suggestions, as we say, not vigorously pursued by Mr. Lynch, are rejected by Ms. Peplar. The amounts of petrol in the air were insignificant. Laboratory solvents could not explain the findings. The amounts were insignificant. There is nothing to suggest the nylon bags were contaminated prior to use. Widespread environmental contamination of the scene by generators or vehicle engines running nearby or up wind could not explain the findings. If there was such contamination it should be apparent at the same level in all the samples from the scene and is not. Further, she would not expect to detect high levels of airborne petrol vapour unless a person was actively using petrol in the immediate vicinity of where the samples were recovered. In support, she cites an American study.
81.
Ms. Peplar accepts that it is possible that MTBE may pass through nylon bags more easily than complete (non-polar) components of petrol. There was no instance where MTBE was detected on its own. Other petrol components were also present.
82.
We accept Ms. Peplar’s evidence in respect of these matters.
The absence of Shell carrier fluid in the hallway in conjunction with the presence of TAME
83.
Mr. Howarth’s opinion is that “the link to [the appellant] (i.e. the fuel from Lockwood Road) is severely limited by the absence of Shell carrier fluid in the hallway and the presence of TAME.” Ms Peplar disagrees that the absence of the carrier fluid detracts from the link to the appellant’s petrol since its presence in the hallway may be masked by background interference.
84.
What undoubtedly is the case is that the appellant brought to the scene petrol which contained MTBE and MTBE was reliably present in the hall, as we find.
85.
In short, for the reasons we have given, we do not accept widespread contamination as suggested by Mr. Howarth. In our view, there is evidence of the presence of MTBE in the hallway which may be relied upon. The extent of that evidence is less than was suggested to the jury. The jury did not know about the implications of CE/45 and the leak from AG/2. There was no consideration at trial of the source of the possible contamination by white spirit.
86.
The jury knew about the presence of TAME in SEL/15. (Although, on the basis of CE/45 that finding is unreliable, we shall take it into account in the appellant’s favour). The jury was in terms addressed on the incompatibility of TAME with the contents of the petrol container.
Our conclusion
87.
That then is the background to the fresh evidence. It is relied upon by Mr. Lynch in the way we have indicated. The flawed evidence (as he submits it was) concerning MTBE in the hall would or might have led the jury to disbelieve the appellant when he claimed he participated in a joint enterprise merely to damage cars. In that way the fresh evidence renders the convictions unsafe.
88.
We cannot agree.
89.
First, the case was not left by the judge to the jury on the basis that they could only convict if they concluded the appellant had poured petrol from his container through the front door. The direction set out above is quite clear. The case was left to the jury on the basis that the jury could convict each of those who left the car if they were sure the defendant in question participated in the joint enterprise.
90.
Second, it seems to us clear that the jury were of the view that those who left the cars, armed as they were with four petrol bombs, a crowbar and, in the appellant’s case, a container of petrol, were on a joint venture to attack both cars and house. The four arrived together. They left together. The conviction of Shakiel, who on the appellant’s evidence was further away from the house than the appellant, and did nothing directly as far as setting the fire was concerned, suggests that.
91.
If so, whether or not the appellant was the person who poured the petrol through the door was irrelevant.
92.
Third, the evidence concerning MTBE and TAME was left to the jury in a way which made it clear that while they could take it into account, it was not necessarily something they were bound to. That was no doubt because of the uncertainties due to the presence of TAME.
93.
Fourth, there was a formidable case against the appellant which had nothing at all to do with whether or not he poured petrol through the front door (although he on the evidence was the only one of those present with a container of petrol). We have set it out above and will not repeat it.
94.
Fifth, for the reasons we have explained, there remains in our view reliable evidence of the presence of MTBE in the hallway.
95.
Sixth, the presence of TAME in the hallway as a means of questioning the source of the petrol was a live issue for the jury. As we have said, in the light of the judge’s direction regarding the expert evidence, it may well be it was not something they felt it necessary to resolve.
96.
In the circumstances, while we are prepared to admit the fresh evidence under
section 23(2) of the Criminal Appeal Act 1968
, we are satisfied of the safety of these convictions and dismiss the appeal. | ```yaml
citation: '[2009] EWCA Crim 2556'
date: '2009-12-03'
judges:
- LORD JUSTICE GOLDRING
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2014] EWCA Crim 555
Case No:
201206448/C4-201206600/C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 28th February 2014
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE CRANSTON
MR JUSTICE GLOBE
- - - - - - - - - - - - - - - - - - - - -
B E T W E E N
R E G I N A
v
COLERIDGE HASTINGS-COKER
MIGUEL SMITH
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss R Jones
appeared on behalf of the
Applicant Hastings-Coker
Mr S Sullivan
appeared on behalf of the
Applicant Smith
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
MR JUSTICE CRANSTON: These two 21 years olds renew their applications for leave to appeal their convictions.
2.
On 24th October 2012 in the Crown Court at Inner London they were each convicted of possession of a firearm with intent to endanger life (count 3 on the indictment) and possession of a prohibited (count 4). On the same day they were each sentenced to 7 years' detention in a young offender institution on count 3 and 3 years' imprisonment on count 4 concurrent. Hastings-Coker was convicted by a majority of 11 to 1 and Smith by a majority of 10 to 2.
3.
A co-accused, Stephen Bamonadio, was acquitted on two counts of possession of a firearm with intent to endanger life and on two counts of possession of a prohibited firearm.
4.
In very brief outline, shortly after midnight, on 24th May 2011, the applicants and Bamaonadio were stopped in a BMW hire car in Canning Town. Smith was driving the car. Hastings-Coker was the front seat passenger. Bamaonadio was in the rear. There was a Ford Puma parked in the vicinity. Smith had been doing work on that car. In the boot of that car, the Ford Puma, police officers found a blue holdall. Inside was a loaded sawn-off shotgun wrapped in a number of bags.
5.
There were four compatible cartridges. A fingerprint of Hastings-Coker was found on the black bin liner which was the second of the four bags in which the firearm was found. Smith was in possession of a car key to the Puma. The Puma was registered in the name of a fourth party, called "E-man" in the course of the trial, who told police officers that he did not know any of the defendants and had never owned a Ford Puma. On the same day the police found the gun and the cartridges in the Puma they also went to Smith's home address and inside a storage cupboard at the entrance to the property they found 27 cartridges together with a stab proof vest. The cartridges could not be used in the gun found in the boot of the Puma. In interview both applicants made "no comment" to all questions.
6.
The prosecution case was that the two applicants and Bamaonadio jointly possessed the gun found in the boot of the Ford Puma jointly. Each had access to it and were aware of the bags and its contents. Since it was loaded they possessed the gun with intent to endanger life. The presence of the cartridges in the storage cupboard demonstrated that Smith had an interest in live ammunition for shotguns.
7.
On behalf of Smith, Mr Sullivan first focused his fire on the judge's remarks in his summing-up that the applicants and Bamaonadio could still be guilty of the offence if E-man had been involved. Mr Sullivan contended this was a basis for conviction which was not advanced by the Crown, nor canvassed with the parties prior to the summing-up. The Crown's case was that only the three men were involved and that E-man had no involvement with the firearm.
8.
In this regard Mr Sullivan quoted in aid a commentary by the late Professor Smith in the Crim LR to the case of <U>R v White</U> [1987] Crim LR 505. Professor Smith said that the theory advanced by the judge in <U>White</U> had been a perfectly possible one on the facts, and if the matter had been drawn to the attention of counsel well before the summing-up no conceivable complaint could have been made of his direction:
"But counsel was deprived of the opportunity to cross-examine and argue on that issue and that was the most material irregularity precluding the application of the proviso."
9.
Mr Sullivan's submission was that the judge here was suggesting something in his summing-up which had not been raised at all, namely that the three accused, with E-man, could all be involved. That should have been raised beforehand, so he could have dealt with it.
10.
In our view, the judge was entitled to put forward an explanation in the way that he did. What had happened was that in his closing address Mr Sullivan had cast blame on E-man, the person in whose name the Ford Puma was registered. He asked rhetorically why, if E-man was innocent, he had not come to court. There had been a warrant for him but he had disappeared. Given Mr Sullivan's closing address to the jury, this was an issue which was "actively canvassed in the course of the hearing" - to use the words of Watkins LJ in <U>R v Christina</U> [1987] Crim LR 504, to which Professor Smith also made reference. Mr Sullivan conceded, in argument before us, that there was no new evidence which he would have brought. This was in contrast with the situation in <U>White</U>, where cross-examination would have, on the submissions before this court in that use, occurred.
11.
In our view, since there was a suggestion advanced before the jury that someone other than a defendant was guilty, the judge was entitled to point out that, even if they found that to be so it did not preclude a finding that any particular defendant was guilty. Since Mr Sullivan raised this matter in the way that he did, in closing, we take the view that the judge was entitled to deal with it.
12.
On behalf of Smith, Mr Sullivan then challenged the judge's ruling under
section 78
of the
Police and Criminal Evidence Act 1984
, which allowed prosecuting counsel to adduce evidence in relation to the finding of the 27 live cartridges at Smith's home address. In Mr Sullivan's submission this was bad character evidence and an application should therefore have been made under the
Criminal Justice Act 2003
. Alternatively, the evidence should have been excluded under
section 78
.
13.
In Mr Sullivan's submission, these cartridges were not illegal to have; the cupboard where they were found was easily accessible to others; and the cartridges could not be used in the firearm found in the Puma. There was no real link of those cartridges with <U>Smith</U>.
14.
In his ruling the judge agreed with prosecution counsel's submission that the evidence was connected with the facts of the offence and was not bad character evidence. He reasoned that its admission would not have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. It was clearly potentially relevant. We agree.
15.
In defining bad character evidence
section 98
of
the 2003 Act
excludes evidence which
"(a) has to do with the alleged facts of the offence with which the defendant is charged".
16.
In <U>R v Tirnaveanu</U>
[2007] EWCA Crim 1239
,
[2007] 1 WLR 3049
, this court said that those words required some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seeks to adduce. In our view, there was that nexus in this case. Smith denied knowledge of the presence of the firearm and the live cartridges found in the Puma car. The finding of the live cartridges in the cupboard show that there was unlikely to be an innocent explanation for the items found in the car. If the jury were satisfied that Smith knew of their presence in the cupboard it also demonstrated that he was a person who had an interest in live shotgun cartridges. Given that the fact that the items were found as part of the same search as with the gun in the Puma, this evidence fell within
section 98
(a) of
the Act
. There was no need for a bad character application. It was evidence that had to do with the alleged facts of the offence.
17.
For the reasons given by the judge we do not regard the evidence of the cartridges in the cupboard it as falling foul of
section 78
. In any event, had it been treated as bad character evidence we cannot conceive of how in practice the matter would have been dealt with differently.
18.
Thirdly, Mr Sullivan returned to the way the judge dealt with the half-time submission for Smith. He focused on the endangering life count and submitted that there was no evidence to suggest knowledge that the gun was loaded or accompanied by other cartridges. That was reinforced by the absence of any forensic link of Smith to the gun, the judge said, to the cartridges or to the bags. In his ruling, that the jury were entitled to look at the circumstances as a whole. In other words, in the Puma was a shotgun which was loaded with four further live cartridges in the same bag. Smith had a key to that Puma. It was circumstantial evidence. If the jury were satisfied that Smith knew the gun was there, they may also be satisfied that he knew it was loaded. The judge realistically added that, since Smith had not said anything to the police, these circumstances were entirely unexplained. We agree with the judge's approach on this point and do not regard it as in any way flawed.
19.
Mr Sullivan, for Smith, was joined by Ms Ruth Jones, for Hastings-Coker, in challenging the judge's half-time ruling. Her submissions, however, were different. She took objection to the matter going to the jury on the basis of one link only for Hastings-Cocker namely, the fingerprint found on the bin liner wrapped around the live firearm and the ammunition. During the course of her submissions to the judge she had placed reliance on a Scottish authority, <U>Campbell v Her Majesty's Advocate</U> [2008] High Court JAC 50. Before us she did not advance that any further. We simply note in passing that that was a different case because there the cupboard was clearly accessible by persons other than the appellant.
20.
Ms Jones' submission before us placed a heavy reliance on the way the judge put the case to the jury, namely the link with Bamonadio which failed in that he was acquitted.
21.
We can deal with this point shortly by quoting the reasons of the single judge:
"One of these bags [in the Ford Puma] had your fingerprints on it. There was therefore a case for you to answer. [<U>Campbell</U>] does not assist. In that case the only evidence against the defendant was a fingerprint on a plastic bag (containing a rifle) found in the flat where he had stayed."
The other evidence to which the single judge was referring was the association of Hastings-Coker with Smith; on 27th May he was found with Smith in the BMW hire car," and Smith had the key to the Ford Puma. In our view again, the judge was perfectly entitled to make the ruling he did.
22.
Both counsel before us have appeared pro bono. We are grateful for the submissions they have made but we refuse both applications. | ```yaml
citation: '[2014] EWCA Crim 555'
date: '2014-02-28'
judges:
- LORD JUSTICE ELIAS
- MR JUSTICE CRANSTON
- MR JUSTICE GLOBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No: 2015/05696/A3, 2015/05697/A3, 2015/05698/A3, 2016/05699/A3, 2015/05700/A3, 2015/05702/A3, 2015/05703/A3, 2015/05704/A3, 2015/05707/A3, 2015/05709/A3, 2015/05711/A3, 2015/05712/A3, 2015/05714/A3, 2015/05715/A3, 2016/00509/A3, 2016/00510/A3, 2016/00512/A3
Neutral Citation Number:
[2016] EWCA Crim 54
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
HH Judge Burbidge QC
Birmingham Crown Court
Queen Elizabeth II Law Courts
Birmingham, B4 7NA
Date:
09/03/2016
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE JEREMY BAKER
and
MRS JUSTICE CARR, DBE
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Appellant
- and -
REFERENCES BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988
(1) Nosakhere Stephenson
(Reference No 128 of 2015)
(2) Sundish Singh Nazran
(Reference No 129 of 2015)
(3) Louis Junior McDermott
(Reference No 130 of 2015)
(4) Theodore Junior Wiggan
(Reference No 131 of 2015)
(5) Rowan Gul
(Reference No 132 of 2015)
(6) Fitzroy Ducram
(Reference No 133 of 2015)
(7) Joga Singh Mattu
(Reference No 134 of 2015)
(8) Mohammed Selu Miah
(Reference No 135 of 2015)
(9) Amar Ghalib
(Reference No 136 of 2015)
(10) Joynal Abdin
(Reference No 137 of 2015)
(11) Ifran Hussain
(Reference No 138 of 2015)
(12) Usman Hussain
(Reference No 139 of 2015)
(13) Mohammed Fedar
(Reference No 140 of 2015)
(14) Janed Mohammed
(Reference No 141 of 2015)
(15) Clinton Officer
(Reference No 008 of 2016)
(16) Jamal Shaka Smith
(Reference No 009 of 2016)
(17) Darren Mentore
(Reference No 010 of 2016)
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr R Buckland QC MP (Solicitor General), Mr T Cray
&
Mr T Kenning
for the
Appellant
Mr A N Bajwa QC
for the
Respondents Stephenson and Miah
Mr Balbir Singh
for the
Respondent Nazran and Hussain (Usman)
Miss H Kubik
for the
Respondent McDermott
Mr R Butcher
for the
Respondent Wiggan
Mr M Graffius
for the
Respondent Gul
Mr N M Smith
for the
Respondent Ducram
Mr R Lallie
for the
Respondent Mattu
Mr C Jutla
for the
Respondent Ghalib
Mr J Anders
for the
Respondent Abdin
Mr P Brunt
for the
Respondent Hussain (Ifran)
Mr T Rashid
for the
Respondent Fedar
Mr S Kolodynski
for the
Respondent Mohammed
Mr S Rashid
for the
Respondent Officer
Mr S Wallace
for the
Respondent Smith
Mr S Reiz
for the
Respondent Mentore
Hearing date : 10 February 2016
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Thomas of Cwmgiedd, CJ :
1.
The Solicitor General has referred to the court under
s.36
of the
Criminal Justice Act 1988
, the sentences passed on 17 offenders by HH Judge Burbidge QC on 27 November 2015 (AG References 128-141 of 2015) and 22 January 2016 (AG References 8-10 of 2016). All the offenders had pleaded guilty or were convicted of conspiracy to transfer prohibited weapons and ammunition. We grant leave in respect of all the offenders.
Introduction
2.
Lord Judge CJ in
R v Wilkinson
[2009] EWCA Crim 1925
,
[2010] 1 Cr App R (S) 100
summarised the gravity of gun crime:
“The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community
.”
3.
Offences involving the possession or use of firearms have therefore attracted increasingly severe sentences:
i)
In 1997 in
R v Avis
[1998] 1 Cr App R 420
this court gave guidance on the approach to sentencing for firearms offences under the
Firearms Act 1968
(
the 1968 Act
). Lord Bingham CJ in giving the judgment of the court set out four questions the court should ask itself to assess the seriousness of the offence.
ii)
With effect from January 2004, a mandatory minimum term of 5 years for possession of a firearm was enacted in
s.51
A of
the 1968 Act
(by
s.287
of the
Criminal Justice Act 2003
).
iii)
In 2009, in
R v Wilkinson
[2009] EWCA Crim 1925
,
[2010] 1 Cr App R (S) 100
this court gave further guidance as to the level of sentences principally in relation to offence under
s.16
of
the 1968 Act
, possession with intent to endanger life, an offence that carried a maximum sentence of life imprisonment.
iv)
At paragraph 26 of the judgment in
Wilkinson
the court observed that the sentence for importing firearms or being in possession with intent to supply should carry a maximum penalty of life imprisonment.
v)
This observation was adopted when in 2014 Parliament through the
Anti-Social Behaviour, Crime and Police Act 2014
amended
s.5
of
the 1968 Act
by inserting a new section,
s.5
(2A), amending
s.51
and amending Part 1 of Schedule 6. The effect of the amendments which came into force on 14 July 2014 was to provide for a new offence of transferring prohibited weapons and increase the maximum penalty to life imprisonment.
4.
In these references and appeals we are concerned with:
i)
A criminal enterprise of six persons that dealt in the supply of handguns and lethal ammunition manufactured for use in the guns supplied. This was charged as count 1 in the indictment.
ii)
Those who on a specific occasion bought guns and lethal ammunition from the criminal enterprise. These occasions were the subject of counts 2, 3 4 and 6 of the indictment.
iii)
Those who assisted in one of the specific transactions.
5.
The judge sentenced them as follows:
i)
The leader of the criminal enterprise, the armourer and the other 4 principals who were members of the enterprise (referred to by the judge as the key facilitators) and assisted in the transactions. The judge set the sentence he would have passed on the leader at 19½ years (before the discount for plea) and passed on the others sentences of between 17½ years and 11 years, before a discount for plea.
ii)
Those who purchased guns and weapons on four specific occasions. The judge set the sentence he would have passed on the purchasers at between 11 and 7½ years, before a discount for plea.
iii)
Those who assisted the purchaser on those occasions. The judge set the sentence he would have passed at between 12 and 5 years (on those who assisted the purchasers) before a discount for plea.
6.
In these references we did not reconsider the use of the statutory life sentence for crimes involving lethal weapons, whether under
s.225
of the
CJA 2003
or under provisions specifying a maximum sentence of life imprisonment (as summarised at paragraph 6(ii) of the judgment in
R v Burinskas
[2014] EWCA Crim 334
,
[2014] 1 WLR 4209
). The judge was of the view that this was not an appropriate case for a sentence on the principal offender under
s.225
of the
CJA 2003
, as he was not dangerous within the meaning of the
CJA 2003
as there was no significant risk of him committing serious crimes in the future; he took the same view in relation to the other offenders. He did not consider whether a life sentence should have been imposed under other statutory provisions. We are, however, not persuaded that we should revisit the decisions not to impose a life sentence. Nonetheless, as was pointed out in
Wilkinson
at paragraph 27 (at a time where the court had available not only a sentence of life imprisonment but also a sentence of imprisonment for public protection), criminals who are prepared to deal in lethal weapons invariably represent a serious public danger and therefore a sentence of life imprisonment always arises for consideration and therefore must expressly be considered by the judge.
7.
If a life sentence is not passed, as was made clear in
Wilkinson,
courts must impose long determinate sentences commensurate with the role played in any activity in relation to the supply of guns. Sentences must reflect the hierarchy of the supply enterprise, the role played in individual transactions and any previous convictions in relation to guns. In the present case our conclusions can be summarised as follows:
i)
For the leader of the enterprise which was in the business of supplying guns and lethal ammunition, a very long determinate sentence was required. It appears to have been assumed (because the minimum term imposed on
Wilkinson
, the head of the enterprise in the case determined in 2009 who received a life sentence, was 11 years) that the maximum determinate sentence was 22 years for a large scale enterprise engaged in the supply of guns. No such maximum was indicated by this court in that case. In the present case, we consider that the appropriate sentence for the leader was 25 years, prior to discount for his plea. However, in the light of the mistaken view taken of
Wilkinson
, we must make clear that courts should not take this as a maximum. For example, a materially greater sentence would be appropriate if there was any previous conviction for offences involving guns. Nor can it make any difference that the criminal enterprise here was engaged in converting or acquiring guns rather than importing them; the same level of sentence is appropriate, as the essence of the criminality is the organisation of a criminal enterprise to supply guns and lethal ammunition to customers, irrespective of the source of the guns and ammunition. Those engaged in the criminal enterprise under the leader should have received sentences reflecting the sentence for the leader (before any discount for plea), depending on the role they played.
ii)
In the case of those seeking to buy a gun and lethal ammunition from this criminal enterprise, we have proceeded on the basis that the purchaser must have required the gun and lethal ammunition to “kill and maim, terrorise or intimidate”; two of the customers were engaged in the supply of class A drugs. In our judgement the appropriate sentences for the purchasers in this case should have been in the region of 15 years, significantly higher sentences than that being required in the event of any previous convictions in relation to guns.
iii)
The role played by those who assisted in these transactions varied, but as Parliament has stipulated a minimum sentence of 5 years for those in possession of a gun, we consider that it was inappropriate to pass sentences with a starting point of less than 8 years for those who assisted in putting guns into circulation. Their criminality lay in assisting in putting guns and lethal ammunition into the hands of a purchaser. Sentences materially greater were required in cases where the assistance was significant; in the present case the sentences should have ranged from 12 to 8 years, depending on the role they played and any previous association with guns.
8.
Such sentences are severe but reflect the intention of Parliament to punish gun crime in a manner that will deter criminals from engaging in dealing in guns and lethal ammunition.
Count 1:
The overall conspiracy to manufacture and supply guns and lethal ammunition.
9.
There was based in Birmingham between March 2014 and January 2015 a sophisticated criminal enterprise which supplied firearms and lethal ammunition to other criminals in the West Midlands and elsewhere in the United Kingdom. Six individuals who played a role in this enterprise were identified and indicted as a result of intense and careful surveillance by the West Midlands Police. The two principals were:
i)
Nosakhere Stephenson, aged 41, was the head of this enterprise. He was the person to whom criminals in the Midlands would turn when they wished to purchase a gun and lethal ammunition. He pleaded guilty on a basis of plea on 3 November 2015, the second day of the trial. That basis of plea accepted that he was involved in the supply by the enterprise of five guns, the subject of the other 5 counts. The judge took the starting point for his sentence as 19½ years, reducing it to 16½ years imprisonment, giving a 10% discount for the guilty plea, and then adding 6 months for the impact that the plea had on others.
ii)
Sundish Nazran, aged 32, was the second in command and the enterprise’s chief armourer. He entered his plea at a case management hearing on 3 August 2015. There was no agreed basis of plea, a matter to which we draw special attention and return to at paragraphs 26 to 27 below. He was sentenced to 13 years imprisonment, a 25% reduction from the starting point of 17½ years, on the basis of his involvement in the enterprise and the specific transactions in counts 2, 4, 5 and 6.
10.
They were supported by four who were described as “key facilitators”.
i)
Louis McDermott, aged 36, pleaded guilty at a plea and case management hearing on 5 June 2015; there was no basis of plea. The judge sentenced him, on the basis that he was involved in the criminal enterprise and in the transactions charged as counts 2, 3 and 4, to 9 years and 4 months imprisonment, a 33% reduction from the starting point of 14 years.
ii)
Theodore Wiggan, aged 28, pleaded guilty at the plea and case management hearing; there was no basis of plea. He was sentenced by the judge on the basis of his involvement in the criminal enterprise and counts 2, 4 and 5, to 10 years imprisonment, a 33% reduction from the starting point of 15 years.
iii)
Rowan Gul, aged 33 years, pleaded guilty on the second day of the trial on a written basis of plea which accepted his involvement in the criminal enterprise and in the supply set out in respect of Counts 3 and 6 and a limited involvement in 4. He was sentenced to imprisonment for 12 years 3 months, a 10% reduction from the starting point of 14½ years and an additional 9 months because of understandable delay in his plea.
iv)
Fitzroy Ducram, aged 50, pleaded guilty at the plea and case management hearing on 15 June 2015. He was sentenced by the judge, on the basis of his involvement in the criminal enterprise and his specific involvement in count 4, to 7 years 4 months imprisonment, a reduction of 33% from the starting point of 11 years.
(i)
The scale and nature of the enterprise
11.
Although, as is apparent, we have taken a different view to that of the judge as to the level of sentences required, we wish to pay tribute to the meticulous and careful way in which he dealt with this complex matter. A particular difficulty he faced was that he was not put in a position where he could sentence all the offenders on the same occasion and in the order of their culpability. Listing officers must for the future ensure that in a complex case of this kind, a date is set for sentencing as soon as possible after the conclusion of the trials and all the defendants and their counsel are present on the same occasion. If there are any possible difficulties in ensuring this happens, the Resident Judge or Presiding Judge must be consulted and must direct that arrangements are made to enable all to be sentenced together.
12.
The judge assessed the criminal enterprise as conduct of the utmost gravity. In our judgement that cannot be doubted. The criminal enterprise was in the business of obtaining and, where necessary, putting guns into working order and supplying them with lethal ammunition. There can be only one purpose of acquiring a gun and ammunition – to kill or injure – and those supplying guns plainly knew this. As the judge stated, the supplier and purchaser knew of the intended use and that must have been to endanger life.
13.
The City of Birmingham, like some other cities, has seen the effect of the use of guns. The judge pointed to the drive-by shooting which killed two young women in 2003, an attempted murder on the doorstep of Selfridges and the Barton Arms shooting at the police in 2011.
14.
There can be no doubt that in respect of the first three questions posed in
Avis,
the enterprise was engaged in the supply of weapons with ammunition specifically made so as to enable the guns to be used to kill or injure and that the supply was made in the knowledge that they were being acquired for that purpose and were likely to be used for that purpose. The fourth question relating to the record of the individual offender falls to be taken into account when considering each offender.
15.
Many of the weapons in which they dealt were antique firearms; these can generally be held legally without a licence if possessed as a curiosity or ornament (see
s.58(2)
of
the 1968 Act
). We were told by the Solicitor General (as subsequently set out in a report prepared for this court) that criminals obtain such weapons, put them into working order and acquire ammunition for them; at least four fatal shootings have involved the use of antique firearms. It is apparent from the information supplied to us that an increasing and significant number of obsolete antique firearms have been recovered by the police; in 52% of these recoveries, ammunition has also been recovered. We were also provided with a statement by Mr David Dyson, a forensic practitioner in the field of firearms.
16.
The increasing danger posed by criminals putting antique firearms into working order and providing ammunition to fit them is a matter that should be considered by the Home Office and by Parliament with a view to a re-examination of the exemption in
s.58(2)
.
17.
The criminal enterprise put these guns into working order and manufactured, or sourced the manufacture of, ammunition for them, thus making them lethal so that they could be used to kill or injure. Even though the ammunition was of various calibres, forensic examination suggested all came from a common source.
18.
Each of the six had full knowledge of the nature of the criminal enterprise charged in Count 1 of the indictment. That included the continuing need for secrecy in sourcing, collecting and storing firearms and ammunition and in the eventual sale of the weapons and realisation of the proceeds. We have already noted their use of antique firearms and the use made of these by criminals; in the present case, on the evidence available to us, we do not treat this as an aggravating factor. The scale of the conspiracy over the period of 9 months from March 2014 to January 2015 is shown by the fact that the police recovered eight firearms – a Mach 10 machine pistol, six handguns and a sawn-off shotgun, together with 492 live rounds of ammunition of various calibres, including commonly manufactured ammunition. All the weapons recovered were test fired and found to be in working order.
19.
Throughout the period of activity of the conspirators, they were aware of police investigative techniques and tried to defeat those techniques by the use of various stratagems and devices. The participants in the enterprise used the usual measures to try and escape detection, including the use of cheap unregistered mobile phones, the use of intermediaries and hired cars.
(ii)
The leader: Nosakhere Stephenson
20.
He was the leader and had an involvement in each of the transactions. He had a previous conviction for perverting the course of justice in 2002 for which he received a sentence of 3 months imprisonment. He was described by the judge as a “family man”, in the light of the testimonials provided which spoke of the guidance he had given others and the help he had given to his family who looked up to him. The judge drew attention to the fact that he had spent 5 years in custody in respect of a count of murder of which he was acquitted, but rightly did not take that into account in accordance with the decision of this court in
R v Wiwczaryk
[1980] 2 Cr App R (s) 309.
21.
As we have made clear, there is nothing in the decision in
Wilkinson
or the other fact specific cases that indicates that a court should consider a sentence of 22 years as the top of the range. A court must assess the entire factual circumstances, including the number and type of weapons in which the members of the criminal enterprise dealt, the provision of lethal ammunition, the period of time over which the criminal enterprise operated, the level of sophistication employed, the geographic range over which the criminal enterprise operated and any specific factors connecting the criminal enterprise to a locality where gun crime was particularly serious.
22.
In the present case we have assessed the seriousness of the criminality by considering the factors we have outlined. Although the fact that Stephenson was a family man can count for little, we do take into account the fact that Stephenson only had one previous conviction. In those circumstances we consider the judge should have taken 25 years as the appropriate sentence before a discount for plea and that the sentence of 19½ years taken by the judge resulted in a sentence which was unduly lenient. We consider that the judge was right to allow a discount of 10% and 6 months because of the circumstances in which the plea was made. We therefore quash the sentence of 16½ years and impose a sentence of 22 years.
(iii)
The armourer: Nazran
23.
Nazran was a supplier of the antique guns and the ammunition, in short, the armourer to the criminal enterprise where he played the second most important role. He was involved specifically in the matters the subject of Count 2 (where his involvement was limited to 2 of the 3 guns), Counts 4 and 5 (where the judge sentenced him on the basis that he had supplied factory manufactured ammunition) and Count 6 (where he was extensively involved in the arrangements to supply the weapon).
24.
He had a conviction for a previous offence which was not relevant. He was also described by the judge as a “family man” who had acted legitimately in business. He was a member of the West Midlands Shooting Club and held other weapons and ammunition legally. The judge rightly considered his culpability as extremely high because of his role in the enterprise and his use of his position in holding weapons legitimately to facilitate the supply by the criminal enterprise.
25.
We agree with the judge’s assessment of his culpability only being a little less than that of Stephenson; for the reasons we have explained, the sentence for Stephenson was too low and therefore that for Nazran should have been 23 years before any discount for plea. On this basis, allowing the same discount (25%) for a guilty plea as the judge, the sentence was unduly lenient. We therefore quash the sentence of 13 years and substitute a sentence of 17 years and 3months.
26.
As we have observed, we have considerable concern about the way in which the basis on which Nazran was to be sentenced was dealt with. Although he pleaded guilty in August 2015, there was then no basis of plea. We were told by Mr Balbir Singh that that was because the papers had not all been served and he therefore asked and was granted time to put forward a basis of plea. It appears that there was still an argument about the basis of plea at the time of this very complex sentencing hearing. The prosecution had refused to accept what was put forward.
27.
This should not have happened. The basis of plea should have been put forward at the time the plea was entered and, if not accepted by the prosecution, arrangements should have been made then and there for a
Newton
hearing. As this court has repeatedly made clear, a defendant does not need prosecution papers to enable him to set out his involvement in the crime to which he pleaded guilty. It is clear that Nazran was attempting to claim credit for an early guilty plea and prevaricating as to his role. He should not have been allowed to do that as it significantly interfered with the proper procedure at the time of sentence. The judge was exceptionally generous in allowing a discount of 25%. We do not seek on this occasion to go behind that, but what was done in this case should not be done again; if it is, then a court should not hesitate in disallowing any discount or allowing only a nominal discount.
(iii)
The other members of the criminal enterprise.
28.
The judge ranked the order of culpability of the other members of the criminal enterprise as follows:
29.
Wiggan
i)
He was a key facilitator in the criminal enterprise, playing the highly trusted role of storing the guns and ammunition, as illustrated by count 5 when he was apprehended taking a selection of bullets out of the store to show to others to solicit a purchase. His involvement in the specific offence charged in count 2 was minding the firearms and in count 4 delivering the firearm to Ducram, another facilitator. He had also hired cars.
ii)
He had the trappings of outward respectability as he was a barber and was secretary of a football club and participated in other community organisations.
iii)
His culpability in the judge’s view was high as he had supplied key services to the criminal enterprise making use of his apparent respectability in the community.
iv)
He had some previous convictions which the judge rightly held did not aggravate his sentence. Of the main participants, he was the only participant against whom the prosecution did not seek a serious crime prevention order, a matter relied on by him in this court.
v)
The judge had before him a letter expressing remorse and testimonials as to his community work. He was using his time in prison constructively.
vi)
As we have indicated, the appropriate sentence for the others engaged in the enterprise should have reflected the sentence of 25 years we have set out for the leader. In our judgement the appropriate sentence for Wiggan, before any discount for plea, should have been 20 years. On this basis, applying the discount of 33% which the judge applied, the sentence was unduly lenient. We therefore quash the sentence of 10 years and impose a sentence of 13 years and 4 months.
30.
Gul
i)
He was also a key facilitator and was known on the streets as someone who had direct contacts with those who could source firearms and was trusted by the leader. His involvement in the specific offences was set out in the basis of plea to which we have referred at paragraph iii) above. He was a significant link in the criminal enterprise being directly involved in the transfer of the firearm in count 6. He was not at the highest level of culpability.
ii)
He had 70 previous convictions, including one for armed robbery in 2006 and possession of a firearm with intent for which he received a sentence of 5 years imprisonment; this involved the robbery of a jewellery shop where a shotgun was discharged. He was acting as the driver. The judge rightly concluded that this aggravated his criminality as he had again become involved with guns.
iii)
The judge sentenced him on the basis that he came from a troubled background, that he was susceptible of being led by others and that he was remorseful.
iv)
His culpability in view of his previous conviction was only marginally less than that of Wiggan. In our judgement the appropriate sentence should have been 19½ years, before any discount for plea. On this basis, applying the discount of 10% which the judge applied and the further 9 months, the sentence was unduly lenient. We therefore quash the sentence of 12 years and 3 months and impose a sentence of 16 years and 9 months.
31.
McDermott
i)
He was a key facilitator in the criminal enterprise and was involved in the specific transactions charged as count 2, 3 and 4. He was trusted by Stephenson.
ii)
He had some previous convictions, including a sentence passed in 2002 of 8 years for importing class A drugs. He had written to the judge accepting full responsibility and was seeking to make good use of his time in prison. Testimonials were put before the judge. The judge took account of the fact he had a young son and his expressed remorse.
iii)
His culpability was only a little less than that of Wiggan. In our judgement the appropriate sentence should have been 19 years, before any discount for plea. On this basis, applying the discount of 33% which the judge applied, the sentence was unduly lenient. We therefore quash the sentence of 9 years and 4 months and impose a sentence of 12 years and 8 months.
32.
Ducram
i)
He was engaged in the criminal enterprise and highly trusted by the other members. He was specifically involved in count 4, storing the gun overnight and then delivering it to the customer
ii)
He had 3 previous convictions, but the judge rightly considered that they were not aggravating factors. The judge described him as a family man. He was remorseful and putting his time in prison to good use.
iii)
His culpability in view of his previous conviction was less than that of Wiggan. In our judgement the appropriate sentence should have been 16 years, before any discount for his plea. On this basis, applying the discount of 33% which the judge applied, the sentence was unduly lenient. We therefore quash the sentence of 7 years and 4 months and impose a sentence of 10 years and 8 months.
Count 2: The supply of a revolver and ammunition on 7/8 April 2014
33.
This count involved the supply of a revolver and ammunition to Joga Mattu, aged 31, as an intermediary storing guns on one occasion for the criminal enterprise or a customer. He pleaded guilty with no basis of plea on 14 July 2014 to a count that was treated as the equivalent to Count 2 and was sentenced to 5 years imprisonment, a discount of 33% from the sentence of 7½ years which the judge considered appropriate. Nazran was the principal member of the criminal enterprise engaged in this supply.
34.
The evidence was that on the afternoon of 8 April 2014 Mattu arrived at Nazran’s house. After an hour he left, followed by Nazran in his car. They went towards Mattu’s house where they were stopped by armed police. Mattu ran off and threw away the bag he was carrying. It contained a Munts Amsterdam Dutch police revolver and 51 rounds of .41 ammunition. The ammunition had been adapted so it could be fired from the revolver.
35.
Nazran was arrested at the same time. Both houses were searched. At Mattu’s house and in the boot of his car the police found a Walther PPK pistol capable of firing .32 calibre ammunition. At Nazran’s house, hidden under his shed they found a USA Colt “New Police” revolver manufactured after 1926. It was in working order and capable of firing .32 calibre ammunition. Even though there was no basis of plea, the judge agreed to sentence Nazran on the basis that someone else had hidden the Colt New Revolver under the shed.
36.
Analysis of mobile phones recovered showed phone traffic between the members of the criminal enterprise (Stephenson, Nazran, Wiggan, McDermott and Gul) which indicated that Mattu was being used to store guns before they were supplied to a customer. It also showed that the main conspirators were making arrangements for the storing and imminent supply of a gun to a customer on 8 April 2014.
37.
Nazran was released on bail in May 2014 and resumed his role as one of the principal members of the criminal enterprise.
38.
Mattu
i)
He was involved in one transaction when he stored the guns to which we have referred for Nazran for a fee.
ii)
The offence was committed when the maximum penalty was 10 years, as the prosecution did not charge him with the offence that then carried a sentence of life imprisonment, though the judge thought that they could have.
iii)
He worked as a part time care worker and the judge was provided with testimonials as to his work. He had minor previous convictions.
iv)
If Mattu had been charged with the offence with which he should have been charged or if the offence had been committed after July 2014, the sentence he would have received would have been significantly greater. However in view of the offence with which he was charged and the then maximum sentence, the sentence passed by the judge was within the range which the judge was entitled to pass.
v)
Although we grant leave, we do not alter his sentence.
Count 3:
Supply of an automatic sub machine pistol and ammunition in early August 2014
39.
This count involved the supply by the principal members of the enterprise, particularly Stephenson, to the following:
i)
Mohammed Miah, 24 years old, was found by the judge to be the primary person who sought the supply of a Mach 10 sub-machine pistol and ammunition. He pleaded guilty on the second day of the trial on 2 November 2015; his basis of plea was rejected. He also pleaded guilty to an indictment charging conspiracy to supply heroin, based on drugs recovered at the same time. He was sentenced to 9 years for the firearms conspiracy (being a 10% reduction from a sentence of 10 years) with consecutive sentences of 3 years and 1 year’s imprisonment for two counts of supplying heroin, making a total of 13 years.
ii)
Joynal Abdin, aged 26 years. He played the role of a junior partner of Miah in the acquisition of the gun. He was convicted on Count 3 on 24 November 2015 and sentenced to 7 years 3 months imprisonment.
iii)
Amar Ghalib, 32 years of age, played the role of an intermediary in the transaction. He pleaded guilty on the second day of the trial on 3 November 2015 on a basis of plea that, as he was a drugs user, he was told by his supplier to convey messages to Stephenson as an intermediary; he knew of the transfer of a gun for use on the street. He was sentenced to 4 years and 11 months imprisonment, a 10% discount on a sentence of 5½ years.
40.
The supply was arranged as follows:
i)
On the late evening of 31 July 2014 two friends of Abdin were shot at by a passing car in Aston, Birmingham. The likelihood is that this shooting was precipitated by a dispute over drugs. Immediately thereafter Miah contacted Abdin and then Miah made attempts to call Ghalib who was believed to be able to source firearms through his contacts.
ii)
The judge concluded that weapons were sought by Miah to retaliate or to use for protection in the criminal purposes in which Miah was engaged, probably drug dealing. Abdin was his junior partner in the transaction.
iii)
On 3 August 2014 Ghalib contacted Miah and an hour later Ghalib called Stephenson to pass on the order for firearms. After further phone calls, the deal to supply firearms was set up on the morning of 4 August 2014 between Stephenson, Gul and Ghalib who reported back to Miah what he had arranged for him. Gul then met Miah and was called by Stephenson while he was with Miah. The sequence of telephone calls was entirely consistent with making and confirming the arrangements for the transfer of a weapon or weapons.
iv)
Following that meeting, there were no calls between the members of the criminal enterprise or between them and Miah and Ghalib.
v)
The transfer of the guns must have taken place between 4
and 10 August 2014. It was not observed by the police.
41.
After the delivery,
i)
It is clear that Mohamed Ullah, a young man of 18 who subsequently pleaded guilty to the charge of possession of the prohibited weapon, was asked to store the guns acquired as a custodian for Miah.
ii)
On 10 August 2014 armed officers attended at Ullah’s address. Buried in the garden the police recovered a Mach 10 sub-machine pistol with live ammunition. The Mach 10 is a modern weapon capable of automatic fire. There was a 9mm round in the chamber, 9 found in the magazine and 4 x 9 mm rounds in the bag. They also recovered a sawn-off pump action shotgun (a Berretta) and 4 shotgun cartridges. A single 9mm round was found in Ullah’s car.
iii)
At the commencement of the raid Ullah attempted to call Miah; this was consistent with Ullah informing him of the police raid. After the raid both Miah and Stephenson stopped using the mobile phones which had been used to make the arrangements.
iv)
In the car 11 bags each containing one ounce of heroin with a purity of 50% were found which had Miah’s fingerprints on them; the evidence before the court indicated that this was mid-market dealing with a street value of just under £30,000.
42.
Subsequently on 17 September 2014 he was arrested when in possession of approximately half a kilo of heroin of high purity with a street value of £48,700 and at his house cash was found.
43.
Stephenson accepted in his basis of plea that he had acted as a broker for the supply of the a Mach 10 sub-machine pistol (but not the sawn off shotgun), but said he did not know of the precise details of the gun supplied. Gul accepted in his basis of plea that he introduced the purchaser to the seller, but said he was not aware of the precise nature of the gun and ammunition.
44.
We turn to consider the three offenders who were charged specifically on Count 3 in the order of their culpability:
45.
Miah:
i)
It is clear he was the customer who sought out the purchase of the gun in question to use for the purpose of using in the criminal purposes in which Miah was engaged, probably the protection of his drug dealing area in Aston. He knew that it was a machine pistol capable of automatic fire and would be supplied with a quantity of ammunition.
ii)
The judge expressed the view that the sentences he imposed for the drugs offences for which he took a starting point of 4½ years were “generous”. He reduced each by 33% to reflect the early pleas and the second offence to 12 months for totality.
iii)
He had no relevant previous convictions. He had held down employment, he was relatively young, had expressed remorse and was making good use of his time in prison.
iv)
In our judgement, the appropriate sentence for the firearms offence should have been 15 years as not only was he the person who sought out the purchase of the firearm and ammunition for use in his criminal business, but also the firearm was a particularly dangerous weapon capable of automatic fire. On this basis, applying the discount of 10% which the judge applied, the sentence for the firearms offence was unduly lenient. We therefore quash the sentence of 9 years and impose a sentence of 13 years and 6 months for the firearms offence. The sentence for the drugs offences remains as passed, making a total sentence of 17 years 5 months.
v)
Miah sought leave to appeal against the sentences for the firearms offence on the grounds of disparity. The application is refused. He was the prime mover on this count and, as adjusted, there is no disparity.
46.
Abdin
i)
The judge who heard the trial found that Abdin was the junior partner to Miah; it was likely that he had envisaged someone being shot at with the weapon to be acquired. He did not know that the gun was an automatic weapon.
ii)
He had 52 previous convictions. Many of them were for possession of class A drugs, but including a sentence of 9 months imprisonment for affray. The judge considered that his wife and family would suffer as a result of his conviction.
iii)
In our judgement, the appropriate sentence for the firearms offence should have been 12 years as he was the junior partner to the person who sought out the purchase of the firearm and ammunition for use in his criminal business, but he did not know that the firearm was a particularly dangerous weapon capable of automatic fire. On this basis the sentence for the firearms offence was unduly lenient. We therefore quash the sentence of 7 years and 3months and impose a sentence of 12 years.
47.
Ghalib
i)
Ghalib was used to convey instructions, knowing that he was involved in a transaction that would put a gun on the street.
ii)
He had 44 previous convictions, including a sentence of 3½ years in 2007 for supplying class A drugs.
iii)
In our judgement, the appropriate sentence for the firearms offence should have been 8 years as he was knowingly involved in a transaction that would put a gun on the street, though he did not know that the firearm was a particularly dangerous weapon capable of automatic fire and played a limited role. On this basis, applying the discount of 10% the sentence for the firearms offence was unduly lenient. We therefore quash the sentence of 4 years and 11months and impose a sentence of 7 years and 2 months.
Count 4: 17 August 2014: Supply of a revolver and ammunition
48.
This count involved the supply of a revolver and ammunition to three persons:
i)
Clinton Officer, 32 years old, was the customer for the supply of a WW Super Revolver and ammunition. He was convicted on 26 August 2015 and sentenced on 22 January 2016 to 11 years imprisonment.
ii)
Darren Mentore, 35 years old, was an intermediary. He was convicted on 26 August 2015. He was sentenced to 12 years imprisonment on 22 January 2016.
iii)
Jamal Smith, 34 years old, was another intermediary. He had pleaded guilty on 5 June 2015 and was treated as pleading to Count 4 on a basis of plea that he was the driver to carry the cash and, although he initially thought the cash was for drugs, he realised it was for the purchase of a gun when he was driving. He was sentenced on 22 January 2016 to 6 years imprisonment, receiving approximately a 33% discount from a sentence of 9 years.
49.
The supply of the revolver and ammunition was organised as follows:
i)
It appears that on 10 August 2014 Officer, who lived in west London, wanted to acquire a gun. He discussed this with his friend Mentore who made contact with Jamal Smith, an old friend who had moved back to Birmingham. He thought Smith could supply him with a gun as Smith was a friend and relative of McDermott, a trusted key facilitator in the criminal enterprise.
ii)
On 15 August 2014 Mentore went to Birmingham to make arrangements for the purchase. It appears from contacts between Smith and McDermott on Saturday, 16 August 2014 and between McDermott and other members of the criminal enterprise, the terms of the deal were discussed and arrangements made for the supply of the gun to Officer and Mentore on 18 August 2014.
iii)
The night before the supply, various arrangements, phone calls and movements took place between Stephenson, Gul, McDermott, Ducram and Wiggan. The gun was brought by Wiggan from a place which the police subsequently discovered was used as a store by the enterprise in Great Barr, Birmingham to Ducram’s house at Raglan Road, Handsworth for safekeeping by Ducram until the next day when it was due to be handed over. Gul and Stephenson were present at or after the time the revolver arrived.
iv)
On Monday 18 August 2014 Officer drove to Birmingham. After phone calls between Ducram and McDermott, Ducram left his house with the gun at 5.48 p.m. and drove to the rendezvous in Birmingham. At the rendezvous Ducram got into the car driven by Officer; in the car were Mentore, McDermott and Smith. Ducram handed over the gun and ammunition and got out of the car. Officer then handed over half of the money to McDermott whilst Mentore checked the gun over and started loading it with bullets.
v)
The police then swooped and arrested those present. On searching the car they found a WW Super Revolver, 5 rounds of .41 calibre ammunition loaded into the chamber and a further 20 rounds in the bag in the car. The gun was in working order. The ammunition had been modified by a similar process to the ammunition recovered under Count 2. £1,500 cash was found in the car and £1,500 on McDermott, it being clear that £3,000 was paid for the gun.
vi)
Within minutes of the arrest Stephenson was in contact with other members of the conspiracy. He dumped the phones he had been using. He accepted in his basis of plea his role in the supply of the revolver and ammunition. Gul accepted from his presence on 17 August 2014 that he knew of the transfer.
50.
We turn to consider the three offenders who were charged specifically on Count 4 in the order of their culpability:
51.
Officer
i)
He was the customer who wanted a firearm and ammunition and was prepared to pay for them. Although the judge was not able to find the precise purpose for which the gun and ammunition were bought, it was not bought for show and, if used, it would have put lives in danger.
ii)
He had a previous conviction for the supply of class A drugs in 2002 for which he received a sentence of 3½ years with two less serious convictions thereafter.
iii)
In his application for leave to appeal against sentence he contended that the sentence was too long as the judge erred in attributing a particular intent to him. The point is unarguable. It is clear that Officer wanted a gun with lethal ammunition; he can only have wanted it for the purpose of killing, terrorising intimidating or maiming. Leave to appeal is refused.
iv)
In our judgement the appropriate starting point for Officer as the purchaser for this type of gun was 14 years. On this basis the sentence of 11 years was unduly lenient and we therefore quash it and substitute a sentence of 14 years.
52.
Mentore
i)
He was a go-between, closely associated with the purchaser and present when the gun and ammunition were handed over.
ii)
He had previous convictions for robbery in 2004 for which he received a sentence of 9 years and, in 2010, for the supply of class A drugs for which he received a sentence of 7 years.
iii)
In our view, Mentore as an intermediary actually involved in the handover to the extent of loading the gun and with a significant criminal record fell to be sentenced at the top end of the range of sentences for intermediaries. In our judgement the appropriate sentence for him was 14 years. On this basis the sentence of 12 years was unduly lenient. We therefore quash the sentence of 12 years and substitute a sentence of 14 years.
53.
Smith
i)
He was one of the go-betweens who arranged the supply and we are satisfied that he was present when the gun and ammunition were handed over.
ii)
Photographs of firearms and ammunition were found on his phone.
iii)
He had a previous conviction in 2001 for possession of a firearm with intent and wounding with intent arising out of an incident when he shot two people for which he received a sentence of 9 years.
iv)
In our view, Smith as an intermediary actually involved in the handover and with a conviction for gun crime (even though many years before) fell to be sentenced at the top end of the range of sentences for intermediaries. In our judgement the appropriate sentence for him was also 12 years. On this basis the sentence of 6½ years was unduly lenient, taking into account a discount 33%. We therefore quash the sentence of 6½ years and substitute a sentence of 8 years, giving him the full 33% discount.
Count 5: Discovery of a cache on 19 November 2014
54.
This count related to the discovery of a NSW police revolver and a cache of ammunition on 19 November 2014; it was the prosecution case that Wiggan was in possession of live rounds of different calibres which he had obtained from a cache and was taking to show potential customers or to check which ammunition fitted a particular gun
i)
On 19 November 2014 Wiggan was seen going into a lock-up garage in Great Barr, Birmingham. He was stopped by officers and found to be in possession of three bullets.
ii)
A search was conducted of the lock-up garage where a rucksack was discovered which contained a .45 calibre NSW police revolver. About 400 rounds of ammunition were also recovered of varying calibres including ammunition capable of being fired from the revolver. The other ammunition was capable of being fired from other .41 calibre revolvers, .32 calibre pistols and 9mm automatic or semi-automatic weapons. All the ammunition had been specially made or adapted.
55.
When his phone was seized, phone records show that he kept in regular contact with the leader of the conspiracy, Stephenson. Stephenson specifically accepted his involvement in this court.
56.
No persons other than those engaged in the main criminal enterprise were involved.
Count 6: The supply of a revolver and ammunition 14-16 January 2015
57.
This count involved the supply of a revolver and ammunition to the following four:
i)
Ifran Hussain, 25 years of age and brother to Usman. He was, with his brother, the customer for a revolver and ammunition. He pleaded guilty on 5 June 2015. He also pleaded guilty to conspiracy to supply heroin, cocaine and possession of criminal property. He was sentenced to 7½ years on count 6 (receiving a discount of 25% from a sentence of 10 years), and a consecutive sentence of 3 years 4 months for the drugs offences, making a total sentence of 10 years and 10 months.
ii)
Usman Hussain, 31 years old, was found by the judge to be the person who assisted his brother Ifran in the purchase of a revolver and ammunition. He pleaded guilty at the plea and case management hearing on 5 June 2015 and was sentenced to 5 years imprisonment, receiving a 33% discount from a sentence of 7 ½ years.
iii)
Mohammed Fedar, 27 years of age, assisted the Hussain brothers. He pleaded guilty on 5 June 2015 and was sentenced to 4 years 4 months imprisonment, receiving a discount of 33% from a sentence of 6 years and 6 months.
iv)
Janed Mohammed, 21 years of age, assisted the Hussain brothers. He pleaded guilty on the first day of the trial on 10 August 2014 on a written basis of plea. He was sentenced to 4 years and 6 months imprisonment, receiving a 10% discount from a sentence of 5 years.
58.
The supply was organised as follows:
i)
Ifran Hussain wanted to obtain a gun and ammunition. He discussed this with his brother Usman. Usman Hussain asked Gul to source a gun for Ifran.
ii)
After speaking to Stephenson on 14 January 2015 Gul downloaded a series of images of pistols and revolvers onto his phone.
iii)
On the following day, arrangements were underway for the supply and collection of the gun on 16 January 2015. Ifran made plans with Fedar and Mohammed to meet up with Usman to go and collect the weapon from Gul. On 15 January 2015 there were numerous calls from Ifran to Usman, from Usman to Gul and Gul to Stephenson and Nazran to make arrangements for the handover the following day. Stephenson and Nazran met.
iv)
On the morning of 16 January 2015 Mohammed, Fedar and Gul met at Usman Hussain’s address; Mohammed brought a bag containing cash which had been given to him by Fedar. The four then set off in two cars just before midday. Gul collected Stephenson. They followed a complex series of manoeuvres and phone calls which were designed to try and shake off any police surveillance. At 1.22 p.m. Mohammed’s car was stopped and he, Usman Hussain and Fedar, were arrested. A bag was found on the back seat containing a French 1873 St Etienne revolver and 12 rounds of 11mm calibre ammunition. The ammunition had been adapted and could be fired from the gun.
v)
Gul drove Stephenson back to his home where Stephenson was arrested.
vi)
Police searched a flat connected to Ifran Hussain and found 82.2 grams of heroin and 116.26 grams of crack cocaine, together with £7,000 in cash. The drugs were arranged into wraps for sale to users. The value of the drugs was £19,360. He was charged with possession with intent to supply and possession of criminal property.
59.
Stephenson accepted his involvement in the supply of this revolver and ammunition. Gul accepted he delivered the revolver to Usman Hussain.
60.
We turn to consider the three offenders who were charged specifically on Count 6 in the order of their culpability:
61.
Ifran Hussain
i)
The judge found that he was a customer for a gun and ammunition who employed his brother Usman to source it for him. The judge inferred that he wanted the gun for use in connection with his trade in class A drugs.
ii)
He had been sentenced in 2007 as a juvenile to an 8 months Detention and Training Order for assault occasioning actual bodily harm, blackmail and intimidation of a witness.
iii)
The judge expressed the view that the drug dealing was category 3 and he had a significant role rather than a leading role. He imposed a sentence of 3 years 4 months for the drugs offence after a discount of 33% for the early plea; a concurrent sentence of 8 months was imposed for the possession of criminal property.
iv)
He sought leave to appeal against sentence on the basis that the judge had not expressly applied the principal of totality and on the basis of disparity with the sentence passed on Miah, as the judge had taken the same starting point for the firearms offence, despite the nature of the weapon which Miah had sought (the gun capable of automatic fire). We accept that there is force in the comparison with Miah and have approached the matter on that basis. The sentence for the drugs offence sufficiently reflects the principle of totality. We therefore refuse leave.
v)
In our judgement, the appropriate sentence for the firearms offence should have been 14 years as he was the person who sought out the purchase of the firearm and ammunition for use in his criminal business; we have taken into account the fact that it was not an automatic weapon and therefore reflected this in the view we have taken. On this basis, applying the discount of 25% which the judge applied, the sentence for the firearms offence was unduly lenient. We therefore quash the sentence of 7½ years and impose a sentence of 10½ years for the firearms offence. The sentence for the drugs offences remains as passed, making a total sentence of 13 years 10 months.
62.
Usman Hussain
i)
The judge found that he sought out the gun and ammunition, was present when it was delivered and knew it was to be used in the drugs trade.
ii)
He had 25 previous convictions for offences of dishonesty, disobedience to court orders and for drugs. However he had not received a custodial sentence. The judge considered he was a family man and he would feel imprisonment and the separation from his children keenly. He was making good use of custody.
iii)
In our judgement, the appropriate sentence for the firearms offence should have been 12 years as he was the person who sought out the weapon and ammunition knowing it was for use in his brother’s criminal business and was present on its delivery. On this basis the sentence, applying the discount of 33%, the sentence for the firearms offence was unduly lenient. We therefore quash the sentence of 5 years and impose a sentence of 8 years.
63.
Fedar
i)
The judge found that he aided Usman Hussain to take the cash and was present at the exchange of the cash for the gun. His home had been fortified and the judge was in no doubt that he tried to assist in lawlessness in a significant way.
ii)
He had no previous convictions, he was remorseful and was putting his time in prison to good use
iii)
In our judgement, the appropriate sentence for the firearms offence should have been 10 years as he accompanied Usman Hussain with a bag of cash and was present at the delivery of the firearm. On this basis the sentence, applying the discount of 33%, was unduly lenient. We therefore quash the sentence of 4 years and 4 months and impose a sentence of 6 years and 8 months.
64.
Mohammed
i)
His role was to drive Fedar with cash knowing it was to be used for something illegal. He originally believed it was for drugs, but learnt once embarked on the journey that it was for a gun.
ii)
He had no previous convictions, was 20 at the time of the offence. He was remorseful and found custody difficult, but was making good use of it.
iii)
In our judgement, the appropriate sentence for the firearms offence should have been 6 years as he was driving someone who had cash which he discovered in the course of the journey was for the purchase of the firearm and ammunition, but an allowance should be made for his youth and previous good character On this basis, applying the discount of 10% the sentence for the firearms offence was unduly lenient. We therefore quash the sentence of 4 years and 6 months and impose a sentence of 5 years and 5 months. | ```yaml
citation: '[2016] EWCA Crim 54'
date: '2016-03-09'
judges:
- REFERENCES BY THE ATTORNEY GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988
- MR JUSTICE JEREMY BAKER
- MRS JUSTICE CARR, DBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2008] EWCA Crim 1034
Case No:
200706562 C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM A COURT MARTIAL AT BULFORD
JUDGE ADVOCATE McGRIGOR
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
16/05/2008
Before :
LORD JUSTICE HUGHES
MR JUSTICE TREACY
and
SIR PETER CRESSWELL
- - - - - - - - - - - - - - - - - - - - -
Between :
The Queen
Appellant
- and -
LSA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr R Whittam QC and Mr F Osman
(instructed by
Royal Air Force
Prosecuting Authority
) for the
Crown (
neither below
)
Lord Thomas of Gresford QC
(instructed by
Wilkin Chapman
) for the
Respondent (
not below
)
Hearing dates : 15
th
February and 9
th
May 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hughes:
1.
This is an interlocutory appeal by the prosecution in a Court Martial case. It is brought under provisions of military law which mirror ss 58-61
Criminal Justice Act 2003
. Those provisions provide the prosecution with a right of appeal against legal rulings made by the Judge Advocate, providing that the prosecution accepts that, in the event that the appeal fails to obtain leave or is abandoned, the defendant must be acquitted of each offence which is the subject of the appeal. That condition appears in
article 4(8)
Courts-Martial (Prosecution Appeals) Order 2006;
SI 2006 No 1786
, which provisions are identical to those applicable in civilian courts under
section 58(8) Criminal Justice Act 2003
. In
R v R
[2008] EWCA Crim 370
the condition was conveniently dubbed ‘the acquittal agreement’ (see paragraph 19).
2.
The defendant was charged with two offences contrary to the Station Standing Orders of her military base. The gist of the two offences was (i) driving when unfit to do so through drink and (ii) dangerous driving. The offences were said to have been committed on the same evening. Although the prosecution submitted that they were in fact consecutive offences, relating to different pieces of driving, with the dangerous driving first, the Judge Advocate ruled (first) that they were in effect offences charged on the same facts. Having so ruled, he went on to direct acquittal on the charge of unfitness to drive. Those two decisions together constitute the first ruling here in question. Later in a second ruling he stayed the dangerous driving charge as an abuse of the process of the court. He found the reason to make both these rulings in a note at paragraph 32-29 of
Archbold
which in turn says that it is based upon
R v Forest of Dean Justices, ex p Farley
[1990] RTR 228
. The Crown wishes to submit on appeal that both those rulings were wrong.
3.
The Crown case, put shortly, is that the defendant attended a party at the quarters of a friend and drank a good deal. When she left, she insisted upon driving despite the strong efforts of two men and the hostess to prevent her. Eventually she agreed simply to park the car, with one of the men taking up position in the passenger seat, on his case to keep an eye on her. Instead of parking she drove the car towards the second man, who leaped onto the bonnet to avoid being struck and clung on to the windscreen wiper. With him in that position, it is alleged that she drove some 350 yards or so, until he fell off, struck his head on the kerb, lost consciousness and sustained a number of injuries. That was said to be the act of dangerous driving. When he got up and staggered off dazed, she drove a further 500 yards or so, apparently to check that he was alright. She and the first man helped him into his quarters. Then a little later she motored another 900 yards or so back to the place of the party, taking both men with her. The two journeys after the injury to the man on the bonnet were put as the driving when unfit. That is the Crown case. Whether it would be made good or not, if tried out, is undetermined.
4.
The defendant’s case is that the evidence against her is untruthful and exaggerated, in part to support a compensation claim by the injured man, and that the two men were drunk. It appears that she denies that she had had more than a single drink and so says that she was not unfit or impaired in driving. As to the man on the bonnet, she contends that he jumped onto it as a joke, not to avoid being run over, and that all she did was to move her car very slowly in order to persuade him to get off. What facts might be found by the court, and whether the latter contention, if true, would provide any defence to dangerous driving are matters likewise undetermined.
The charges
5.
Section 36(1) Air Force Act 1955
makes it an offence to contravene any provision of Station Standing Orders which is known to the defendant, or of which s/he might reasonably be expected to know. The relevant Station Standing Orders provided by Number 144:
“A person to whom these orders apply shall not within the station, whether on a road or otherwise:
(a) drive….when unfit to drive through drink or drugs to such an extent that his ability to drive properly is, for the time being, impaired;
…..
(c) drive a vehicle dangerously.”
6.
The defendant was charged with separate offences contrary to section 36. The first alleged a contravention of Standing Order 144(a) (“the unfitness to drive charge”). The second alleges a contravention of Standing Order 144(c) (“the dangerous driving charge”). Both in his opening note and in opening the case to the court [E10], and again when the Judge Advocate raised the passage in
Archbold
at the close of the Crown case, the prosecutor made crystal clear which piece of driving was relied upon to support each charge. The driving with the man on the bonnet was relied upon as the dangerous driving, and the driving after he fell off was relied upon to support the charge of driving whilst unfit and impaired. That had been the position of the Crown since a pre-trial directions hearing. There was no complaint about it on the part of the defendant; she had clearly understood that throughout.
The passage in
Archbold
7.
In the 2007 edition of
Archbold’s Criminal Pleading, Evidence and Practice
there appears in chapter 32, relating to motoring offences, the following statement, under the heading ‘Order of Trials where there is an excess alcohol charge’:
“Where a defendant is facing two charges, one of dangerous driving and the other of driving with excess alcohol, based upon the same facts, the prosecution should choose either to proceed with the charge of dangerous driving and consider bringing the lesser charge if the defendant is acquitted, or to proceed with the excess alcohol charge alone. The invariable rule is that where a person is tried on a lesser offence, he is not to be tried again on the same facts for a more serious offence. A contrary course of action would amount to an abuse of the process of the court: see
R v Forest of Dean JJ, ex p Farley
[1990] RTR 228
.”
The same words remain in the 2008 edition, although in that edition there follows a bare reference to
R v Hartnett
[2003] Crim LR 719.
8.
It is clear that (i) no point arising from this passage was taken initially on behalf of the defendant, (ii) the Judge Advocate himself raised it, but (iii) no-one had or obtained the report of
ex p Farley
.
The course of proceedings
9.
The Crown case was completed. At the half way stage in the trial the Judge Advocate raised, of his own motion, this passage in
Archbold
. He asked the prosecution to consider it. After a certain amount of discussion, attributable no doubt to the fact that the point had been raised unexpectedly, the positions of the parties were as follows.
10.
The Crown submitted that:
i)
the passage would apply if the two charges were founded on the same facts, but
ii)
the two charges were not founded on the same facts because they charged two different pieces of driving; and
iii)
if, contrary to their submission, the charges were founded on the same facts, they would elect to proceed upon the dangerous driving charge alone.
11.
For the defendant, Mr Blades submitted that the whole case should be stayed as an abuse of the process of the court. He accepted, eventually, that the evidence of drink was equally admissible upon the charge of dangerous driving as on the charge of unfitness to drive, although he contended (on what basis we cannot see) that if the dangerous driving charge had been tried alone, that evidence would have been less extensively investigated. He contended that it was too late for the prosecution to change its stance.
12.
The Judge Advocate ruled, in effect, that the two charges were founded on the same facts. He said:
“Whilst the prosecution say that the two additional journeys are not based on the same facts I find this to be an artificial distinction and that the evidence of the evening as a whole is so entwined that the two charges are, in reality, based on the same facts. I conclude that the one is included in the other and the cumulative result is oppressive. Thus I conclude that this authority applies to the present case.
I therefore have to go on to consider whether the result is that Mr Blades’ application at the close of the prosecution case to stay proceedings succeeds…..I take the view that all the evidence adduced in the present trial would be admissible on either charge, of dangerous driving alone or unfit to drive alone. I do not consider that the defence has been taken by surprise and therefore suffered any real prejudice….I therefore reject the defence application for a stay of proceedings in relation to both charges.
The prosecution have indicated that should I rule that the authority does apply to this case they would wish to proceed on the dangerous driving charge alone. Therefore I will direct the court to find the accused not guilty in relation to the unfit to drive charge, which will be withdrawn.”
13.
For the defendant, Mr Blades expressed himself content with the last-mentioned course. The prosecuting officer made no further observations. The Court was re-convened, and the Judge Advocate, as he had said that he would, directed it to return a verdict of not guilty on the unfitness to drive charge. That verdict was returned. The defendant stood acquitted.
14.
The hearing was adjourned over lunch, with the defendant’s evidence expected to follow immediately on resumption. Over the adjournment, Mr Blades reconsidered the passage in
Archbold
. On resumption, he submitted that since there had been a verdict of acquittal on the unfitness to drive charge, it was an abuse of process for the defendant then to be tried on the dangerous driving charge. He based that on the final two sentences of the cited passage. Still there was no reference to any further authority. Still no-one went to look at
ex p Farley
.
15.
In a reversal of the latter part of his ruling before lunch, the Judge Advocate accepted that submission. In consequence, he held that the continued prosecution of the defendant on the dangerous driving charge was an abuse of process. He directed himself that amendment to delete the unfitness to drive charge would be legally possible (apparently notwithstanding that by then the defendant had been acquitted of that charge). But he then said this:
“However, that does not get around the difficulty that there is clear authority that the prosecution should not bring dangerous driving and unfit to drive charges on the same charge sheet when based on the same facts…..I find that the Accused has been through the trial process such as to engage the rule against the subsequent trial on a more serious offence. Whether the accused was found not guilty or the charge withdrawn is, in my view, immaterial. It is the trial process itself putting the accused person in jeopardy that is the essential element. Here the prosecution case has gone all the way through to completion. I therefore conclude that the Accused has been tried thus a further trial on a more serious offence would amount to an abuse of process.”
16.
The prosecutor thereupon asked for a short adjournment to consider appeal. In the course of brief exchanges on that topic, Mr Blades twice offered it as his opinion that leave (for appeal) was not required. The prosecuting officer at one stage remarked “Well, I have asked for leave, sir”.
17.
After a short time for consideration, the prosecutor notified the court that he intended to appeal against
both
rulings. Nothing more was said by anyone about leave. It was accepted that that meant that the trial on the dangerous driving charge fell to be adjourned pending hearing of the appeal, and with the assent of both parties the Judge Advocate so informed the members of the court. All that took place on 13 December 2007.
18.
On the following day (14 December), the prosecutor contacted the Judge Advocate and asked him to issue the statutory form PA1 giving leave to appeal. The Judge Advocate did so. With it he sent a letter in the following terms:
“1.
A terminating ruling in relation to the second charge of dangerous driving by the Judge Advocate.
2.
The prosecution having given notice of appeal under
Article 4
CM(PA) O 2006.
3.
The defence having indicated that they had no representation to make in accordance with Article 3(2) CM(PA)(SP) O 2006.
4.
The Judge Advocate having granted leave to appeal
5.
On receipt of written confirmation by the prosecution in accordance with
Article 4(8)
CM(PA)O 2006, an appeal is granted on the basis that the terminating ruling was wrong in law.”
That was accompanied by a certificate of grant of leave to appeal (Form PA 1) in respect of
both
rulings. Neither the Defendant nor her advisors had any part in that exchange, and they were quite unaware of it. Of that letter, it has to be said that:
(i) although paragraph 5 made reference to written confirmation in accordance with
Article 4(8)
, no such confirmation, written or oral had been received; at best this appears to have been an anticipatory stipulation;
(ii) although paragraph 4 recites that the Judge Advocate had granted leave to appeal in respect of
both
rulings, he had in fact not done so at the hearing, when he had not addressed the question of leave at all;
(iii) for the same reasons, the assertion in paragraph 3 of the letter that the Defence had had no submissions to make about leave to appeal was wrong, because the most that Mr Blades had said was to assert, inaccurately, that leave was not required.
This appeal
19.
The Crown’s notice of appeal is a notice in respect of both rulings and both charges. It contains an acceptance that the defendant should be acquitted of the charges if the appeal is abandoned, or if leave is not obtained. It is dated 19 December, six days after the hearing had concluded.
20.
These are new provisions. They were clearly unfamiliar to all. We appreciate that their possible application arose unexpectedly in the present case, since no one had anticipated the point raised by the Judge Advocate on the passage in
Archbold
. Sadly, however, a great deal has gone wrong.
21.
The prosecution right of appeal under
Article 4
is, just as is its civilian equivalent under
s 58 Criminal Justice Act 2003
, an interlocutory appeal. The assertion to the contrary made on behalf of the defendant in the course of argument was wrong. The scheme for these appeals is that the proceedings in the court below stand adjourned pending the hearing of the appeal: see Article 4(10), the mirror of s 58(10), under which the ruling is to have no effect pending the outcome of the appeal.
22.
The prosecutor could have given notice under
Article 4
that he intended to appeal the first ruling, and if he had, that ruling would then have been of no effect pending appeal: see Article 4(10). However, he did not do so. Instead, the ruling was given effect by the directed acquittal of the defendant on the first charge of unfitness to drive. There is no power to appeal, under
Article 4
, following acquittal by the tribunal of fact. Nor would there be any such power to appeal under
s 58 Criminal Justice Act 2003
following acquittal by a jury in the Crown Court. The prosecution has no appeal against acquittal; the only possible procedure open to it is a reference on a point of law by the Attorney-General under
s 36 Criminal Justice Act 1972
. That of course is a procedure which determines the law but does not affect the acquittal of the particular defendant. No such reference is before us. For these reasons, we cannot entertain the Crown’s appeal in respect of the first charge of unfitness to drive.
23.
As to the ruling relating to the second charge, it is necessary to appreciate that the right of appeal is conditional upon Article 4(4) and (8), which are the exact mirrors of s 58 (4) and (8). The Order begins by providing by article 4(2) that :
“The prosecution may appeal in respect of the ruling in accordance with this article.”
In other words, the right of appeal can be exercised if but only if the rest of the article is complied with.
Section 58(2)
of the statute is in identical terms. Next, the Order provides by Article 4(4):
“(4) The prosecution may not appeal in respect of the ruling unless –
(a) following the making of the ruling, it
(i) informs the court that it intends to appeal, or
(ii) requests an adjournment to consider whether to appeal, and
(b) if such an adjournment is granted it informs the court following the adjournment that it intends to appeal.”
Thus it stipulates that the prosecution can only appeal if it tells the court it is going to do so, either immediately following the ruling or after time to reflect has been granted. But the Order (like the statute) goes on to impose a further condition on when the prosecution can inform the court that it intends to appeal. The further condition is in
Article 4(8)
(identical to s 58(8)):
“The prosecution may not inform the court in accordance with paragraph (4) that it intends to appeal, unless,
at or before that time
, it informs the court that it agrees that, in respect of the charge or each charge which is the subject of the appeal the accused in relation to that charge should be acquitted of that charge if either of the conditions mentioned in paragraph (9) is fulfilled.”
The paragraph 9 conditions are failure to obtain leave to appeal or abandonment of the appeal. We draw attention to the words
“at or before that time”.
24.
The transcript demonstrates that at no time on 13 December did the prosecutor inform the court that he agreed that the defendant should be acquitted of either charge if the paragraph 9 conditions should be fulfilled. Indeed, the Judge Advocate’s letter of the following day shows that the prosecution had still not appreciated then the need to give the
article 4(8)
undertaking. The
article 4
(8)/s 58(8) undertaking (or ‘acquittal agreement’: see
R v
R
[2008] EWCA Crim 370
at para 19) is crucial to this new right of appeal. It is that which determines whether there is a right of appeal or not. The new right of appeal given by article 4/section 58 is often loosely referred to as applicable to ‘terminating rulings’. But that expression appears nowhere in the Act or Order. On the legislation as enacted is apt only to confuse and is best avoided. The criterion for the right to seek leave to appeal is the giving of the acquittal agreement as acceptance of the price of failure. In the present case the Crown did not accept this price of failure until the service of the written notice of appeal; that notice of appeal bears the date 19 December, six days after the hearing at which the rulings were made.
25.
We accept that in construing
Article 4(8)
(and for that matter its civilian equivalent
section 58(8)
) the court’s task is to ascertain from the terms of the legislation what Parliament intended to be the consequences if it is not complied with: see for example
R v Clarke & McDaid
[2008] UKHL 8
;
[2008] 1 WLR 338
, in which the indictment had not been signed. For the Crown, Mr Whittam QC submits that at least where the ruling in question is indeed one which brings the prosecution to a halt, as these rulings did, Parliament cannot have intended that the appeal should fail simply because the acquittal agreement was given late, given as it was in the written notice of appeal. We understood him to reserve his position on a case where the ruling was not conclusive against the Crown, but merely sufficiently disadvantageous for the Crown to be prepared to appeal at the price of an acquittal agreement. By contrast, for the defendant, Lord Thomas QC contends by reference to the Parliamentary history that what is now
Article 4
(8)/section 58(8) was deliberately inserted to allay fears that there would be a flood of appeals and/or that the Crown might initially give notice of appeal but then change its mind, thus inducing unfair uncertainty in the mind of an accused person. It is his contention that
Article 4
(8)/section 58(8) was deliberately extended to all appeals, whether conclusively fatal or those which the Crown is prepared to treat as justifying the acquittal agreement.
26.
The exact Parliamentary history may be open to debate, and in any event the reasoning of different members of both Houses may well have diverged. We accept, however, that what is in
Article 4(8)
and
section 58(8)
was deliberately extended to appeals against rulings which the Crown chooses to treat as fatal as well as to those which are
ipso facto
fatal. But whatever may be the precise Parliamentary history, we are unable to see how these statutory provisions can be read as meaning anything other than that there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal. The Order, with
s 58 of the Criminal Justice Act 2003
, represents a major departure from the former law. The Crown is given a right of appeal in relation to trial on indictment for the first time. Moreover, it is given a right of interlocutory appeal. The new right is given on strict terms. It may be that the new right could have been as effectively controlled if the statute and order had provided that whether or not an undertaking in the terms of
article 4(8)
was given in open court, any appeal was to be on terms that if leave were refused, or the appeal abandoned, or it failed in due course, acquittal should follow. Or it may be that alternative form of control would not be so effective. What is clear is that alternative form of control is not what has been enacted. The words ‘may not….unless, at or before that time’ must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution “may not” inform the court it intends to appeal, unless this is done. The object is clearly to require the Crown to commit itself from the outset. Nor can we see any proper basis of construction under which what is in
section 58
(8)/Article 4(8) can be read differently according to whether the ruling under challenge is
ipso facto
fatal to the prosecution or one in relation to which the Crown chooses to give the acquittal agreement. There would, moreover, be considerable scope for argument about which category some rulings fall into. On these grounds alone, we are unable to see that we have any jurisdiction to hear the appeal against either ruling.
27.
As we have made clear,
Article 4
of the Order is in terms materially identical to
section 58 Criminal Justice Act 2003
. Prosecutors who wish to launch appeals against rulings must give the
article 4
(8)/section 58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether it must be given in any particular form, and have not done so; it may well be that it can be given in shorthand or by reference to the statute; given, however, it must be, and that must happen at or before the time of invoking the right of appeal.
28.
It is necessary also to consider the rules as to leave. Here there is a limited divergence between the rules applicable at Court-Martial and those applicable in the Crown Court. In both courts a Crown appeal may be brought only with the leave of either the lower court or this court. For Courts-Martial that is stipulated by article 3(4). The assertion made at the hearing on behalf of the defendant that no leave was required was wrong. The
Courts-Martial (Prosecution Appeals) (Supplementary Provisions) Order 2006
then contains provisions specific to Courts-Martial for the making of application for leave. It provides, by article 3:
“(2)
Before deciding whether or not to grant leave to appeal, the judge of the court shall hear oral representations from the accused.
(3)
The Judge Advocate shall decide whether or not to give leave to appeal on the same day on which an oral application for leave to appeal is made to that judge advocate….
(5)
If the judge advocate gives leave to appeal he must issue a certificate in Form PA 1….”
29.
As we have said, although the substantive provisions governing the right of appeal are the same for Courts-Martial as for Crown Courts, the procedural rules for making an application for leave are not the same. The procedural rules relating to Crown Court trials are to be found in the
Criminal Procedure Rules 2005
, as amended, part 67 (
Archbold 2008 paragraph 7.259a)
. For the Crown Court, those rules allow for the making of an application in writing for leave, and they do not command an oral hearing.
30.
In this case it is the Courts-Martial rules which apply. They require an oral hearing. Even if the prosecutor’s single remark noted at paragraph 16 above constituted an oral application for leave, it is clear that it was not dealt with. In consequence the Judge Advocate heard no oral submissions from the defendant. An oral application could have been made on a later date, but it was not, and if it had been, the Judge Advocate would have been required to hear oral submissions. The Judge Advocate’s letter and certificate of 14 December refer to, but do not comply with, Article 3 of the 2006 Supplementary Provisions Order. If this error had stood alone, we could have cured it by ourselves granting leave to appeal, and might well have done so. But the acquittal on charge one, and the absence of proper notice under
Article 4(8)
are otherwise fatal to this appeal, and so a grant of leave by us is not possible.
Further Observations
31.
The consequence of that is that we cannot rule upon the questions of law raised by this purported appeal. What follows is therefore necessarily
obiter.
32.
We do not, however, think that we should leave this appeal without making some things clear. In doing so, we think that we should say nothing about the facts of the present case, since the effect of our decision is that the defendant stands acquitted of the one charge, whilst the other charge has been stayed, and no appeal against those orders can be entertained. No decision on where the truth lay has ever been arrived at. We have, however, had the benefit of careful submissions on both sides as to the effect of
ex p Farley
and the accuracy of the passage in
Archbold
.
33.
It is a great pity that the report in
ex p Farley
was not obtained. We appreciate that the Road Traffic Reports may well not be to hand in places where Courts-Martial sit, but these days the internet is available. There are two critical features of e
x p Farley
. Firstly, it was a case which depended on the fact that the charge of excess alcohol could only be tried summarily in the magistrates’ court, whereas the other charge faced by the defendant, which was of causing death by
reckless driving, was triable only on indictment in the Crown Court. Secondly, it was a case of a deliberate and quite improper prosecution manoeuvre designed to exploit the involvement of the two separate courts. The Crown set out to prosecute the summary proceedings (excess alcohol) first. That would enable it to take advantage of the provision which would there apply placing upon the defendant the burden of proving that he had taken drink after the accident and before testing. Then it proposed, when it came to the subsequent trial on the much more serious charge in the Crown Court, to adduce any conviction for the excess alcohol offence under
section 74 Police and Criminal Evidence Act 1984
. That amounted to trying to reverse the burden of proof on the very serious charge of causing death by reckless driving. Moreover,
ex p Farley
was a case in which this was proposed where the
only
basis for alleging reckless driving was that the driver was unfit through drink. It is to be distinguished from a case in which there is additionally an allegation of a dangerous manoeuvre or otherwise driving in a dangerous manner.
34.
In a work of generally remarkable accuracy, the passage in
Archbold
could usefully be re-considered. We do not doubt that it might in some circumstances be oppressive to prosecute for both excess alcohol in one court and an indictable offence in another, but
ex p Farley
does not contain any general rule that it always will be so. A simple example where it might not be wrong is where disqualification, mandatory on conviction of an excess alcohol offence, would not be available on the indictable offence. Moreover, the mere bare reference to
Hartnett
[2003] Crim LR 719, albeit with an introductory ‘
cf’,
might be taken by readers to indicate that that case does not affect the text which goes before. It does. There the defendant pleaded guilty in the magistrates’ court to an excess alcohol offence. He was committed to the Crown Court for trial on an associated charge of dangerous driving on the same occasion. In due course he pleaded guilty to that also. He failed in the contention that to prosecute him for both was an abuse of the process of the court. This court explained the special features of
ex p Farley
, which it is apparent had been misunderstood in that case as they have been completely overlooked in this. It did so in terms which make it clear that
ex p Farley
is not authority for what is said in the passage in
Archbold
.
35.
The last two sentences in the passage from
Archbold
do not depend on
ex p Farley
, but rather on the line of cases beginning with
Elrington
(1861) 1 B & S 688; 121 ER 870, and considered in the well known case of
Connolly v DPP
[1964] AC 1254
. This principle represents a modest common law extension of the rules of autrefois convict and acquit. It certainly means that it may well be oppressive, and an abuse of the process of the court, to prosecute successively in
different
trials on the same facts. For an example, see
Phipps
[2005] EWCA Crim 33
. But that is because the Crown ought ordinarily to make up its mind what charges it wants to bring and put them all before the same court on the same occasion. The
Elrington
principle is a rule against
sequential
trials. It is in no sense breached if two charges arising out of the same facts are put before the same court on the same occasion. That might have been gleaned from the use of the word
again
in the proposition “he is not to be tried again….”, but it would certainly have been apparent if anyone had looked at the cases. To the contrary, sometimes the presentation of different charges in the same court, arising from the same facts, is positively the right thing to do since it may enable the tribunal of fact to determine the several issues which arise - for example whether driving was dangerous because of the manoeuvre undertaken or also because of the driver was unfit through drink, or, in an allegation of homicide, which party was at the outset carrying a firearm which was used.
36.
If in a particular case one charge really adds nothing, so that its inclusion is oppressive, the court has ample power to require the prosecution to justify it, and if the Crown will not amend by deleting it, to stay it. Nothing in the foregoing is intended to cast any doubt upon the jurisdiction of the Court to prevent, by way of stay, something which genuinely amounts, on the facts of a particular case, to abusing the Court’s process so as to cause unfair prejudice to a defendant. Further, even if a trial proceeds, properly on the facts of a particular case, on both charges, it may well be that no separate penalty will be appropriate upon one charge if the real gravity of what has been done can properly be dealt with by sentence on the other, principal charge.
37.
There is a difference (and sometimes a great deal of difference) between (i) two charges being founded on the same facts and (ii) two charges sharing some facts in common.
38.
We are not to be taken, by silence, to endorse the decision that the correct way to give effect to the first ruling in this case, even if it were right, was to direct acquittal. The more usual way of dealing with the matter would be to amend the indictment/charge sheet by deletion of the offending charge, or (more often) to discharge the court from giving a verdict upon it. Such a charge could also be stayed if to prosecute it were truly an abuse of the court.
39.
The power to direct acquittal is by no means limited to the case in which the prosecution offers no or no further evidence.
Section 17 Criminal Justice Act 1967
, to which reference was made in the present case, applies to acquittals (on the offering of no evidence) without the decision of the tribunal of fact, court-martial or jury. It has no application to a directed acquittal by that tribunal of fact, which may often occur, for example where the judge rules that there is no case to answer.
Conclusion
40.
For the reasons set out in paragraphs 19-30, this appeal by the Crown must be dismissed for want of jurisdiction. The consequence is that the rulings of the Court-Martial must stand. That means that the merits or demerits of this prosecution have never been determined. | ```yaml
citation: '[2008] EWCA Crim 1034'
date: '2008-05-16'
judges:
- LORD JUSTICE HUGHES
- SIR PETER CRESSWELL
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
200201861X2
Neutral Citation Number:
[2003] EWCA Crim 357
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
(HIS HONOUR JUDGE PAGET QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 20 February 2003
Before :
LORD JUSTICE POTTER
MR JUSTICE MACKAY
and
HIS HONOUR JUDGE MELLOR
(sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
KAY JASON MARTIN
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Owen Davies QC
for the
Appellant
Mr David Evans
(instructed by the Crown Prosecution Service) for the
Respondent
Hearing date : Wednesday 22 January 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Lord Justice Potter:
Introduction
1.
This appeal raises an important issue relating to the trial of persons who are unfit to plead. It also calls into question the determination of a jury based upon the untested evidence of a witness whose evidence was read to the jury pursuant to s.23 of the
Criminal Justice Act 1988
.
2.
In November 2001, the appellant was due to be tried together with Tyrone Lindo, Ali Moses, Osbert Ponde, and Errol Tobiere upon an indictment arising out of an incident on 13 August 2000 when a 12-year-old Somali boy Abdirazak Hamza, was chased and stabbed to death during a music festival which took place at Elthorne Park, Holloway, London. Count 1 charged the appellant, Lindo Moses and Osbert Ponde with the murder of Hamza (i.e. Tobiere was not included) and count 2 charged all the co-defendants with violent disorder, contrary to s.2(1) of the
Public Order Act 1986
.
3.
On 20 November 2001, in the Central Criminal Court before His Honour Judge Paget QC, the appellant was found to be unfit to be tried under s.4A of the
Criminal Procedure (Insanity) Act
1964, (“the 1964 Act”). The effect of the extensive psychiatric evidence in that regard was that, while the appellant was adamant he had not committed murder, he had the intellectual capacity of a young child, was so suggestible and lacking in understanding that he could not follow the court processes, and that he would have been unable to give intelligent or coherent evidence.
4.
On 8 January 2002, the indictment was amended to insert a new count 2 which alleged against all the co-defendants conspiracy to cause grievous bodily harm to Hamza contrary to s.1(1) of the
Criminal Law Act 1977
and the former count 2 was renumbered as count 3. On 10 January 2002, Lindo and Tobiere pleaded guilty on re-arraignment to count 3 (violent disorder), Lindo being sentenced to a 12-month Detention and Training Order and Tobiere to 2 years’ detention in a Young Offender Institution. Moses and Ponde pleaded guilty on the same date to count 2 (conspiracy to cause grievous bodily harm) and were each sentenced to 3 years 4 months’ detention in a Young Offender Institution.
5.
On 12 March 2002, at the Central Criminal Court before His Honour Judge Paget QC and a jury, the appellant was found to have done the act charged against him in count 1 (murder) under section 4A of the 1964 Act. He was made the subject of a Hospital Order under
section 5
of
that Act
.
The Facts
6.
The facts stated shortly were that on Sunday 13 August 2000 Hamza went to the musical festival mentioned above. He lived on the Elthorne Estate nearby. In the late afternoon he was surrounded by a group of black youths and chased from the park. He ran across Hazelville Road, along Partington Close and into Mulkern Road, heading towards his home in St John’s Way. At some point in this journey he sustained 6 stab wounds to the chest, 2 of which pierced his heart. He collapsed in Mulkern Road, fatally injured. It appeared that the motive for the attack was a previous incident in which Hamza’s brother had stabbed Lindo. By their pleas Lindo, Moses, Ponde and Tobiere admitted that they were in the group which chased the deceased. So far as the appellant was concerned, the Crown relied upon evidence that he was also present in the group, that he was seen afterwards with a knife which he wiped clean, and that he made comments amounting to an admission that he had taken part in the stabbing. The evidence to that effect was contained in the statement of a 17-year-old witness, Tamba Bona, which was read to the jury and which, as the judge directed them, was the entire basis of the prosecution case against the appellant.
The Evidence
7.
The following were the principal witnesses for the prosecution. Lois Harvey gave evidence that at about 5.15pm when she was driving her car north in Hazelville Road a group of black boys aged apparently between 13 and 16 crossed the road in front of her coming from the direction of the park. They ran into a passageway and leaned against the wall as if trying to get their breath back. She had not seen anyone running ahead of this group.
8.
Faisal Khan, who lived in a house backing onto the alleyway between Hazelville Road and Parkington Place heard the sound of people rushing and shouting. He went outside onto his balcony on the second floor and saw a group of 6 boys and one girl running into the alley from the direction of the park. When he went out he saw a young boy running down the stairs at the Parkington Close end of the alley near to a wall where the deceased’s blood was later found. He was followed by a youth who was described by Mr Khan as aged 17 or 18, tall, skinny, with very short hair and little dreadlocks. He was wearing a baseball jacket with a diamond motif and the letter T on the back. (It was agreed that this was not a description of the appellant who was short, stocky and differently dressed.) Shortly afterwards Faisal Khan saw the tall youth returning back up the stairs and being asked by the group “Did you get him?”, to which the youth replied “Yes”. He was holding a knife with a 6 inch blade and a red handle which he wiped on his jeans, folding it and putting it in his pocket.
9.
Hiba Zeno, a cousin of the deceased aged 8 or 9, gave her evidence by means of a video-recorded interview. She said that she had left the park with the deceased who was then surrounded by 6 or 7 boys. The deceased said “What is happening?” and one of the boys who had a bicycle with him said “What do you mean, what’s happening?” This boy was aged about 14, shorter than the deceased and had light brown skin. He was wearing baggy trousers and a white sleeveless top. The deceased then ran into the alleyway and the other boys chased him. There was one boy who appeared to be the ‘boss’ because the others followed him when he ran. He was black, skinny and about 5cm taller than the deceased. He wore a blue jacket and baggy grey trousers which bore a newspaper print pattern. He wore a dark blue cap and a gold necklace with a cross on it. Hiba ran home to St John’s Way to tell her mother what was happening. She looked out of the window and saw the ‘boss’ with his hand in his inside jacket pocket.
10.
Sandra Derby who lived on Partington Place heard boys arguing and then a groaning sound. From her window she saw 5 or 6 boys apparently aged between 15 and 19 walking back towards the park, one of whom had a crippled leg. She saw a boy get up from the ground near to a barrier and road cone where the deceased’s blood was later found in the gutter. He ran up Mulkern Road, with two of the other boys chasing him. However others in the group said “Low it, low it”, meaning leave it. The two boys then ran back. Both had white or cream jackets, and one had his hand under his jacket as if hiding something. They walked towards the park looking behind them. Mrs Derby then became aware of the deceased lying in Mulkern Road and went to help him.
11.
Augustin Lebie, aged 17 went to the festival with Tamba Bona who was a friend of his. At the park he met Lindo, Moses, Ponde and the appellant. Either the appellant or Ponde was wearing trousers with pound or dollar signs printed on them. One boy, probably Ponde, had a bicycle. There was a scuffle and some people ran from the park to the Elthorne Estate, Lebie following with another companion Curtis. About 8 to 10 boys ran past Lebie. He saw the deceased in front with 3 boys running behind him. Lebie followed. He saw the deceased struggling to run and holding his front. He staggered and fell on the pavement. The three boys following got within about 2 metres of him and then ran back. Lebie did not know those 3 boys and said they were not Lindo, Ponde, Moses or the appellant. However Lebie followed them and heard one asking who had done it. He did not hear the response. Back in the park, Lebie overheard a conversation between Ponde and the appellant in which they used the word ‘hot’, but he did not know whether this was a reference to the incident. There was an announcement over the public address system that a person had been stabbed and Moses, Ponde and the appellant appeared fearful; however so did others who were there. Lebie was wearing a cap with earflaps and walked with a limp, which features had been noted by Mrs Derby and another witness Susan Leah who had seen a boy of that description approach another boy and say “Leave him” before running away.
12.
The evidence of Tamba Bona was read. He said he was in the park when he saw Lindo, Moses, Ponde and the appellant run off. Other people also disappeared at the same time. He said that he had remained in the park and had ‘a bit of trouble’ with some boys from Tottenham. Later he saw Ponde and the appellant returning, the appellant holding a silver-coloured knife with blood on it. He said “We’ve got him” several times. He seemed excited and was smiling. Ponde seemed normal. Bona assumed that the appellant had stabbed someone, but there was no conversation about it other than the appellant saying “We have to run. We have to divert”. He said the appellant then went to his flat nearby accompanied by Bona, Lindo, Moses and Ponde. The appellant wiped the blade of his knife on some tissue. Bona assumed they had gone to the flat to avoid the police; however this was not discussed. After 10 minutes Bona returned to the park with Lindo. An announcement was made that a boy had been stabbed and everyone was asked to leave. Bona saw a knife being kicked about on the floor but said he did not know who had dropped it. He was wearing a black leather motorcycle jacket with an eagle design on the back, the appellant also wearing a motorcycle jacket, the colour of which Bona could not describe.
13.
In a second statement, Bona clarified that it was about half an hour after they had first run off that Ponde and the appellant returned to the park. It was Ponde (not the appellant) who said “We’ve got to divert,” which meant they had to run away. Ponde was wide-eyed and blinking, but neither he nor the appellant was out of breath. Both said “We’re hot” which meant they were in trouble. At the flat he had heard the appellant say “We got the boy” in an excited fashion. Bona was in the toilet when this was said and the appellant was in the living room. There was music playing. The appellant said to Lindo “ We got the boy who stabbed you. We got him. We got him clean.”.
14.
Jade Ereira was aged 16. She said that at about 7.30pm on 13 August she had seen 3 boys standing under a tree in a road off Hazelville Road. There was a police helicopter overhead and one of the boys said “Oh shit”. He was about 5ft 5inches tall and was wearing a jeans suit with a newspaper print design. Another boy was pushing an object with a black handle into his waistband. He was quite small and was wearing jeans, a shirt and hat.
15.
Detective Sergeant Mason interviewed Bona as a suspect on 18 October 2001. Bona refused to answer questions. He was told that he could become a witness for the prosecution but still declined to comment. At that time he was on bail for robbery, although that charge was subsequently dismissed. On 25 October, Bona made his first witness statement at a time when he had asked whether, and was aware that, a reward of £5,000 had been offered for information in respect of the murder. However he was not promised money. He said that his reason for coming forward was that the others had mentioned that he was present. He said “They started it, they started grassing me first”. Bona was placed within the Witness Protection Scheme.
16.
Dr Cox, who conducted the post mortem examination on the deceased, found that he had swelling to the knee and ankle consistent with a sprain sustained during the chase. There were no defensive wounds to his hands or arms and he had been stabbed six times in the chest, two of the wounds penetrating his heart. The wounds appeared to have been inflicted either with the same knife, or more than one knife of the same type, namely a single-edged knife with no serrations. The first traces of the deceased’s blood at one end of Partington Close were 100 metres from the point where he collapsed for the first time. She thought it extremely unlikely, though not impossible that he could have covered that distance, having already suffered the wounds to his heart. However he could have run the distance from the point of his first collapse to that where he finally collapsed and died having suffered those injuries.
17.
Formal admissions were made to the effect that the appellant flew from the United Kingdom to his own country of Montserrat on 24 August 2000, his ticket having been purchased three days after the murder. He was subsequently extradited.
18.
By way of defence evidence, the appellant’s solicitor Mark Ashford referred to a plan of the appellant’s flat and certain photographs which he had taken. It appeared that the toilet and living room doors each had spring mechanisms which made them close automatically, the living room door also having foam draught-proofing. Mr Ashford said that in the toilet he was aware of intrusive noise from water pipes and was unable to hear conversation from the living room television set, even when the volume was turned up to a loud level.
The Rulings of the Judge
19.
Two rulings of the judge give rise to two of the grounds of appeal before this court. The first concerns the act or acts in respect of which the jury should have been asked to make a finding under s.4A of the 1964 Act. The second concerned the ruling of the judge that the evidence of Tamba Bona should be permitted to be read to the jury for the purposes of a decision under that section.
20.
As to the first ruling, it was submitted on behalf of the appellant that, in respect of count 1, the Crown should be limited to proving the appellant was the person who actually inflicted one or more of the stab wounds on the deceased, in other words that he was a principal in the first degree. Reliance was placed upon the observations of Lord Hutton in
R v Antoine
[2000] 2 Cr App R 94
at p112 to the effect that, on a determination under subsection 2 of s.4(A) difficult questions could arise as to the meaning of the word ‘act’ in a situation where the defendant had been charged with participation in murder as a secondary party only, the actual killing having been carried out by another person. The Crown, to the contrary, submitted that there was no reason why a jury should not be able to be satisfied that a defendant had done the act or acts involved as a secondary party, it being a question of analysis from case to case what amounted to the act or acts required to be proved, either by direct evidence or by inference. The judge accepted that submission. He referred to evidence of Bona that, after the stabbing of the defendant, the appellant was seen to wipe the blade of a knife in his possession and comment “We’ve got him” several times and that, at the flat, he heard the appellant say “We got the boy who stabbed you” addressed to Tyrone Lindo who had been stabbed not by the victim but by the victim’s brother. The judge accepted the Crown’s submission that any reasonable jury would be able to infer either that the appellant inflicted one or more of the stab wounds personally, or at least that he was a party to the attack with a knife. He saw no disadvantage to the appellant if the case was allowed to proceed upon that two-fold basis, provided that the position was reviewed at the end of the Crown’s case.
21.
So far as the admissibility of the statements of Tamba Bona was concerned, the Crown applied that they should be admitted and read to the jury on the basis that the witness was in fear. He had been in the Witness Protection Scheme since making his statements in October 2000. There was evidence however that he had been threatened in an anonymous telephone call or calls, and that he had been assaulted by having his face burned with a cigarette by a friend of a co-defendant as a warning not to give evidence, albeit Bona denied that fact before the judge on a
voir dire
. There was also evidence that his sister had been approached by youths who threatened that there would be adverse consequences if he gave evidence.
22.
On 1 March 2002, Bona had failed to attend court and a warrant was issued. He was arrested and brought to court, where he refused to go into the witness box or to answer when spoken to. He was remanded in custody and assigned counsel. On 4 March 2002 he claimed that he was unfit to give evidence and was or had been taking drugs. However, he was seen by a doctor who found that he was fit and not under the influence of drugs. He refused to read through his statements. On 5 March 2002 he agreed to give evidence. In a
voire dire
in the absence of the jury, he stated that he was not in fear and denied that the cigarette incident had occurred. He claimed he knew nothing, or could remember nothing of the murder. On 6 March, DS Crawford gave evidence that a crime report had been made of the incident in which he was burned with a cigarette and that he had received treatment in hospital but that he had refused to pursue any complaint in respect of it.
23.
The judge held that, from his demeanour and from all the circumstances outlined, he had no doubt that the reason for Bona’s attitude was that he was afraid to give evidence and, against that factual background, the judge had to decide whether to allow the statements to be read.
24.
The judge made reference to the decision of Kenneth Jones J in
R v O’Loughlin and McLoughlin
[1988] 2 All E R 431 in which, in not dissimilar circumstances, the judge refused to allow statements to be read, exercising his discretion under s.78 of the
Police and Criminal Evidence Act 1984
(PACE)
. The judge made the observation that his own decision had to be made under a subsequent statute and in a new environment. He found that the provisions of
s.23(3)
of
the 1988 Act
were satisfied and that
s.26
of
the Act
raised a presumption that a statement should not be read unless the judge was satisfied that it ought to be admitted in the interests of justice including, in particular, whether its admission or exclusion would result in unfairness to the accused. Taking into account all the circumstances, and in particular those specified in paragraphs (1), (2) and (3) of
s.26
, the judge said this:
“As to the contents of the statements, they could of course not be more relevant or important. As to the risk, having regard to whether it is likely to be possible to controvert this statement in the absence of the witness, that its admission would result in unfairness to the accused, I recognise that there are difficulties; and as to any other circumstances, I recognise that this is an unusual situation in that this particular defendant is somebody under a disability.
However, applying the principles, it seems to me that I should admit these statements in evidence and that the defendant can nevertheless have a fair trial.
There is material available to Mr Davies, whether by cross-examination or argument, by which he can controvert or undermine the statement, even though the defendant is himself under a disability and cannot himself give evidence. The fact that the defendant is under a disability is, in the end, it seems to me, a neutral point. It is undoubtedly a handicap and it means in practice that Mr Davies can have few (if any) instructions; as I have just said, he cannot call the defendant to give evidence. (At least, I suppose, in theory he could but in reality it is almost certain he cannot for all practical purposes). But that would still be so even if Tamba Bona did give evidence. The fact that he has not and that his statements are to be read does not affect Mr Davies’ ability to discredit his statements by pointing out any inconsistencies or contradictions that they may contain; by adducing evidence of the character or convictions of Tamba Bona, and by demonstrating that he may have been motivated by a desire to avert suspicion from himself by blaming others – and this defendant in particular – or by the possibility of a reward. I acknowledge of course that there must be some disadvantage in not being able to cross-examine Tamba Bona. But in the interests of justice, and balancing the matters as I am bound to do, it seems to me that he can nevertheless have a fair trial.”
25.
The judge expressed himself troubled by the issue whether various decisions of the European Court of Human Rights on the application of Article 6(3) of the Convention effectively meant that no defendant can ever have a fair trial in circumstances where the main or only evidence against him comes from a witness who does not give oral evidence and in respect of whom there is no opportunity for the defendant to cross-examine the witness as to his evidence. In this connection he referred to a number of Convention cases and to the effect of them as summarised in the commentary by Professor Andrew Ashworth upon the decision in
Luca v Italy
, 27 February 2001 (Application no.33354/96): see [2001] Crim LR at 748. The judge rejected the argument that the conclusions drawn by Professor Ashworth admitted of no exceptions (c.f.
Doorson v Netherlands
(1996) 22 E.H.R.R. 330).
26.
The judge continued:
“I cannot believe that the position admits of no exceptions. If it does then
Sections 23
and 26 of the
Criminal Justice Act 1988
can never apply in a case such as the present and, if that is the law, it means that, whenever there is a case which depends upon a single witness, frightening or otherwise preventing that witness from giving evidence would inevitably lead to the acquittal of the defendant. That is in conflict with three decisions of the Court of Appeal on the application of
Sections 23
and 26 to which I have been referred and they are, to give them in order
Philip Dragic
(1996) 2 Cr App R 232
,
Abas Kassimali Gokal
(1997) 2 Cr App R 266
and finally and most recently
Christopher Antonio Thomas & Others
decided in 1998, and as yet I think unreported except in the Crim L R, but of which I was supplied with a transcript.
In my judgment it must in the end be a question of fact and degree, and every case must depend on its own facts. It is acknowledged that
Sections 23
and 26 of the Criminal Justice Act of 1988 do not necessarily conflict with Article 6(3) and on the facts of this case, in my judgment, it is in the interests of justice to allow the statements of Tamba Bona to be read.
I do nevertheless feel that the defendant can have a fair trial even though there are difficulties which I hope I have identified.”
27.
The evidence of Tamba Bona was duly admitted and the jury found that the appellant had done the act charged against him in count 1 following a summing up by the judge in respect of which no substantial criticism is made on the assumption that the judge’s rulings are upheld.
28.
Following the finding of the jury, the judge imposed upon the appellant a Hospital Order with a restriction without limit of time.
The Grounds of Appeal
29.
The general grounds of appeal read as follows:
“
Ground 1
The learned judge erred in his rulings relating to two crucial issues relating to the trial of the ‘act’ under section 4(A):
i.
What is ‘the act’ or what are ‘the acts’ in respect of which the jury should have been asked to make a finding?
ii.
In respect of the question posed to the jury relating to the ‘act’ relating to murder (count 1) was the judge correct to,
a. allow the evidence of Tamba Bona to be read; and
b. to permit a finding of the jury to be based on it in respect of count 1 when it was the only or decisive evidence in relation to the ‘act(s)’ constituting murder.
If the ruling of the judge on either question was wrong, the finding of the jury is rendered unsafe.
Ground 2
.
There is fresh evidence available which was not available at the trial which casts doubt on the credibility of the witness Bona.
The applicant seeks the admission of the evidence when the court considers Ground 1, ii.
Alternatively
if the court were to consider that the finding is safe;
Ground 3.
The imposition of a Hospital Order with a restriction without limit of time under
Section 5
of the
Criminal Procedure (Insanity) Act 1964
and 1991 and schedule 1 is incompatible with Articles 6 and 8 of the schedule to the
Human Rights Act 1998
.”
Ground 1
– What is ‘the act’ or what are the ‘acts’ in respect of which the jury should have been asked to make a finding?
30.
The
Criminal Procedure (Insanity) Act
1964 provides in section 4A that, where there has been under section 4 a determination by a jury that the accused is under a disability, in that he is unfit to plead:
“(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 at 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,
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 the count or any of those counts the jury are not so satisfied, they should return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.”
31.
In R v
Antoine
[2000] 2 Cr App R 94
the House of Lords was principally concerned with the question whether a person accused of murder and being dealt with under s.4A(2) was entitled to rely on a defence of diminished responsibility so as to avoid the consequences of a finding that he did the act of murder charged. In the speech of Lord Hutton, with which the rest of their lordships agreed, the House held that the defendant was not so entitled because, once the jury determined that he had done the act in question, the trial determined and the question of a defence of diminished responsibility (which went to
mens rea
) did not arise. It was further stated that a finding that an accused did the act charged was not a conviction in any event. However, Lord Hutton made clear that by use of the word ‘act’ rather than ‘offence’ in s.4A(2) it was clear that, in making its determination, the jury need only be satisfied that the defendant committed the
actus reus
of the offence, not the
mens rea
, subject to the right of the defence to raise by way of ‘objective’ evidence, the defences of mistake, accident, self-defence or involuntariness.
32.
In the course of his speech, Lord Hutton made clear that the decision in
Attorney-General’s Reference (No.3 of 1998
) [1999] 2 Crim App R was to be preferred to the earlier decision in
R v Egan
[1998] 1 Crim App R 121. In
Egan
, it had been stated that the proof of the act meant neither more nor less than proof of the necessary ingredients of the offence. In
Attorney-General’s Reference (No.3 of 1998)
the court answered the question posed for its decision in respect of an inquiry under the
Trial of Lunatics Act
1883 (which raised similar considerations to s.4A(2)) as follows:
“ … when determining whether ‘the defendant did the act or made the omission charged’ for the purposes of the Trial of Lunatics Act 1883, and assuming insanity,
(a)
the Crown is required to prove the ingredients which constitute the
actus reus
of the crime. Although different language is used to describe this concept, for present purposes, we respectfully adopt the suggestion in Smith and Hogan
Criminal Law
, 8
th
ed (1996) p.29 that it must be showed that the defendant:
‘has caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law …’
(b)
the Crown is not required to prove the
mens rea
of the crime alleged and, apart from insanity, the defendant’s state of mind ceases to be relevant.”
33.
Lord Hutton dealt with the rationale behind s.4A as follows:
“The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite
mens rea
. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the
actus reus
of the crime charged against him and a person who has carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite
mens rea
.”
34.
Lord Hutton then pointed out the difficulty in certain instances of making plain a clear dividing line in all cases between the
actus reus
of an offence and the ‘mental element’ of a particular crime. As he remarked,
“A number of learned authors have commented that it is difficult in some cases to distinguish precisely between the
actus reus
and the
mens rea
and that the
actus reus
can include a mental element. In Smith and Hogan
Criminal Law
9
th
ed, p.28 Professor Sir John Smith states:
It is not always possible to separate
actus reus
from
mens rea
. Sometimes a word which describes the
actus reus
, or part of it, implies a mental element.”
35.
In this context, Lord Hutton dealt with the mental element which may call for consideration in cases where an issue arises as to mistake, accident or self-defence, and made clear that the prosecution may be faced with the need to negate the possibility of such a defence where it arises by reason of the evidence of witnesses, as opposed to the evidence of the defendant or the mere suggestions of counsel on his behalf. On this matter, Lord Hutton stated at p.111:
“If, on a determination under section 4A(2), the jury are only concerned to decide whether the defendant did the ‘act’ and are not required to consider whether the defendant had the requisite
mens rea
for the offence, should the jury nevertheless decide that the defendant did not do the ‘act’ if the defendant would have had an arguable defence of accident or mistake or self-defence which he could have raised if he had not been under a disability and the trial had proceeded in the normal way. The difficulty inherent in this issue is that such defences almost invariably involve some consideration of the mental state of the defendant. Thus in
Palmer v R
[1971] AC 814
, 832, when considering self-defence, Lord Morris of Borth-y-Gest referred to the defendant doing ‘what he honestly and instinctively thought was necessary’ to defend himself. But on the determination under section 4A(2) the defendant’s state of mind is not to be considered. How then is this difficulty to be resolved? I would hold that it should resolved in this way. If there is objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the ‘act’ unless it is satisfied that beyond reasonable doubt on all the evidence that the prosecution has negatived that defence. For example, if the defendant had struck another person with his fist and the blow had caused death, it would be open to the jury under section 4A(4) to acquit the defendant charged with manslaughter if a witness gave evidence that the victim had attacked the defendant with a knife before the defendant struck him. Again, if a woman was charged with theft of a handbag and a witness gave evidence that on sitting down at a table in a restaurant, the defendant had placed her own handbag on the floor and, on getting up to leave, picked up the handbag placed beside her at the next table , it would be open to the jury to acquit.
But what the defence cannot do, in the absence of a witness whose evidence raises the defence, is to suggest to the jury that the defendant may have acted under a mistake, or by accident, or in self-defence, and to submit that the jury should acquit unless the prosecution satisfies them that there is no reasonable possibility that that suggestion is correct. I consider that the same approach is to be taken if defence counsel wishes to advance the defence that the defendant, in law, did not do the ‘act’ because his action was involuntary, as when a man kicks out and strikes another in the course of an uncontrollable fit brought about by a medical condition. In such a case there would have to be evidence that the defendant suffered from the condition.”
36.
Finally, and of most immediate relevance to this case, Lord Hutton touched upon the solution, upon the evidence before the court, where the accused is not a principal in the first degree, but, if liable, is liable on the basis that he is no more than a secondary party. In this respect, Lord Hutton observed:
“As I have observed at the commencement of this judgment, it was the co-accused of the appellant who killed the victim by stabbing him, and it appears that the appellant was charged as a principal in the second degree. No issue was raised before the Crown Court judge or before the Court of Appeal or your Lordships in relation to the fact that the appellant was the secondary party, no doubt because it was clear that by his own actions in preventing the victim from leaving and striking him the appellant had played a part in the killing. However, on a determination under section 4A(2) where the defendant had been charged with participation in a murder as a secondary party and another person had carried out the actual killing, difficult questions could arise as to the meaning of the word ‘act’ in such a situation and as to the matters which the jury would have to consider, and I express no opinion on such questions in this judgment.”
37.
It is just such a question which arose before the judge in this case. The solution he adopted was that already referred to at the end of paragraph 20 above. He directed the jury as follows:
“If you are sure that what Tamba Bona told the police in those two statements is true, the prosecution say you can be sure that Kay Jason Martin stabbed Abdirizak Hamza; or at the very least that he took part in a knife attack on Abdirizak Hamza with the others. There may have been more than one person with a knife. The pathologist cannot say for certain. All she can say [is that] those six wounds – and we shall come to her evidence – could have been inflicted with one knife but could have been more than one …
You can only find that he did the act of murder if he was himself the stabber (or one of them) or took part in what he knew at the time it was happening was a knife attack
If you are not sure of Tamba Bona’s evidence, if you are not sure of the truthfulness and accuracy of that account, that is really the end of that murder and you would find Kay Jason Martin not guilty.” (emphasis added)
38.
As already indicated, it had been the submission for the defence that the judge should restrict his direction to one which informed the jury that the act or acts of which they must be satisfied were that the appellant had actually stabbed the victim and that any direction which introduced knowledge into the equation involved an inappropriate examination of his state of mind. In those circumstances, Mr Davies QC submits to this court on behalf of the appellant that the judge was wrong to add to such a direction words which indicated it would be sufficient for a determination that the defendant had done the act with which he was charged, if he took part in an attack which he knew at the time it was happening was a knife attack. It is the submission of Mr Davies QC that the act or
actus reus
in question must be ‘unequivocally a criminal act’, as he puts it, i.e. not an act that is merely converted into a criminal act if there is some accompanying degree of
mens rea
(in this case knowledge at the time the attack was happening that it was a knife attack). Thus to the extent that the judge’s direction was appropriate to include not only participation by personal use of the knife, but simple participation with the knowledge that at least one other attacker was furnished with an illegal weapon (see
R v Uddin
[1999] 1 Crim App R 319), it was an error.
39.
Mr Evans QC for the Crown, on the other hand, submits that the judge was correct in the directions which he gave. He points out that, in
Antoine,
the House of Lords acknowledged that there is no settled or clear-cut definition of
actus reus
in this context, each case turning on its particular facts and circumstances. By way of illustration, he refers to the decision of the Divisional Court in
R v Central Criminal Court ex parte Young
[2002] EWHC (Admin). That case concerned a prosecution for dishonest concealment of material facts contrary to s.47(1) of the
Financial Services Act 1986
. The defendant was charged inter alia with dishonest concealment of certain investment intentions on his part. The defence argued that it was not possible for the jury to investigate the intentions of the defendant because such investigation was no more than an enquiry into his state of mind. The court (per Rose LJ) approved the ruling of the judge that:
“The relevant principles which emerge from Lord Hutton’s speech [in
Antoine
[2001] 1 AC 340
] are the following:
One, so far as possible, the court’s enquiry at a section 4 hearing should focus upon the defendant’s actions as opposed to his state of mind.
Two, this distinction is dictated by the language of section 4A and the social purpose which it serves.
Three, this distinction cannot be rigidly adhered to in every case because of the diverse nature of criminal offences and criminal activity.”
40.
The Divisional Court ruled that the intentions particularised in the indictment were properly to be regarded as a fact or facts. Rose LJ stated at paragraph 35:
“ … it seems to me that it is appropriate for the jury charged with the inquiry under
section 4
A of
the 1964 Act
to consider the intentions of the defendant not, of course, in relation to dishonesty, and not in relation to the purpose of making the representations, but his intention as one of the facts represented, according to the particulars of the offence, to those said to be the victims of his activity.”
41.
Whilst Mr Evans recognises that the decision in
ex parte Young
was concerned with very different circumstances from those which surround the liability of a secondary party in respect of a fatal attack, he points out that it does at least make clear that, in an appropriate case, the jury may be required on the basis of the evidence from sources independent of the defendant to consider the state of mind of the defendant where such consideration is necessary to establish whether the
actus reus
of the offence can be made out. He also points out that, whereas in
Antoine
Lord Hope observed that, in ‘secondary party’ cases, difficult questions may arise as to the meaning of the word ‘act’ and the matters which the jury may have to consider, he did not suggest that the
s.4
A procedure would be inapplicable in cases where the person charged had not personally inflicted the fatal wound but was alleged to be liable simply as a secondary party. Nor in our view is that the position.
42.
In such cases, it is the task of the judge to give careful consideration to the principles involved, to apply them to the circumstances of the particular case, and to give a direction framed to define and encompass the minimum facts of which the jury must be satisfied to establish the ‘act’ required to be proved against the defendant. If, by reason of the definition of the crime concerned, or the level of the participation required to establish liability, it is necessary for the jury to be satisfied that the defendant had a particular level of knowledge as to the activities of the principal offender and/or the surrounding circumstances, then the judge should so direct. In such a case, as with issues of mistake, accident or self-defence, the determination will fall to be made as a matter of inference from the independent evidence of witnesses and not from the evidence of the defendant or the suggestions of counsel. It is only by such means that the rationale and intention underlying
s.4
A, as set out by Lord Hutton (see paragraph 32 above), can be fully effected.
43.
On that basis we turn to consider the direction given by the judge.
44.
No complaint is made of the judge’s direction that the appellant had done the act of murder if he was himself the stabber (or one of them). Criticism has concentrated upon the further direction that the jury might likewise find the act of murder proved if the appellant participated in what he knew at the time it was happening was a knife attack. In that respect, as we understand it, it is not argued that, in the context of the evidence before the jury, the judge used an inappropriate shorthand for the ingredients of liability, on the assumption that the jury accepted the evidence of Tamba Bona. Nor is it argued that he misstated the proper basis for secondary liability had the hearing been an ordinary trial of a defendant able to give evidence on his own behalf as to his state of mind. It is simply objected that the determination of the issue so stated, necessarily involved a conclusion as to the state of mind of the appellant (i.e. what he knew at the time) and that it was therefore inappropriate or in some way invalid.
45.
We reject that submission. The problem presented in relation to the liability of participants in the case of a group attack involving the use of weapons, and, in particular, use of a knife to inflict fatal violence upon the victim, have been the subject of detailed consideration in
R v Powell; R v English
[1999] 1 AC 1
and
R v Uddin
[1999] 1 Crim App R 319. In the former case, the House of Lords made clear that a secondary party is guilty of murder if he participates in a joint venture realising that in the course thereof the principal offender will use force with the requisite mens rea (intent to kill or do grievous bodily harm) and the principal in fact does so. By lending himself to the enterprise, the secondary party gives assistance and encouragement to an enterprise which he realises may involve murder. In the latter decision, the Court of Appeal gave guidance on the effect of
Powell
. It made clear that, where several persons attack a victim in circumstances which show that they intend to inflict grievous bodily harm and, as a result, the victim is killed, they are jointly liable for murder. However, if the injury inflicted is caused solely by one participant and is of a type entirely different from that contemplated by others in the group e.g. by use of a deadly weapon such as a knife, then those others will not be liable for murder unless they foresaw the use of a fatal weapon. In that last respect, however, if the secondary participants are themselves carrying weapons of a deadly character, the mere fact that a different kind of weapon was used by the principal will not be sufficient to avoid liability on the basis of joint enterprise.
46.
Thus, whereas the
actus reus
of the principal offender is doing the very act which causes the death, that of a secondary party is the act of participation in the joint venture/common purpose and, under
s.4
A(2), that is the matter upon which the jury must concentrate in order to determine whether or not the secondary party is to be regarded as having done the act of murder alleged against him. To that end, the jury must decide as a matter of fact (a) whether there was a common purpose, (b) what it was, (c) whether the act of the actual perpetrator went beyond the common purpose by being radically different from any act which the defendant realised might be done in the course of the attack. Put thus, for the jury to determine whether or not the defendant has done the act of murder for the purposes of
s.4
A(2) involves in part an investigation of his state of knowledge. Equally, however, the three elements which require to be decided are, in the absence of evidence from the defendant, susceptible of determination upon an objective basis by inference from the facts presented in evidence and it is upon that basis that they must be dealt with under the section. Here, the judge summed up to the jury, on the basis of Tamba Bona’s evidence which made clear that (a) the appellant was part of the group which chased the victim, (b) he was himself carrying a knife, (c) he was himself seen returning from the chase, and heard to say, “We got the boy who stabbed you”. There was thus clear evidence that he had taken part in a joint enterprise which he knew at the time was a knife attack. The evidence, if true, showed that, whether or not he used it, he was carrying a knife when he joined the chase, was aware of the stabbing, and afterwards was claiming credit for being part of the group which had ‘got’ the boy who was the victim of the stabbing.
47.
We find no error on the part of the judge in instructing the jury that, for the purposes of deciding whether the defendant did the act of murder with which he was charged, they must be satisfied either that he was himself the stabber, or one of them, or that he was a person who took part in what he knew at the time was a knife attack. If the jury, upon the basis of the evidence before them, were satisfied that either was the case, then, for the purposes of
s.4
A(2), the ‘act’ of murder was properly established.
Ground 2
– Was the judge correct to allow the evidence of Tamba Bona to be read as the only or decisive evidence in relation to the ‘act(s)’ constituting murder?
48.
Section 23
of the
Criminal Justice Act 1988
provides that a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if, as provided by sub-section (3), (a) the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and (b) that the person who made it does not give oral evidence through fear or because he is kept out of the way.
49.
Under the heading ‘Principles to be followed by a Court’, section 25(1) provides that if, having regard to all the circumstances, the Crown Court on a trial on indictment is of the opinion that in the interests of justice a statement which is admissible by virtue of
section 23
nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. Sub-section (2) provides that, without prejudice to the generality of sub-section (1), it shall be duty of the court to have regard (a) to the nature and source of the document containing the statement it is likely that the document is authentic (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence of the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.
50.
Under the heading ‘Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations’,
section 26
provides that where a statement which is admissible by virtue of
section 23
appears to the court to have been prepared for the purposes of pending or contemplated criminal proceedings, the statement shall not be given in evidence without the leave of the court, and that the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice. In considering whether its admission would be in the interests of justice, it is the duty of the court to have regard to (i) the contents of the statement; (ii) and risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused [c.f. s.25(2)(d) above] and (iii) to any other circumstances which appear to the court to be relevant.
51.
As observed in
R v Grafton
[1995] Crim LR 61, CA, the emphasis in section 25 begins in favour of admitting a statement, whereas that in
section 26
is against admitting it. Where a statement falls within
section 26
therefore, application of its provisions is likely to be determinative of the application to admit the statement without separate consideration of section 25.
52.
It is clear that the onus was on the Crown in this case, as the party seeking to have the statement admitted, to satisfy the court that it ‘ought to be admitted in the interests of justice’; see
R v Patel
97 Crim App R 294. Having said that, the decision was plainly one for the discretion of the judge having regard to all the relevant circumstances. In this respect, so far as consideration (i) was concerned, the contents of the statement were plainly vital to the prosecution. As already observed, the prosecution put its case and the judge summed up to the jury on the basis that the evidence contained in the statement of Tamba Bona constituted the entire evidence against the appellant. Without it, he was bound to be found not guilty. So far as consideration (ii) was concerned, it was vigorously argued that the admission of the evidence would result in unfairness to the defendant, the defence being deprived of any opportunity to cross-examine Tamba Bona before the jury with a view to discrediting his evidence and undermining his honesty and accuracy.
53.
In this respect it was pointed out that (a) he did not come forward as a material witness at any time; (b) he was initially arrested as a suspect in respect of the murder on the basis that he was one of the chasing group himself; (c) when he was seen and his first statement taken, he asked about the reward money of £5000 which had been offered for information leading to the arrest of the victim’s murderer; (d) when asked why he was telling the police about the involvement of the appellant, he said “Because they grassed. They started it”; (e) when seen in order to take his first statement, he was on bail for an offence of robbery on 20 September, during which two jackets and a mobile telephone had been forcibly taken from some youths. When arrested one of the stolen jackets was found in his possession as well as 4 mobile phones. The case was not proceeded with because the young witnesses refused to attend an identification parade.
54.
Apart from these matters, there were pointed out to the judge certain inconsistencies between the two statements of Tamba Bona. In the first statement there was no mention either of the incriminating conversation said to have been overheard by Bona when in the lavatory, nor was there mention of the words allegedly uttered by the appellant “We’re hot”. The defence would have wished to cross-examine upon those aspects. Also upon two further matters, namely the assertion by Bona that he had not been part of the chasing group because he had been “having trouble with some boys from Tottenham” and that, when he purported to see the appellant holding the knife with blood on it he said that “there was no-one else around”, although the place at which he had seen the appellant was a park in which a festival was in full swing. It was submitted that, in the absence of cross-examination, the matters complained of could be raised by no method other than comment or rhetorical query, and there was no benchmark or other reliable basis by which the jury could make up its mind whether the statement of Tamba Bona should be believed or not, constituting as it did the only evidence of the appellant’s participation and/or subsequent alleged admissions and coming as it did from an unreliable witness with a motive to misstate.
55.
In support of those submissions, defence counsel referred to Article 6(3) of the Convention which provides that:
“3.
Everyone charged with a criminal offence has the following minimum rights:
…
(d)
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
56.
Reliance was placed on the case law of the European Court of Human Rights concerned with anonymous and other witnesses whose testimony is read. Before the judge, the following authorities were relied on:
Unterpertinger v Austria
(1991) 13 EHRR 175
;
Windisch v Austria
(1991) 13 EHRR 281
;
Kostovski v Netherlands
10/1988/154/208;
Asch v Austria
30/1990/221/283;
Saidi v France
1993 Series A No.261-C;
Van Machelen v Netherlands
55/1996/674/861-864;
Doorson v Netherlands
(1996) 22 EHRR 330
;
A.M. v Italy
App 37019/97 (1999);
Luca v Italy
App 33354/96. Upon this appeal, there has been added to that list
PS v Germany
33900/96 and
Visser v Netherlands
26668/95, 14 Feb 2002.
57.
The position in the jurisprudence can best be summarised by a quotation from
PS v Germany
in which the court, referring in particular to the decisions in
Doorson, Van Mechelen, Windisch
and
A.M. v Italy
, summarised the matter as follows:
“19.
The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and that as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling on whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair …
20.
This being the basic issue, and also because the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 (see, amongst many other authorities, the
Van Mechelen and Others
judgment …) The Court will consider the applicant’s complaints from the angle of paragraphs 3(d) and 1 taken together.
21.
All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage …
22.
In appropriate cases, principles of fairness require that the interests of the defence are balanced against those of witnesses or victims called upon to testify, in particular, where life, liberty or security of person are at stake, or interests coming generally within the ambit of Article 8 of the Convention …
23.
However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6. 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 …
24.
Where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or at the trial the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 …”
58.
In
Luca v Italy
where, in very different circumstances, the defendant was unable to demand the presence of an important witness at trial or to cross-examine him, the court observed at paragraph 40 of the judgment:
“As the court has stated on a number of occasions … it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6.1 and 3(d).
The corollary of that, however, is that where the conviction is both solely or to a decisive degree based on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6.”
(emphasis added)
59.
The judge rejected the submission for the defence that the last sentence of that paragraph could admit of no exceptions. Certainly, if it did, then
sections 23
and 26 of
the 1988 Act
could never apply in a case such as the present where the essential or only witness is kept away by fear. That would seem to us an intolerable result as a general proposition and could only lead to an encouragement of criminals to indulge in the very kind of intimidation which the sections are designed to defeat. Certainly, decisions of this court before the passage of the
Human Rights Act
1998, as well as common sense, suggest that no invariable rule to that effect should be either propounded or followed. Where a witness gives evidence on a
voire dire
that he is unwilling to give evidence as a result of a threat which has been made to him, and the judge draws the inference that the threat was made, if not at the instigation of the defendant, at least with his approval, this should normally be conclusive as to how the discretion under
section 26
should be exercised: see
R v Harvey
[1998] 10
Archbold News
2, CA. So too, as made clear in a case concerning a witness too ill to attend who gave clear identification evidence in his witness statement, this court observed:
“The fact there is no ability to cross-examine, that the witness who is absent is the only evidence against the accused and that his evidence is identification evidence is not sufficient to render the admission of written evidence from that witness contrary to the interests of justice or unfair to the defendant
per se
. What matters in our judgment, is the content of the statement and the circumstances of the particular case bearing in mind the considerations which
section 26
require the judge to have in mind.” : per Lord Taylor CJ in
R v Dragic
[1996] 2 Crim App R 232 at 237
60.
In
R v Gokal
[1997] 2 Crim App R 266 this court, considering in advance of the
Human Rights Act
the assistance from the European cases then available, and with express reference to the
Unterpertiner
case and the
Kostovski
case, concluded that, when considering the question of the likelihood or otherwise that the defendant could controvert the statement of one absent witness, the court should not limit itself to the question of whether the accused himself could give effective evidence so as to do so; it should also consider the reality of his opportunity to cross-examine or call other witnesses as to the relevant events, or to put the statement maker’s credibility in issue by other means. That being so, we would not subscribe to any formulation of the approach to be adopted which states without qualification that a conviction based solely or mainly on the impugned statement of an absent witness necessarily violates the right to a fair trial under Article 6.
61.
Nonetheless, having considered the matter anxiously in this case, we find ourselves unable to support the judge’s exercise of his discretion to admit the statement of Tamba Bona. It is not in dispute that the entire case for the prosecution rested upon Tamba Bona’s statement. Thus, while it was plainly in the interests of justice so far as the prosecution was concerned that the statements should be before the jury, it was also in the interests of justice from the point of view of the defendant that he should not be unduly disadvantaged by admission of the statements in circumstances where they could not be made the subject of cross-examination. This was particularly so, as it seems to us, because Tamba Bona was potentially a completely flawed witness. He had initially been approached by the police on the basis that he was suspected of being a member of the group which had chased and killed Hamza and had, in those circumstances, refused to answer any questions. On that view, his evidence would need to be approached with the same caution as that of an accomplice. His apparent change of heart had come at a time when he was himself on bail in respect of a charge of robbery and appears to have been directly motivated by the offer of a reward for information in respect of the murder. He had considerably ‘improved’ his evidence between the time of giving his first and second statements. There was thus every reason to question his motive and his veracity in pinning the murder on the defendant, a person with the mind of a child who, if involved, was likely to have been no more than a ‘hanger-on’ in a group such as that involved in this offence. Further, this was a case where, being unfit to plead, the defendant could have no realistic opportunity of going into the witness box and defending himself, nor to give coherent instructions to his advisers. Yet he was to be deprived of the only opportunity directly to challenge the evidence of Bona by cross-examination on his behalf. This was not a case where it would reasonably be suggested, nor did the judge suggest, that the defendant had the opportunity to call witnesses to establish his innocence. The judge also acquitted him of any involvement in threats to Bona. Thus the jury would be presented with two statements of Tamba Bona, credible on their face, but susceptible of challenge only by counsel’s comments upon the circumstances surrounding the giving of the statements and such suspicions as he might invite the jury to entertain in a case where the defendant was the sole member of the group charged with murder of the victim.
62.
It is notable that the judge expressly recognised the risk of unfairness to the defendant by reason of the admission of the statements and the difficulties which he would have to face in the conduct of his defence. Yet, as it seems to us, he failed to attach proper weight to the fact of the defendant’s disability. He observed that he considered it a ‘neutral factor’ for reasons which it is hard to understand. He said that, in particular, it meant that the appellant’s counsel would have few (if any) instructions and could not call the appellant to give evidence; yet he seemed to think that such difficulties were in some way ‘balanced’ because that would be so even if Tamba Bona had been available to give evidence. We do not follow that line of reasoning. The real point, as it seems to us, was that with a client in the position of the appellant, his counsel’s only opportunity positively to demonstrate lack of credibility on the part of Bona or his deficiencies as a witness, was by cross-examination and, in particular, by testing his reaction to the various points which could be put against him on the lines indicated at paragraphs 51 to 53 above. We simply do not see how, in the circumstances of this case, the jury could be sure of the truth of Tamba Bona’s evidence, which the judge correctly directed them was necessary before they could come to a conclusion that he committed the act of murder. As Bona’s was the only evidence against the appellant, it equally seems to us that the judge was in a position at the outset, on the basis of the defence submissions, to assess the suspect nature of that evidence and the potential disadvantage to the defendant. We consider that the judge was wrong to admit the evidence of Tamba Bona and, in the light of its admission, we consider that there was a breach of Article 6 in this case which plainly destroys the safety of the jury’s determination.
Ground 2
63.
The additional evidence sought to be adduced before us as casting doubt on the credibility of Tamba Bona is not objected to on the part of the Crown. It consists of evidence that, after the jury had retired, when the judge was dealing with Bona in respect of his contempt of court for failing to appear under a witness summons to give evidence at the trial, he lied, or professed not to remember, that in May 2001 he had been convicted of an offence of carrying a bladed article. Had it been necessary to our decision under Ground 1 to take that matter into account, we would have done so. However, we find Ground 1 to be established without resort to such evidence.
Ground 3
64.
In the light of our decision upon Ground 1, the necessity to consider Ground 3 does not arise.
Conclusion
65.
The appeal is allowed under Ground 1 above and the determination of the jury is therefore quashed. We invite the submissions of counsel as the effect of our decision and the terms of any further order or directions sought. | ```yaml
citation: '[2003] EWCA Crim 357'
date: '2003-02-20'
judges:
- LORD JUSTICE POTTER
- MR JUSTICE MACKAY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No. 2014/04556/C4, 2014/04776/C4,
2014/04663/C4 2014/0559/C4 & 2014/04558/C4
Neutral Citation Number:
[2015] EWCA Crim 2525
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Liverpool Crown Court
Queen Elizabeth II Law Courts
Derby Square
Liverpool
L2 1XA
Monday 7
th
December 2015
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Thomas of Cwmgiedd
)
MR JUSTICE HOLROYDE
and
MR JUSTICE WILLIAM DAVIS
- - - - - - - - - - - - - - - - - - - -
R E G I N A
v
KURT RICHARD BEDDOES
CRAIG CARTWRIGHT
IAN ELLIS
ANTHONY BUSHELL
THOMAS WHITTINGHAM
- - - - - - - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020-7404 1400; Fax No: 020 404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - -
Mr N Johnson QC
appeared on behalf of the Appellants
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
Monday 7
th
December 2015
THE LORD CHIEF JUSTICE:
I shall ask Mr Justice Holroyde to give the judgment of the court.
MR JUSTICE HOLROYDE:
1. The court is concerned with appeals by a total of seven appellants who pleaded guilty to or were convicted of offences of conspiracy to cause an explosion and conspiracy to burgle commercial premises. They all have the leave of the single judge to appeal against their sentences.
2. This judgment relates to the appeals against sentence by five of the appellants who were sentenced by His Honour Judge Brown on 5
th
September 2014. A separate judgment will relate to the appeals against sentence by the other two men and to a renewed application by one of them for leave to appeal against conviction. They, too, were sentenced by His Honour Judge Brown, in their cases on 12
th
December 2014.
3. It will be necessary in this judgment to refer to the facts which are relevant to all seven appellants. They have all been represented before the court by Mr Johnson QC, to whom we are very grateful.
4. Each of the appellants was charged on an indictment containing two counts. Count 1 charged conspiracy to cause an explosion, the particulars being that each of the named defendants conspired together "to cause by a mixture of gases an explosion of a nature likely to endanger life or cause serious injury to property". On count 2 each was charged with conspiracy to burgle commercial premises. The particulars were that they conspired "to enter as trespassers buildings, namely, commercial premises housing automatic teller machines with intent to steal therein".
5. Three of the appellants, namely, Kurt Beddoes (now aged 33), Craig Cartwright (now 41) and Ian Ellis (now 31), all pleaded guilty to both counts. Their guilty pleas were entered at a stage of proceedings such that they were entitled to, and received, a reduction in their sentences of 25%. Anthony Bushell (now 31) and Thomas Whittingham (now 29) were convicted by a jury in July 2014. Daniel Morgan (now 23) and Jonathan Webb (now 33) were convicted after a later trial in December 2014.
6. A brief summary of the facts will suffice to indicate the seriousness of the offending in which the appellants were involved. Between 30
th
January and 10
th
December 2013 an organised crime group carried out offences targeted against automatic teller machines ("ATMs") in Merseyside, Cheshire, Derbyshire, the West Midlands, Leicestershire and Oxfordshire. They did so with a high level of criminal skill and efficiency. They used fast cars (some of them stolen) bearing false registration plates. They operated at night. They wore dark clothing, gloves, hats, and in some cases face masks. They used two-way radios in order to communicate with one another without risk of detection. It was apparent from the evidence that the offences had been carefully planned and that those who carried them out had provided themselves with all the necessary equipment, which they were able to use swiftly and efficiently.
7. In the first substantive offence, those involved, who included Beddoes and Cartwright, first rendered an ATM in Loughborough inoperable, and then returned at a later date when they cut off the safe door with an angle grinder. That enabled them to gain useful information as to the locking design and the alarm installation wiring.
8. Two further similar offences followed in early March 2013 with Beddoes and Cartwright again being involved. Cash was stolen on each occasion.
9. From 13
th
March 2014 the conspirators began to use a new and much more serious method to break into premises and steal cash from ATMs. They jemmied the front off an ATM, inserted piping through which a mixture of oxygen and acetylene gases could be pumped from gas cylinders, and then ignited the gases, thus causing an explosion. The effect of such an explosion was to break open the ATM and to cause extensive damage which, it is said, tended to spread inwards into the premises, rather than outwards into the street. Those involved were then able to smash their way into the premises and steal the cash from the ATM.
10. This method of using explosives to attack ATMs had previously been used in other parts of Europe, but the offence of 13
th
March 2013 was the first time it had been used in this country. As will be seen, it set a criminal trend which others have followed.
11. That first offence of its type did not, in fact, result in the conspirators succeeding in stealing any cash. Their many subsequent offences were, however, for the most part more successful. Sums of up to £80,000 were stolen in a single raid. In all, the conspirators carried out 31 attacks on ATMs. In at least 24 of those cases they either detonated or tried unsuccessfully to detonate an explosion.
12. It is not necessary to go much further into the details of the offences, but it is appropriate to mention some of the features. The method of igniting the explosive mixture of gases after it had been piped into the ATM enabled the offenders to remove themselves to what they considered to be a safe distance. In one of the early offences the appellant Cartwright, nonetheless, appears to have suffered a burn injury to his hand, a photograph of which was later found by the police stored in his mobile phone. No other person in fact sustained any injury as a result of the commission of the offences, though in some cases nearby residents were woken from their sleep by the alarming noise of an explosion. However, it must be noted that the explosions were of necessity detonated in circumstances which were far from controlled. Those carrying them out were either unskilled in the igniting of explosions or were making a sinister use of a skill somehow acquired. Evidence before the court showed that, in order to carry out a controlled explosion safely, it would be necessary to establish a cordon and to move all persons up to 100 metres away from the ATM. The power of the explosions is shown by the evidence that in one of the substantive offences a safe door weighing some 60 kilograms was sheered from its hinges. The explosions resulted in very substantial damage to the premises, including, in some cases, bringing down ceilings, and debris and broken glass were thrown across the pavement and into the carriageway.
13. The evidence showed that a number of offenders carried out each of the substantive offences. In some cases they had travelled to and from the scene in two separate vehicles. Some of the false registration plates which were used to disguise the vehicles were created by the conspirators themselves, using equipment which was found in premises at Huyton used by the conspirators. That unit was linked to the appellant Cartwright. Cars were stolen by the use of keys created using other specialist equipment, which was later found by the police at the home of the appellant Beddoes.
14. On one occasion, in mid-June 2013, the offenders were confronted by local residents. One of the offenders swung a golf club and they were able to escape with about £16,500.
15. On 30
th
August 2013 the police raided the unit in Huyton which we have mentioned. The appellant Whittingham was arrested. A substantial quantity of the equipment which the offenders had used in their crimes was recovered.
16. Undeterred by this setback, the conspirators quickly resumed their criminal activities. Less than a fortnight later they carried out another offence involving the detonating of an explosion. On 27
th
September 2013 two offences were committed at almost exactly the same time at premises on the Wirral and in Warrington. It follows that on that occasion the conspirators had been able to equip two separate squads of men who were able to blow apart the ATMs. Their collective activities on that one night resulted in the theft of a quarter of a million pounds in cash.
17. Later that same day the police raided the house in Huyton. They found over £100,000 in cash and further criminal equipment. CCTV footage recovered from a security camera showed a number of the conspirators coming and going from the premises. Interrogation of computer equipment and satellite navigation devices showed the extent of the planning, the research which had been undertaken into past offences of this kind committed elsewhere, and the sourcing of the necessary equipment and materials.
18. Again, the conspirators were undeterred by this raid. Two further offences followed in which explosions were detonated, before other conspirators were arrested. The appellants Morgan and Webb removed themselves to Spain, from where they had to be repatriated.
19. In all, the offences involved the theft of some £800,000 in cash and the causing of damage which cost some £500,000 to repair. But those direct losses were not the only consequence of this campaign of organised crime. In his sentencing remarks (at page 12B) the learned judge said this:
"Banks and other commercial institutions provide an important service to the public by having cash machines and the offences have undermined the confidence the banks have in the security of that system. That is very clear from the two victim personal statements which I have seen from the banks.
This was the first time this type of offence had been committed in the United Kingdom and over a period of eight months it is said they placed the whole financial sector under significant pressure. The banks were forced to identified vulnerable locations, reassure frightened staff and manage disgruntled customers and communities. There was inconvenience to the general public and additional security measures were deployed at considerable cost."
20 In his sentencing remarks the judge rightly identified six aggravating features of the offences: first, the careful planning and execution of a criminally sophisticated operation; secondly, the geographical spread of the offences around a wide area; thirdly, the fact that a number of men acted in concert as part of an organised crime group; fourthly, the large number of offences; fifthly, the uncontrolled nature of the explosions which created considerable risks for the safety of the public and could have had devastating effects; and sixthly, the considerable financial reward to the offenders and consequential loss to the bank.
21. As to the risk to the public, the judge (at page 11D) said this:
"It is submitted that the causing of explosions was simply a means to an end so that the banks could be burgled, and it is suggested there was no callous disregard for anybody's lives. It is also suggested your activities did not involve a campaign against the public or any communities, and that the intention was not to injure or to put life at risk.
I am satisfied that the offences were committed at the dead of night, not because of concern for public safety but really to avoid detection, and although there may not have been the intention to cause death or serious injury, nonetheless it is very fortunate that nobody was hurt or killed. Although the explosions were not intended to threaten human life, they undoubtedly occurred in an uncontrolled way and public safety was inevitably at great risk. You must have known how combustible the gases were and must have appreciated the risks you were taking and in particular the risk to public safety."
22. Having heard the evidence at the trials of those who had pleaded not guilty, the judge concluded that the appellants Beddoes and Cartwright were leading figures and involved throughout. He found that Bushell was a trusted lieutenant, Webb was close to the top, and Whittingham played an important role. Ellis and Morgan played rather lesser roles.
23. All of the appellants have previous convictions, although none has previously served a custodial sentence of any great length. Beddoes had been convicted of 29 offences, including in 2004 possessing a firearm and ammunition in a public place, and in 2006 conspiracy to burgle.
24. Cartwright had been convicted of 27 offences, including several of burglary.
25. Ellis had been convicted of 32 offences, including offences of burglary some years ago.
26. Bushell similarly had been convicted of 62 offences, including a number of burglaries some years ago.
27. Whittingham had been convicted of 28 offences, including in 2010 conspiracies to steal a vehicle and to burgle.
28. The judge concluded that the degree of harm caused and the culpability of each of the appellants were very high and that significant deterrent sentences were necessary. He adopted the approach of imposing concurrent sentences on each of the two counts on the indictment. He took as his starting point a total sentence of 23 years for those at the top of the conspiracy if they had been convicted after a trial. From that starting point, taking into account the roles played by individuals and their pleas, he sentenced them as follows. Of those who had pleaded guilty, Beddoes and Cartwright were each sentenced to concurrent terms of 17 years and eight years' imprisonment; Ellis, to concurrent terms of 13 years and eight years' imprisonment. As to those convicted after trials, Bushell was sentenced to concurrent terms of 17 years and eight years' imprisonment; Morgan, 13 years and eight years' imprisonment; Webb, 19 years and eight years' imprisonment; and Whittingham, 18 years and eight years' imprisonment.
29. On behalf of each appellant, Mr Johnson submits that the starting point was simply too high. We will consider that important point first, before returning briefly to those submissions which are specific to individual appellants.
30. A number of cases were cited to the learned judge, as they have been to us. It was and is common ground that there is no definitive sentencing guideline specifically applicable to this type of offence. Broad comparisons were suggested by the prosecution and the defence to assist the judge in what was, undoubtedly, a difficult sentencing exercise. First, reference was made to the level of sentencing for burglaries or robberies of commercial premises committed by ram-raiding. Secondly, reference was made to the level of sentencing for other kinds of offences involving the use of explosives, including terrorist cases. Thirdly, reference was made to the level of sentencing for armed robberies in which actual violence was used.
31. Reference was also made to the sentencing remarks of another judge who had dealt with a similar type of offence in a case involving a number of defendants, of whom the lead defendant was a man called Cassidy. As we have said, it was these appellants who first introduced this type of offending into this country. But by the time they fell to be sentenced, a similar type of offence, committed later in 2013, had come before the Crown Court in another city. The offenders in that case had carried out three burglaries in which they had caused explosions by the use of a mixture of gases. Their offences had been committed in the period of about a month. One had been successful, when almost £20,000 was stolen. The other two had been unsuccessful. The judge in those cases had passed sentences based on a starting point of eight years' imprisonment. Submissions were made to His Honour Judge Brown about that case. He distinguished it on the basis that it was very different in the scale of offending involved.
32. Subsequently, and after Judge Brown had sentenced the first group of these appellants, the Attorney General was given leave to refer the sentences in
R v Cassidy and Others
to the Court of Appeal Criminal Division. That Reference was heard in November 2014:
Attorney General's Reference Nos 74-78 of 2014 (R v Cassidy & Ors)
[2015] 1 Cr App R(S) 30
. This court held that the judge in that case had failed adequately to mark the element of deterrence, and that his starting point of eight years' imprisonment had been unduly lenient. Rafferty LJ, giving the judgment of the court, referred to the increase in such offences in Europe since this method of attacking ATMs had first been carried out in 2005. She referred to the offences committed by these conspirators. At [16] she said:
"In the UK the first recorded offence was in March 2013 and since then attacks have been recorded as occurring nationwide."
The court went on to conclude in that case that for the offenders most seriously involved, the appropriate starting point was one of twelve years' imprisonment.
33. As Mr Johnson readily and realistically acknowledges, the seriousness of the offending in this case could only be met by long sentences, and the judge was entitled, by virtue of section 142(1)(c) of the Criminal Justice Act 2003, to have regard to the need to deter other offenders. Section 143(1) of the same Act also required the judge to consider not only any harm actually caused, but also any harm which the offence was intended to cause or might foreseeably have caused.
34. The question which we must address is simply stated: was the starting point of 23 years taken by the learned judge so high as to be manifestly excessive?
35. The level of sentencing for other types of offence does provide an informative comparison, although it is not determinative. We note that for a single ram-raid burglary this court, in
Attorney General's Reference Nos 45-49 of 2007 (R v Callaghan & Others)
[2008] 1 Cr App R(S) 8
, indicated a starting point after trial of or approaching seven years. However, whilst it is true that ram-raiding offences share a number of features with this type of offending, what they lack is the extremely serious element of the use of an explosive. We note also that in
R v Lawlor and Smith
[2013] 1 Cr App R(S) 532 the court indicated that for a ram-raid robbery in which members of staff were not physically injured but were terrified, a starting point of between ten and 15 years for a single such offence would be appropriate.
36. Mr Johnson relies on the level of sentencing in that type of case as indicating what is appropriate for a type of offending which he acknowledges is less serious than that with which we are here concerned. He then invited our attention to sentencing in cases of armed robbery. He submitted that such offences are markedly more serious than that present case when they involve the carrying of loaded firearms and the use of actual violence. He particularly invited our attention to
R v Wynne, Knight and Hall
[2014] 1 Cr App R(S) 14
, and to the earlier case of
R v Jenkins
[2009] 1 Cr App R(S) 109
, in which the court indicated that for a series of armed robberies in which actual violence is used, a starting point of up to 25 years may be appropriate.
37. We accept that the element of the deliberate infliction of violence or the threat of violence upon a victim is absent in this case, and for that reason a single offence of this type will often be less serious than a single armed robbery involving violence. We do, however, note that none of the armed robbery cases cited to us involved anything like as many as 24 separate offences.
38. Finally, Mr Johnson invited our attention to cases involving the use of explosives with intent to endanger life. Those cases identify a starting point of up to about 15 years' imprisonment as generally appropriate, where the starting point will be much higher if there is a terrorist element, or element of attack upon society as a whole. Mr Johnson submits that the present offending was offending against property, not offending directed against persons.
39. Ultimately, of course, the fact-specific nature of the criminal activity involved in a particular offence must remain the paramount consideration. With the advantage of Mr Johnson's assistance as to those broad areas of comparison, we turn to the aggravating features of this offending. The essence of the criminality undoubtedly lies in the detonating of explosions for a criminal purpose. The seriousness with which society and the courts regard the use of explosions is immediately illustrated by Schedule 21 to the Criminal Justice Act 2003, which indicates that in cases of murder the appropriate minimum term should be the same for cases involving the use of an explosive as it is in cases involving the use of a firearm.
40. Next, it is important to bear in mind that the appellants took part in a highly organised criminal activity which took place over a long period of time (nearly a year), and stopped only because of the intervention of the police. They offended over a wide geographical area. Those features at once distinguish this case from
Cassidy and Others
, in which the scale of offending was far less.
41. The care with which the appellants planned and executed their offences shows professional criminality. We note that they started in a cold-bloodedly, businesslike way by destroying one ATM and thus gaining information as to how it might be vulnerable. They introduced, as we have said, this type of serious offending to this country. The need for deterrence is vividly shown by the fact that other criminals quickly followed their lead.
42. Set against those considerations, we accept that there was no intention to cause injury to any person. Like the learned judge, we are unimpressed by any suggestion that the timing of the offending was planned specifically to protect the public, rather than for reasons of self-interest. Although these offences were committed late at night and in the early hours of the morning, and there is no evidence that any persons were in fact put immediately at risk, it is we think unarguably the case that there was nonetheless a risk to the safety of others. Even if it be the case that the force of the explosion would mainly be transmitted inwards, it would seem obvious that at least some debris, including broken glass, would fly outwards. That, after all, is presumably the reason why the appellants removed themselves to a safe distance before triggering the explosion. Nor could it safely be assumed that there was no risk of anyone coming upon the scene at just the wrong moment. Indeed, the court was informed with specific reference to the use of ATMs that in the month of March 2014, in Liverpool alone, over 100,000 ATM transactions were completed between 1am and 6am. All that said however, the absence of any actual injury or proven intent to cause injury, and the absence of any evidence that substantial numbers of persons were put at risk, are important considerations to set against the serious features of the offending which we have identified.
43. Clearly long sentences were unavoidable. In our judgment, however, the starting point of 23 years taken by the learned judge was somewhat higher than was necessary or appropriate in all the circumstances. No doubt if the judge had had the benefit of the
Attorney General's Reference
in
Cassidy
being decided before he had to pass sentence, his difficult sentencing exercise would have been greatly assisted.
44. In our judgment, in all the circumstances of this case, the appropriate starting point for sentence for those most heavily involved would be one of 20 years' imprisonment after a trial.
45. Turning to submissions specific to individual offenders, Mr Johnson realistically concedes that there can be no complaint about the learned judge's assessment of the roles of the appellants Beddoes and Cartwright. As to Ellis, he submits that the judge failed to identify his precise starting point and that if the starting point was 17 years, then the sentence after appropriate reduction for the plea should have been three month less than it was. We see little merit in an argument based on such refined arithmetic as that.
46. As to Whittingham, Mr Johnson submits that the evidence points to his having withdrawn from the conspiracy after the end of August 2013. That may be so, but it was a factor which the judge, having heard the evidence at trial, was in the best position to assess.
47. As to Bushell, complaint is made that he should have been sentenced on the basis that his involvement in the conspiracies was limited to the month of September 2013. So far as his overt acts in pursuance of the conspiracy are concerned, the evidence at trial had been limited to events in that month. It is argued that the learned judge gave no warning that he would sentence on a wider basis than that. But what the judge said (at page 10B of his sentencing remarks) was this:
"Now, there is evidence that you may have been in Spain until around about the beginning of August, but I have no doubt that on your return to the UK you played a very important role in the bank attacks. I simply do not accept the proposition that your participation was limited to the September offences or that you were a lesser light."
It should be noted that during the month of August 2013 one of the substantive offences involved the use of a car which had been bought by Bushell some months earlier. It seems to us that in the passage which we have quoted the learned judge was doing no more than making the realistic point that it is unlikely that Bushell returned from Spain and immediately became involved at a high level in this conspiracy without having had any prior knowledge or involvement at all.
48. In the end, the learned judge was in the best position to assess the criminality of each of the appellants. Despite Mr Johnson's attractive submissions, we are not persuaded that there is any ground specific to any individual appellant for reducing any of the sentences.
49. In the result, the sentences fall to be reduced because of the conclusion we have reached about the appropriate starting point for sentence. We allow the appeals of the five appellants to whom this judgment relates. We quash the sentences imposed below and we substitute the following sentences which are, as before, concurrent as between counts 1 and 2: Beddoes, 15 years and seven years' imprisonment; Cartwright, 15 years and seven years' imprisonment; Ellis, eleven years and six years' imprisonment; Bushell, 15 years and seven years' imprisonment; and Whittingham, 16 years and seven years' imprisonment.
50. To that limited extent these five appeals succeed. | ```yaml
citation: '[2015] EWCA Crim 2525'
date: '2015-12-07'
judges:
- MR JUSTICE HOLROYDE
- MR JUSTICE WILLIAM DAVIS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
2006/5159/D1
Neutral Citation Number:
[2007] EWCA Crim 1558
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Tuesday, 19 June 2007
B E F O R E:
LORD JUSTICE LONGMORE
MR JUSTICE NELSON
MR JUSTICE CALVERT-SMITH
- - - - - - -
R E G I N A
-v-
M.M.
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MISS R STEVENS
appeared on behalf of the APPELLANT
MISS L DICKINSON
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE LONGMORE
: On 19th September in the Crown Court at Sheffield before His Honour Judge Lawler, this appellant Michael M was convicted of three counts of rape and three counts of indecent assault. He was in due course sentenced to 12 years' imprisonment concurrently on the rape counts and 12 months' imprisonment concurrently on the indecent assault counts. He now appeals against conviction by the leave of the single judge.
2.
The short facts are that the appellant was the stepfather of the two complainants, to whom we will refer as K and R. He moved in with the complainants' mother, whom we will call Jill, in 1996 and they married shortly thereafter. It was the prosecution case that between September 1998 and September 2001 the appellant raped K who was born in September 1990, and was thus aged between eight and ten at the relevant times, between 10 to 20 times; and secondly, that between May 1999 and May 2002 the appellant indecently assaulted K's older sister R, born in May 1988, she was thus between the ages of 11 and 13 at the relevant times.
3.
It was the defence case that no acts of intercourse took place with K and he never indecently touched R and that both K and R had fabricated the evidence they were putting before the court.
4.
Evidence was given by K who said that living with the appellant depended on what mood he was in. He would cuddle her in the usual way but she had sex with him between the ages of about eight to ten. It happened up to nearly 20 times. It happened every couple of months. She described the act as "he put his penis into my vagina." She could not remember the first time it happened. He used to ask or tell her to massage or cuddle him. It always happened in her mother's bedroom. He would tell her to make a cup of tea and bring it up because he was on the computer. R would be either at school or at a friend's house and her mother would always be at work. It used to happen at about 4 pm.
5.
She then described what happened and in particular she described his penis as "big and long" but also described it as "pointing down" before he inserted it into her vagina. She said that she did not struggle, she did not see his penis after sex and she said that the appellant told her not to say anything as her mother would blame her. He would tell her to get washed with a sponge and then he dressed her and sent her downstairs.
6.
The appellant stopped his activities when K's mother threatened to kick him out of the house for having an affair with another woman.
7.
In due course her mother told her that R had made a complaint and her mother asked if the appellant had ever done anything to K. She ended up telling her mother what had happened and felt guilty about doing so.
8.
Medical evidence was neutral.
9.
R gave evidence to the effect that the appellant would ask her and others to massage his neck. She was about 11 when the physical touching went further. It took place in the living room. She described the physical touching by saying that he told her to go upstairs and get the spare single duvet and lay it on him. He then told her to get under it with him. He undid her jeans button and zip and pulled her trousers down to her knees. He stroked and tickled the inside of her at the top. That went on for about 45 minutes. She did not tell anyone as she was scared. The appellant said it was their little secret. This happened about three to four times a month when she was between the ages of 11 and 14 or 15. She never told K what had happened and she never saw anything happen between K and the appellant.
10.
She discussed with her boyfriend at a later stage whether they had any secrets and she then told him about the appellant and he said that she should tell her mother. So she did tell her mother on the evening of 10th November and, after speaking to her natural father, they contacted the police. The reason why she had not said anything when the appellant left the house in 2003 was that she wanted to block it out and forget about it. She had not talked to K about the appellant prior to her video interview. She did not really want to know what had happened to K.
11.
The complainants' mother gave evidence and said that R was the more outgoing of the two, but she was the oldest. She said that as teenagers they did not talk about sex or have sex on their minds, but in cross-examination she agreed that they would sometimes refer to what they had learned in sex education classes and talk about what they had read in "girlie" magazines. She explained that the appellant was a pizza delivery driver whose work took him out of the house at and after 4 pm and that she worked as a full time student nurse. She then gave evidence about how it came about that R had told her in 2005.
12.
The appellant was interviewed. He denied the offences. He gave evidence at his trial and said that as soon as he moved in he bonded with the complainants. He said that R was particularly cheeky. He said he asked them to massage his neck because he had had an accident to it. He worked as a pizza delivery driver and would set off at about 4 pm on the days that he worked. He said that he spent a lot of time away from the home because he played in a band. He denied that he had ever unbuttoned R's trousers or that he had ever had intercourse with K and said that the children had made the allegations up.
13.
There is one ground of appeal supported in four different ways, the one ground of appeal being that the summing-up was unfair and slanted towards the prosecution and against the defence. The main way in which complaint is made of the summing-up is that, as it is said, the judge took it on himself to give evidence to the jury about the reasons why the girls might not report incidents that had happened if they had happened. That is said to be important because the allegation was that they had been made up and of course if incidents of this kind take place one would expect, submitted Miss Stevens, immediate or very quick reporting of the incidents to someone in authority and in the absence of such report the jury should conclude that the allegations were fabricated.
14.
It is necessary to set out for this purpose quite a long passage of the summing-up, beginning at page 9:
"I turn now to another topic which is the question of delay. These complaints were made in November of 2005, that is some three years plus after the defendant, on the mother's evidence, had left and they had begun six or seven years before. So there has been some delay here and of course there was the period over which the alleged offending was taking place. It is now some years ago. You should be alive to the fact that that delay can cause real difficulties and possible prejudice to a defendant. You should have that in mind when you come to decide whether the prosecution has made you sure of guilt."
We pause there to observe that that is a direction in ordinary form saying how delay in bringing a case can be prejudicial to a defendant and to that extent is a direction in the defendant's favour. There then followed the passage of which complaint is substantively made:
"You are entitled to consider why these matters did not come to light sooner. The defence say it is because they are not true. The allegations are fabricated. Had they been true, they say, you would have expected a complaint to be made earlier and certainly when he [that is of course the appellant] was out of the way. The prosecution say it is not as simple as that. When children are abused, whether these two girls were abused is what you have to decide, they are often confused about what is happening to them and why it is happening. They are children. That is something you should have in the forefront of your mind when considering this. They might have some inkling that what is going on is wrong. Sometimes children even blame themselves when there is obviously no need for them to do so. A child can be inhibited for a variety of reasons from speaking out. They might be fearful that they may not be believed, a child's word against a mature adult, or they might be scared of the consequences, or fearful of the effect upon relationships which they have come to know. The difficulties, you may think, are compounded in the family situation where they involve a family member for whom the feelings of the child may be ambivalent. The child might not like the abuse but there may be aspects of the abuser that causes the child to view them with some degree of affection. The fallout from disclosures can be unpredictable and sometimes calamitous. So, if a child or children are abused, they are often subject to very mixed emotions,and that can be the case particularly where there is an imposing adult in the household of whom they are perhaps afraid and who has overborne them and has power over them and sometimes has warned them if they tell.
Whether any of that applies here is a matter for you. Equally, there are sometimes in lives, sometimes earlier, sometimes later, sometimes much later, when there is a trigger or the need arises to disclose, speak out. No easy thing to do, you may think, and it takes some courage to do so.
Ladies and gentlemen, I make clear to you that I offer these matters to you not by way of direction in law but at things which in common sense and with knowledge of the world you might like to consider in assessing whether you find that there is a reason for the delay here and of course it also affects the honesty and truthfulness of the two girls.
You have heard explanations and it is entirely a matter for you but you may think that some of the things which they said on the video and to you, K, 'He told me I would get the blame. It's our secret', R, 'I didn't know whether they would believe me or him', both of them scared to an extent. 'I was worried about what would happen. I was worried about his reaction, what people might say.' It is a matter for you but you may think that some of those reactions, if they are true, mirror some of the matters I have just been speaking about."
The judge then returned to the difficulties from the defendant's point of view with regard to the passage of time and emphasised that the jury should make allowances in that respect.
15.
It is said by Miss Stevens that the passage which we have read went further than just setting out what the Crown's case about the absence of earlier disclosure was, but gave the judge's own views and effectively the judge's own imprimatur to the Crown's position on that topic.
16.
It seems to us that this passage, slightly elaborate as it is, does not go beyond the bounds of permissible comment on the part of a judge. The defence here was fabrication. The jury were of course fully aware of it and the judge reminded them of that in the passage we have read, but in our judgment the jury did need some assistance as to the reasons why it might be that it might take time for girls to make allegations of this nature. The jury would have been very well aware that allegations are of course sometimes made up. They would have been very well aware that that was the decision that they had to make in this case. They might not have been so aware of why it is that early complaint is not made in respect of these allegations and the judge was, in our view, entitled to give the measured comment that he did.
17.
Other complaints of a lesser nature are made which we can deal with more shortly but it is said by Miss Stevens that they likewise show a lack of balance in the summing-up. It is said, for example, that while the judge reminded the jury of K's description of the appellant's penis before penetration as being "big and long", he did not remind the jury of the fact that it was "pointing down" according to K in another part of her evidence. We have to say that that seems entirely marginal in the circumstances of the case. There is of course no need for a judge to remind a jury of every item of evidence, particularly in a trial which was as short as this one, all over inside two days.
18.
It is then said that there was an incomplete representation of the evidence of the mother in the summing-up because while reminding the jury of her evidence that the girls did not discuss sex with her, he omitted to remind them of what she said in cross-examination about the way they talked about sex with each other after sex education classes and how they discussed what they had read about sex in girlie magazines. Again, it seems to us that that is an entirely peripheral matter. The essence of the mother's evidence was laid properly and fairly in front of the jury.
19.
Complaint is also made of the way in which the judge dealt with the possibility of collusion in the case by saying that the jury might well think that if they accepted the evidence of the girls there was no collusion. But that seems to us a perfectly acceptable comment on the part of the judge.
20.
Overall, the question for us is whether the judge summed the case up fairly with regard to this appellant and the allegations that the girls made. Looking at the summing-up as a whole, we take the view that this was fair and not a biased summing-up. The learned judge put the issues before the jury fairly and squarely. He recited the defendant's evidence, made it perfectly clear what the defendant's case was and we are satisfied that no complaint can legitimately be made about this summing-up. This appeal will be dismissed. | ```yaml
citation: '[2007] EWCA Crim 1558'
date: '2007-06-19'
judges:
- LORD JUSTICE LONGMORE
- MR JUSTICE NELSON
- MR JUSTICE CALVERT-SMITH
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2023] EWCA Crim 524
No. 202300611 A3
Royal Courts of Justice
Tuesday, 25 April 2023
Before:
LORD JUSTICE WILLIAM DAVIS
MR JUSTICE JAY
HIS HONOUR JUDGE ANDREW LEES
A REFERENCE BY HIS MAJESTY’S SOLICITOR GENERAL
UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
REX
V
SUBHAAN NAZIR
__________
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
[email protected]
__________
MS F ROBERTSON
appeared on behalf of the Applicant Solicitor General.
MR A CRITCHLEY
appeared on behalf of the Respondent.
_________
JUDGMENT
LORD JUSTICE WILLIAM DAVIS:
1
On 18 August 2022 Subhaan Nazir, born on 24 March 2001 and now aged 22, was in the driver's seat of his Audi A3 car in the car park of a gym in Reading. A man called Iqbal was in the passenger seat. Shortly after 3 o'clock in the afternoon, police officers approached the car. As they did so, Nazir put something in his mouth and swigged water in an apparent effort to swallow it. He succeeded. He had swallowed two small plastic wraps, one of crack cocaine and one of heroin. This became apparent two days later when he used a drugs toilet at a police station and the wraps were recovered.
2
In the car itself were mobile telephones, rolls of plastic bags and torn up plastic bags. One of the telephones which was on the passenger side of the car had bulk outgoing messages advertising the supply of class A drugs. The telephone was a drugs line with the name "Frenchi" line. As the police were speaking to Nazir and Iqbal, two people walked out of the car park. They were stopped by police officers. One had a mobile telephone which had been receiving messages about drugs from the "Frenchi" line. Moreover, a message had been sent from that telephone to the "Frenchi" line minutes before the police arrived in which the user of the telephone had asked, "R ya coming or wat."
3
Nazir and Iqbal were arrested. There were no drugs inside the car. At Nazir's house the police found several SIM cards and £300 in cash; again, no drugs. The next day, 19 August 2022, a close examination was made of the Audi. The police found a magnetic box attached to the car on the nearside rear wheel arch. Inside the box were 33 wraps of crack cocaine and 17 wraps of heroin. The knotted plastic wraps were £10 street deals. The plastic appeared to be the same type of plastic as the plastic bags in the car. Later, DNA analysis of the knotted wraps revealed the DNA profiles of both Nazir and Iqbal.
4
Iqbal appeared before the Magistrates' Court on 20 August 2022. He indicated pleas of guilty so his case was committed for sentence to the Crown Court. Nazir appeared before the Magistrates' Court two days later. He gave no indication of his pleas. His case was sent for trial at the Crown Court. At the plea and trial preparation hearing (PTPH) he pleaded not guilty to two counts of possession of class A drugs with intent to supply, namely a count relating to crack cocaine and a count in respect of heroin. Nazir's trial was listed on 23 January 2023. He was convicted by the jury on 26 January 2023. He was sentenced on 27 January 2023 at a point at which Iqbal also had been brought to court.
5
At the sentencing hearing the prosecution submitted in relation to Nazir that the case fell clearly into Category 3, significant role, in the Sentencing Council's drugs guideline. This was street dealing involving some level of sophistication. Thus, Nazir must have had some awareness of the scale of the operation. The starting point was four-and-a-half years' custody. A significant aggravating factor was Nazir's previous conviction. On 15 October 2020 he had been in possession of cocaine and heroin with intent to supply the drugs at his home. On 3 March 2021 he had been sentenced to 39 months' detention in a young offender institution. In August 2022 he was still on licence in relation to those offences.
6
On behalf of Nazir, it was argued that his offending was towards the bottom of the category range. It was argued there was no expectation of significant financial advantage. The scale of the operation was limited and unsophisticated. Nazir was simply assisting Iqbal who was running a drugs line.
7
The judge's sentencing remarks in relation to Nazir were relatively brief. We can rehearse them almost in their entirety:
"The starting point in the category, as you've heard, is four years and six months in custody. I've heard from counsel that there's no significant gain. There isn't significant role. No operational management and didn't coerce anyone else into joining. It's accepted that there's an understanding of the scale of the operation, I don't accept that. There was an expectation of significant financial reward, I think it was expected that there was, whether it was reached is another matter, but significant reward was expected. But that tells me that within the significant role this defendant meets at least two of the criteria.
I would treat that as a starting point of three years and six months. Of course there can be no credit for guilty plea in this matter. I note that the defendant was living at home, was not I'm told particularly sophisticated, although there is some sophistication given that the box is outside the car, so some thought went into that, and sophisticated enough for the officers not to find the drugs on the first search, and had to look for them after.
The offence is aggravated of course by the defendant being on licence, and of course there being a trial. However, I take the aggravated feature, which is otherwise previous similar conviction, which would then take the matter up four years, I come down looking at his age, definite immaturity, not terribly sophisticated, which brings this matter down to a three-year custodial sentence in this matter, and I will come back to that, but it will be a three-year custodial sentence."
8
HM Solicitor General now applies to refer that sentence as unduly lenient, pursuant to section 36 of the Criminal Justice Act 1988. We shall grant leave to make the application.
9
We remind ourselves of what was said by Lord Lane CJ in
Attorney General's Reference
(No. 4 of 1989) [1991] WLR 41 when section 36 of the 1988 Act was in its infancy:
"A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection, regard of course must be had to reported cases and in particular to the guidance given in this court from time to time in so-called guideline cases. However, it must always be remembered that sentencing is an art rather than a science. The trial judge is particularly well placed to assess the weight to be given to various competing considerations and that leniency is not in itself a vice."
Those principles hold good today save that of course the sentence now must be considered by reference to the relevant Sentencing Council guidelines.
10
In short, the question we have to answer is whether the minimum term imposed by the judge in each case fell outside the range reasonably open to him.
11
The first submission of the Solicitor General is that the judge gave no explanation for her decision to take a starting point, as she put it, of three years six months' custody. She appeared to accept that Nazir had a significant role in the supply of class A drugs, and the guideline indicates a starting point of four years six months' custody in those circumstances. The guideline is not to be applied mechanistically. There will be cases where a nuanced approach is appropriate. However, there was nothing in this case to suggest a significant reduction in the starting point that is generally applied in street-dealing cases where the offender has a significant role. Because this type of offending is common place, it is particularly important to maintain a consistency of approach. One of the statutory purposes to which the Sentencing Council must have regard when setting a guideline is consistency. That is not to say that a particular category within a guideline must be applied rigidly. The existence of the category range provides flexibility. But departure from the starting point must be justified.
12
In this case the judge gave no reason to reduce the starting point in the way that she did. We cannot identify any good reason ourselves. Rather, we consider there were features of this case which should have increased the level of culpability. Unusually, the list of culpability factors in the guideline in relation to possession of drugs with intent to supply is specifically identified as non-exhaustive. Use of a drugs line is not referred to in the guideline but it is a factor which increases culpability. In this case the telephone may have been Iqbal's. That is of no account when we are speaking of a joint operation.
13
It follows that the judge erred in reducing the starting point in the way that she did. Rather, a modest increase would have been appropriate.
14
On behalf of the offender, it is argued that the judge concluded that Nazir's offending fell between a significant and lesser role so that a starting point of three years six months' custody was appropriate. The judge said nothing which supports the argument that the starting point represented some kind of balance between different levels of role. None of the factors in the guideline in relation to lesser role is identified in the sentencing hearing. Indeed, defence counsel expressly conceded that none apply.
15
The Solicitor General then argued that insufficient weight was given to the aggravating factors: previous conviction for similar offences related to class A drugs; offending on licence; use of sophisticated methods to avoid detection, namely the magnetic box. The judge determined that an increase of six months' custody was required by reference to the aggravating factors. She did not explain why a relatively modest increase was appropriate. Nazir's previous conviction related to possession at his home of some hundreds of street-deal wraps of heroin and cocaine. It related to events which occurred less than two years before the offence with which the judge was concerned. Though it is not possible to tell precisely when Nazir was released on licence, it cannot have been very long before he committed the offences in August 2022. It was a significant aggravating factor. The fact that Nazir was recalled on that licence pending his trial is irrelevant. His recall related to that previous offending. The aggravating factor is offending when on licence. The attempt to avoid detection was also a matter of significance albeit that care must be taken to avoid double counting. Use of the magnetic box was an indication of sophistication in offending.
16
The judge increased the notional custodial term by six months to take account of those aggravating factors. In our view that gave insufficient weight to those factors.
17
We conclude that the least sentence that should have been identified by the judge before taking account of mitigating factors was five years six months' custody.
18
The final argument of the Solicitor General is that the reduction for mitigating factors was excessive. The judge referred to Nazir's age. Whilst this was by no means an irrelevant consideration, Nazir was 21 at the time of the offending. Given his history, any reduction in the sentence should have been modest. The judge referred to "definite immaturity, not terribly sophisticated". We take that to be a single mitigating factor relating to the offender. The judge cannot have been referring to the lack of sophistication in the offending.
19
We acknowledge that the judge had heard the trial. She had had the opportunity to observe Nazir giving evidence which we can see from the court log occupied about 40 minutes. We must have regard to the view of the judge who heard the trial. Equally, there was no explanation for her conclusion in relation to maturity. Moreover, it appears to be at odds with the nature of the drug dealing in which he was participating and with his immediate reaction when he realised drugs officers were approaching his car. It was the reaction of a seasoned drug dealer. In our view the judge was entitled to reduce the sentence by six months but no more to take account of mitigating factors.
20
The sentence imposed was three years' imprisonment. Taking proper account of the guideline and of all factors relating to the offending and offender, a sentence of five years' imprisonment should have been the outcome. The sentence imposed, therefore, was unduly lenient.
21
We shall quash the concurrent sentences of three years' imprisonment in relation to the two counts in relation to which Nazir was convicted by the jury. We shall substitute concurrent sentences of five years' imprisonment.
__________ | ```yaml
citation: '[2023] EWCA Crim 524'
date: '2023-04-25'
judges:
- LORD JUSTICE WILLIAM DAVIS
- MR JUSTICE JAY
- HIS HONOUR JUDGE ANDREW LEES
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2010] EWCA Crim 1474
Case No:
201000327D3
&
201000331D3
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
MR. JUSTICE COOKE
T20087345
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
06/07/2010
Before :
LORD JUSTICE HOOPER
MR JUSTICE GROSS
and
H.H.J. MOSS Q.C.
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - - - - - - - - - - - - - - - -
Between :
(1)
MARTIN WINTER
(2)
NATHAN WINTER
Appellants
- and -
THE CROWN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
MR.J. SUGARMAN
appeared for
Martin Winter.
MR. J. WAINWRIGHT
appeared for
Nathan Winter.
MR. R. MATTHEWS
Q.C.
and
MRS. G. HENTY
appeared for the
Crown.
Hearing date: 11
th
June 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Hooper :
1.
On 14
th
December 2009 at the Crown Court at Lewes before Cooke J. and a jury the applicant Martin Winter was convicted of Counts 1 and 3: manslaughter. On 16
th
December 2009 the applicant Nathan Winter was convicted of Counts 2 and 4: manslaughter by a majority (10:2).
2.
On 16
th
December 2009 they were sentenced as follows:
Martin Winter 7 years’ imprisonment concurrent on Counts 1 and 3
Nathan Winter 5 years’ imprisonment concurrent on Counts 2 and 4
3.
A company Alpha Fireworks Ltd
(formerly known as Festival Fireworks Ltd) was convicted of Counts 5 and 6: contravention of a health and safety regulation contrary to
Section 33(1)(c)
of the
Health and Safety at Work Act 1974
.
4.
Both applicants apply for leave to appeal on one ground against their convictions on counts 3 and 4 only. At the conclusion of the hearing we reserved judgment on this ground.
5.
Nathan Winter applies for leave to appeal conviction on counts 2 and 4 on another ground. We announced that we rejected this ground and that we would give our reasons when handing down our reserved judgment.
6.
Both applicants seek leave to appeal the sentences passed. We heard submissions and reserved our decision.
7.
Count 1 read as follows:
STATEMENT OF OFFENCE
Manslaughter, contrary to common law.
PARTICULARS OF OFFENCE
Martin Paul Winter, on 3
rd
day of December 2006, unlawfully killed Geoffrey Wicker by gross negligence in that:
i) He owed Geoffrey Wicker a duty to take reasonable care in the storage and handling of fireworks at Marlie Farm, Ringmer, including fireworks that posed a mass explosion hazard.
ii) In breach of that duty of care he failed to take reasonable care to store and handle explosives:
a) in accordance with the terms of the explosives licence for Marlie Farm;
b) with appropriate measures to prevent fire or explosion, to prevent the spreading of fires and the communication of explosions from one location to another and to protect persons from the effects of fire or explosion;
iii) That breach of a duty amounted to gross negligence
iv) That negligence was a substantial cause of the death of Geoffrey Wicker.
8.
Count 2 was in similar terms, the applicant Nathan Winter being the defendant named in the charge. Count 3 was in similar terms to count 1 but concerned the death of Brian Wembridge. Count 4 was in similar terms to count 2 but concerned the death of Brian Wembridge.
9.
We turn briefly to the facts. On 3
rd
December 2006 there was a fire at Marlie Farm, Ringmer which set off an explosion of fireworks which were stored in a metal shipping container there. The metal container blew up and shrapnel from the container was thrown over a wide area and over a long distance. The container in effect was a bomb and exploded with tragic consequences.
10.
Two employees of East Sussex Fire and Rescue Services were killed in the explosion. They were Geoffrey Wicker, a watch commander, and Brian Wembridge, a civilian media awareness officer, both of whom were very close to the container. Other persons were injured. Brian Wembridge was there to film the fire and the handling of the fire both for the purpose of training fire officers and for the purpose of gathering material which would be released to the media to demonstrate the achievements of the fire service.
11.
The applicant, Martin Winter, was a director of Festival Fireworks (UK) Ltd which operated from Marlie Farm. His son, the applicant Nathan Winter, worked for the company.
12.
Under the terms of the Explosives Licence granted to Festival Fireworks the company was only licensed to store and handle fireworks of hazard type 3 and 4 only (HT3 and HT4). The prosecution sought to prove and the jury must have accepted that the container contained hazard type 1 (HT1) fireworks also. HT1 fireworks are far more dangerous and, once alight, can cause spontaneous combustion in other fireworks nearby.
13.
At the time of the explosion, the deceased, Geoffrey Wicker, was setting up a ground monitor under instructions from his superior officers so that the fire could be fought from a distance whilst the majority of the Fire Service had withdrawn from the site. The deceased, Brian Wembridge, whose job it was to video events for the Fire Service, had been told a number of times to withdraw from the site by officers and fire fighters.
14.
It is submitted on behalf of both applicants that the judge was wrong to rule as he did that as a matter of law the applicants owed a duty of care to Brian Wembridge and that they had no case to answer on count 3 (Martin Winter) and count 4 (Nathan Winter). Brian Wembridge was not, so it was submitted, “a neighbour”. It could not reasonably be foreseen that a media awareness person such as Mr Wembridge would be injured if the container exploded as a result of the negligence of the applicants. Alternatively, so it was submitted, if a duty of care was owed to such a person, it ceased to be owed to him when he disobeyed instructions to leave the area. It could not reasonably be foreseen, so it is submitted, that a person who disobeyed instructions to leave the area around the container would be injured if the container exploded as a result of the negligence of the applicants.
15.
The judge summarised the evidence in this way:
The effect of the evidence of 7 different fire fighters was that he had been asked to move back from the location where he was filming at the particular point in time that each came across him. These were in different locations and the tone of what was said varied in accordance with the seniority of the officer in question and the degree of familiarity that individual had with Mr Wembridge who was a well known figure as a result of his lengthy fire fighting service. Thus Fire Fighter Ross did not give him an order because “you didn’t give orders to Mr Wembridge and didn’t need to”. It was therefore a request but in the context of telling him that the fire fighters had been instructed to withdraw. Another referred to advising him to move and tapping him on the shoulder and to a fire fighter physically encouraging him to move back. Watch Commander Wells said he made sure that Mr Wembridge was aware that the fire fighters had been ordered to withdraw off the site and to rendezvous – to evacuate the site whilst Station Commander Meik said he told him that they were withdrawing and that he should withdraw with them. He told him to get back to where everyone else was, namely at the roadway. Station Commander Upton (the Incident Commander) said he gave him a specific instruction to get back and withdraw and expected him to obey that, whilst Station Commander White said that, as an ex-fire fighter, Mr Wembridge knew the procedures as well as anybody and he wouldn’t have expected him to go back in with fire fighters who had been sent back in to save lives, though it would depend upon the incident itself and a dynamic risk assessment at the time.
On the evidence, Mr Wembridge appears to have withdrawn to the area of the gateway but, realising that firemen had been sent back into the site to set up ground monitors in the area of the swimming pool, followed them and was filming them at the time when the explosion occurred.
16.
The judge summarised the applicants’ arguments:
The defendants’ submission is that Mr Wembridge does not fall into the category of a fire fighter and that it would be an unjustified extension of the imposition of a duty of care to find that such a duty was owed to him by the Winters. He was not involved in any aspect of fire fighting but was a civilian working as a Media Awareness Officer for the East Sussex Fire and Rescue Services, having been a fire fighter for some 33 years before taking up this responsibility a few years ago. He arrived separately at the scene wearing non-protective clothing, played no part in fire fighting and made a video recording of the activities of the fire fighters there. There is no evidence that he had reported as required to the Incident Command Unit and there is evidence that he did not report to the Incident Commander. Furthermore, it is submitted that there is the clearest evidence that Mr Wembridge ignored and/or disobeyed the instructions/orders of fire fighters to withdraw or evacuate. Such orders were given him in the belief that they would be followed.
17.
The judge continued:
In the words of Lord Atkin: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have had them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” It is submitted that Mr Wembridge falls outside that category of persons because he had no proper business in being on the site, having deliberately and, in defiance of all instructions, put himself in harms way. It is said that it is the existence of the requests/orders/instructions which makes all the difference in the case of Mr Wembridge, as compared with any fire fighter who was carrying out his fire fighting duties or any other person who happened to be on the site. It was accepted that, if injury had taken place to any of the employees or members of Mr Winter’s family who had ignored the fire fighters’ instructions to get back, away from the scene of the fire, no duty of care would have been owed by the Winters to them.
18.
Mr Matthews QC told us that he did not make the concession to which the judge referred in the last sentence.
19.
The judge continued:
The essence of the duty which is alleged is a duty to take proper care in the storage and handling of explosives and, on the out break of fire and the arrival of the emergency services, fully to inform the fire fighters of the locations in which fireworks were stored and the type and approximate quantity of them. Those duties must be owed to all persons who were on the site or in the surrounding vicinity and could be injured by an explosion, of the possibility of which, the Winters were well aware.
20.
A little later he said:
... it is plainly foreseeable that not only will fire fighters come onto the site and run the risk of injury as a result of the negligent handling of explosives and failure to inform the fire service of the serious HT1 explosives and their location on site but also any emergency service personnel or other people associated with them. Although Mr Wembridge was not a fire fighter he was intimately connected with the fire fighting services, being the Media Awareness Officer who was on site with his camera as part of his job. It is also foreseeable that a video cameraman in his position, on seeing fire fighters going back into the site to carry out their duties, might follow them, even if instructed at an earlier stage to withdraw to a rendezvous point. Whilst it is true to say that there is no evidence that he ever booked into the Incident Command or took instructions as to whether or not he should go back into the site following retreat to the rendezvous point, I do not consider that this can of itself put him into a category where injury to him was unforeseeable. As a video cameraman, his instinct would be to go where fire fighters were, to run the risks that they ran and to record what was going on for the purpose of Fire Service training, recruitment and the advancement of the interests of the Fire Service as a whole.
21.
The duty alleged in the indictment as being owed to Brian Wembridge was, as we have seen:
a duty to take reasonable care in the storage and handling of fireworks at Marlie Farm, Ringmer, including fireworks that posed a mass explosion hazard
22.
In our view it is reasonable foreseeable that civilian employees of the fire service in the position of Mr Wembridge may come on to and close to the site of a fire in order to film or photograph it. (
Ogwo v Taylor
[1988] AC 431
, to which we were referred is concerned not with foreseeability but with whether emergency personnel are in some special position).
23.
Does that duty cease to be owed because Mr Wembridge may have disobeyed instructions? Counsel for the applicants conceded that they could show us no authority to suggest that a failure to comply with instructions resulted in there being no duty owed. Such a failure may be relevant on the issue of causation and, in civil cases, to the issue of causation,
volenti
and contributory negligence. It is not arguable, in our view, that any failure to comply with instructions in this case had the consequence that no duty of care was owed to Mr Wembridge.
24.
To whom such a duty extends must depend upon all of the facts of the individual case. Suffice it to say that we are satisfied that it is not arguable that a duty was not owed to Mr Wembridge.
25.
The judge went on to consider the third stage test in
Caparo Industries plc v Dickman & Ors
[1990] 2 AC 605
and concluded
As to the question of fairness, justice and reasonableness, I cannot see why, from the Winters’ point of view, there should be any difference in imposing a duty to a fireman, sent back in to set up a ground monitor, and a video cameraman who goes in to record what is going on, even if he does so in breach of advice, orders or instructions.
26.
It is not arguable that the judge was wrong to reach this conclusion.
27.
We turn to the second ground of appeal submitted on behalf of Nathan Winter by Mr Wainwright. He contends that the jury were subjected to undue pressure to reach verdicts, despite indications of deadlock.
28.
The jury retired to consider their verdicts on Thursday the 10
th
December 2009. At the end of the court day, the judge, before permitting the jury to separate, asked them whether they had reached verdicts on all counts on which they were all agreed. Counsel in the case submitted that there was no need to ask the question at all, but the judge indicated that this was his invariable practice and, accordingly, the question was asked, to which the reply was in the negative. The jury was sent home until the following Monday, the 14
th
December (the court did not sit on Friday the 11
th
).
29.
At the end of the afternoon on the Monday, the jury returned its verdicts in respect of Martin Winter and the company, Alpha Fireworks. The jury were sent home for the night and reconvened the following morning, Tuesday the 15
th
December, the judge indicating that he intended to give the jury further directions on that morning. First thing on the morning of Wednesday the 16
th
December, the jury were given the conventional majority direction in respect of the remaining defendant, Nathan Winter.
30.
Later that day, the judge, having received a note from the jury, informed counsel that the jury were indicating deadlock. He invited submissions upon whether the “Watson” direction should be given, saying that it was not his usual practice to do so. Mr Matthews for the Crown and Mr Wainwright for the defence agreed that he should not give such a direction. The judge then said:
What I think I might do is have the jury in, just the same, and tell them to try harder, so to speak. It seems to me a little early to simply accept an intimation on paper that they are having difficulty. My inclination would be to send them back out for the rest of the day, and a bit into tomorrow, before I was prepared to accept any clear intimation that they were really completely deadlocked.
31.
Neither counsel objected to that course. The jury were brought into court at 2.19 pm. The judge acknowledged their note and addressed them as follows:
…all I can do is encourage you to go back and continue with your deliberations, and your discussions, with a view to seeing if you can reach agreement. I appreciate, from what you are saying, you are finding it difficult to do so, but I would encourage you, nonetheless, to keep trying, keep talking, keep discussing, keep thinking, reviewing the evidence, and see if you can come to a decision on which at least ten of you are agreed. Will you please continue to do that.
32.
At some time before 3.46 pm (when the jury next returned to court) the judge informed counsel that he had had another note from the jury which read as follows:
We can see no way forward to obtaining a 10 to 2 verdict. All jurors are confident that they are not going to change their minds on their decisions.
33.
The judge told counsel that he intended to ask whether that was the final position, or whether there was anything he and counsel could do to help, and whether time would make any difference. He said that he anticipated that the answer would be “no”. If that was the case, he intended to discharge the jury. Neither counsel dissented from that proposed course. The jury returned to court and the judge asked the following question:
The question I have to ask you is whether there is anything that I can remind you of, or help you with, that might assist you in coming to a decision, or whether any more time would assist you in relation to that?”
34.
The response of the foreman of the jury was to say that they had a few questions that they would like to ask concerning the counts. The judge accordingly sent the jury back to their room, asking them to write down the questions they wanted to raise. The jury retired and returned into court an hour later, having submitted a number of questions. The judge told them that he would deal with them in the morning (it was by now 4.46 pm) and sent the jury away for the night. He began to discuss the questions with counsel.
35.
The following morning, the 16
th
December, the judge having, it appears, sent to counsel his proposed answers to the questions for their consideration, the court reconvened and counsel and the judge discussed the questions before the jury were brought into court. There is no need to refer here to that discussion. Thereafter the jury were brought into court and the judge dealt with their questions, giving detailed guidance to them, about which no complaint is made. The jury were sent out to continue their deliberations at 10.47 am. They returned to court at 12.55 pm and returned their majority verdicts.
36.
Mr Wainwright submits that what had occurred (as we have set out in some detail above) in some way put the jury under undue pressure to reach verdicts in respect of the second Appellant. He complains that no indication was given to the jury that they could say that they were finally deadlocked. That lack of indication, submits Mr Wainwright, contrasts with the constant indication given by the judge that there were no time pressures.
37.
We see no merit in those submissions. Indeed, we are entirely satisfied that the contrary is true. The judge’s question to the jury on the afternoon of the 15
th
December could well have been answered by the foreman of the jury to the effect that there was nothing else upon which the court could assist them, and that, accordingly, there was nothing else to be done. The judge would then, no doubt, have discharged the jury. But that is not what occurred. The foreman of the jury immediately answered the judge’s enquiry with the information that there were questions upon which the jury required the court’s assistance. Those questions were posed, answered, and, in due course the jury returned their verdicts.
38.
In consequence we refuse leave to appeal conviction to both applicants.
39.
We turn to the sentence applications. Both applicants were or for these purposes were to be treated as having no convictions. Martin Winter was born on 27
th
August 1957 and Nathan Winter was born on 10
th
September 1984.
40.
In passing sentence the judge devoted considerable time and care to setting out the facts and background of the offence including the impact on the families of the deceased. We shall quote only some portions. The judge said:
In addition, both of you knew -- both you of well knew -- by reason of your experience of working with fireworks and your attendance at the 9th International Fireworks Symposium and the videos you saw there of the CHAF experiments, that HT1 fireworks carried a risk of mass explosion, an explosion which effects fireworks in bulk instantaneously setting off other fireworks of lesser energy in the same explosion, a phenomenon referred to as "aggregation" or "boostering". You were well aware of the risks involved in dealing with fireworks of all kinds and in particular of this risk of mass explosion from HT1 fireworks which Festival was not authorised to store.
41.
As to the HT1 fireworks present on site, the judge said:
HT1 fireworks were, on the evidence, at that time, in the container which gave rise to the mass explosion which killed Mr. Wicker and Mr. Wembridge. They were also to be found in Magazine E, in a white container, in a red container, and in the Hatchery, as well as in a curtain-sided lorry which had returned to the site over a day before from one of the company's displays. They were also found in the office and shop at Marlie Farm, and in Upper Lodge Farm, both of which were licensed separately to Sussex Fireworks, another company owned by you Martin Winter.
42.
The judge continued;
You had been warned about the storage of HT1 and HT2 fireworks by your Dangerous Goods Safety Advisor in the context of seeking insurance at the end of 2005, and you subsequently told your insurers that you had removed all such unauthorised Hazard Types from your site, which you had not done. You had deliberately purchased and stored fireworks for the purpose of your business, over an extended period of time, in the full knowledge that you had no authority to store HT1 fireworks and of the dangers posed. And you did so in order to create larger and more fearsome explosions at the beginning and end of displays that you put on, and to sell to others involved in similar displays, including local bonfire societies, so that they could put on more impressive displays, notwithstanding the dangers involved. You deliberately flouted the Explosives Regulations for reasons of profit. No doubt familiarity bred a certain contempt for the dangers thus run.
43.
The judge found that the applicants had been reckless, indeed he had directed the jury (with the consent of the prosecution) to convict only if they found recklessness.
44.
Dealing with how Martin Winter had conducted himself after the arrival of the fires service, the judge said:
To the contrary, Martin Winter, you appeared to have been about as obstructive and objectionable as it was possible to be and to have misled more than one fire officer by referring to the contents of the container in which the mass explosion later occurred, or Tube Store 1, or both, as "wood", when both contained fireworks and the container contained HT1 fireworks. You wanted them to fight the fire, when you knew that the risk of mass explosion meant that everyone should have evacuated the site and moved to a considerable distance away.
45.
Mr Sugarman did not dispute that the judge was entitled to make these findings about the behaviour of Martin Winter at the scene but did point out that Martin Winter was faced with (and has now suffered) the destruction of his business and of all that he had worked for so hard over many years. Mr Sugarman pointed to the applicant’s remorse and prayed in aid the judge’s description of the failures of the fire service:
It is right to say that the fire fighters' ignorance of their own procedures of Explosive Regulations and Codes of Practice for fire fighting and their lack of training in dealing with fireworks contributed to what happened. The vast majority of the fire fighters did not regard fireworks as explosives capable of causing a large explosion. They thought only of individual fireworks detonating and causing the sort of explosions that fireworks ordinarily cause when fired. They were, generally, unaware of Hazard Types. It may be they should have asked more expressly and clearly what Hazard Types they were contending with and if in doubt withdrawn to a safe distance of 600 metres,
46.
In our view on a finding of recklessness and in the light of the fact that Martin Winter’s behaviour at the scene constituted a seriously aggravating feature, it is not arguable that a sentence of seven years’ imprisonment after a trial is manifestly excessive and his application to appeal his sentence is refused.
47.
We turn to Nathan Winter. His sentence was rightly reduced from the sentence passed on his father because of his age and position. As to the conduct of Nathan Winter at the scene the evidence showed (see applicant’s skeleton argument):
5.
Prior to the explosion Nathan Winter spoke to a number of emergency services personnel and warned them of the dangers of the fire reaching the container. The following evidence was given by fire fighters in respect of warnings given by Nathan Winter:
a)
Mr Wells (first officer in command) was told by Nathan Winter “If the fire gets anywhere near this container I would advise you to run like fuck”. Mr Wells also said “Nathan Winter pointed out the biggest risk on site”.
b)
Mr Ross recalled Nathan Winter saying “If that goes up, we’ll have to be miles away”.
c)
Mr Lazenby heard “If that one goes up you don’t want to be anywhere round here”.
d)
Mr Pratt heard “If that container goes up, you don’t want to be anywhere near it”.
e)
Mr Watson said “Nathan was agreeable, not getting in the way; he was trying to communicate the fact that there were large fireworks in the container”. Mr Watson went on to say “Nathan drew my attention to the container”. He also heard Nathan Winter say “If it goes bang you’ll know about it”.
f)
Mr Austin heard “If that container goes bang there will be the biggest bang you’ll ever see”.
g)
Mr Upton (second officer to take command) accepted that he was told there were “larger fireworks in there” and he was told “You don’t want to be anywhere near here”.
h)
Julie Skeffington was told by Geoff Wicker “There are big fireworks in the container”.
i)
Mr Wood said that Mr Wicker had said “Fucking big fireworks in the container”.
j)
Senior Officer Mr Cox, when he attended, said he was given information “The gist of it was ‘we are all in trouble if the fire reached the container’.”
k)
Additionally, PC Coleman recalled Nathan Winter saying “You don’t know what’s in there, everyone has to go, we’ve got to tell them what’s in there”. PC Coleman told him to go, however Nathan went on to say “We’ve all got to go”. He also heard Nathan Winter say “Someone will get hurt” and “You don’t know what’s in there, it’s going to go up”.
6.
Nathan Winter informed the police officer that a 300m cordon should be set up and he was so emphatic in telling the emergency services to evacuate that he was arrested for breach of the peace and removed from the site. The container exploded subsequent to this. Prior to the explosion there were various orders given by and to members of the fire service to withdraw from and evacuate the fireworks site.
48.
The judge said of his evidence:
Whilst you, Nathan, told many officers that they did not want to be anywhere near the container should fire reach it because of the risk of explosion, and told them of larger fireworks in it, even then you never told them what the real issue was. Whereas they were thinking of detonation of larger fireworks and hazards posed by individual fireworks igniting, the very thing they could see happening already all over the site, they were not thinking in terms of a mass explosion with the fatal consequences that such an explosion presented. When asked what was in the container, you did not do the honest and straightforward thing of telling the fire officers that you had HT1 fireworks in it and that you knew there was a propensity for mass explosion and not merely the risk of continued sequential detonation of individual large or larger fireworks of the kind that was taking place in the buildings on the site. You were not prepared to admit that you had been acting in breach of the licence and you ran the risk that there would be no adverse consequences from not telling them the full position, however hard they made it for you to speak to them. It was because you sought to cover up your breaches of the Explosives Regulations and site licence that the firemen were not clearly put only notice of the location or true nature of some of the fireworks you had on the site.
49.
In this passage the judge accepts that, as the evidence had shown, Nathan Winter did a great deal to persuade the firemen to leave the site but criticises him for not saying even more, attributing that to a desire to cover up the breaches. Whilst mindful of the fact that the judge heard the trial, we have looked at all the evidence with the help of both Mr Matthews and Mr Wainwright (including the interviews) and have concluded that the judge could not properly be sure that Nathan Winter in the circumstances of the emergency in which he found himself was consciously covering up the breaches.
50.
In these circumstances, we grant the application to appeal the sentence of five years and reduce it to four years. | ```yaml
citation: '[2010] EWCA Crim 1474'
date: '2010-07-06'
judges:
- LORD JUSTICE HOOPER
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2013] EWCA Crim 647
Case No.
2012/03690/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Friday 19 April 2013
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE IRWIN
and
MR JUSTICE SAUNDERS
__________________
R E G I N A
- v -
JASWINDER SINGH JOHAL
__________________
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
__________________
Mr S Sandhu
appeared on behalf of the Appellant
Mr B Linneman
appeared on behalf of the Crown
____________________
J U D G M E N T
LORD JUSTICE ELIAS:
I shall ask Mr Justice Irwin to give the judgment of the court.
MR JUSTICE IRWIN:
The Background
1. On 12 March 2009 in the Wolverhampton Crown Court before His Honour Judge Challinor the appellant pleaded guilty to one offence of possessing a controlled drug of Class A with intent. On 18 December 2009 he was sentenced to six years' imprisonment.
2. On 30 September 2011 Mr Recorder Desmond granted an application by the Crown for the confiscation hearing pursuant to the Proceeds of Crime Act 2002 to be heard outside the permitted two year period.
3. On 16 May 2012 His Honour Judge Hughes made a confiscation order whereby the appellant was ordered to pay £18,778, with six months' imprisonment to be served in default of payment. In fact the amount available to satisfy the confiscation order made by His Honour Judge Hughes was agreed.
4. The appellant appeals against the confiscation order by leave of the single judge.
5. The chronology of the case is set out in the clear ruling given by Mr Recorder Desmond. Following the plea of guilty in March 2009 there was a
Newton
hearing for the purpose of sentence on 20 November 2009. At that hearing a timetable was set for the purposes of the Proceeds of Crime Act proceedings. There was a direction that, by 18 December 2009, the defence should serve a statement pursuant to section 18 of the Act. 18 December was, as we have already observed, the date of sentence.
6. The defence lodged their section 18 statement on that day and the court made an order that by 15 January 2010 the prosecution were serve a section 16 statement under the Act. The defence were to respond within a fortnight, on 29 January 2010; and there was a direction that the hearing of the Proceeds of Crime Act application would take place in the first two weeks of February 2010. The prosecution served the section 16 statement two weeks late, on 29 January 2010. On 8 February the defence requested further time to respond. On 17 February the court granted an extension to 3 March 2010. On 13 May 2010 the section 17 statement was sent by the defence.
7. On 21 May, at the request of the Crown, the case was listed for mention. It had been listed for a final hearing on that date, but because of the defence's late delivery of the section 17 statement, and because of the absence of supporting documentation necessary for the testing and assessment of what the defence were saying in their response, both sides agreed that there was insufficient material available for that hearing and it was removed from the list. A fresh timetable was set. The defence was ordered to supply supporting documentation by 11 June 2010. The prosecution were to respond to it by 2 July. The hearing of the substantive proceedings was ordered to take place on the first available date after 2 July 2010.
8. On 26 May 2010 the prosecution served an amended section 16 statement. On 16 July, at the request of the defence, the matter was listed again for mention instead of for final hearing. At that stage the defence were still seeking conveyancing details relevant to the valuation of property. The substantive hearing was re-fixed for 2 December 2010. On 12 November 2010 the defence supplied the further conveyancing details. On 2 December the substantive hearing was listed. However, adverse weather conditions in the form of heavy snow prevented the appellant (then a serving prisoner following upon his six year sentence) from being taken to court. The hearing was once more adjourned. The court raised questions of law to be addressed and directed the defence to serve a skeleton argument by 16 January 2011. Again a final hearing was ordered to be listed in the week commencing 9 February 2011. All parties were aware of the two year permitted period, which ended on 11 March 2011.
9. On 6 December 2010 the court fixed the final hearing not for February, but for 11 March 2011 (the two year anniversary of the conviction and the last day within the permitted period under the legislation).
10. On 9 February the prosecution served a certificate of readiness, or in this case unreadiness: the case was not ready for hearing because no defence skeleton argument had been filed. On 14 February the defence served a certificate of readiness, stating they were ready, albeit that they were still awaiting some bank statements.
11. However, at some stage prior to 11 March 2011 the court removed the case from the list due to lack of court time and the availability of a judge to deal with the hearing which had been listed on 11 March. On that day, as we have indicated, the permitted two year period expired.
12. There has been produced to this court, as an appendix to the defence skeleton argument, a copy of a manuscript attendance note which appears to have been made on 10 March 2011. We understand that it originates from the appellant's solicitors. It indicates that on that day (10 March) there had been discussion between the Crown Court listing officer and a representative of the appellant's solicitors. It indicates that the matter was taken out of the list because of a lack of court time. Mr Sandhu for the appellant tells us that there was a discussion initiated by his instructing solicitors in which the court's attention was specifically drawn to the fact that the two year period expired on the following day, 11 March. It does not appear that that document was produced to the Recorder when he made the decision as to jurisdiction.
13. The date of 11 March 2011 is significant. It was at that point that the timetable went beyond the permitted period. As we shall see, the legislation requires that "exceptional circumstances" should exist to justify such an extension of postponement.
14. The sequence of events, as outlined by the Recorder, continued as follows. On 18 March 2011 the defence produced to the Recorder a letter which indicated that on that date there had been served a skeleton argument. The prosecution position was that they had not received such a skeleton argument at that stage; nor was such found at court. The prosecution received in on 22 July, as did the court.
15. On 22 July 2011 there was a further hearing for mention and further directions were made, including a direction that there should be a hearing on the preliminary legal issue as to whether, given the history, there was continuing jurisdiction on the part of the court to deal with the matter. That was the hearing wherein the Recorder made his ruling.
Was there an application
?
16. One interesting feature of the position was that the Recorder framed the matter as an application by the Crown to extend the proceedings beyond the permitted period. At the outset of his ruling he said this:
"In this application the prosecution apply for the Proceeds of Crime Act hearing in this case to be heard outside of the permitted period. Although not stated as such, the application must be pursuant to section 14(8) of the Proceeds of Crime Act 2002."
In fact it does not appear to have been a prosecution application as such. The prosecution sought to rely on the decision of the court just prior to 11 March 2011. As the ruling makes clear, no reliance was placed by the Crown in their submissions, or by the Recorder in his ruling, on anything which arose later than 11 March 2011. As was observed by the single judge when giving leave, it is also to be noted that, when extending the period in early March, the court did not do so "for a specified period" as stipulated in section 14(1)(b). This was not a point raised before the Recorder, or addressed by him.
The Recorder's Ruling
17. The Recorder proceeded to hear argument and to rule on the question whether "exceptional circumstances" existed, and as to how that phrase should be interpreted and applied. He was referred to authority and in particular to
R v Soneji and another
[2005] UKHL 49
and
R v T
[2010] EWCA Crim 2703
. From the speech of Lord Steyn in
Soneji
at [28] the Recorder concluded that it was not appropriate to adopt a very strict approach to the meaning of "exceptional circumstances"; and from the speech of Lord Rodger at [33] that "some listing difficulties could amount to 'exceptional circumstances'".
18. The Recorder then turned to the facts to consider whether they might properly be regarded as amounting to "exceptional circumstances". He emphasised that the final hearing, which had been due on 21 May 2010, had to be adjourned, because the defence statement was late and more documents were needed; that the final hearing on 16 July was vacated following a defence request for more time to obtain information on conveyancing matters; and that it took the defence four months to obtain that information. The Recorder drew attention to the fact that the hearing on 2 December 2010 did not take place because of the unusual circumstances that heavy snow prevented the appellant from attending. He emphasised the failure of the defence to comply with the directions of 2 December to serve a skeleton argument by 16 January and the surrounding facts which he had outlined. There was no record that the court had received the skeleton argument by the key date in March 2011.
19. It was at the end of that sequence of events, as the Recorder observed, that the court had to remove the case from the list on 10/11 March due to a lack of court time. On that basis the Recorder found that there were indeed "exceptional circumstances" which justified the extension of the permitted period. As we have noted, he did not consider the point as to whether there was a failure to specify a period; he was not asked to do so.
The Law
20. Section 14 of the Proceeds of Crime Act 2002 represents a code for procedural matters in confiscation proceedings, and in particular for the postponement of such proceedings. The essential provisions of the section, as it applies to the circumstances of this case, are as follows. By section 14(1)(b) the court may postpone proceedings "for a specified period". Section 14(2) specifies that a period of postponement may be extended. By subsection (5) the section provides that the "permitted period" is the period of two years starting with the date of conviction (in this instance beginning 12 March 2009). Section 14(7) specifies that postponement or extension may be on application by either party or "by the court of its own motion". But subsection (3) provides:
"A period of postponement (including one as extended) must not end after the permitted period ends."
The effect of that is qualified by subsection (4) which provides:
"But subsection (3) does not apply if there are exceptional circumstances."
It is by that route that the "exceptional circumstances" test arises. Finally, section 14(11) provides:
"A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement."
21. Some things are clear. First, this case was taken out of the list of the court's own motion and not in response to an application by either side. Second, the court did not postpone the matter for a "specified period" within section 14(1)(b). Third, there is no indication that, when it removed the matter from the list, the court had considered whether there were exceptional circumstances before it took the decision to remove the matter from the list. Fourth, when considering whether there were "exceptional circumstances", the Recorder took into account the whole history of the matter, not merely the immediate situation, before the court removed the case from the list.
22. A number of questions arise for answer. First, what is the proper approach to the application of the requirement for "exceptional circumstances" in the application of this section? Second, was the Recorder's conclusion open to him on these facts? Was it reasonable:
Associated Provincial Picture Houses Limited v Wednesbury Corporation
[1948] 1 KB 223
? Third, what is the effect, if any, of the failure to postpone for a "specified period"?
The first question: What is the proper approach to the application of the requirement for "exceptional circumstances
"?
The Authorities
23. In
Soneji
the following passages from the headnote encapsulate the decision. After a recital of the facts the headnote states:
"On the defendants' appeal against those orders, the Court of Appeal (Criminal Division) held that although there was a power to postpone the making of a confiscation order under section 72A of the 1988 Act, and a power to adjourn such proceedings at common law, the provision of section 72A(3) that the period of postponement was not to exceed more than six months from the date of conviction save where the court was satisfied that exceptional circumstances existed, and the failure of the judge to consider or make any such finding, had deprived him of jurisdiction to make a confiscation order. The Court of Appeal accordingly quashed the confiscation orders.
....
Held,
allowing the appeal, that the correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision should be invalid; that since section 71(1) of the 1988 Act as amended imposed a duty on the court when an offender had been convicted to consider confiscation proceedings, with the purpose of the sequence of such proceedings as required by section 71(1) and the postponement power under section 72A, which precluded any common law power of adjournment, being to make the sentencing process rather than the confiscation procedure as effective as possible; that the judge's failure to adhere to the requirements of section 72A(3) had caused no prejudice to the defendants in respect of their sentences and any other prejudice to them caused by the delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process; and that, accordingly, that failure would not have been intended by Parliament to invalidate the confiscation proceedings, and the confiscation orders made by the judge would stand."
24. It will be clear from that extract from the headnote that
Soneji
addresses precursor legislation to the 2002 Act, but legislation which, apart from the length of the specified period, is mirrored closely in the relevant provisions in the 2002 Act.
25. Lord Steyn in his speech noted the existence of section 14 in the 2002 Act. At [3] he recited some of the terms of the section and proceeded to recite a passage from the speech of the Lord Chancellor, Lord Falconer in debate when the 2002 Act came before the House of Lords. That passage is of interest in considering the purpose of section 14(11), which was said to be:
"designed to stop confiscation orders from being quashed merely because some procedural error has taken place in the application of the postponement procedures. I shall, if I may, provide your Lordships with a little background on this occasion, as it is directly relevant to the amendments.
As your Lordships will be aware, the Bill amends the postponement regime in the existing legislation .... It is important to understand, however, that the basic mechanics of the postponement regime envisaged by the Bill remain rather similar to those in the existing legislation.
Unfortunately, it is becoming increasingly clear that the courts are finding this legislation difficult to operate. A string of appeal cases testifies to the fact that defendants regularly attempt to have the confiscation order overturned on the grounds that the postponement procedures were not applied properly by the court. Confiscation orders are being lost as a result."
As identified by Lord Steyn, the legislative purpose of the additional provisions within section 14 of the 2002 Act was explicitly to avoid technical points being taken so as to defeat confiscation proceedings.
26. In [6] to [8] Lord Steyn notes the problems thrown up by a technical approach to postponement procedures. He touches on earlier attempts by the Court of Appeal to address the problem. In [14] he identifies that one of the problems is the presence within the Act of "imperative drafting by Parliament". In [15] to [16] Lord Steyn sets out extracts from the well-known case of
London & Clydeside Estates v Aberdeen District Council
[1980] 1 WLR 182
, where Lord Hailsham (then Lord Chancellor) advanced a legal analysis of the approach to requirements in statutes, beyond the traditional distinction between directory and mandatory provisions. He said this:
"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. .... At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for a declaration of his rights."
27. Having recited that quotation, Lord Steyn went on to say:
"This was an important and influential dictum. It led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity."
28. Following a further review of authority, at [23] Lord Steyn said:
"Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court [a reference to authority he had just digested] that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in
Attorney General's Reference (No 3 of 1999
), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect."
In [24] he set out a similar approach to the 1988 statute which was under consideration in
Soneji
, and in [25] and [26] reached the conclusion that he would allow the appeal from the Crown.
29. A like approach was taken by the other members of the House of Lords. In [30] Lord Rodger emphasised the duty placed upon the court, where appropriate, to make a confiscation order, and emphasised the importance of the court's being permitted to do so without the intervention of technical problems. In [32] with similar emphasis he analysed the legislation before the court in
Soneji
. He said:
"When section 71(1) is engaged, it imposes a duty on the court to act as required by subsections (1A) and (1B) and, where appropriate, to make a confiscation order 'before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct'. This duty is to be contrasted with the mere power, which the court has under subsection (1C), to make such an order if it is satisfied that a victim of crime intends to take civil proceedings against the defendant."
30. In [33] Lord Rodger went on to say:
"I also agree, however, that 'exceptional circumstances' in section 72A(3) should not be interpreted too narrowly. The court must comply with the six-month requirement wherever reasonably possible, even if this means that its timetable has to be adjusted accordingly. Nevertheless, I would certainly not rule out the possibility that some listing difficulties could amount to 'exceptional circumstances'. But the judge must look into the position and see what can and cannot be done."
He, too, concluded that the delay in
Soneji
should not preclude the jurisdiction. He concluded in [42] that, subject to the question of abuse of process, even considerable delay need not affect the validity of orders made outside the timetable.
31. In his speech Lord Cullen of Whitekirk at [45] emphasised the duty placed upon the court to make confiscation orders. At [52] he concluded as follows:
"Since the statute does not spell out the legal consequences for the offenders of non-compliance with subsection (3) it is necessary to work out those consequences, applying the authorities to which the noble and learned Lord Steyn has referred. The failure to comply .... has to be seen in the light of the purposes of the statutory provisions as a whole, in order to determine whether or not the failure was of such significance as to make the ensuing confiscation orders of no effect."
Lord Cullen also concluded, on the facts of the case before the House, that he could not rule out jurisdiction there.
32. Similar conclusions were reached by Lord Carswell and by Lord Brown of Eaton-under-Heywood.
33.
Soneji
was considered in
RCPO v Iqbal
[2010] EWCA Crim 376
(a decision under the 2002 Act). In that case the defendant faced confiscation proceedings following his conviction on 10 January 2006. The hearing was listed on 21 May 2006. However, it was postponed by the Recorder without a date being set, in order to await a decision of the House of Lords in a case which it was thought might affect the outcome. Between May 2006 and 9 January 2008 no order was made by the court to postpone the confiscation proceedings. No application was made for such an order by either party. The next hearing appears to have been on 1 July 2009, when a judge concluded that there was no jurisdiction to make an order, because of a failure to comply with the procedure in section 14 of the 2002 Act. In its judgment the court said this at [10]:
"The issue is a narrow one. Absent a court order before 10 January 2008 postponing the hearing of the application for a confiscation order, and absent any application made before that date to postpone the hearing, is there jurisdiction to entertain the application for a confiscation order?"
34. The court then analysed the section. The Crown had cited
Soneji
in support of its claim that there was a continuing jurisdiction, even when no order had been made at the time when the "permitted period" had expired. In its conclusions in
Iqbal
the Court of Appeal said:
"25. Mr Farrell QC submits that the intention of Parliament was that the application for a confiscation order should be heard within two years of conviction in the absence of exceptional circumstances and that the intention of Parliament is clear: 'If there has been no application to extend the permitted period of two years before that period expired then the confiscation proceedings cannot continue'.
26. In our view the wording of section 14 (and in particular of subparagraphs (3) and (8)) makes it quite clear that Parliament intended to give prosecutors a longer period than the six months under the earlier legislation, but at the same time intended to make it clear that any application to extend a period of postponement had to be made before the permitted period expired.
27. For these reasons we dismiss the appeal."
35. It is possible that there is some tension between the approach taken in
Iqbal
and the approach of their Lordships in
Soneji
. However, the position in
Iqbal
was clearly distinguishable from the case before us. In that case there had been no application and no order to extend the period; it had lapsed in silence. There was no reliance upon "exceptional circumstances" to justify an extension of the "permitted period". Whether at the time of an extension or at a postponement retrospectively, no step had been taken.
36. This area of the law was revisited in
R v T
[2010] EWCA Crim 2703
. In that case the convicted defendant had fled the country after arrest and charge. On 19 December 2007 he was convicted, in his absence, of money laundering and sentenced to three and a half years' imprisonment. On the same day the Crown gave notice of their intention to pursue confiscation proceedings. In April 2009 the defendant was extradited from the United States. After his extradition he failed to adhere to various directions made in the confiscation proceedings.
37. The "permitted period" under section 14(5) of the 2002 Act expired on 18 December 2009. The confiscation proceedings had been adjourned on 2 October 2009, and were adjourned again on 21 December 2009. On neither occasion was the question of exceptional circumstances considered. The matter came back before the court on 5 March 2010 when His Honour Judge Ambrose concluded that he had no power to hear the confiscation proceedings because the question of exceptional circumstances had not been considered. He relied on the dictum from
Iqbal
at [26] (earlier quoted in this judgment) to the effect that any application to extend postponement had to be made before the "permitted period" expired.
38. In
T
the Court of Appeal considered the remarks by His Honour Judge Ambrose that in his view the defendant Iqbal had manipulated the system, and that there were in fact ample exceptional circumstances which could have been considered, subject to the question of jurisdiction. The court agreed on those facts, and went on to find that Judge Ambrose should not have been "inhibited .... by Hooper LJ's observation in
Iqbal
" so as to conclude that there was no jurisdiction. There were exceptional circumstances in the case which should and did justify an extension of the period. For that reason the court quashed the decision of Judge Ambrose and remitted the matter so that a substantive hearing could proceed.
39. Standing back from all the authorities, it is clear in our judgment that the intention of Parliament was that a broad approach should be taken to what constitutes "exceptional circumstances". Indeed, in the approach to section 14 generally, Parliament's intention must be taken to be to ensure that confiscation proceedings go ahead and are effective without technical problems of timing and timetabling acting as a bar to recovery. Adherence to the timetable is an obligation, as we shall re-emphasise later in this judgment, but the approach to strict failures to comply should reflect that intention of Parliament.
The second question: Was the Recorder's conclusion open to him on the facts
?
40. Mr Sandhu submits that the accumulation of failures in the instant case which culminated in the confiscation hearing three years and two months after conviction should mean that, despite the approach in
Soneji
(which is not carte blanche to parties or the court), the confiscation order should be struck out.
41. Mr Linneman accepts that the prosecution were not blameless in the conduct of this case, but submits that much of the delay came from the defence. He derives his submissions from the timetable which the Recorder outlined in his ruling and we have summarised. Mr Linneman submits that the Recorder's conclusion that these amounted to exceptional circumstances was reasonable and, importantly, that there is no basis for saying that the appellant was prejudiced by the Recorder's decision. Fairness was achievable in the circumstances of this case, as evidenced by the fact that the contested confiscation proceedings were resolved by agreement as to the amount to be paid. There was no abuse of process.
42. Here, adopting the approach in
Soneji
, we are clear that there was a sufficient basis for the Recorder's conclusions that, reviewing events as a whole, exceptional circumstances did apply. Consideration should have been given to the question before the court postponed the proceedings beyond the permitted period; but had that consideration taken place at the right point, the conclusion would have been the same. In our judgment, taking together the sequence of delays, many of them at the hands of the appellant, and the unusual circumstances which prevented the appellant from attending the hearing, the Recorder's conclusion was well within the range of reasonable conclusions he could have reached. It is not capable of challenge.
The third question: What is the effect, if any, of the failure to postpone for a "specified period
"?
43. There are two possible answer to this question, or rather two routes by which the same answer will emerge. It is strongly arguable, in our judgment, that the failure to specify a period of postponement in the order itself is not merely a procedural error "connected with .... the granting of a postponement" within the meaning of section 14(11) but is a substantive (although technical) omission in the order to postpone, which taints the order itself. If that is right, the defect cannot be remedied by reliance on section 14(11).
44. Another point which arises is derived from the wording of the subsection which for present purposes it is worth repeating:
"A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement."
It may be right that the use of the phrase "application for or the granting of a post postponement" means by necessary implication that the subsection applies only where there has, in truth, been an
application
for a postponement leading to a grant by the court, and that the situation which arose in this case, where the court postpones the period of its own motion, is not covered by the saving provision in section 14(11).
45. However, setting aside section 14(11), when viewed in the context of the confiscation order itself, the omission of a specified period plainly is a procedural error. Adopting the approach laid down in
Soneji
, we have no doubt that the defect would not render the confiscation order itself invalid. Applying
Soneji
, Parliament could not have intended that the court should be deprived of its duty to make such an order for a breach which typically will not, and did not in this case, prejudice the appellant in any way. If substantial prejudice were to arise as a result of such a decision, then the remedy is in the shape of a submission that such a decision represents an abuse of process. This is not a matter where there is no remedy at the hands of someone who has suffered prejudice as a consequence of such an order.
46. If, contrary to the remarks we have just made, the better view is that such a failure is indeed procedural and does therefore fall within the ambit of section 14(11), then Parliament has stipulated that such a failure must not be the basis for quashing an otherwise valid confiscation order.
47. For all these reasons this appeal fails.
48. It is appropriate for us to add a rider. We re-emphasise the message given at [13] by this court in
R v T
. The fact that the courts will not wish to see the intention of Parliament defeated by technical points taken to stave off meritorious confiscation orders, does not mean that the obligations under the Act can be taken lightly. It is essential that listing officers, acting as they do on behalf of judges and discharging a judicial function delegated to them for day-to-day administration, pay close regard to the procedural steps laid down in section 14. Listing officers should be aware of the necessity to adhere to the two year limit. They should be alive to the risk that the parties may not alert them to such a problem. They should be aware of the requirement to consider whether there are exceptional circumstances before a postponement beyond two years is granted. They should be aware of the obligation not to postpone generally but to specify a date when there is to be a postponement. It would be wise for listing officers to consult the Resident Judge when any such problem is likely to arise. It would also be wise to keep a record of what was taken into consideration at the time, and in particular whether any exceptional circumstances arose which justified postponement.
_____________________________ | ```yaml
citation: '[2013] EWCA Crim 647'
date: '2013-04-19'
judges:
- LORD JUSTICE ELIAS
- MR JUSTICE IRWIN
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2021] EWCA Crim 25
Cases no: 202001565 B3, 202001567 B3 & 202001571 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
15/01/2021
Before:
LORD JUSTICE HOLROYDE
MR JUSTICE PICKEN
and
MRS JUSTICE FARBEY DBE
-
- - - - - - - - - - - - - - - - - - - -
IN THE MATTER OF REFERENCES BY
THE CRIMINAL CASES REVIEW COMMISSION
and
IN A MATTER OF POSSIBLE IMPROPER DISCLOSURE
Between:
TRACY FELSTEAD JANET SKINNER
SEEMA MISRA
Appellants
- and -
POST OFFICE LIMITED
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr E Henry QC, Mr R Bentwood and Mr G Callus
(instructed by
Shaw Graham Kersh Solicitors
) for
Ms Flora Page
Mr P Lawrence QC and Ms Rachel Scott
(instructed by
Clyde & Co LLP
) for
Mr Paul
Marshall
Mr B Altman QC, Ms Z Johnson QC and Mr S Baker
instructed by
Peters & Peters for
Post Office Limited
for the
Respondent
Hearing dates: 3 December 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Holroyde:
1.
Tracy Felstead, Janet Skinner and Seema Misra are three of forty-one persons (collectively, “the appellants”) whose cases have been referred to this court by the Criminal Cases Review Commission (“the Commission”). They were represented by counsel Mr Paul Marshall and Ms Flora Page at a directions hearing on 18 November 2020. At the start of that hearing Mr Altman QC, for the respondent, brought to the court’s attention what he submitted was the improper provision to a journalist of a document, referred to for convenience as “the Clarke advice”, which the respondent had disclosed to those representing the appellants as part of an extensive process carried out in accordance with a Disclosure Management Document (“DMD”). Ms Page informed the court that it was she who had provided that document. Further submissions were heard in that regard on the following day, 19 November. The court was informed that the same document had been provided by Mr Marshall to a police officer. A further hearing was directed. At the conclusion of that hearing, on 3 December 2020, we gave a short oral ruling directing that the question of whether any contempt proceedings are to be initiated against Mr Marshall and/or Ms Page and, if so, whether by the respondent or by the court of its own initiative, must be adjourned for consideration after the appeals have been concluded. We further directed that all further hearings must be before a different constitution. We indicated that our reasons for so ruling would be given in writing at a later date. This we now do.
2.
At the hearing on 3 December 2020 Mr Altman QC, Ms Johnson QC and Mr Baker represented the respondent; Mr Henry QC and Mr Bentwood represented Ms Page; and Mr Lawrence QC and Miss Scott represented Mr Marshall. We are grateful to all counsel for their written and oral submissions.
3.
We concluded that no contempt proceedings had been initiated, whether by the respondent or by the court, on 18 November. All that happened that day was preliminary to the possible initiation of such proceedings.
4.
Nor were any such proceedings initiated on 19 November.
5.
We further concluded that our priority must be to ensure that the appeals could proceed in proper course before us, and not be diverted or delayed by issues of possible contempt of court. Those issues were unrelated to the merits of the appellants’ cases. They had arisen as a result of the conduct of counsel acting for three of the forty-one appellants. They were an unnecessary, unwelcome and timeconsuming distraction from appeal proceedings which are of great importance to many people. There was a clear and substantial risk that further consideration of the issues relating to possible contempt of court, including an issue as to the position of the respondent in any contempt proceedings, would impact upon the resolution of important questions of principle which were listed for hearing on 17 December, and on the timetable for the appeal proceedings generally. That risk outweighed the desirability of dealing speedily with the issues of possible contempt of court. For that reason, we concluded that further consideration of those issues must be adjourned until after the appeal proceedings have been completed.
6.
We accepted a submission that the just resolution of the issues of possible contempt will not depend on anything which is peculiarly within the knowledge of the members of this constitution of the court. We concluded that it was in the interests of justice
that further consideration of the issues of possible contempt should be before a different constitution of the court.
7.
In order to explain how these issues arose, and to address the submissions of counsel in a little more detail, we shall set out below an outline of the appeal proceedings, and then summarise the sequence of events which led up to the hearing on 3 December. We shall refrain from comment on the issues which a different constitution will in due course have to consider.
8.
Each of the forty-one appellants was a former sub-postmaster, sub-postmistress or Post Office employee. Between 2001 and 2013, each was convicted in the Crown Court of one or more offences of false accounting, theft or fraud. The prosecutions were brought by the respondent, the Post Office (now Post Office Limited), and in most cases relied on records kept by the Post Office's Horizon accounting system, which was in use in branches from about 2000 onwards. In essence, the prosecutions were based upon apparent discrepancies between the cash held at the relevant Post Office branch, and the figures recorded by the Horizon system. The Horizon system was asserted to be accurate and reliable, and the appellants either pleaded guilty or were convicted on that basis. In particular, Tracy Felstead was convicted of offences of theft and false accounting; Janet Skinner pleaded guilty to false accounting; and Seema Misra pleaded guilty to false accounting and was convicted of theft. All three were sentenced to, and served, terms of imprisonment.
9.
The reliability of Horizon has subsequently been called into question. In a nutshell, the concern was that underlying faults in the Horizon system caused it to overstate the amount of cash or stock which should have been held at a particular branch, thus causing what appeared to be an unexplained shortfall.
10.
Civil proceedings, relating amongst other things to deficiencies in the Horizon system, were commenced by hundreds of former Post Office employees. A Group Litigation Order was made. The proceedings were heard by Fraser J, who delivered a number of detailed judgments, in the course of which he made adverse findings about the Horizon system. He also expressed grave concern about evidence given by some employees, or former employees, of Fujitsu, the company which designed and maintained the Horizon system. At the conclusion of the civil proceedings, he wrote to the Director of Public Prosecutions inviting consideration of whether there should be a prosecution or prosecutions for perjury. The court has been informed that a police investigation into two Fujitsu employees has very recently been commenced.
11.
The Commission, pursuant to the power granted to it by
section 9
of the
Criminal Appeal Act 1995
, referred the forty-one cases to this court. Its reasons for those referrals, which take effect as grounds of appeal against conviction, raised two well-established categories of abuse of process: first, that a defendant could not have a fair trial (“Ground 1”); and secondly, that his or her trial was an affront to the conscience of the court (“Ground 2”).
12.
On 16 November 2020, Mr Marshall and Ms Page filed detailed grounds of appeal on behalf of each of these three appellants.
13.
The respondent has indicated the following response to the appeals:
i)
In the cases of thirty-four appellants – including Tracy Felstead, Janet Skinner and Seema Misra – the appeal is not opposed on Ground 1 but is opposed on Ground 2.
ii)
In three cases, the appeal is opposed on both Grounds 1 and 2.
iii)
In the remaining four cases, for reasons which are said to be fact-specific, the appeals are not opposed on either Ground 1 or Ground 2.
14.
That very brief outline is sufficient to show the importance of these appeal proceedings. Many years have passed since the appellants were convicted and sentenced, in circumstances which the respondent accepts involved an abuse of the process of the court.
15.
The respondent has undertaken an extensive process of post-conviction disclosure of unused material. The DMD set out very clearly the process to be followed and the sequence of work. In paragraph 80 of the DMD, the respondent said that material disclosed as part of the process was disclosed “solely for the purposes of the preparation for and conduct of appeal proceedings”. It went on to assert, in paragraph
81 –
“The unauthorised use or onward transmission of any disclosed material for any purpose, other than the preparation for and conduct of appeal proceedings, is a breach of the common law obligation not to use the material for any purpose other than for the proceedings in which it is disclosed, and constitutes a contempt of court punishable by a fine or imprisonment or both”
16.
In a footnote to that paragraph, the respondent stated that where, as in this case, disclosure is being made in connection with a CCRC reference, it is governed by common law principles rather than by the
Criminal Procedure and Investigations Act 1996
(“CPIA”). Relying on
Harman v Secretary of State for the Home Department
[1983] AC 280
, the respondent asserted in the footnote that the prohibition in the CPIA on the collateral use of disclosure made under
section 17
of
that Act
, breach of which is an offence under section 18, is mirrored in the common law.
17.
The forty-one cases were listed for a directions hearing on Wednesday 18 November 2020, before the present constitution of the court. In preparation for that hearing, the parties had put in written submissions. The respondent’s submission questioned whether the court should hear argument on Ground 2 in the cases of appellants whose appeals were not resisted on Ground 1 and could therefore be expected to succeed on that ground. Mr Marshall and Ms Page submitted that Ground 2 should be argued in the cases of these three appellants, even though their appeals were not opposed on Ground 1. Counsel for other appellants made written submissions to the effect that they did not at present actively seek to argue Ground 2 but that they reserved their positions in that regard. One of the matters to be considered on 18 November,
therefore, was an issue as to whether Ground 2 should be argued in the cases of those appellants whose appeals were not opposed on Ground 1.
18.
On 12 November 2020 the respondent disclosed further material to those representing these three appellants, including the Clarke advice: an advice written by Mr Simon Clarke, a barrister employed as an in-house advocate by Cartwright King, solicitors who either acted or had previously acted for the Post Office (or its predecessor) in criminal prosecutions in the courts below.
19.
On 16 November Mr Marshall and Ms Page submitted a further Note to the court, to which they appended a copy of the Clarke advice. They submitted that grounds of appeal could not be settled until all key disclosure had been made, that further disclosure was necessary before the appeals could fairly be concluded, and that the court should set an end date for all disclosure before hearing argument as to whether the appellants should be permitted to argue grounds other than those conceded by the respondent.
20.
Having regard to the number of appellants, and the number of issues to be considered, the directions hearing on 18 November was listed for a full day.
21.
There is, of course, considerable press interest in these appeals. At the start of the hearing, we directed that counsel for the respondent should read aloud certain paragraphs of the Commission’s two statements of reasons for the referrals, and that the whole of both references should then be deemed to have been read in full. Journalists would then be able to ask for copies of those documents – which amount, collectively, to well over 1,000 pages and contain a great deal of detail - to assist them in accurate reporting. We expressed our provisional view that in accordance with established principles it would be necessary to wait and see to what extent any other documents were referred to in open court during the hearing, to see whether they became disclosable. No counsel made any submission against that approach.
22.
Mr Altman QC, for the respondent, then informed the court that on the evening of 17 November the Communications Department of the Post Office had received an email from a Telegraph journalist, Mr Lewis Page, who is the brother of counsel Ms Page. Mr Page said in his email that he had been "talking with the legal team" representing the appellants Tracy Felstead, Janet Skinner and Seema Misra. He said that they had let him see a document which had recently been passed to them “by the PO's lawyers under disclosure rules”. He summarised the nature of the document concerned, namely the Clarke advice, and commented upon it. He concluded by saying:
“The Clarke report will be mentioned in court tomorrow and probably in The Telegraph also. It will become public very soon. Naturally the PO should have right of reply. Apologies for the timing but I've only just seen the document and pitched the story myself. I'll keep you informed of publication etc as I know more.”
23.
It is clear from that email that Mr Page, the day before a hearing which was listed for directions only, expected that the Clarke advice would be mentioned in court and would “become public”.
24.
Mr Altman also provided the court with copies of an article by Mr Page, published in the Telegraph on 17 October 2020, in which he named, and quoted, the solicitor who
acts for these three appellants. Later in the article he referred to what the Telegraph had been told by "legal sources”, but did not name or identify those sources.
25.
Mr Altman referred to
Harman
and to
Taylor v Director of the Serious Fraud Office
[1999] 2 AC 177
. He submitted that the provision of the Clarke advice to a journalist was a serious breach of the terms of the DMD, a breach of an implied undertaking at common law and arguably a contempt of court. The Clarke advice was a document covered by legal professional privilege, and the respondent had waived privilege only for the purpose of meeting its disclosure obligations. Given that one matter to be considered at the directions hearing was the possible imposition of reporting restrictions, a particular vice of what had happened was that the Clarke advice referred to persons who were now the subject of a live police investigation.
26.
We asked if Mr Altman made any submission as to how the court should proceed in relation to the issue which he had raised of a possible contempt of court. Mr Altman said that he and his team had had little time to consider the issue, but submitted that the court should as a minimum
“hear from Mr Marshall and Ms Page to see what they want to say about it.”
27.
We agreed with that submission, but emphasised that it was a question of whether Mr Marshall and/or Ms Page wished to say anything about what was potentially a serious matter, which might have to be investigated.
28.
Mr Marshall said that he wanted to say two things: first, on instructions, that it was not his instructing solicitors who had disclosed the document to Mr Page; and secondly, that it was Ms Page who had provided it to her brother Mr Page, who was unable to attend the hearing. He added that Ms Page recognised that it was not appropriate for her to have done so and that she unreservedly apologised. He concluded:
“… more than that I would not wish to say at the moment.”
29.
Ms Page then addressed the court, confirming that she did unreservedly apologise. She had been aware that her brother would not be able to attend the hearing, and was also aware that he would not publish anything “unless this document was fully enunciated in court”. She repeated her apology and said
“it should have waited until today, but it was a pragmatic decision based on the fact that if there were to be no reporting restrictions, and if the document was fully mentioned in court today, then it would be a document which, potentially, could be reported upon.”
30.
In answer to a question from the court, seeking clarification of the sequence of events, Ms Page added that the Clarke advice had been “discussed yesterday in anticipation of today’s hearing” and that she had not disclosed any other document to her brother.
31.
There were many matters to deal with at the directions hearing, and many parties whose hearing had already been delayed by an hour. We therefore put further consideration of this matter back to 4pm, which gave Ms Page an opportunity to make appropriate arrangements if she wished someone to speak for her. We warned her
that
“amongst the matters to be considered are whether Her Majesty’s Attorney General should be invited to consider a possible contempt of court and/or whether there should be a report to a professional body.”
32.
It is convenient to note here that later in the day, we varied our order to provide for a hearing to take place at 1015 on the following day, 19 November. We indicated that Mr Marshall, and any other party or counsel, could attend if they wished but were not required to do so. Ms Page at that stage helpfully indicated that she had spoken to her brother, who had told her that he would destroy the document.
33.
The directions hearing proceeded. No reporting restrictions were imposed. Counsel for all of the appellants made submissions as to what directions should be given, both generally and in relation to individual cases. We indicated that the issue of whether Ground 2 could be argued, even if an appeal was not opposed on Ground 1, raised important questions of principle which should be determined before the end of term so that all parties would know the basis on which they should prepare for the full appeal hearing. Mr Marshall submitted that such a hearing should take place but that it would not be practical for it to do so before the end of term. Mr Marshall sought to make a submission about the significance of the Clarke advice, but was stopped by the court on the basis that it was not relevant to the question of whether the issues of principle should be considered at a separate hearing.
34.
The directions given at the conclusion of the hearing included the following:
i)
The cases of all appellants whose appeals are uncontested on Ground 1, but contested on Ground 2, will be listed on 17 December 2020 (with a time estimate of one day) for the hearing of submissions on two questions of principle: Is each appellant entitled as of right to argue Ground 2? If not, on what principles should the court act in deciding whether to permit argument on Ground 2?
ii)
Any party who wishes to make submission at that hearing must not later than 4pm on 11 December 2020 file a skeleton argument. The court will invite HM Attorney General to consider appointing an advocate to the court to make submissions.
iii)
The prosecution must complete disclosure by 5 February 2021.
iv)
The appeals of all appellants, other than the three whose appeals are contested on both grounds, will be listed for final hearing on 22 March 2021, with the contested appeals of those three appellants to follow and the total time estimate to be 4-5 days.
35.
On 19 November 2020 Ms Page attended. She was represented by Mr Bentwood. Her brother was also present. We understood that Mr Marshall did not wish to attend.
36.
Mr Altman submitted that the court could if it wished deal with the matter summarily as a civil contempt. If so, the next stage would be for the allegation against Ms Page to be formulated, so that she could say whether she admitted it.
37.
Mr Bentwood began his submissions by repeating Ms Page’s apology for her lapse of judgement, and for causing the appeal proceedings to be distracted by an extra issue. He then began to make submissions about the various routes open to the court. He was however interrupted when the court associate reported that he had received an email from Mr Marshall indicating that he wished to join the hearing via CVP: we now understand that Mr Marshall may have expected the hearing to start rather later than it did. We adjourned so that the necessary technical steps could be taken. After some minutes, we were informed that Mr Marshall no longer wished to attend.
38.
Mr Bentwood resumed his submission that any potential contempt issue should be considered by a different constitution. He submitted that summary consideration of possible contempt would not be appropriate: although the factual matrix was “both relatively straightforward and admitted”, there was an issue of law which was not straightforward, as to whether Ms Page had been under any obligation not to disclose the Clarke advice, and whether paragraph 81 of the DMD could impose such an obligation if one did not otherwise exist. He referred to
Mahon v Rahn
[1998] QB 424
. He stated that Ms Page accepted that her error of judgement was a serious one, but emphasised that it was never her intention to make public something which would not otherwise have become public. He submitted that the Clarke advice would become public at some stage, though he accepted that a breach of undertaking – if in law there was an implied undertaking – could not retrospectively be validated. He submitted that the body best positioned to deal with the matter and, if necessary, to impose any sanction was the Bar Standards Board, to which Ms Page would refer herself. He spoke of the impact of that referral on her otherwise unblemished professional career.
39.
We interpose to note that Ms Page subsequently withdrew from acting for these three appellants.
40.
As Mr Altman was concluding his brief submissions in reply, the court was passed by the associate an email which had been sent at 1045 that morning by Detective Sergeant Broom, an officer in the Metropolitan Police Service who has been involved in the police investigation relevant to these appeal proceedings. DS Broom stated that Mr Marshall had sent a copy of the Clarke advice to her on the afternoon of 17
November 2020, saying -
“This is what we filed with the court yesterday for the hearing tomorrow. I am confident you will find the advice and its conclusion very interesting.”
DS Broom went on to state that Mr Marshall had sent a further copy of the Clarke advice to her at 0652 that morning, saying –
“this document was referred to in court yesterday.”
41.
There was a short adjournment to allow counsel time to consider this email. Mr Altman, acknowledging the need to be circumspect because Mr Marshall was not present, indicated that his instructing solicitors were in contact with the Metropolitan Police in relation to disclosure, which was being dealt with through a proper process. Mr Marshall’s voluntary provision of the Clarke advice to DS Broom, he submitted, was a breach of the implied undertaking –
“But that may perhaps be for another day for the court to determine, for the reasons given, and Mr Marshall may have to find himself in the same position as Ms Page has.”
42.
Emphasising the need for caution in Mr Marshall’s absence, we noted that he had not mentioned on 18 November that he had sent a copy of the Clarke advice to another third party the previous afternoon. Whilst the message which he sent to DS Broom hours before the present hearing was factually accurate, the Clarke advice had been referred to on 18 November because of the need to investigate the circumstances of its disclosure to Mr Page.
43.
Mr Bentwood submitted that this potential added layer of complexity was a further reason why the court should not deal with matters summarily.
44.
Mr Page, in response to questions from the court, stated that he had received the Clarke advice from his sister only in electronic form; that he had deleted it; and that he would make no use of what he had read in it unless and until a stage was reached at which any journalist could properly refer to it. He added that his sister had only let him see the Clarke advice on condition that he would not write about it unless it became public.
45.
In the light of the submissions made by Mr Altman and Mr Bentwood, it was clear that there were issues as to whether or not counsel and solicitors who receive disclosure of unused material in criminal proceedings not governed by
sections 17
and 18 of the CPIA come under any, and if so what, duty limiting the use they may properly make of that material, and as to the effectiveness or otherwise of disclosure being made under cover of a statements such as that contained in paragraph 81 of the DMD. We ruled:
“That, in our view, is an issue which must be resolved by the court. If there be such a duty as the prosecution contend for, and if there be here a breach of it, then that would, on the face of it, be a civil contempt of court, which is a matter for the court. We are therefore unable to accept Mr Bentwood's submission that the court need take no action and may properly and sufficiently leave these questions to be dealt with by the Bar Standards Board.”
46.
We therefore adjourned to a later hearing consideration of whether there had been a civil contempt of court, and whether any future proceedings should be heard by the same or a different constitution. We requested the assistance of the respondent in drafting a provisional formulation of the charge or charges against Ms Page and in seeking to agree with Mr Bentwood a summary of the relevant facts. We went on to indicate that we wished Mr Marshall to assist the court in relation to his emails to DS Broom. We wished that assistance to be given as soon as practicable, in part because of our concern for the position of the three appellants represented by Mr Marshall and Ms Page, who wanted to make submissions on the questions of principle which were to be considered on 17 December. We indicated that the nature of the next hearing would be to establish whether the court (be it this constitution or another) would thereafter be concerned with Ms Page alone or also with Mr Marshall. We suggested that in considering the formulation of a charge and statement of facts, the respondent would be able to work “with one eye to the possibility that there may be charges to be considered against two rather than one”.
47.
On 23 November 2020 Mr Marshall sent a letter to the court in which he stated that he had provided the Clarke advice to DS Broom on 17 November 2020 because he considered it was right and in the interests of justice and the suppression of crime to do so and in anticipation that its contents would become part of the court record on 18 November. He said that he had initially thought that he would wait until after the hearing before sending the Clarke advice to DS Broom but had done so on 17 November “because of its seeming importance”.
48.
The respondent drafted Particulars of Conduct against Ms Page, alleging that she had acted in breach of an undertaking implied at common law not to use the Clarke advice for any purposes other than the proper conduct of these appeal proceedings, and a draft summary of relevant facts.
49.
At the hearing on 3 December, Mr Altman stated that the respondent on 18 November had brought matters to the attention of the court but had not made any application for committal for contempt. In the intervening period, all counsel and solicitors representing the appellants had given undertakings which sufficed to meet the respondent’s concerns as to any further inappropriate use of disclosed material. He suggested that the court might consider appointing fresh counsel to assist it in potential contempt proceedings before this or another constitution.
50.
Mr Henry QC referred to Ms Page’s impressive professional record and personal character. He emphasised that she had given the Clarke advice to her brother purely to assist him to prepare an accurate and fair report of proceedings. She had acted mistakenly in giving the document to him, but she had done so in the knowledge that he would be bound by the court’s decision.
51.
Mr Henry referred to rule 48 of the Criminal Procedure Rules, which, so far as is material for present purposes, provides –
“GENERAL RULES
When this Part applies
48.1.
—(1) This Part applies where the court can deal with a person for conduct—
(a)
in contempt of court; or
(b)
in contravention of the legislation to which rules 48.5 and 48.9 refer.
…
CONTEMPT
OF
COURT
BY
OBSTRUCTION, DISRUPTION, ETC
Initial procedure on obstruction, disruption, etc.
48.5.
—(1) This rule applies where the court observes, or someone reports to the court—
(a)
in the Court of Appeal or the Crown Court, obstructive, disruptive, insulting or intimidating conduct, in the courtroom or in its vicinity, or otherwise immediately affecting the proceedings;
(b)
in the Crown Court, a contravention of—
(i)
section 3
of the
Criminal Procedure (Attendance of Witnesses) Act 1965
(disobeying a witness summons), or
(ii)
section 20
of the
Juries Act 1974
(disobeying a jury summons);
(c) in a magistrates’ court, a contravention of—
(i)
section 97(4)
of the
Magistrates’ Courts Act 1980
(refusing to give evidence), or
(ii)
section 12
of the
Contempt of Court Act 1981
(insulting or interrupting the court, etc.);
(d) a contravention of
section 9
of the Contempt of Court Act
1981
(without
the
court’s
permission,
recording
the
proceedings, etc.); or
(e) any other conduct with which the court can deal as or as if it were, a criminal contempt of court, except failure to surrender to bail under
section 6
of the
Bail Act 1976
.
…
CONTEMPT OF COURT BY FAILURE TO COMPLY WITH COURT ORDER, ETC.
Initial procedure on failure to comply with court order, etc
48.9.
—
(1) This rule applies where—
(a) a party, or other person directly affected, alleges—
(i)
in the Crown Court, a failure to comply with an order to which applies rule 33.70 (compliance order, restraint order or ancillary order), rule 47.9 (certain investigation orders under the
Police and Criminal Evidence Act 1984
, the Terrorism
Act 2000, the
Proceeds of Crime Act 2002
, the
Proceeds of Crime Act 2002
(External Investigations) Order 2014 and the
Extradition Act 2003
), rule 47.41 (order for retention or return of property under section 59 of the Criminal Justice and
Police Act 2001) or rule 47.58 (order for access under
section 18
A of the
Criminal Appeal Act 1995
),
(ii)
in the Court of Appeal or the Crown Court, any other conduct with which that court can deal as a civil contempt of court, or
(iii)
in the Crown Court or a magistrates court, unauthorised use of disclosed prosecution material under
section 17
of the
Criminal Procedure and Investigations Act 1996
; or
(b) the court deals on its own initiative with conduct to which paragraph (1)(a) applies.
(2) Such a party or person must—
(a) apply in writing and serve the application on the court officer; and serve on the respondent—
(i)
the application, and
(ii)
notice of where and when the court will consider the allegation(not less than 10 business days after service).
(3) The application must—
(a) identify the respondent;
(b)
explain that it is an application for the respondent to be dealt with for contempt of court;
(c)
contain such particulars of the conduct in question as to make clear what is alleged against the respondent; and
(d)
include a notice warning the respondent that the court—
(i)
can impose imprisonment, or a fine, or both, for contempt of court, and
(ii)
may deal with the application in the respondent’s absence, if the respondent does not attend the hearing.
(4)
A court which acts on its own initiative under paragraph (1)(b) must—
(a)
arrange for the preparation of a written statement containing the same information as an application; and
(b)
arrange for the service on the respondent of—
(i)
that written statement, and
(ii)
notice of where and when the court will consider the allegation (not less than 10 business days after service).”
52.
Mr Henry submitted that the respondent on 18 November had failed to assist the court, with the result that there had been confusion as to the nature of the suggested contempt and a failure to follow rule 48. The suggested contempt had first been raised by the respondent, not by the court of its own motion; but the respondent had failed to make the written application required by rule 48.9, and had then diverted the court into embarking upon a summary procedure under rule 48.5. From then on, there had been procedural unfairness: although the court had made clear that Ms Page did not have to say anything, it was difficult for her as a barrister to remain silent when addressed by the court. The safeguards to which she was entitled, namely her right to silence, right against self-incrimination and right not to give evidence, had gone by the board. Mr Henry referred to
Douherty v Chief Constable of Essex Police
[2019] EWCA Civ 55
, in which reference was made at [23] to a checklist set out by Theis J in family proceedings in the earlier case of
re L (a child)
[2016] EWCA Civ 173
. That checklist, he submitted, had been overlooked in the present case. The court, although of course not intending to be unfair, had in fact come to conclusions about Ms Page’s conduct on the basis of information which she provided in breach of her rights. Mr Henry submitted that any further hearing should be before a different constitution of the court. The present constitution should not conduct any investigation or play any further role. If the respondent wished to instigate contempt proceedings, it should do so in accordance with rule 48.9. Rule 48.5 is concerned with contempt in the face of the court, and had no application in the present case which is based (if at all) on a contempt arising out of a breach of undertaking. Any contempt of that kind would be a civil contempt.
53.
In Mr Henry’s submission, what was said by the respondent on 18 November engaged rule 48.9(1)(a)(ii). In particular, he submitted, the manner in which Mr Altman had raised the matter amounted to “a party, or other person directly affected, alleg[ing] contempt”. The respondent could not now disavow that approach and leave matters to the court. It was only on 19 November that any steps were taken towards compliance with rule 48.9; but by that time, the procedural flaws on the previous day had caused irremediable prejudice to Ms Page.
In re Yaxley-Lennon
[2018] 1 WLR 5400
emphasised the need for procedural fairness, and
In re Ian West
[2015] 1 WLR 109
emphasised the importance of compliance with the Criminal Procedure Rules. In any future hearing, evidence of what was said by Ms Page and Mr Marshall before they were advised as to their rights should be excluded.
54.
Mr Henry accepted that in principle the court had been entitled to ask questions in order to elucidate how the document had reached Mr Page, but he contended that
there was a clear allegation of contempt and that accordingly no enquiry should have been made of Ms Page until she had been informed of the charge(s) she faced and had been able to take advice.
55.
Mr Lawrence QC pointed out that since the last hearing, no application for committal for contempt had been initiated against Mr Marshall. He too submitted that a barrister in the position of Ms Page or Mr Marshall faced a difficulty: instinctively wishing to assist the court, but owing a duty to their clients and having a self-interest as soon as the matter of concern was raised. It would have been much better if the court had been taken immediately to rule 48, as that would have brought into focus the distinction between a potential summary procedure and the non-summary procedure which is mandatory in cases of civil contempt. As it was, no procedure complying with the Rules had been commenced against either Mr Marshall or Ms Page.
56.
Mr Lawrence stated that he would not make any submissions about the facts of the matter: there might in future be properly formulated proceedings to which Mr Marshall would have an opportunity to respond. He submitted that the court should direct the respondent to decide whether it wished to initiate and prosecute an allegation under rule 48. The respondent was the aggrieved party, and it was for the respondent to decide whether it wished to embark upon a process in which an issue would arise as to whether any, and if so what, undertaking was to be implied in the circumstances of this case. He did not say that the court was debarred from initiating its own process, but on the authority of
Harman
and as a matter of good sense it should be left to the aggrieved party. If such a process was commenced by the respondent, it should be dealt with by a different constitution. If the court was minded to initiate contempt proceedings, it should not be done immediately because of the risk of jeopardising Mr Marshall’s ability to continue to represent the three appellants. Mr Lawrence added, however, that undue delay might give rise to an issue of abuse of process.
57.
Mr Altman submitted in reply that although the interests of the respondent were engaged, the more important interest was the public interest in there being compliance with the implied undertaking. Further proceedings were therefore not a matter for the respondent, a private prosecutor. No process had been initiated against Mr Marshall, though the court could initiate such process if it wished. As to Ms Page, Mr Henry was wrong to suggest that the respondent had made an allegation against her on 18 November: all the respondent had done was to bring to the court’s attention what it knew at that time, as information not allegation. The court was therefore dealing with the matter of its own initiative under rule 48.9(1)(b). The court had asked for a draft to be prepared in accordance with rule 48.9(4), and that had been done; but no contempt proceedings had yet been commenced, and it was for the court to decide whether they should be. The court had been entitled to invite Mr Marshall and Ms Page to speak on 18 November, and had rightly told them that they did not have to say anything; but no one at that stage knew that they would both say it was Ms Page who had provided the document to her brother. The rights of Ms Page and Mr Marshall had been preserved. The checklist put forward by Theis J was appropriate in an application for committal, but the proceedings on 18 November were not such an application.
58.
In our view, rule 48.9(1) does no more than specify the circumstances in which the rule as a whole applies. It is only when a party or other person directly affected
makes an allegation of a kind particularised in paragraph (1) (a), or the court begins to deal on its own initiative with conduct of such a kind in accordance with paragraph (1)(b), that the requirements of rule 48.9(2) or rule 48.9(4) come into effect. Any other interpretation would render rule 48.9(1) unworkable: it would mean that as soon as a party, or the court, mentioned the relevant matter, it would already be too late to comply with the requirements of rule 48.9(2) or 48.9(4). It would also mean that the court would be prevented from taking any steps to enable it to make an informed decision as to what to do when told that a legally privileged document had been passed to a journalist.
59.
At the time when the matter was first raised in court by Mr Altman, all that was known was that a document which, in accordance with the DMD, had been disclosed to the representatives of these appellants solely in connection with their conduct of the appeal proceedings, had been given or shown to a journalist, apparently by one of those representatives.
60.
Mr Altman, in providing information to the court, went no further than stating that whichever legal representative gave the document to Mr Page had acted in breach of the DMD and of an undertaking implied at common law, and had arguably committed a contempt of court. In our view, the respondent did not thereby make an allegation within the meaning of rule 48.9(1)(a).
61.
Nor, by our enquiring of Mr Marshall and Ms Page whether they wished to say anything, did the court begin to deal with the conduct of any person, within the meaning of rule 48.9(1)(b). Contrary to Mr Henry’s submission, we did not ask either Mr Marshall or Ms Page any question, other than enquiring whether they wished to say anything. Both Mr Marshall and Ms Page volunteered that it was the latter who had provided the document to Mr Page, that she recognised that she had been wrong to do so and that she apologised for doing so. Neither the respondent nor the court had known that Mr Marshall and Mr Page would say that. The matter was adjourned to the following day so that the question of possible contempt proceedings could be addressed at a time when Ms Page had an opportunity to be represented, but without delaying or derailing the directions hearing.
62.
In those circumstances, there was no initiation of any contempt proceedings, whether by the respondent or by the court, on 18 November.
63.
It should be noted that both Mr Henry and Mr Lawrence accepted that the court, faced as it was on 18 November with an issue which clearly needed to be addressed promptly, was entitled to make some enquiry into how the Clarke advice had come into the possession of Mr Page. Both asserted, rightly, the need for the court to proceed with caution; but both accepted that the court had made clear that neither Mr Marshall nor Ms Page was required to say anything if they did not wish to do so, and neither made any specific submission as to anything else which the court could or should have done in that regard. We understand the point they make about the difficult position of a barrister who is invited to assist the court and instinctively wishes to do so. We observe, however, that it was Ms Page’s conduct which gave rise to the situation in which that difficulty arose.
64.
We accepted the submission that the respondent should on 18 November have referred the court to the provisions of rule 48. The fact that no such reference was
made did not, however, impact on our decision that no contempt proceedings were initiated on 18 November.
65.
Nor were any such proceedings initiated on 19 November. That hearing was listed as a matter of urgency so that Ms Page’s position could be considered without delaying the directions hearing. The unexpected arrival of DS Broom’s email introduced a new matter, which could not be set entirely aside merely because Mr Marshall was not present. If Mr Marshall had chosen to mention on 18 November that he had sent a copy of the Clarke advice to DS Broom, there would have been an opportunity to consider the matter in his presence. We rejected the suggestion that any finding was made against Mr Marshall in his absence.
66.
It was in those circumstances that it became necessary to list, again as a matter of urgency, the further hearing on 3 December. We have indicated earlier in this judgment the reasons for the conclusions which we reached at that hearing. We add for completeness that, although nothing was said at the hearing on 3 December about whether Mr Marshall would or should continue to act for these three appellants, he subsequently informed the court that he had decided to withdraw from doing so. These appellants were therefore represented by fresh counsel at the hearing on 17 December, when their submission that they should be allowed to argue Ground 2 was successful. | ```yaml
citation: '[2021] EWCA Crim 25'
date: '2021-01-15'
judges:
- LORD JUSTICE HOLROYDE
- MR JUSTICE PICKEN
- MRS JUSTICE FARBEY DBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
200105907W2
Neutral Citation Number:
[2003] EWCA Crim 2169
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CAMBRIDGE CROWN COURT
(HHJ HAWORTH)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 25 July 2003
Before :
LORD JUSTICE POTTER
MR JUSTICE CURTIS
and
MR JUSTICE GAGE
- - - - - - - - - - - - - - - - - - - - -
Between :
REGINA
Respondent
- and -
VIVIAN DAVID BRIGHT
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr R Harrison
(instructed by
Adams Harrison
) for the appellant
Mr J Caudle
(instructed by the
Crown Prosecution Service
) for the respondent
Hearing date : 1 July 2003
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Potter:
Introduction
1.
On 27 September 2001 in the Crown Court in Cambridge before His Honour Judge Haworth and a jury the appellant was convicted on an amended indictment containing 11 counts relating variously to charges of indecent assault on a female and indecency with a child. In its original form the indictment had contained 15 counts, the original counts 1-4 relating to indecent assault on Lynne Herbert who, by the time of trial, was too ill to attend. As a result counts 1-4 of the original indictment were ordered to remain on the file on the usual terms, the matter proceeding on the basis of a renumbered indictment in relation to which the defendant was convicted on all 11 counts save count 10.
2.
The appellant was sentenced as follows (the original count numbers appearing in brackets after the number of the count in the amended indictment).
Indecent assault on a female
Count 1 (5) : 6 months
Count 2 (6) : 2 years
Counts 5 (9) and 6 (10) : 3 years on each count
Count 7 (11) : 3 years 6 months
Count 11 (15) : 6 months
Indecency with a child
Counts 3 (7), 4 (8), 8 (12) and 9 (13) : 18 months on each count
3.
The totality of the sentences on Counts 2 to 6, i.e. 3 years was ordered to run consecutive to Count 1 (6 months) and the totality of the sentences on Counts 7-9, i.e. 3½ years was ordered to run consecutively to the total on Counts 1 and 2 to 6. Thus the total sentence passed was one of 7 years’ imprisonment. The appellant was ordered to register indefinitely under the
Sex Offenders Act 1997
and his licence was extended to the whole sentence under
s.44 of the Criminal Justice Act 1991
.
4.
The appellant appeals against conviction with leave of the single judge who referred his application for leave to appeal against sentence to the full court. The judge refused leave in respect of certain grounds of appeal and, in relation to those grounds, the appellant renews his application for leave.
The facts
5.
The appellant was charged with sexual offences committed between 1967 and 1982 against young girls who were variously related to him through marriage, including his own daughter, or were otherwise acquainted with him as the children of friends. Some were members of the Saxon Street Girls Brigade in Soham near Newmarket in which the appellant’s wife and her friend Brenda Jaggard were involved.
6.
In 1999 the appellant was tried at the Cardiff Crown Court for various sexual offences against young girls and, following publicity in the local newspaper in Cambridge, further complaints were made to the local police. So far as the time-span of the instant offences is concerned, the appellant married his wife in 1967; however, they have since divorced and his former wife gave evidence for the prosecution at his trial. The appellant and his wife had two children, one of whom was a complainant, Marina, born on 10 February 1973. The appellant served in the Royal Air Force between 1962 and 1968, his period of service including a posting to Aden between January 1965 and January 1967.
7.
We shall turn to the individual Counts in a moment. Meanwhile we record that Counts 1-4 of the original indictment concerned allegations by Lynne Herbert that, between 1962 and 1966 when she was aged between 9 and 12, the appellant on occasions would touch her private parts over her clothes. He also put his finger in her vagina, displayed his erect penis and once simulated intercourse with her. Following her becoming medically unfit to attend trial the indictment was amended, as we have already recorded, so that the Counts remaining related to five other young women; Julia Farley, Helen Wing, Alison Daines, Clare Muckley and the appellant’s own daughter Marina Baldock. The Crown’s case was that Counts 1, 2, 4 and 5 of the amended indictment were sample counts reflecting a course of conduct in respect of their subject and that Counts 3, 6, 7, 8, 9, 10 and 11 were specific incidents.
The prosecution case
Count 1
8.
Julia Farley said she first met the appellant when he was the boyfriend of her cousin Dianne; she was Dianne’s bridesmaid when they married. She liked Dianne but was very nervous and frightened of the appellant because he put his hands inside her knickers. It had started in Twickenham before she was 10 years old and before the marriage. She tried not to be alone with the appellant which was difficult. Each time they were alone he had done it. She was frightened to tell anyone. He told her that it was a secret and that bad things would happen if secrets were told. She believed him and was terrified. Once, when she was "about eight" her mother found blood on her knickers and she feared that the secret would be revealed. The touching was done quickly each time when people were out of the room.
9.
The last time it happened was in Hanworth when she had turned 10. The appellant visited their house with her aunt and uncle. They were in the front room. When they went to the front door the appellant pulled her back and put his hands down her knickers. Her sister Lynne walked in and ran out screaming "Vivien’s touching Julie." Her mother then appeared and, as the appellant left, he threatened her with "bad things" because she had told them what happened.
10.
She did not see the appellant again when she was a child or teenager and did not say what had occurred until the trial. She had found the incidents frightening, just as it was frightening for her to give evidence. In May 1999 Lynne told her about the appellant being tried in Wales for indecent assaults and said that the appellant had done similar things to her as well. They were both shocked. She had not read any witness statement made by Lynne or been told what Lynne had said. She said they did not discuss it. It was possible that she had told her mother that the mother touched her once when she was 13 but she did not recollect that. She had not told any of the appellant’s family or others.
Count 2
11.
Helen Wing was the daughter of friends of the Brights and the Jaggards and a member of the Girls Brigade who said that the appellant helped there on occasions and was friendly and good fun. Sometimes she visited the Bright’s home in Newmarket. When she was between the ages of 9 and 11 she lived in Soham and the Brights visited her family. When they were saying goodbye in the hall the appellant picked her up and tried to put her legs round his waist as she faced him which she was reluctant to do. He held her inside her skirt and put his finger in her vagina. Nobody noticed what he was doing. It was a large hall. He kissed her cheek which she did not want. She said she disliked him. It happened on a number of occasions and stopped when she left Soham aged 11.
12.
Once at Soham she was at the appellant’s home. Dianne Bright was putting the car away and the appellant entered the front room when she was sitting on the settee. She was frightened that he would touch her. He sat close to her and she got up, crying. He said "Don’t you like it?" She said "No" and left the room. Sometimes she and her cousin, Alison Daines, babysat for the Brights. She saw pornographic magazines there which she said were unknown to her previously and were horrible. She had not spoken to the appellant for many years. She told Alison what went on but no-one else. Alison told her that the appellant had masturbated but she did not understand what that meant at the time. She did not tell any of her family and became wary of all men. She remembered the ‘hall’ occasion with confidence and thought that similar incidents had happened on other times but said she could not recall with certainty. She read in the paper about the trial in Wales and discussed it with Alison. This made them realise that the appellant’s conduct was continuing and they decided to stop it for other people by making statements.
Counts 3 - 6
13.
Alison Daynes had lived at home in Saxon Street until she was 16. When she was about 7, the appellant and his wife had moved to Newmarket and sometimes she and her sister Caroline had slept at their home there. She said that they were lovely people and very nice to the girls, being closer to them than other members of their family. The appellant sometimes did babysitting at their house. However things changed so far as the appellant was concerned when she was about 8 or 9 and Caroline was about 6. They had stayed overnight with the Brights when their mother was in hospital. When they were in bed she saw the appellant standing in the open doorway with the landing light on wearing an open dressing-gown and masturbating. His heavy breathing got faster and he wiped himself with a handkerchief and walked away. Caroline asked what he was doing and Alison told her to shut her eyes. It happened on other occasions. When she was downstairs watching television he would enter the room either naked or wearing a dressing-gown and masturbate into a handkerchief breathing heavily. He would then leave the room. Later when she was about 11 he would show her pornographic magazines depicting intercourse before he masturbated.
14.
Sometimes when the appellant had babysat at her house, he would go to her bedroom after she had gone to bed, pull up her nightdress and squeeze her breasts. He forced her legs apart put his fingers in her vagina which hurt her. This occurred several times. She tried to push him away and once he had tried to put her hand over his penis. Once he licked her body using orange juice. Sometimes he licked her vagina. He told her not to tell anybody and she did not do so. Finally, when he was babysitting at her home, he came to her bedroom and made several attempts to force her legs apart saying "You’ll enjoy it. Just relax." He was very determined. He then went towards Caroline’s room. She shouted towards Caroline but did not see him do anything to her. The appellant stopped babysitting before she was 13. She told nobody until she told her husband. She explained why she did not complain earlier but decided to do so when she saw the newspaper about the Welsh trial. She said that the appellant had been given a lenient sentence and she thought he should be punished for everything he had done to children.
15.
Caroline, being Alison’s sister, gave supporting evidence. She said she had joined the Girls Brigade when she was 5. The appellant was sometimes involved and liked to handle the girls. She said at first she was very naïve and later kept clear of him. She recalled two specific occasions (Count 3) when the appellant was looking after her and Alison at his house. They stayed overnight and were in the same bedroom. She could see the appellant near the toilet, possibly naked, and he seemed to shake his penis with his hands for a long time. She thought he was going to the toilet and Alison told her not to look and she turned away. She said the appellant was physical with the girls but she kept out of his way, being often told to do so by Alison who did not give her details as to why. She said that in 1999 Alison had telephoned her and said the appellant had been imprisoned in Wales. They discussed the event and decided that they should speak up about their own experiences. She did not recall saying in her statement that it would increase his sentence. They continued talking about it since, but she did not know the details of Alison’s statement. They had discussed protecting their children and about perverts generally. She said she had spoken with Helen Wing twice.
Counts 10 and 11
16.
These Counts concerned Clare Muckley. Count 10 involved an alleged incident of indecent touching in the swimming pool, in relation to which the appellant was acquitted. So far as Count 11 was concerned, Clare said she was on a Girls Brigade outing at a summer fete when she was 13. The appellant approached her from behind and put his hands over her shoulders and down the front of her tee-shirt onto her chest. She was not sure if he touched her breasts which were then developing. She moved away feeling panic and discomfort. She had told a friend about the incidents a long time ago but spoken about them since until she spoke to the police.
Counts 7, 8 and 9
17.
Marina Baldock, the appellant’s daughter, said she got on well with her father when she was young but that changed when she was aged between 8 and 10 because of what he did to her during that time. Once, after a bath, he dried her with a towel in the front room and touched her private parts and inside her vagina. She did not know then what had happened was wrong and she trusted her father. She did not tell anyone. On another occasion she was in her parents’ bedroom when her mother was out and the appellant, who was naked, showed her how to masturbate him. He ejaculated.
18.
At one time she was lying naked on her parents’ bed. The appellant stood close to the bed masturbating and ejaculated onto her stomach. He said "I want to come on your tummy" which she thought was disgusting, but she did not tell anyone. She said she was never close to the appellant after those events and tried to avoid being alone with him. She began to realise what he did was wrong. However she did not tell her mother because she thought it would break up the family.
19.
Brenda Jaggard, the mother of Alison and Caroline, gave evidence. She was a friend of the appellant’s wife. He sometimes babysat for her daughters at their home. The two families also visited each other and the Brights helped at the Girls Brigade and their events. She had thought that the appellant was too friendly around girls though it appeared to be innocent. However she became concerned and mentioned it to Dianne Bright who was honest and responsible. She knew of Alison’s circumstances several years before the trial but had not discussed the allegations. She only heard that the appellant’s daughter Marina was involved when the police were investigating after she had made her statement in 1999. She did not know the details of the complaints.
20.
Dianne Bright, the appellant’s wife gave evidence. She had first met the appellant in 1961. He joined the RAF and was posted to Aden and then back to the United Kingdom in November 1967, when they married. He was then posted to Newmarket, leaving the air force in 1968 when she joined the Saxon Street Girls’ Brigade and met Brenda Jaggard. She confirmed that the appellant babysat for Alison and Caroline at either home. She described the appellant’s assistance with charitable works and the way in which he mixed with other people. She said she did not know or suspect any wrongdoing with children although she had found pornography depicting adults in the house. Her relationship with the appellant had deteriorated about 1986. However they were still married at the time of the prosecution in Wales which was of acute concern to her and she had talked about it to friends including Brenda. The other matters then came to light. She had spoken to Lynne Herbert but not directly with Julia Farley. She did not know the details of the allegations. She had not spoken to Alison, Caroline or Helen Wing. She did not know Clare Muckley. She spoke to Marina just before the sentence in Cardiff and found out what had happened to her. She then divorced the appellant. She had noticed that Marina did not get on very well with the appellant from the age of 9 or 10 but had been quite unaware of the reasons.
21.
Following his arrest on 16 March 2000, the appellant was interviewed at length. He denied each of the allegations or any sexual contact with any of the girls. He denied showing pornography to any of the complainants but said he might have had some magazines hidden at home or mixed up with other publications.
22.
The appellant denied the offences in evidence. He said that between January 1967 and January 1969 he had visited the homes of Lynne Herbert and Julia Farley but had never gone without his wife. He denied indecently assaulting Julia Farley by putting his hand down her knickers. He said his relationship with her was excellent. There were kisses and hugs but no friction. He described the friendship with the Jaggards and said that they spent a lot of time together socially. He did not remember babysitting for Alison and Caroline although there were times when he was with them. They had stayed at his home when Brenda Jaggard went to hospital in March 1974. That evening his wife brought the two girls to the house. Alison was not feeling well and went to bed. He got ready for bed and assumed he wore pyjamas and a dressing-gown. He denied masturbating at the door in the girls’ sight or before Alison downstairs and said he did not produce pornography to her. Occasionally he had pin-up magazines such as Playboy and Mayfair which he took home in his briefcase keeping them in the spare room or in the loft. He did not recall his wife ever finding them and he did not show any such thing to either girl. He said his relationship to Alison was friendly. He treated her as an adult rather than a child and always got on well with her. He used to tease, chase and jump out on the girls and they screamed and ran away. However he never caught them. He never sexually assaulted Alison in her bedroom and he did not try to part her legs when she was in bed.
23.
So far as Helen Wing was concerned, he and his wife were friendly with her family and visited them in their home. He denied the allegation that he had assaulted her in the hall. There was no truth in that allegation nor the allegation that he had tried to get close to her when his wife was parking the car.
24.
So far as his daughter Marina was concerned, he described their relationship as excellent and denied that she had tried to avoid him from the age of 8 or 9. He said they were still close and denied any improper conduct with or towards her.
25.
So far as Clare Muckley was concerned, he did not remember her and denied that he had ever assaulted her.
26.
He said that he was arrested on 9 July 1998 and interviewed in respect of the Welsh matter. At that time his wife was very supportive. He pleaded guilty and was sentenced to imprisonment. His wife divorced him. By the time of his release from prison in June 2000 he had been charged in respect of the instant offences.
The Grounds of Appeal
27.
We shall deal first with the Grounds of Appeal in respect of which the single judge gave leave to appeal.
Ground A. I
28.
This ground arises from a ruling by the judge in relation to the witness statement of Lynne Herbert who had been the subject of Counts 1-4 of the indictment as originally drawn but who was too ill to attend trial. The Crown did not apply to read her statement or rely upon it in any way. Lynne Herbert was the elder sister of Julia Farley, who was the subject of Count 1 as amended.
29.
It was the appellant’s contention that Julia Farley (like all the other complainants) was lying and that she had colluded with Lynne Herbert to make a false complaint. There were in the statement of Lynne Herbert two passages which, for the purposes of advancing the defence, counsel (Mr Harrison) was concerned to elicit if he could. The first was a statement of Julia Farley’s recollection that when, on the first occasion she saw the appellant’s penis it looked scarred "as if he had burnt it in Aden". The second was a statement that, at the age of 7, she had been indecently assaulted on a number of occasions by the head teacher of her school. In preparation for the trial, at a stage when it was understood that the evidence of Julia Farley would be relied on, the defence had obtained the report of a doctor to rebut the suggestion that the penis of the appellant was scarred, the only blemish in his genital area being a wart or cyst upon one of his testicles. In relation to the allegations of assault by the head teacher, it was proposed to suggest to the jury that such allegation, which had apparently never been the subject of any complaint, was inherently unlikely and therefore a lie. Lynne was thus susceptible to making false allegations which made collusion with, and falsehood on the part of, Julia the more likely. It was anticipated that by attacking the veracity of Lynne in making her complaint, the evidence of Julia and the other complainants could be attacked by association, it not being in issue that there had been a degree of discussion as between various of the complainants. The proceedings went as follows.
30.
Julia Farley was cross-examined to elicit the fact that she had discussed matters with Lynne Herbert prior to making her own allegations and to seek to establish that this discussion had led to her own false allegations against the appellant. In the course of the cross-examination, Julia Farley revealed that Lynne Herbert had made allegations to her of a sexual nature against the appellant but said that Lynne did not disclose the details. She denied collusion and falsehood. She was asked whether she was aware that Lynne Herbert had made a statement to the police and whether she was aware that in that statement Lynne had stated that she had been sexually assaulted by her headmaster. The witness stated that she had no knowledge of such an allegation and that Lynne had not mentioned it to her. The matter was not pursued further with that witness nor explored with any other witness. Thus the state of the jury’s knowledge as a result of the cross-examination of Julia Farley was that they were aware of the simple fact that Lynne Herbert had made allegations of a sexual nature against the appellant, but neither of the two matters which counsel sought to establish in evidence were elicited. Nor were the jury aware from counsel’s questions of any suggestion that Lynne Herbert had described the appellant’s penis as being apparently "scarred". Nonetheless, in the hope of establishing this later from a police witness, when counsel cross-examined the appellant’s wife Dianne Bright, he elicited that the appellant did not have scarring on his penis, although it had a "slight blemish".
31.
In those circumstances, before cross-examination of the relevant police officer, Mr Harrison applied for leave to ask questions in order to adduce before the jury the limited facts that (a) Lynne Herbert had referred to scarring on the appellant’s penis and (b) that she had made allegations of sexual assault by her head teacher when a young child.
32.
He submitted to the judge, as he has submitted to this court, that the evidence sought to be adduced did not offend the rule against hearsay (as contended by the Crown in objecting to his application) because it fell within the broad exception to the rule articulated in the classic statement in
Subramanian v Public Prosecutor
[1956] 1LR 965 at 969:
"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.
It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made
." (emphasis added)
33.
Mr Harrison submitted that, far from seeking to prove the truth of the statements which he sought to elicit, (a) he simply sought to establish the fact that the statements were made with a view to (b) proving (in the case of the penis allegation) and inviting the jury to infer (in the case of the head teacher allegation) that the statements were false.
34.
The Crown objected to the adducing of the evidence on the grounds that it was irrelevant to the issues facing the jury, which depended upon the evidence of the witnesses called. It was submitted that it was not permissible for the defence to adduce before the jury part of the contents of a third party non-witness statement solely for the purpose of thereafter knocking it down and that, even if relevance could be established, the only valid way for the rule against hearsay to be avoided was for the defence to introduce the statement under s.23 of the
Criminal Justice Act 1988
.
35.
The judge refused the defence application on two grounds. First, he held that the evidence sought to be adduced was in fact hearsay. He said that in order for the jury properly to draw an inference of untruthfulness or unreliability they had first to decide whether the assertion by the witness was true or not. He said:
"It is not simply the fact that the words are said in the statement that is sought to be proved but the very truth, or untruth of those words. To say, as Mr Harrison does, that in these circumstances he is ascertaining neither their truth or untruth, or both, or only their untruth, is to compress those stages and elide the logical process in a way that is not susceptible to logical analysis. In fact, in each case he is asking the jury to consider the truth of what the witness asserts and not the mere fact that she said those words. I repeat, the whole process of inference drawing is dependent upon the jury reaching a conclusion as to the truth, or otherwise, of what the witness says in evidence.
A jury cannot, in logic, draw any inference here unless they cross the forbidden line by embarking upon an assessment of the truth of what the person is saying. If asked to do that from the contents of a third party’s witness statement, and not from assessing the witness in person, that is the adducing of hearsay evidence in a very clear form for impermissible purposes."
36.
He also accepted the submission of the Crown that the selective introduction via the officer of passages in the statement of a witness not giving evidence before the court was objectionable and that, if the unreliability of Lynne Herbert as an historian capable of contaminating a witness was to be asserted, the jury should be entitled to hear the whole of her statement. The judge said it was open to the defence, if it saw fit, to introduce that statement via s.23 of
the 1988 Act
on the basis that it would be the subject of specific cautions from the judge when summing up in respect of the remainder of its contents.
37.
Whilst sympathetic to the judge’s reasoning, we think that it mischaracterized the purpose for which the defence sought to elicit the two pieces of evidence. It was not sought to call the evidence in order to establish the truth of the facts stated but rather the fact that particular complaints had been made which, by
other
means, were to be proved (or asserted) untrue, as a step towards establishing how (putatively) false complaints by colluding witnesses had come to be made. Further, we do not consider that it was a course either desirably or realistically open to the defence to seek to adduce the whole statement of Lynne Herbert under s.23 of
the 1988 Act
.
38.
However, we are satisfied that the judge was right to accept the submission of the Crown that the evidence was, in the circumstances of the case, not relevant.
39.
Whether or not Lynne Herbert was telling the truth in her statement was an issue which was simply not before the jury. No charges were proceeding in respect of her and the Crown was not relying upon her statement or evidence in any way. The relevant issue which the defence sought to put before the jury was whether or not the witnesses who were giving evidence in support of the counts being tried were telling the truth. In that respect, the fact that Lynne might herself have been untruthful in the complaint she had made to the police could not itself be probative of the issue whether or not the witnesses were to be believed in respect of their complaints and was, therefore, prima facie not relevant. In the circumstances, the particular question for the judge was whether, by reason of the defence of collusion and fabrication by the witnesses sought to be advanced, he should in his discretion permit the evidence of what Lynne Herbert had said to be adduced on the basis that the jury might infer from it that the testimony of the witnesses called required closer examination than it would otherwise have received: see
R v David R
[1999] Crim LR 909.
40.
In
R v Summers
[1999] Crim LR 745, this court affirmed the general rule that evidence is not admissible to contradict answers given by a witness to questions put in cross-examination concerning ‘collateral matters’ i.e. matter going only to the credit of the witness which are otherwise irrelevant to the issues in the case. However it also recognised that, in cases where the disputed issue is a sexual one between two persons in private, a flexible approach to the rule is necessary so as not to defeat the interests of justice by an over-pedantic approach (see
R v Funderburk
(1990) 90 Cr App Rep 466 at 469). In this connection the court made clear that the issue of ‘sufficient relevance’ was one for the trial judge, with which the Court of Appeal would only interfere if it concluded that the decision to exclude the evidence as insufficiently relevant was either wrong in principle or plainly wrong as being outside the wide ambit of judicial discretion.
41.
In our view the judge was plainly right in the view which he took in this case.
42.
The application was made after the civilian witnesses had completed their evidence and before counsel cross-examined the police officer in the case. It was made when Julia Farley, Lynne Herbert’s sister, had denied collusion, making it clear that the question of sexual interference with Lynne had only been discussed in general terms and she had not been aware of the details. In particular, in respect of the allegation of abuse by Lynne’s headmaster, she had said "I was never aware of such an allegation and I recall nothing said to me about such a thing". No reason was advanced or apparent as to why she should be disbelieved. Other witnesses had similarly denied collusion. In order to attack the credit of those witnesses, Lynne Herbert’s reference to the appellant’s penis, and to her having been abused by her head teacher when very young, were ‘cherry picked’ from a statement in which she gave considerable detail of the sexual interference on the part of the appellant which had formed the subject of the original Counts 1-4.
43.
So far as the first matter was concerned, it was a statement by a woman 30 years after the event, as to her recollections of the impression she had formed as a child. It was scarcely a benchmark as to the accuracy of the rest of her evidence; nor, indeed, was it an assertion reasonably capable of an inference of deliberate falsehood, as opposed to merely mistaken impression. As to the allegation against the headmaster, there was no evidence whatever available to the defence that this allegation was untrue or even that it was known to the witnesses. It was thus not apparent that it was relevant to the question of collusion or the veracity of the witnesses called. Furthermore, the Crown made clear its stance that it would be quite wrong to admit two short passages of Lynne Herbert’s statement for the purposes of inviting the jury to infer that the passages were deliberate lies, without such passages being considered in the context of the whole statement which, apart from those two passages, contained significant passages supportive of the evidence of the witnesses. It was inevitable that, if the questions were asked, the Crown would seek to have the full statement put in, albeit the original counts 1-4 were not before the jury. If admitted, it would give rise to a classic example of the mischief which the rule as to finality is designed to avoid, namely introduction of a multiplicity of essentially irrelevant issues. In this case it would have led to diversion of the jury’s attention from the issues directly before them into a side alley which was at best of dubious assistance and peripheral relevance for the purpose of advancing the defence. In our view the judge was right to exercise his discretion as he did and we see no grounds to interfere.
Ground A. II
44.
Count 1 of the indictment as amended was a specimen of indecent assault relating to the period between 7 November 1967 and 6 November 1968 when Julia Farley was around 10 years old. Julia spoke of a number of occasions when the appellant put his hand down her knickers and the judge correctly directed the jury that they would have to be satisfied that such an incident had occurred on at least one occasion during that period.
45.
There was agreed evidence that between January 1965 and 1967 the appellant had been in Aden, returning in November 1967 to be married and thereafter to stay in England. He had returned to England for one month’s leave in the last three months of his tour of duty i.e. during the period August 1967 – November 1967.
46.
In evidence, Julia said that the first time such an incident had happened, she thought she was 8 years old. However, she also said it had happened on several occasions, she having been a bridesmaid at the wedding and the last occasion being when she had ‘turned 10’. The judge fully re-canvassed her evidence when summing up. However, it is complained for the appellant that he failed to give an alibi direction to the jury in respect of the period of the appellant’s service in Aden, and gave no direction as to the effect on Julia’s credibility if they concluded she had lied in part of her evidence.
47.
We are satisfied there is no substance in this ground of appeal. On the overall facts, an alibi direction was not necessary. There were ample opportunities for the offence or offences to have occurred over the period charged and the judge adequately directed the jury as to the burden of proof and upon the need for unanimity in relation to the verdict as to any particular incident.
Ground A. VI: The Character Direction
48.
The appellant has two previous convictions. The first was a conviction by a Court Martial in Aden on 4 March 1966 for indecent assault on a male over the age of 16. In evidence he stated that he had pleaded not guilty and denied touching the man sexually. He said that there was nothing sexual about what he did but the court did not believe him and found him guilty of the offence. On 22 January 1999 he pleaded guilty to offences of indecent assault on a female and on 2 March 1999 was sentenced to 2½ years imprisonment. The evidence of his convictions was adduced in his evidence in chief. In the summing-up the judge gave a character direction in what may be described as the conventional form. He said:
"You have heard in evidence that the defendant has previous convictions for offences of indecent assault. Now, this has been given in evidence because he has attacked the prosecution witnesses, accusing them of deliberately lying. It is right in those circumstances that you should know the character of the person making the attack. He has given evidence of the good things he says he has done in his life. So, it is right that you should be aware of those convictions so that you have the full picture of his character. So, what is the relevance of the defendant’s convictions in this case?
Apart from the introduction of the Cardiff case to explain why these allegations arose, the only reason why have heard of his previous convictions is that knowledge of the character of the defendant who has made this attack may assist you to judge the truthfulness of his evidence when you come to consider that issue."
49.
The judge went on to direct the jury that previous convictions were only relevant to the credibility of the appellant. He warned the jury against using convictions as evidence of propensity. This passage of the summing-up ends:
"His previous convictions are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which, if at all, his previous convictions help you about his truthfulness."
50.
Mr Harrison criticises the character direction on two grounds. First, he submits that the judge was wrong to tell the jury that the convictions had been adduced because of the attack made by the appellant on the prosecution complainant witnesses. He explained that they were led in evidence as part of the narrative necessary in order to introduce the issue of collusion. He accepts that an attack was made on the credit of the witnesses but he submits that it is by no means certain that, if an application had been made by the prosecution to cross-examine the appellant on his convictions, it would have succeeded. He submits that the convictions had no probative value and were so prejudicial as to make it more likely than not that the judge would have exercised his discretion to exclude such cross-examination. He further submits that, on this assumption, the judge should not have given the usual credibility direction. He should have restricted his direction to a warning against using previous convictions as evidence of propensity.
51.
Secondly, Mr Harrison submits that, even if the prosecution had successfully applied to cross-examine the appellant on his convictions, the direction was unbalanced and unfair. He submits that there was no attempt to balance the "good things" that the appellant had done in his life against the prejudicial effect of the previous convictions.
52.
We do not accept those submissions. We accept that it was factually inaccurate for the judge to state that evidence of previous convictions was adduced because the appellant had attacked the prosecution witnesses. However, the fact is that the appellant himself, for whatever reasons, adduced the evidence of his previous convictions and it was incumbent upon the judge to give the jury a direction in respect of those convictions. Had he only given a direction in respect of propensity, that would have been only half the proper direction. In our judgment, once there is evidence of a defendant’s previous convictions before a jury, it is necessary and proper for a judge to give a character direction which deals with both credibility and propensity. In our view a defendant, by adducing evidence of previous convictions, for whatever reason, should not ordinarily gain the benefit of a propensity warning while escaping the disadvantage of a credibility direction. In any event, we consider that, in the light of the attack upon the prosecution witnesses, if the appellant had not adduced such evidence in chief, an application by the prosecution to cross-examine on his previous convictions would have been almost bound to succeed.
53.
Finally, we reject the submission that the direction was unbalanced and unfair. The judge was at pains to warn the jury against using the convictions as evidence of propensity. When summarising the evidence of the appellant elsewhere the judge referred to his service background, his work for the Red Cross and his assistance with holidays for the disabled. This ground of appeal therefore fails.
54.
We now turn to deal briefly with the grounds upon which the single judge refused leave to appeal, but in relation to which the appellant has renewed his application before us.
Ground A. III
55.
It is submitted for the appellant that the judge was wrong not to leave the allegation of Helen Wing to the jury as a count relating to a single incident only. The judge said of the count:
"It relates to when she was between the ages of nine and eleven approximately (1970-1973). Again, it is a specimen count. It relates to the goodbyes in the hall, you remember. You must be sure that on at least one occasion the defendant indecently assaulted Helen Wing by putting his finger inside her vagina when saying goodbye to the family – lifting her up, legs around him, holding her by her bottom, and working his fingers into her vagina."
56.
The allegation was opened as a sample and Helen Wing gave evidence at first as if describing a course of conduct. However, as she progressed, her evidence related almost entirely to:
"One incident [which] is clear in my mind. There is one that I remember and it is the first time that I can remember clearly. I don’t know why that is. As far as subsequent occasions, it possibly did happen again but I can’t recall that clearly."
57.
It is said that, in the circumstances, the judge should not have left the incident in Count 2 as a sample and should have reminded the jury that the witness testified in a manner which tended to suggest that she was only alleging one incident.
58.
We can see the force of the submission that, on the evidence, it was appropriate to leave the matter as a single count, rather than a sample. However, we see no real vice or any likelihood of an unsafe verdict in relation to the course taken. The judge faithfully recounted the evidence from which it was crystal clear that the account of the witness centred upon one incident which she said she recalled clearly. There does not seem to us any realistic possibility that the jury convicted on the basis of any other incident and there is no substance in this ground of appeal.
Ground A.IV
59.
It is said the judge erred in directing the jury that they should not approach the evidence of any particular complainant on the basis that, if they found fatal flaws in her evidence, they must necessarily reject it as a whole. Mr Harrison has pointed out that, save in relation to an allegation by Alison Daines, there was no corroboration of the allegations the subject of the various counts, which depended upon the credit of the individual witnesses concerned. There were a number of inconsistencies in the evidence of the various complainants which Mr Harrison submitted to the jury amounted to ‘fatal flaws’ in their evidence. It is further complained that the judge linked the direction to which we have just referred with a conventional direction on the effect of previous inconsistent statements. It is said he should not have done so, because the ‘fatal flaw’ points were not confined to examples of inconsistency with witnesses’ previous statements. In this context it is complained that the judge referred on occasion to the jury "deciding where the truth lies" or asked them to consider "who is telling the truth" in a manner which watered down the burden of proof.
60.
Mr Harrison has conceded that this ground is in itself not enough to render the verdict of the jury unsafe, however he relies upon it as having a cumulative effect, with the other grounds of appeal, so as to render all the verdicts unsafe. Having carefully considered the summing up as a whole, we do not think that the judge was in error or that he left the jury in any doubt as to where the burden of proof lay. We do not consider that, on its own or taken cumulatively with the other grounds of appeal, Ground A.IV renders the verdicts unsafe.
Ground A.V
61.
This ground is a complaint about the judge’s directions as to the effect of delay upon the proceedings. It is submitted that the judge failed sufficiently to emphasis the prejudice or potential for prejudice so far as the appellant was concerned. In refusing leave to appeal, the single judge observed that the trial judge clearly directed the jury about the relevance of delay in relation to the appellant at page 10C-E and page 10H-11C of the transcript of his summing up; also in relation to witnesses "whoever they may be". His direction and comments were adequate to alert the jury to the dangers inherent in delay. We agree with the observations of the single judge and find no substance in this proposed ground of appeal.
Conclusion on Appeal against conviction
62.
We are satisfied that the verdicts of the jury were safe and the appeal against conviction is dismissed.
Sentence
63.
Mr Harrison has submitted to us that, despite the long and lamentable series of indecent assaults involved in this case, there are various features which render the total sentence of 7 years’ imprisonment excessive. There was extraordinary delay between the commission of the relevant offences and the trial of this appellant. By the time he was tried, he had already been convicted at Cardiff and sentenced to a total of 2½ years imprisonment in respect of other indecent assaults separated in time, place and victim from the instant offences. However, we do not consider that, had all matters been heard together, a sentence of more than 7 years would have been imposed. Although repeated and inexcusable, the assaults alleged over the years were not of the most serious kind in this category of offence. In all the circumstances we consider it right to reduce the total sentence imposed from one of 7 years to 4½ years imprisonment. To this end, we propose to reduce the sentences imposed from 3 years to 2 years imprisonment on each of Counts 2-6 and to reduce the sentences from 3½ to 2 years imprisonment on Counts 7-9, with a consequent reduction in the total sentence to one of 4½ years imprisonment. To that extent, the appeal against sentence is allowed. | ```yaml
citation: '[2003] EWCA Crim 2169'
date: '2003-07-25'
judges:
- LORD JUSTICE POTTER
- MR JUSTICE CURTIS
- MR JUSTICE GAGE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| [2019] EWCA Crim 1850
No:
201903450/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday 15 October 2019
B e f o r e
:
LORD JUSTICE HICKINBOTTOM
MR JUSTICE GOOSE
SIR RODERICK EVANS
R E G I N A
v
KYLIE LOUISE PECK
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: [email protected] (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
Mr K Missouri
appeared on behalf of the
Appellant
J U D G M E N T
(APPROVED)
1.
MR JUSTICE GOOSE: In this application for permission to appeal sentence by Kylie Peck who is aged 26, the single ground of appeal is that her sentence of 18 months' imprisonment should have been suspended. This application for permission to appeal and, if granted, the appeal itself, have been referred to this Court by the Registrar.
2.
We grant leave to appeal sentence.
3.
On 1 August 2019 in the Crown Court at Southampton before His Honour Judge Henry, the appellant was convicted of unlawful wounding, contrary to
section 20 of the Offences Against the Person Act 1861
. She was acquitted of affray and the more serious charge of wounding with intent, contrary to
section 18
of
the 1861 Act
.
4.
The offence which gave rise to the appellant's conviction included four other defendants who pleaded guilty. Danielle Peck and Kirsty Peck were also sentenced by His Honour Judge Henry for an offence of affray. Danielle Peck was sentenced to 9 months' imprisonment suspended for 24 months. Kirsty Peck was sentenced to a Community Order for 18 months. Stuart House and Charlie Attrill were sentenced by a different judge for the offences of affray and possession of an article with a blade. Stuart House also pleaded guilty to a separate offence of possession of an offensive weapon and Charlie Attrill pleaded guilty to possession of a class A drug. Both were sentenced to 12 months' imprisonment suspended for 18 months.
5.
The events which led to the appellant's conviction may be shortly stated. Late in the evening of 21 October 2018, the complainant was celebrating her birthday at the Ice House Public House where she worked; the complainant was the daughter of the landlady. The appellant's sister, Kirsty Peck and her partner Stuart House tried to gain entry when the public house was closing. They were refused entry. A disturbance developed between them and others in the public house which led to some minor injuries being caused to them. Kirsty Peck had left her handbag and mobile phone in the public house.
6.
When they returned to their home, where the appellant was with her partner Charlie Attrill, their complaints led to a return visit by Stuart House, Charlie Attrill, Danielle Peck and the appellant. House and Attrill each took a knife which they were later to wave at different people outside the public house. No injury was caused to them or by them. The incident became more serious as Danielle Peck ran towards the complainant and launched herself onto her, causing them both to fall to the ground. The complainant had not been acting aggressively before she was attacked. Both women were on the ground with the complainant on top. At this point the appellant, who had taken with her an empty bottle of wine and a ceramic mug, joined in the fighting. She was later to admit that she took the bottle and ceramic mug with her ready to use if needed, although at trial she maintained that her intention was to defend herself or another. That was rejected by the jury.
7.
The appellant grabbed the complainant's hair and attempted to kick her. When the complainant tried to get up the appellant moved forward and in a swift motion pushed the wine bottle into the complainant's face causing an incised wound across her face, including both eyelids and the bridge of her nose. The bottle had already been broken before it was used, although not with intention by this appellant.
8.
The complainant later underwent surgery during which it was found that both eyelids had been lacerated and, to the right eye, the eyeball had been lacerated also. The cut had gone through the eyelid. She was fortunate to have retained sight in that eye, but has been left with significant scarring. We have seen a photograph showing the complainant's injuries shortly after the incident and more recent images showing significant permanent facial scarring. In the complainant's Victim Personal Statement, dated 1 March 2019, she describes feeling permanently disfigured with one eye looking larger than the other and an eyelid that does not close properly. This causes day-to-day difficulties with both cleaning and the application of cosmetics. The complainant described that the incident had had a profoundly negative effect upon her life. In a further Victim Personal Statement dated 15 July 2019, the complainant described that she had moved away from the Ice House Public House and no longer worked there because of the anxiety she continued to feel whilst there.
9.
The appellant who was born on 29 March 1993 was of previous good character, save for a caution for shoplifting in 2009. In sentencing the appellant, the judge took into account the psychiatric report from Dr Bekoe, dated 22 July 2019. Although Dr Bekoe expressed in his report his opinion upon criminal liability, which was disregarded by the judge, there was significant evidence of mental disorders relevant to the issue of sentencing. Dr Bekoe found that the appellant suffered from emotionally unstable personality disorder, panic disorder, mixed anxiety and depressive disorder and pathological grief. These co-morbid disorders were likely to manifest themselves in emotional instability or moods swings, impulsive behaviour, anxiety, panic attacks, depression and also deliberate self-harm. They were associated with a long history of traumatic experiences and adversities going back to her childhood.
10.
In a Pre-Sentence Report dated 22 August 2019, the appellant's relationship history and risk assessment were clearly described. The appellant has two children, now aged nine and four, but is separated from their respective fathers such that she is the principle carer. In 2016 the appellant became pregnant with another child but experienced problems during the pregnancy. Her child was born prematurely and died after four months. The bereavement had a profound impact on the appellant and her eldest child who receives counselling to assist her.
11.
At the time of sentence on 30 August 2019, after the judge had obtained the reports, the appellant was four-and-a-half months pregnant. There were concerns for her mental wellbeing during the course of the pregnancy after the events of 2016.
12.
The pre-sentence report concluded that the appellant posed as a low risk of re-conviction and of committing serious offences. The recommendation within the report was for a non-custodial sentence.
13.
In sentencing the appellant, the judge concluded that the offence of
section 20
wounding fell within Category 1 of the Assault Guideline because it involved the use of a weapon taken to the scene and had caused serious injuries in the context of the offence. There was no criticism of the categorisation of the offence by the appellant. Under the guideline, the starting point adopted by the judge was three years' imprisonment. The judge appropriately took into account the fact that the appellant was essentially of good character, was the principle carer of her two young children and was pregnant with another child. Further, the judge also took into account the psychiatric report and the likely effect upon the appellant of a sentence of imprisonment having to be served. In reaching a sentence of 18 months' imprisonment the judge properly discounted the starting point to reflect the significant mitigating features of the case. However, he declined to suspend the sentence, taking the view that the appropriate sentence in all the circumstances was an immediate sentence of imprisonment.
14.
We have reflected carefully upon the sentence of imprisonment imposed by the judge on this appellant, to be served immediately and not suspended. There can be no criticism of the sentence of 18 months' imprisonment and the appellant makes no challenge in respect of it. It is with some hesitation therefore that this court would seek to interfere with the sentence of a trial judge who was well placed to assess the evidence and the harm caused to the complainant. However, the judge appeared to have decided not to suspend the sentence before he had arrived at the custodial term; this is obverse to the correct stepped approach where the decision upon suspending a sentence is made after the term is fixed. By deciding not to suspend the sentence before determining the custodial term, this does not follow the process required in the Imposition Guideline.
15.
We are persuaded that this sentence should, with respect to the Judge, have been suspended. The Imposition of Community and Custodial Sentences Guideline compellingly points in favour of a suspended sentence, rather than one which is immediate. In assessing the factors which would make it inappropriate to suspend the sentence, the appellant does not present as a risk or danger to the public, nor does she have a history of poor compliance with court orders. The factors in favour of suspending a sentence are that there is a realistic prospect of rehabilitation, the appellant being aged 26 and effectively of good character. Further, there is strong personal mitigation with immediate custody resulting in significant harmful impact upon others, in particular her two young children. They are living in less than ideal circumstances separated from each other. We have also been told by her counsel, Mr Missouri that she is imminently to lose
the family home, which is rented local authority accommodation, due to her current absence and inability to pay the rent. To these factors should be added the observation that the appellant is now six months pregnant and has significant mental disorders as identified within the psychiatric report.
16.
The only question is whether this offence means that only a custodial sentence can be justified. We are sympathetic to the conclusion of the judge, that the use of a bottle which was already broken and pushed into the face of the victim will normally lead to an immediate term of imprisonment. This was a serious
section 20
offence with serious consequences for the victim. However, the factors pointing away from an immediate term of imprisonment are compelling. We are persuaded that in this case the appellant's sentence of 18 months' imprisonment should have been suspended. The Imposition Guideline, properly applied, points clearly towards a suspended sentence.
17.
Accordingly, we allow this appeal against sentence and suspend the 18 months' imprisonment for a period of two years. There will be a Rehabilitation Activity Requirement of up to 45 days, as recommended within the Pre-Sentence Report. Although the report suggested a four-month curfew, we take into account that the appellant has now served six weeks in custody, such that we decline to impose this curfew requirement suggested within the report. Therefore, we quash the sentence of 18 months' imprisonment to be served immediately and in its place, impose a sentence of 18 months' imprisonment suspended for two years, with a rehabilitation activity requirement of up to 45 days. To that extent, this appeal against sentence is allowed.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400 Email: [email protected] | ```yaml
citation: '[2019] EWCA Crim 1850'
date: '2019-10-15'
judges:
- LORD JUSTICE HICKINBOTTOM
- MR JUSTICE GOOSE
- SIR RODERICK EVANS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
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citation: <string containing the neutral citation number>
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judges: <list of judge full names>
```
=====
{context}
======
| 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. | ```yaml
citation: '[2008] EWCA Crim 1899'
date: '2008-07-24'
judges:
- LORD JUSTICE GAGE
- MR JUSTICE STADLEN
- HIS HONOUR JUDGE ROGERS QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2020] EWCA Crim 1719
Case No: 201904221/B3;201904320/B3;201904328/B3;201904364/B3;202001005/B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Northampton Crown Court
HHJ Crane
T20187131/T20187139/T20187140/T20197021/T20197036/T20197131
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 18/12/2020
Before :
LORD JUSTICE GREEN
MR JUSTICE JULIAN KNOWLES
and
HIS HONOUR JUDGE BLAIR QC
Recorder of Bristol
-
- - - - - - - - - - - - - - - - - - - -
Between :
REGINA
-
and -
Bailey & Ors
(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 Colin Charvill
(instructed by
Stephen Moore & Co Solicitors
) for
Bailey
Mr Jonathan Rosen
(instructed by
Noble Solicitors
) for
Succo
Ms Micaila Williams
(instructed by
Bains Solicitors
) for
McLeish
Mr Charles Burton
(instructed by
Cobleys Solicitors Ltd
) for
Hall Mr Liam Muir
(instructed by
Carter Osborne Ltd
) for
Radford
The Crown was not represented
Hearing date: Tuesday 3rd November 2020
Judgment As Approved by the Court
Crown copyright ©
Lord Justice Green :
Introduction: The Articulation of Totality in Sentencing Remarks
1.
There are before the Court five appeals by Bailey, Succo, McLeish, Hall and Radford. Each appellant either pleaded guilty to, or was convicted of, one or more counts of Conspiracy to Supply a Controlled Drug of Class A and/or B contrary to
section 1(1)
Criminal Law Act 1977
.
2.
Each Appellant has been granted leave to appeal against sentence. A ground of appeal common to a number of appeals concerns totality. This particular ground raises a point of interest from a procedural perspective. It arose from the fact that in the lengthy sentencing remarks about the position of each defendant, no specific reference to totality was made. The judge did however make a brief and general reference towards the end of the sentencing remarks, to the effect that she
had
taken totality into account in relation to each defendant.
3.
When seeking permission to appeal, the Appellants argued that this was an improper and inadequate approach. There was a duty to spell out how totality applied in
each
case. It was not enough to make a single, isolated, fleeting reference to totality. This flowed from the Sentencing Council, Definitive Guideline on “Offences taken into Consideration and Totality” (“
the Totality Guideline
”) which sets out a staged approach to the determination of totality. The single judge agreed that this was an arguable point. During argument before this Court, the Appellants elaborated upon this theme and advanced a variety of different points concerning how the issue should have been expressed in the sentencing remarks. All advocates, in effect, adopted the arguments of the others on this point.
4.
To put the point into context it is also relevant to note that in the section of the sentencing remarks where the judge summarised the position of each defendant being sentenced she set out, in commendably concise but comprehensive form, all of the facts and matters that she considered to be relevant to the placement of the individual defendant in terms of the Definitive Guideline on Drugs Offences (“
the Drugs Guideline
”) and all aggravating and mitigating factors.
5.
Various Appellants have raised additional points of a nature specific only to them, over and above arguments about the way in which totality was expressed.
6.
We address general issues about totality only once at paragraphs [33] – [43] below in the appeal of McLeish. Our conclusion set out there apply to all other Appellants who raised the same arguments.
The Sentences
7.
On 6
th
November 2018 in the Crown Court at Northampton, Succo and McLeish pleaded guilty to Counts 1 and 3 on the joinder indictment.
8.
On 25
th
March 2019, McLeish pleaded guilty to one count on Indictment T20197036 and Hall pleaded guilty to Count 4 on the joinder indictment.
9.
On 23
rd
September 2019, Radford changed his plea to guilty on Counts 1 and 2 on the joinder indictment.
10.
On 22
nd
October 2019, Bailey was convicted of Count 1 in relation to Class A drugs and Hall was convicted of Count 2 in relation to class B drugs.
11.
On 1 November 2019 the following sentences were handed down: (i) Bailey was sentenced to 10 years imprisonment; (ii) Succo was sentenced to 6 year and 9 months on Count 1, and 3 years and 9 months on Count 3 consecutive, leading to a total sentence of 10 years and 6 months; McLeish was sentenced on Count 1 to 7 years and 6 months and on Count 3 to 6 years consecutive. He was given a concurrent sentence of 6 years on a further count. This led to a total sentence of 13 years and 6 months. Hall was sentenced to 8 years on Count 2 and to 3 years and 9 months on Count 4 consecutive, leading to a total sentence of 11 years and 9 months. Radford was sentenced to 8 years and 1 month on Count 1 in relation to class A drugs and 4 years and 6 months on Count 2 relating to the class B drugs leading to a total sentence of 12
years and 7 months.
12.
There were 7 co-accused who received sentences of between 5 years and 10 years and 9 months.
The Facts relation to the Conspiracies
13.
We shall summarise the facts relating to each count separately.
Count 1: Conspiracy 15
th
– 18
th
April 2018
14.
On 17
th
April 2018 Radford and McLeish each delivered one kilogram of cocaine, one to Succo and one to Timothy Hartgrove. The supply to Timothy Hartgrove, was destined for Bailey. Surveillance evidence recorded extensive telephone contact between Radford, McLeish and Succo. Shortly before 3.45pm Radford was seen entering a black BMW, having come from his home address in Kettering.
15.
He and McLeish then left an apartment together. McLeish was carrying a black Adidas bag. They travelled to meet a red Vauxhall van at just after 4.30 pm. McLeish got out of his vehicle and approached the van which was driven by Timothy Hartgrove. He leant inside and then returned to the BMW. He was still carrying the Adidas bag, but it appeared to be lighter than when he approached the vehicle. Four minutes later the BMW stopped in Regent Street in Kettering. Succo appeared and McLeish passed him the black holdall. Succo left the area on foot.
16.
Timothy Hartgrove drove his vehicle to the car park of a bowling alley. Shortly afterwards police arrested him and searched his vehicle. A total of one kilogram of cocaine was recovered. Two mobile phones and an air pistol were also found in the vehicle. McLeish observed Timothy Hartgrove’s arrest from inside the bowling alley and informed others involved in the enterprise.
17.
On 17 April, Lewis Hartgrove, the son of Timothy Hartgrove, was located in Birmingham. At 3.43 pm McLeish spoke to him and within seconds of the call finishing, Lewis Hartgrove called his father, Timothy Hartgrove. That call was said by the prosecution to be Lewis Hartgrove arranging with his father for him to collect the cocaine from McLeish with the intention of delivering it to Bailey.
18.
Timothy Hartgrove was arrested. In a prepared statement he said that he had received a phone call from an unknown person saying that his son owed them money and that he was instructed to meet the unknown person at a public house. When he got there a man put two packages and a phone in his vehicle. He was then told to go to the bowling alley. He said he had no knowledge of what was in the packages. He was found in possession of about £1,000 cash. He said that this was from gambling. He said he did not receive any recompense for doing what he did, and his son did not know anything about it.
19.
The cocaine recovered was of a 76% - 79% purity with a value of £40,000 - £50,000. The number of McLeish was found stored in Timothy Hartgrove’s phone and the phone showed contact with Bailey on two numbers. Police also recovered a handset which was shared by Timothy and Lewis Hartgrove. Bailey was in contact with that number as well. The drugs that had been supplied to Succo were not recovered.
Count 2: Conspiracy 13
th
– 15
th
May 2018
20.
Count 2 related to a conspiracy to supply Class B amphetamine between 13
th
and 15
th
May 2018. It involved Radford, Hall and the co-defendant Michael Drain.
21.
Radford was seen on surveillance evidence in Princes Avenue in Kettering. His vehicle was approached by a male pushing a wheelbarrow. Two boxes containing amphetamine were put in Radford’s vehicle. Radford then met with Drain and the boxes were placed in the rear of Drain’s vehicle. Drain headed north but at some point, Radford and Hall cancelled the delivery of the amphetamine, and Drain was recalled to Northamptonshire. The police were unable to recover much evidence in respect of the phone contact between the defendants on that day as both Hall and Radford were using encrypted phones. Drain was stopped on the A14 by the police. In his van were two boxes containing 24 blocks of amphetamine valued at between £120,000 and just under £180,000. There was a total of just over 47 kilograms of drugs. The drugs were in heat-sealed packaging. They were of low purity.
Count 3: Conspiracy 11
th
– 13
th
June 2018
22.
Count 3 related to a conspiracy to supply cocaine between 11
th
and 13
th
June 2018 and involved McLeish, Succo and a co-defendant Parllaku.
23.
On 12
th
June 2018, McLeish received a quantity of cocaine from Parllaku which was then delivered to Succo for him to store and prepare. When police subsequently searched Succo’s address they found just under half a kilogram of cocaine at 52 % purity and items consistent with the premises being used for the preparation and onwards supply of cocaine. A tick list was found at McLeish’s address and an envelope with Succo’s telephone number on it. There was evidence of telephone communication between McLeish and Parllaku and between McLeish and Succo consistent with the arrangements for and the carrying out of this transaction.
Count 4: Conspiracy 20
th
– 26
th
September 2018
24.
Count 4 related to the supply of cannabis by Hall between 20
th
and 26
th
September 2018. When he was arrested text messages on his phone revealed cannabis dealing. During the trial for one of the conspiracies regarding the cocaine and amphetamine, Hall gave evidence about his cannabis dealing including as to its duration. He said he had three sources of cannabis and a contact in England who had a direct contact to Amsterdam. About 20 - 30% of the high-grade cannabis he sold was obtained from California. He had an Aquarius encrypted phone with a Dutch SIM to communicate with his contact and to receive pictures of products directly from Amsterdam. He had two other suppliers growing locally who provide cannabis on an eight-week cycle, with three to five kilograms from each of them at each harvest. He was earning £2,000 to £2,500 a week from his cannabis dealing. The cannabis was kept at more than one safe house. He would sell it in bulk and in smaller deals. He used runners to collect money. The phone messages showed dealing over a short period of the charge
Indictment T20197036: Conspiracy 1
st
July – 1
st
September 2018
25.
The fourth conspiracy to supply cocaine related to a period between 1
st
July and 1
st
2018 and involved McLeish and co-defendants Plaku and Jones. During the conspiracy there were 16 supplies. An initial seizure was made of around a quarter of a kilogram of cocaine with a value of around £50,000. The overall value of the conspiracy depended on what was supplied on each occasion, but the estimated potential value was possibly £0.5m.
26.
On 31 August 2018, surveillance officers saw Jones who had been sent by McLeish to the address of Plaku, who was a wholesale distributor of cocaine. Jones took just under a quarter of a kilo of cocaine at 83% purity from the premises. He was arrested shortly afterwards. The cocaine had not been diluted since entering the UK, indicating that those involved in receipt and supply were either importers or very close to that level. Jones was arrested. His telephone revealed connections to Plaku and McLeish. Officers attended at Plaku’s address and found telephones and significant quantities of cash. Plaku’s phones had connections to Jones and an onward connection to McLeish. Analysis of Plaku’s phones revealed that he was a wholesale supplier of drugs. Some of the messages were in Albanian and indicated an international element with Plaku close to the point of supply.
27.
We now address the appeals of each Appellant separately. As set out above we deal with the general arguments about totality once, in relation to the appeal of McLeish
McLeish
28.
McLeish pleaded guilty to three count: Counts 1 and 3 on the joinder indictment and Count 1 on the separate indictment. The total sentence, after plea, was 13 years and 6 months imprisonment. The judge made the sentences on Counts 1and 3 on the joinder indictment consecutive, but that on Count 3 on the separate indictment concurrent.
29.
In her sentencing remarks the judge found that McLeish had a leading role. He was to be sentenced for multiple offences. He directed and organised, bought, and sold on a commercial scale. He had substantial links to and influence over others in the chain. He had close links to the original source and there must have been an expectation of substantial financial gain. There might have been others above him in the chain but that did not preclude him from being in a leading role.
30.
In relation to the April conspiracy, he was a leading role, Category 1. In relation to the
12
th
June conspiracy, he was a leading role, Category 2/3 harm. In relation to the conspiracy over July and August 2018, he was a leading role, Category 2. Aggravating features were his previous convictions. He was 36 years old with 7 appearances for 19 offences including driving matters, criminal damage, assault or ill-treatment of a child, breach of a non-molestation order, harassment, battery and threatening violence to enter premises. He had no previous drugs offences. He was on licence at the time of the first conspiracy. He was not on bail at the time of the third conspiracy but was under investigation by the police. His personal mitigation was that he had a young son who lived with his own mother and a daughter who was nearly one year old. There would be an impact on those children. He was entitled to 25% credit for plea.
31.
The first ground of appeal is that the judge failed to give sufficient weight to the principle of totality. There is no indication in her treatment of McLeish that she applied totality to him.
32.
The second ground of appeal is that the judge failed to give sufficient credit for plea. The exception at paragraph F1 of the Sentencing Council Guideline on Reduction in Sentence for a Guilty Plea ought to have been applied to produce a 33% reduction, rather than the 25% reduction allowed by the Judge.
Totality – General Observations
33.
We take each point separately. We start with totality. We start with some general observations.
34.
First, whether a judge has applied totality is a question of substance and not form. The fact therefore that the judge made a single generalised statement towards the end of her sentencing remarks to the effect that she had considered totality is perfectly adequate. Sentencing remarks are not intended to amount to a test of drafting; they are intended to be succinct explanations of the facts and matters that have affected the judge’s judgment as to the sentence to be imposed. During questions from the court no counsel or advocate appearing on the appeal ultimately disagreed with this proposition. Were it otherwise, appeals would be brought against perfectly proper sentences upon the basis of bad drafting or poor expression.
35.
Second, in relation to totality, the Totality Guideline makes plain that the purpose behind a judge taking totality into account is to ensure that the final sentence is just and proportionate. During argument there were suggestions that a judge should expressly use the expression “
just and proportionate
”. We disagree. There is no magic in words. What matters is whether the final sentence is just and proportionate, taking into account all the relevant facts and matters. On an appeal, a court should be able to identify whether this is so from the judge’s recitation of relevant facts and aggravating and mitigating circumstances and from an assessment of how this is calibrated against the Guideline.
36.
Third, a number of advocates suggested that the application of the totality principle was designed to lead to the judge applying an appropriate
reduction
to the sentence. Again, we disagree. Totality is designed to ensure that the sentencing exercise is not formulaic. As the Guideline points out it is “
usually
” impossible to arrive at a just and proportionate sentence simply by adding up together notional sentences. Totality thus assists the judge to arrive at the correct sentence; it is not about reducing sentences as opposed simply to getting to the correct final sentence.
37.
Fourth, many of the arguments advanced before us focused upon the fact that the judge had imposed consecutive sentences when it was said that had she applied totality she would have applied concurrent (reduced) sentences, or, at least that she would have mitigated the length of the consecutive sentence. The Totality Guideline makes what seem to us to be the obvious point that there is no inflexible rule that sentences should be structured as concurrent or consecutive: “
The overriding principle is that the overall sentence must be just and proportionate
”. It follows that merely because a judge imposes consecutive sentences is not, in itself, indicative that totality has not be been adequately considered.
38.
Fifth, various arguments were advanced that the stages set out in the Totality Guideline under the heading “
General Approach
” (in relation to determinate sentences) should be referred to expressly in the sentencing remarks. Once again, substance must prevail over form. The stages or steps set out in the Guideline are intended to guide how the judge should “
consider
” the structuring of the sentence to arrive at a just and appropriate end result. The steps set out are not drafting instructions.
39.
It follows that when this court is considering a judge’s conclusion on totality, it will consider whether the judge has taken the correct matters into account and whether in the final analysis the sentence, in the round, is just and equitable. The Totality Guideline provides a structured approach to guide judges in this endeavour. Our conclusions on the law are not, of course, intended to discourage any judge who wishes to provide fuller explanation or reasoning; but the essential point is that what matters on an appeal is the final sentence and whether that is just and proportionate and not the articulation of the chain of reasoning which led thereto.
40.
We turn now to the specifics of the position of McLeish. As set out above, the judge took account of all relevant matters and did not take into account any irrelevant matter. She considered: his role in the conspiracy, the level of harm, the duration of the conspiracy, previous convictions and their nature, whether offences were committed whilst the appellant was on licence and/or on bail at any relevant point in time, and personal circumstances.
41.
In the grounds of appeal a variety of points are made as to the evidence, or more accurately the lack of evidence, concerning matters said to be relevant to mitigation. Unparticularised assertions are made that there was not, for instance, sufficient evidence to support a conclusion that this was commercial trading, or that there was insufficient evidence to show “
substantial
” influence. The thrust of the arguments is to seek to minimise the role and importance of McLeish and to suggest that the judge exaggerated the importance of his position. We do not accept these submissions. They in effect invite us to reject the judge’s carefully considered conclusions on the facts and substitute our own more generous interpretation of them. Whilst exceptionally this court will (when the position is very clear and the judge below has made a plain error in the evaluation of evidence) correct an evidential error, it is not the true function of this court to reject a judge’s fact finding. We endorse the observations of the Court in
R v Hoddinott
[2019] EWCA Crim 1462
(“
Hoddinott
”) at paragraph [25] to similar effect. In this case, the judge set out the key facts and then drew inferences relative to the Sentencing Guideline from those facts as found. Those findings seem to us to be unassailable: such as McLeish’s involvement in the operations and who he was controlling or reporting to and as to the scale, value and purity of the drugs etc.
42.
As to the structuring of the sentence, we note that the judge did in fact expressly state (transcript page 8A) that she made the sentence, on the separate indictment count 3, concurrent because of totality. By the very language that the judge used, she obviously chose the structure of the sentence with totality in mind.
43.
Standing back, we can identify no error of assessment in relation to totality or otherwise. We reject this ground of appeal.
Credit for Plea
44.
We turn now to the issue about discount for plea. This is a short point. McLeish indicated and entered his plea on two counts on 1
st
November 2018 at the PTPH and therefore would be entitled to 25% discount, which is what he was given. It is said that this was the first sensible time at which any pleas could have been advanced. He entered a plea on 25
th
March to another count on a basis which was not accepted. That basis was later withdrawn.
45.
It is said that in this case there is an argument for more credit and perhaps even 33%. Reliance is placed upon the dictum in
R v Sanghera
[2016] 2 Cr App R (S) 15
to the effect that in some complex multi-defendant cases it might be proper to give extra credit to the defendant who, as it were, first breaks cover and enters a plea. It is said that McLeish is such a person.
46.
We do not accept this argument. We note that McLeish was
not
the first to jump. Succo also pleaded at the same time. There is no evidence that being in the first wave of those who pleaded caused any other defendant to follow suit. In many multi-handed cases there will be one or more defendants who are in the vanguard of those entering a plea; after all someone has to be the first. But this does not mean that,
by this fact alone
, they are
inevitably
entitled to more than the standard credit for plea. We would also point out that the Court of Appeal in
Hoddinott (ibid)
cast considerable doubt upon the force of what was, in any event, very much a tangential point in
Sanghera
. In
Hoddinot
at paragraph [29] the Court (
per
Holroyde LJ) pointed out that the Totality Guideline postdated
Sanghera
and explained:
“29. Fifthly, we observe that counsel were correct to abandon reliance on the passage which we have quoted from
Sanghera
. The Sentencing Council's Definitive Guideline on Reduction in Sentence for a Guilty Plea, which came into effect after
Sanghera
, makes it clear that the maximum credit which can be given for a guilty plea is one-third. If a defendant is entitled to full credit, and the court is persuaded that weight should be given to the fact that he was the first to plead guilty and by doing so encouraged others to plead guilty, that might be treated as a mitigating factor justifying some reduction in the sentence which would otherwise be appropriate before credit is given for the guilty plea. But whether such a reduction should be made will be a fact-specific decision and
Sanghera
did not lay down any fixed rule applicable to all cases. In the present case, the very fact that more than one defendant sought to argue that he had "led the way" in pleading guilty, shows the weakness of the argument. In our judgment, in the circumstances of this case, this was a point to which very little, if any, weight could be given.”
47.
The chronology that we have briefly summarised makes clear that the Appellant was entitled to 25%. In view of
Hodinott
this seems to us to be entirely proper. For these reasons the appeal in the case of McLeish is dismissed.
Succo
48.
We turn to the appeal of Succo.
Totality
49.
The first point made on behalf of this Appellant is the broad totality point. Counsel appearing for Succo argued that the judge should have spelled out with some degree of clarity how she had applied the stages that the Totality Guideline identifies. As we have already explained there is no obligation on sentencing judges to set out in their remarks how they have applied the Totality Guideline. What matter is the substance of the final sentence and whether it is just and proportionate.
50.
In relation to Succo, the judge held that he played a significant role, upper end. He was trusted by McLeish with large quantities of drugs at import level purity which he was going to dilute for onward sale. There was evidence he became involved due to his own drug addiction. However, his role was beyond that of a small drug street dealer funding his own addiction. He played an important role entailing large quantities of drugs that he had facilities to adulterate. In relation to the April 2018 conspiracy, he played a significant role upper end, Category 1 harm. In relation to the June 2018 conspiracy he played a significant role upper end, Category 2/3 harm. The possession of a knuckle duster was an aggravating factor. He was aged 36 with previous convictions comprising 3 appearances for 3 offences. None were recent. They were public order offences, breach of a community order and a caution for drugs. Mitigation was therefore the lack of relevant previous convictions. The Judge took account of the fact that his criminality was due to some extent that he was supplying a drug he was addicted to. Personal mitigation was that he had children aged 4 and 13, there would be an impact upon them. His partner had health issues. He had used the time spent in custody on remand positively. He was entitled to 25% credit for plea.
We make the same general points about totality as we have in made in relation to McLeish. On the facts, the judge took into account all relevant considerations of both an aggravating and mitigating nature. She carefully placed the offending into the structure of the Drugs Guideline. The arguments advanced to us ignores the rounded analysis of the judge. We can identify no error in that analysis which would justify us interfering in the sentence imposed.
Credit for Plea: “Likely” Indications
51.
At the hearing new counsel appeared for Succo. Mr Rosen, who had been instructed the night before the oral hearing, sought permission to raise a new point concerning the credit accorded to the applicant. We granted time for the point to be researched and written submissions lodged and indicated that we would decide the issue on paper, when giving judgment. We have considered the point. It is arguable and raises a procedural point of some practical significance. We grant permission to appeal and we grant an extension of time to advance the appeal.
52.
The ground was framed in the following way: The learned Judge erred in fact in only granting credit of 25% per cent for the guilty pleas which were indicated at the first hearing in the Northampton Magistrates Court on 5
th
October 2018. Accordingly Succo should have been entitled to a full one-third credit for the guilty pleas entered at the Crown Court at the first available opportunity.
53.
The basis of the argument was as follows. The Better Case Management form shows that in the section “
Part 1 - To be completed by the parties before the hearing
”, in answer to the question “
Pleas (either way) or indicated pleas (ind only) or alternatives offered
”, to each of the two charges the following was recorded - “
G (indicated)
”. It is argued that Succo was charged with indictable only matters and could only therefore indicate his future pleas at that stage and this was hence an unequivocal indication of his intention to plead guilty.
54.
In section 2 of the form headed “
to be completed by DJ(MC)/legal ad
visor”, in answer to the question “
Insofar as known, Real Issues in the case (concise details will be sufficient)
”, the answer given is: “
None – guilty plea likely at CC
”. The Form is undated, but it is inferred that it was completed at the one and only appearance at the Magistrates Court on 5th October 2018.
55.
Mr Rosen acknowledges that case law is now clear that to benefit from maximum credit for a guilty plea to an indictable only charge, any indication of plea at the Magistrates Court must be unequivocal. He properly drew out attention to the recent judgment in
R v Lee Hodgin
[2020] EWCA Crim 1388
and then sought to distinguish it. That case considered earlier authorities. It is said that
Hodgin
and the cases cited therein were handed down after the instant case had been sent to the Crown Court but in any event did not lay down a immutable rule that use of the word “
likely
” will render equivocal an otherwise clear and early plea. He argued that in
Hodgin
a version of the case management form (as had been used in
R v Jason Raymond Hewison
[2019] EWCA Crim 1278
, judgment handed down 10
th
July 2019) had asked what the “
likely
” plea would be in the case of indictable only offences. This demonstrated that practice, at least around the time of and prior to the decision in
Hewison,
was therefore fluid and that even if the form in the instant case did not use the expression “
likely
” it was a term then widely in use. The entry by the legal advisor recording “
None
” to the question “
Real issues
” evidenced that the indication given was unequivocal notwithstanding the legal advisor has then written “
guilty plea likely at CC
”.
56.
Reliance is also placed upon The Key Principles of the Definitive Guideline “
Reduction in Sentence for a Guilty Plea
”. This makes clear that although a guilty person is entitled not to admit the offence and to put the prosecution to proof of its case, an acceptance of guilt: (a) normally reduces the impact of the crime upon victims; (b) saves victims and witnesses from having to testify; and (c) is in the public interest in that it saves public time and money on investigations and trials. A guilty plea produces greater benefits the earlier the plea is indicated. In order to maximise the above benefits and to provide an incentive to those who are guilty to indicate a guilty plea as early as possible, this guideline makes a clear distinction between a reduction in the sentence available at the first stage of the proceedings and a reduction in the sentence available at a later stage of the proceedings.
57.
In the instant case it is argued that the key principles are met by the indication given at the lower court. There was no additional expenditure or time wasted on Succo’s behalf between the sending and his appearance at the Crown Court. The difference between 25% credit afforded and the one-third credit Succo should have been granted, renders the sentence passed manifestly excessive.
58.
We turn to our conclusions.
59.
It is worth setting out the considerations which underpin the position of the Court in
Hodgin
. There the Court emphasised the need for an unequivocal indication of plea at the Magistrates Court. This is understandable. A form which indicates a “
likely
” plea is not unequivocal since it leaves open the possibility that the guilty plea will not materialise before the Crown Court and this being so it also leaves the Prosecution to continue with its preparations lest the guilty plea does not emerge or if it does it is then tendered with a basis of plea which is unacceptable to the Crown. The Court in
Hodgin
acknowledged the difficulties that advocates face before the Magistrates Court in proffering full advice to defendants, especially in large scale multi partite conspiracies: “
It may be dangerous to do so. Definitive advice and instructions have to be given and received in a more measured way, with time to reflect and consider all relevant issues prior to the PTPH
.” (ibid paragraph [44]). The Court nonetheless added (ibid paragraph [45]) that whilst it understood “…
the practicalities of the situation which the appellant and his solicitor faced at the magistrates' court
” the Court could not overlook that on the facts there was, later on, only limited admissions in the basis of plea (ibid paragraph [46]).
60.
At paragraphs [48] and [49] the Court observed:
“48. In the present case, although we accept that conspiracy can sometimes be a difficult and complex matter for a solicitor to explain to a defendant, the appellant here can have been in no doubt whatsoever that he was involved in a very substantial number of the burglaries listed in the charge he faced, and that he had agreed with others to commit those burglaries. He knew what he had done. He was plainly guilty of conspiracy. Mr Weate confirmed in his oral submissions that there had been preinterview disclosure by the police the previous day before the appellant gave a "no comment" interview. We note form the police case summary (MG5) that in that interview the appellant was asked about each of the burglaries. He knew perfectly well what the allegations were.
49. We think that in these circumstances he could and should have given an unequivocal indication at the magistrates' court that he would plead guilty to the offence of conspiracy, even if the precise basis of his plea would have to be decided when the prosecution case was served. It was not a case where it would be unreasonable to expect a defendant to indicate a guilty plea because, for example, the prosecution had not determined what charges it was going to bring, or the proposed charges were vague and uncertain. Here the charge in the magistrates' court set out in very full detail the burglaries he was alleged to have conspired with others to commit. Indeed, we note that the charge was much more informative in that sense than the count in the indictment to which he pleaded guilty, which merely alleged (quite properly) that the defendants had, between certain dates, conspired together with others to commit burglary.”
61.
The general importance of clear and unequivocal pleas at the earliest stage is very clear. But even in
Hodgin
the Court did not adopt a mechanistic approach whereby use of the word “
likely
” inevitably disqualified a defendant from a full discount for plea. The Court considered the individual facts and circumstances though it is right to record that the Court took a fairly rounded and robust view and was influenced by the fact that, even if details remained to be resolved, the defendant “
knew perfectly well what the allegations were
”.
62.
How do these principles apply on the facts of this case? We see the force in Mr Rosen’s submission that on the facts this case is unlike
Hodgin
. Their defence solicitor had written on the BCM form: “
Likely guilty plea
”, whereas in Succo’s case he wrote: “
G (indicated)
”. The use of the phrase “
indicated
” in this context is, in context, used only because the Magistrates court cannot record a guilty plea on indictable only offences – they are only able to record an indication. The Magistrates court’s HMCTS employed legal adviser recorded the “
Real issues
” in the case being “
none
”, but then – potentially inconsistently - added the words “
guilty plea likely at CC
”. We consider it proper to attach weight to the indication given by Succo’s legal representative. We do not consider that the potentially inconsistent entry made by the Court officer undoes the notification by the instructed solicitor that indicated an actual future guilty plea. In our view the present appeal is on a par with
Handley
[2020] EWCA Crim 361
explained in paragraph [36] of
Hodgin.
63.
For whatever reason the point was not taken before the sentencing Judge who, therefore understandably, accepted that the plea made in the Crown court was to be taken as the critical point of reference for determining the level of discount for plea. No criticism attaches to the Judge.
64.
We therefore allow the appeal to this extent. We conclude that a full one third credit should have been given. We therefore quash the sentence of 10 years and 6 months and substitute in its place a sentence of 9 years and 4 months.
Radford
65.
We turn now to Radford. It is also argued for Radford that the Judge erred by not properly applying the principle of totality. The written grounds do not specify in what way the Judge erred, save to say, that more of a discount could have been given. The Judge held that he would have expected financial gain. He was trusted by Hall and McLeish to work with them and for them. He therefore worked with two of those who were at the top of the operations. He had some operational and managerial functions. He was at the top end of significant role. In relation to the 28
th
April 2018 conspiracy, he was top end playing a significant role. This was Category 1 harm. In relation to the May 2018 amphetamine conspiracy, he was top end significant role, Category 1. There were no aggravating factors. He was still young, aged 26. He had one offence of battery in 2014. Mitigating factors were lack of relevant previous convictions, his age and he
had children for whom there would be an impact. Other personal circumstances were outlined in mitigation. He was entitled to 10% credit for plea.
66.
We reject the arguments about totality. The judge correctly identified the aggravating and mitigating factors. The analysis was rounded and balanced and the sentence was squarely within the Drugs Guideline. There was no error in the sentence imposed which fairy reflects the involvement in issue. We dismiss the appeal.
Bailey
67.
We turn now to Bailey. He was convicted after a trial on a single count of participating in a single short-lived conspiracy. He received a sentence of 10 years.
68.
The Judge found that Bailey was the intended recipient of the one kilogram of cocaine being transported by Timothy Hartgrove. He had an expectation of financial gain. The scale of the operation was commercial. He was directing Lewis and Timothy Hartgrove. He was top end significant role, Category 1. No aggravating factors were present. He was aged 32 with no previous convictions. He was a family man with children and there would be an impact upon them. There were positive character references and a history of employment. He was not entitled to any credit, having been convicted at trial.
69.
We consider that there is one point applicable to Bailey. The Judge found that there were no aggravating factors but that there were some relevant mitigating factors: absence of previous convictions and good character references. Yet, the Judge imposed a sentence at the starting point under the Drugs Guideline, of 10 years. It is possible, bearing in mind the facts as found, that the Judge regarded Baileys role as “
top end significant role
” and this might have been a shorthand for a conclusion that the aggravating factors justified some upward movement from the starting point before taking account of mitigation. On the other hand, as advanced by counsel, this is not, in the final analysis, how the Judge expressed her conclusions on the evidence which otherwise she did with evident care and precision. On balance we consider that the fairest course is for us to reflect the exact sentencing remarks of the Judge and not seek to speculate as to what might be read between the lines. This being so absent aggravating factors and with mitigating features present, there is no stated reasoning explaining why the Judge did not come down from the starting point. To this extent we treat this as an error of approach. We consider that a sentence of 8 years and 6 months is a proper sentence having regard to the acknowledged mitigation and to the sentences imposed upon others. We therefore allow this appeal. We quash the sentence of 10 years and substitute a sentence of 8 years and 6 months.
Hall
70.
We turn finally to Hall. The Judge found that Hall was the director of the amphetamine enterprise in May 2018. He was a professional and sophisticated drug dealer. He used technology and other individuals to avoid detection. His played a leading role, directing and organising, buying and selling on a commercial scale with substantial links to and influence on others in the chain. He had close links to the original source regarding the cannabis and expectation of substantial financial gain. In relation to the amphetamine conspiracy this was a leading role, Category 1 and in relation to the cannabis conspiracy, leading role, Category 3. His position was aggravated by previous convictions. He was 31 convictions with three appearances for six offences. In 2006, he had three convictions for possession with intent to supply cocaine, amphetamine and cannabis. In 2008, he had convictions for possessions with intent to supply cocaine and a failure to surrender. In 2018, he had a conviction for being drunk and disorderly. In mitigation, he had a partner whose letter the judge had read. He had a four-year-old son and a teenage son upon whom there would be an impact. He was entitled to 25% credit for plea for the cannabis but was convicted after trial for the amphetamine.
71.
It is argued for Hall that the total sentence failed to take into account the principle of totality. We have already addressed this. We reject this argument. As to the specific position of Hall, the judge made clear and comprehensive findings of fact. These are incapable of challenge. Given his role and his previous convictions, the sentence imposed was squarely within the discretion of the Judge and the Drugs Guideline. The sentence was neither excessive nor manifestly so. We dismiss the appeal. | ```yaml
citation: '[2020] EWCA Crim 1719'
date: '2020-12-18'
judges:
- LORD JUSTICE GREEN
- MR JUSTICE JULIAN KNOWLES
- HIS HONOUR JUDGE BLAIR QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200401541 A4
Neutral Citation Number:
[2004] EWCA Crim 1754
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 16th June 2004
B E F O R E:
LORD JUSTICE KAY
MR JUSTICE CURTIS
MR JUSTICE NEWMAN
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 30 OF 2004
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MISS B CHEEMA
appeared on behalf of the ATTORNEY GENERAL
MR L WILCOX
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
Wednesday, 16th June 2004
1.
LORD JUSTICE KAY: Her Majesty's Attorney General seeks the leave of the court to refer to it a sentence that he considers to be unduly lenient pursuant to
section 36 of the Criminal Justice Act 1988
. We grant leave.
2.
The offender is now 30 years of age, 29 at the time when he was sentenced.
3.
On 5th September 2003 he pleaded not guilty to a count of wounding with intent. Following two further hearings the matter was listed for trial.
4.
On 20th January 2004, the day on which the trial was due to begin and when all the prosecution witnesses had attended, the offender was re-arraigned and entered a guilty plea on a written basis. The basis of the plea was not disputed by the Crown. Sentence was adjourned for the preparation of a pre-sentence report.
5.
On 13th February 2004 His Honour Judge O'Malley, sitting at the Taunton Crown Court, sentenced him to three years' imprisonment.
6.
The facts are these. On 6th June 2003 the victim, a 36 year old man called Scott Hunter, was spending the evening with a friend in a local public house and then the bar of an hotel, where they were both known. At about 9.30 pm the victim went to put some money into the jukebox which had gone quiet. Whilst there the offender came up to him and said that he had three credits left in the jukebox. Without looking at him, the victim said that they may have been lost, but if they were still there after his selection had been played the offender could have them. The offender left and the victim went and sat down with his friend.
7.
About ten minutes later, without any sort of warning, the offender approached him and struck him from behind with a hard blow to the right side of his head, which knocked him over to the left. Hunter described it as a dull sensation. As he looked up, Hunter saw the blur of a hammer coming towards him again. He was struck again, and as he moved away he was struck for a third time, the blow landing on his shoulder when he put his hand up to protect himself. The barmaid who was present described the offender holding the victim down with one hand as he swung the hammer down.
8.
The blows were in quick succession and left the victim bleeding onto his face, neck and clothing. When he came to his senses he saw the offender being restrained by other men, while he shouted words to the effect, "That'll teach you to take my free credit". The offender was then seen to pick up a glass ashtray and throw it at the victim, although, fortunately, it missed.
9.
The offender was removed from the bar and the hammer was taken from him. When he was leaving the premises the victim came across the offender, who continued to abuse him about the jukebox. The hammer was taken behind the bar by the barmaid and later given to the police.
10.
The following day the victim felt slow, as he described it "dopey", but went to work. Once there his colleagues realised he was unwell and took him to hospital. He was x-rayed and it was discovered from a CT scan that he had a depressed skull fracture and damage to the dura (the membrane lining the brain). An operation was carried out under general anaesthetic so that the depressed skull could be elevated. It was clear at the operation that a blow of considerable force had been struck as it was sufficient to drive a disc-shaped wedge of bone deep into the skull surface. Hair and skin fragments had been driven through the skull and were found amongst the bone fragments lying over the dura which had been breached by the blow. The wound was cleaned and the skull was re-secured with titanium plates. Fourteen clips were then used to close the site. He also had a cut to his right ear and a numb shoulder that lasted a few days. He had to spend three days in hospital.
11.
There have been after-effects from the assault. The victim experienced headaches every day for about a month, then intermittent pain in the area of the scar. He has experienced a constant high-pitched noise in the head, more noticeable at night in the quiet, which has interfered with his sleep. He has a 5-inch scar and a cranoid depression at the site of the main injury. There was, as a result of the injury, a risk of epileptic seizures, although none, fortunately, had been suffered by the time of the sentencing hearing. He was not allowed to drive for six months or play football. He himself was aware of a personality change in that he had become quiet and shy and reluctant to socialise, whereas before the assault he was confident and outgoing. He found it harder to concentrate for long periods and carried out tasks at a slower pace. In January 2004 the victim was still receiving treatment and was due to see a hearing specialist in respect of the constant noise in his head.
12.
Mr Hunter has since felt compelled to avoid two nearby towns because he has been afraid that he might come across the offender or his friends. He has lost his employment as a result of the attack and now earns less than he did before.
13.
On the night of the incident the police were called but the offender had by then left. He subsequently surrendered voluntarily to the police on 23rd June. In interview, he admitted owning the hammer. He explained that it was a work tool. He also admitted that he was responsible for the assault, but claimed to have been too drunk to remember the incident, apart from the argument at the jukebox with a young man whom he did not know. After the argument the offender claimed to have left the public house, only returning because he had forgotten to take his bag of tools with him. He had taken 14 pints of a mixture of lager and bitter and had been extremely drunk. The next thing he recalled was being dragged out and told he had hit someone with a hammer. He did not at that stage accept three blows as he could not remember them and he thought that the victim was exaggerating. He expressed remorse at the end of the interview for using the hammer. He said: "Just about the business with the hammer. It was a very stupid move and I'm sorry for it. I was drunk with beer. That's all I can say". He had also told a mutual friend that he was sorry for the injuries.
14.
The basis of plea, as it was put forward when he entered his plea of guilty, was as follows:
15.
Firstly, the offender had been working all day in hot weather without food or drink. When he subsequently took alcohol the effect was more marked.
16.
Secondly, the offender did not recall the assault but admitted forming a drunken attempt to cause the victim grievous bodily harm.
17.
Thirdly, the offender bitterly regretted the incident and injuries. As soon as he realised what had happened he contacted his solicitor and surrendered to the police.
18.
Finally, he had always maintained a plea to causing the injuries but contested the element of specific intent due to his drunken state. Upon service of medical evidence confirming that three blows were struck, he accepted that he must have formed the drunken intention that was required.
19.
The offender has previous convictions, and over the eight years between 1992 and 2000 he was convicted of over 40 offences, ranging from criminal damage and driving offences to assault occasioning actual bodily harm, robbery, burglary, possession of cannabis, handling and public order matters. Significantly, the offences of violence were ten years old and there were no details available as to exactly what they were. They had resulted in short terms of imprisonment. He had been dealt with in a variety of ways including imprisonment, fines and community service.
20.
On behalf of the Attorney General it is submitted that this case had a number of aggravating features: first, the use of the hammer as a weapon; second, this was an unprovoked attack on a stranger in public; third, the victim was struck repeatedly and the offender only desisted when others intervened; fourth, the deliberate and forceful striking to the head of the victim, which caused a significant injury in that the section of the skull was driven into the dura together with surrounding skin and hair; fifth, it was a case with serious and lasting consequences from the injuries, including the insertion of metal plates and the consistent ringing in the ears which was still unresolved; finally, there was his past history of offending.
21.
It is recognised, on the other side, that there were a number of mitigating features. Firstly, there was the plea of guilty. The judge, in dealing with the plea of guilty, made it clear that he viewed it as a significant plea, bearing in mind that he accepted that the appellant had no actual recollection of what he had done. Next, it was recognised that there was genuine remorse, demonstrated particularly by contact with a prosecution witness and what he had said then, and also by the very act of surrendering to the police. Next, the judge viewed the matter as being one which was out of character. Bearing in mind his earlier violent history, it must be that the judge meant by that, firstly, that this was far more serious than anything he had ever done before, and, in particular was outside his recent character in that he had not behaved violently for a significant number of years. Finally in terms of mitigating features, it is recognised that this is an appellant with a difficult personal history, in particular, he had a history of drug abuse, and that he had made a significant effort to try and reform, assisted by his father, and that there had been a significant improvement in his behaviour as a result of his efforts.
22.
The Attorney General submits that the sentence was unduly lenient and, in particular, contends that the sentence failed to mark adequately the gravity of the offence and the aggravating features present. It is submitted that the learned judge gave too little heed to the high degree of force used in the assault and too great credit for the mitigating features in the case, including the late guilty plea. It is also submitted that this is a sentence which will fail to act as a deterrent to others considering committing similar offences and one which failed to heed the proper concern in society in respect of violent offences of this kind which cause harm to a wholly innocent victim.
23.
In support of those contentions, we have had our attention drawn to a number of authorities:
Attorney General's Reference (No 18 of 2002)
, the case of Hughes,
[2003] 1 Cr App R (S) 9
at page 35;
Attorney General's Reference (No 36 of 1996
), the case of Johnson, [1997] 1 Cr App R (S) 363; and
Attorney General's Reference (No 68 of 2002
), the case of Stephen Catterill,
[2003] 1 Cr App R (S) 94
. Further, our attention was drawn to a very recent decision of this court, in respect of which there is no full transcript,
Attorney General's Reference (No 12 of 2004)
, the case of Alfred Washington Weeks, which was heard by this court on 19th May 2004. We have a short report in relation to that but no further information over and above the short report.
24.
In addition, whilst we are referring to the authorities that we have considered, Mr Wilcox, on behalf of the offender, also drew our attention to the case of
Attorney General's Reference (No 11 of 1992
), the case of Howes, [1993] 14 Cr App R (S) 136.
25.
Many of those authorities have similar features to the offences in this case, although one can never find two cases that are exactly the same and they can do no more than provide general guidance as to the appropriate level of sentencing.
26.
On behalf of the offender, Mr Wilcox submits that whilst he accepts that the sentence was a lenient sentence, it cannot properly be characterised as being unduly lenient. He submits in those circumstances that the court ought not to interfere with the existing sentence, and if it feels compelled to do so should raise it by no more than the minimum that is consistent with the court's duty.
27.
We have carefully considered all the submissions in this case and we find ourselves agreeing with the Attorney General that the sentence was unduly lenient. This was a very savage attack on a wholly innocent person. There was not even the sort of background that one often finds in cases of this kind where there had been some quarrel and somebody simply took the quarrel out of the league in which it ought to have been. The victim here was a person going about his ordinary business, legitimately behaving in a public house, who, for no sort of reason at all, was attacked in this savage way. It is further significant, in our judgment, that the appellant had left the public house after the minor episode with the victim and actually returned to the public house in order to collect his tools and then, and only then, well removed from any contact which he had with the victim, he attacked him at that stage. Further, there were a number of separate blows, and even when he was taken hold of by others, he was still attempting to throw the ashtray at the victim. Those are serious features.
28.
The other critically important feature, in our judgment, is the extent of the injuries suffered by the unfortunate victim. There is no doubt that the blow to the head has caused him serious long term consequences. Just how those will resolve in the future is impossible to tell, but this is a case where there has been serious injury leading to consequences that will go on reminding the victim of this very unpleasant attack for a substantial length of time.
29.
In our judgment, facts of that kind, even on a guilty plea, merit a longer sentence than the one imposed by the judge. Our conclusion in this case, and one we believe in line with the authorities to which we have been referred, is that the proper sentence in respect of this matter, following a guilty plea, which was entered at the door of the court, would have been a sentence of the order of five and a half to six years.
30.
We have, as is always the practice of the court in a case of a referral of this kind, to make an allowance for what has become known as double jeopardy; that is, the fact that, through no fault of his own, the appellant has had to go through the sentencing process twice. We make that allowance.
31.
We think the justice of this case would be met if we reduced the sentence from that which we have indicated to one of four and a half years' imprisonment. Accordingly, we quash the sentence of three years' imprisonment and substitute for it one of four and a half years' imprisonment. | ```yaml
citation: '[2004] EWCA Crim 1754'
date: '2004-06-16'
judges:
- LORD JUSTICE KAY
- MR JUSTICE CURTIS
- MR JUSTICE NEWMAN
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2017] EWCA Crim 43
No:
201604251 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice Strand London, WC2A 2LL
Thursday, 26th January 2017
B e f o r e
:
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(LADY JUSTICE HALLETT DBE) MR JUSTICE STUART-SMITH
MS JUSTICE RUSSELL DBE
R E G I N A
v
L
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court)
Mr R S Sandford
appeared on behalf of the
Appellant
Mr P Jarvis
appeared on behalf of the
Crown
J U D G M E N T
(Approved)
Crown copyright©
THE VICE PRESIDENT:
Introduction
1.
Despite what was hoped to be the clear guidance of the specially constituted court in
R v Forbes
[2016] EWCA Crim 1388
;
[2017] 1 WLR 53
, we have been asked yet again to consider the proper approach to sentencing an adult for sexual offences committed as a teenager. With very little notice, we invited the Crown to be represented. We are indebted to the Crown and to Mr Paul Jarvis whom they instructed to appear before us this morning. He has been of very considerable assistance.
2.
The 51-year-old appellant was convicted on 18 August 2016 of sexual offences on two female relations when he was aged between 14 and 17 and they were considerably younger. Given the seriousness of his offending and the impact upon his victims, Mr Sandford accepted that, at first sight, the total sentence of 30 months' imprisonment imposed by the trial judge, Mr Recorder Gateshill, was merciful. The question posed for this court is whether the judge had the power to impose it.
3.
We should emphasise that reporting restrictions apply, albeit we hope not to say anything that could lead to the identification of the victims.
Facts
4.
Both counts on the indictment were specific. The prosecution's case was that on two separate occasions the appellant indecently assaulted two different complainants. It was impossible to prove the exact date of the offences so as to establish precisely the age of the offender or the age of his victims.
5.
The appellant was born on 17 March 1965. The period set out in count 1 (the indecent assault on C1) was from 1 January 1980 to 1 January 1982 when the appellant would have been aged between 14 years and 10 months to 16 years and 10 months. He made C1, then aged approximately six, perform oral sex upon him under a blanket. The period set out in count 2 (indecent assault on C2) was 26 April 1979 to 26 April 1981 when the appellant would have been aged 14 years and 1 month to 16 years and 1 month. He digitally penetrated C2, then aged nine or ten, when they were together in a tent in the garden. When interviewed about the offences, he denied them. By the time he appeared in the Crown Court he had 45 convictions spanning from 1978 to 2011. They included
two offences of indecent assault on a female under the age of 14 in 1980, for which he received a supervision order.
Sentencing remarks
6.
The trial judge, Mr Recorder Gateshill, observed that this was one of the worst cases of indecent assault that could be imagined. The appellant violated two very young girls and the impact upon them had been long-standing and serious. It had left them with psychological damage that had persisted throughout their lives. Significant substantial problems they had experienced over the years had been attributable to the appellant's behaviour years ago. The appellant had evaded justice for many years.
7.
The Recorder, who did not have the benefit of the judgment in
Forbes
, determined that, had the appellant committed these acts in the recent past, as an adult, he would be sentenced to a period of at least 10 years' imprisonment based on the various guidelines now in place. The appellant's offence against C2 would now be categorised as an offence of rape for which the maximum is life imprisonment. The maximum sentence that could be imposed for offences of indecent assault at the time of his offending was 5 years' imprisonment. The appellant's offences were so serious, the Recorder felt justified in taking the maximum sentence of 5 years as a starting point, but decided he must make a significant adjustment to that figure to reflect the fact that teenagers should not be sentenced as heavily as adults. He was unable to determine the exact age of the appellant at the time of the offences. He decided to sentence on the basis he was at the younger end of the scale of 14 to 17. He reduced the sentence by 50 per cent to reflect the appellant's youth and ordered the sentences to run concurrently.
Ground of Appeal
8.
The appellant has leave of the single judge to argue essentially one point: that the Recorder’s powers were constrained by the statutory maximum penalty available at the time of the offence for an offender aged 14. It was common ground that the maximum powers of the juvenile court for a 14-year-old would have been 3 months' detention for a single offence with a maximum of 6 months for consecutive terms. A 14 year old offender committed to the Crown Court for sentence, would have faced a maximum of 6 months for a single offence and a maximum of 12 months for consecutive terms.
9.
Reliance was placed on
Forbes
in support of the proposition that sentencing the appellant as an adult to a longer sentence than would have been available to the court had he been sentenced as a 14 year old offends Article 7 of the European Convention on Human Rights.
Conclusions
10.
In
R v Bowker
[2007] EWCA Crim 1608
the court held that the fact that a defendant who committed an offence two days short of his 18
th
birthday was sentenced as an 18-year-old (for whom there was a higher maximum penalty) did not involve a breach Article 7. The court observed:
“It seems to us that the provisions of Article 7.1 are clearly directed to the mischief of retroactive or retrospective changes in the law. In the present case, there was no change in the law. The penalties for violent disorder remained the same. All that changed was the penal regime to which the appellant would be exposed as a result of the normal operation of existing law to his age at the time of conviction. For those reasons, we do not consider that the court is constrained in any way by the provisions of Article 7 in situations such as the present."
11.
Similarly,
in R v H
[2011] EWCA Crim 2753
;
[2012] 1 WLR 1416
the court held that, provided a sentence imposed upon an offender did not exceed the maximum sentence applicable to the offence at the time the offence was committed, then Article 7 would not be contravened.
12.
Without expressing any dissent from the principles set out in
H
and
Bowker
, the court in
Forbes
distinguished both cases, stating it made a difference to the operation of Article 7 where no custodial sentence of any kind could have been imposed upon an offender at the time he committed the offence, given his age. In those circumstances it would be contrary to Article 7 and ordinary common law fairness to impose a custodial sentence upon him now (see paragraph 120).
13.
The court in
Forbes
stressed the limited nature of this exception. Article 7 is not offended where a custodial sentence was always available for an offender, even if the type of custodial sentence may be different (see paragraph 119). The court stressed that this departure from the
H
principle should not "operate as encouragement or licence to courts to indulge in a similar exercise in any other situation" (see paragraph 121).
14.
Following
Forbes
, the position is, therefore, as follows:
(a)
The general principle is that the relevant maximum penalty is the maximum penalty available for the
offence
at the date of the commission of the offence.
(b)
There is an exception to the general principle where the
offender
could
not
have received any form of custodial sentence at the time he committed the offence.
(c)
The exception is no licence for any broader inquiry. If custody was available at the time of the offending for the offender, the age of an offender at the time of the commission of the offence is relevant solely to the assessment of culpability. The only constraint in those circumstances on the powers of the sentencing court is the statutory maximum for the offence. The court should not analyse the nature of the custody available for a young offender at the time, the maximum length of that custody, the court's powers to commit for sentence as a grave crime or the principles governing sentencing of young offenders, in so far as they go beyond the importance of assessing culpability and maturity.
15.
On the facts of this case, therefore, reliance on
Forbes
is misplaced. If the appellant had been sentenced for these offences as a 14-year-old, the sentencing court would have had available to it at least one custodial option. The fact that a form of custodial sentence could have been imposed on him, irrespective of its maximum length or nature, is sufficient to satisfy the requirements of Article 7 and the principles of common law fairness. There has been no retroactive or retrospective change in the law; it is simply that the penal regime has changed because his age has changed.
16.
It is not suggested by Mr Sandford that the sentence, if lawful, was excessive and for good reason. These were serious offences committed by a teenage boy on much younger children, with devastating consequences for them. The appeal must be dismissed. | ```yaml
citation: '[2017] EWCA Crim 43'
date: '2017-01-26'
judges:
- MR JUSTICE STUART
- MS JUSTICE RUSSELL DBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No.
2009/67050/A5
Neutral Citation Number:
[2010] EWCA Crim 351
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Date:
Wednesday 10 February 2010
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE IRWIN
_______________
ATTORNEY GENERAL'S REFERENCE No. 112 of 2009
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
DARRYL BRADLEY AARON CHURCH
__________________
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4A
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
__________________
Mr S Denison QC
appeared on behalf of the Attorney General
Mr M Steen
appeared on behalf of the Offender
__________________
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. This is an application by Her Majesty's Attorney General under
section 36 of the Criminal Justice Act 1988
for leave to refer to this court a sentence which she considers to be unduly lenient. We grant leave.
2. The offender is Darryl Church. He is aged 18, having been born on 26 May 1991. On 19 November 2009, at Bristol Crown Court, having earlier pleaded guilty on arraignment to manslaughter, he was sentenced by Burnett J to 20 months' detention. There was no written basis of plea. The offender had a significant previous conviction. Sentence was adjourned pending the preparation of a pre-sentence report.
3. In summary, in the early hours of 9 May 2009 the offender was one of a group of five young men standing about on a pavement in Gloucester. Although he had been drinking, this is not a case of drunken violence.
4. The victim was 23 year old William McNaught. He, too, had been drinking, but the drink he had taken played no part in what happened to him. He approached the group of five men, of whom the offender was one. He was neither threatening nor aggressive. For no reason, and without warning, the offender delivered a very heavy punch hard to the side of his head. The blow ruptured an artery at the base of the brain stem. The victim was immediately rendered unconscious and death followed, not from any impact with the ground or anything on the ground but as a direct result of the blow administered by the offender. The incident was captured on CCTV footage and we have seen the recording.
5. The offender's previous conviction was for assault occasioning actual bodily harm. The offence was committed in December 2007. Although he had been drinking on that occasion, drink played no part in the violence. On this occasion the victim was punched to the head. The blow was so hard that the victim was knocked out and his jaw was broken in two place.
6. The facts in a little more detail are these. The victim, William McNaught, was 24 years old, having been born in October 1985. He was a member of a large and close family. On the evening of 8 May he went out with his girlfriend and a friend who was the boyfriend of the victim's sister. There was a little trouble between the victim and his girlfriend, but that has no relevance to what happened later.
7. Eventually the victim decided to go home. He got into a car. At about 1am, the car passed the group of five young men which included the offender. The victim noticed that in the group was a man known as "Pinky". The victim had recently made an allegation of minor assault against Pinky. Indeed on that very day Pinky had answered bail in respect of the alleged minor assault. The victim asked the driver of the car to stop because he wanted a word with Pinky. The victim got out of the car and walked towards the group. He was somewhat unsteady on his feet. He approached the group, calling out to Pinky. As the CCTV footage shows, his arms were by his sides and his palms were open. He was neither threatening nor aggressive. The only person to whom he wished to speak in the group was Pinky.
8. As the victim approached the group, he was pushed away by one of its members. The group then huddled together. Pinky walked towards the victim, but then stopped and turned away. The offender went between them and, without pause or warning, he delivered the punch with his right fist to the left of the deceased's head. It was a hard punch in which the full body weight was used. The victim fell immediately unconscious into the road.
9. Pinky went to help the deceased. He said to the offender, "What have you done?" The offender said nothing but ran away. The friends of the deceased immediately ran to offer what help they could. The victim was moved out of the road and onto the pavement. An ambulance was called. A passing police car was flagged down. Although when the police officers first examined the victim he was breathing and they found a pulse, he very quickly went into cardiac arrest. He did not regain consciousness. Despite the best efforts of the doctors and nurses at the Gloucester Royal Hospital, he died shortly after 1.10am that day.
10. The cause of death was a direct result of the blow administered by the offender. It resulted in bleeding from around the base of the brain stem from a rupture within a small arterial blood vessel that runs over the surface of the brain stem. Such injuries are associated with rotation and extension of the head on the neck. They occur in particular as a result of blows to the side of the face.
11. The offender ran from the scene immediately after delivering the punch. He was soon followed by Pinky and another member of the group. They asked the offender why he had behaved as he had. He replied that he thought that the deceased was "going to start".
12. A police helicopter passed nearby. The offender changed his appearance by removing the light-coloured jacket he was wearing and he went off on his own.
13. At 9pm he was arrested on suspicion of murder at his home address. He made no reply after he had been cautioned. In his first interview he admitted that he had been present at the time when the deceased was punched, but denied that he had been responsible for the blow. He was told that others in the group had said it was he who had been responsible. He continued to deny it, swearing that he had not punched anyone. However, by the second interview he faced up to the realities. He said that he had lied because he was scared and "in shock". He admitted that he had punched the deceased and that he had done so because he thought that the deceased was about to attack Pinky. He admitted that he had drunk some whisky that night. His account of how much he had drunk varied. However much alcohol he had consumed, on the Crown's case it was not a significant factor.
14. In due course, in accordance with his admissions, he pleaded guilty to manslaughter.
15. The previous conviction occurred when the offender was 16 years old, in December 2007. On this occasion he and others had been drinking. There was an argument between again Pinky and another man. Again the offender involved himself for no good reason. He delivered a blow to the other man's head. The blow rendered the man unconscious and fractured his jaw in two places. When this matter was investigated, the offender claimed that he had delivered the punch because he thought that he was about to be assaulted.
16. In April 2008 he pleaded guilty to assault occasioning actual bodily harm. It was a very serious offence of assault occasioning actual bodily harm, but the offender was very young and at that stage of good character. He was sentenced to a 12 month Referral Order and ordered to pay compensation.
17. The offender lived with his parents and younger sister in the Gloucester area. He had completed some prospect training but he had been unable to obtain employment. Character references from school, from work training and from social friends were provided to the court.
18. The pre-sentence report examined the facts known about him and assessed that the offender presented a high risk of serious harm to the public, particularly young adult males. That conclusion inevitably followed from the two offences of violence of which the offender had by then been convicted.
19. The Attorney General acknowledges the following mitigating factors. The offender had pleaded guilty on arraignment, at the first reasonable opportunity, for which he was entitled to a full discount from the sentence that would otherwise have been appropriate. There is evidence of his remorse, and he is still only 18 years old.
20. On the other hand, this is yet another tragic death resulting from yobbery in the street. We have read the victim impact statement. Words cannot do justice to the grief that has been caused to the family of the deceased. Nothing the deceased did that evening justified any violence being shown to him. He did nothing which amounted to provocation; nor was he looking for trouble. It is true that his death resulted from a single punch delivered on the basis of the plea accepted by the Crown, without the intention required for murder. However, it was a very heavy blow, delivered with full force. It was enough on its own to produce the fatal injury. The subsequent death had nothing to do with any post-impact collision by the deceased's head on the ground or with some object, or as the result of some other factor.
21. Although the offender was still young, he knew the damage that can be caused by a full-force blow to the head. The earlier incident should have been a dramatic lesson to him. So, although he was young, this was not the first time that he had committed a crime of violence. He should have appreciated, and we have no doubt he must have appreciated, the injuries that may be caused by a single, heavy punch to the head.
22. The sentencing judge reflected on the existing guidance without the advantage of this court's recent analysis of very, very many of the sentencing decisions in this class of case which is compendiously described as a "one punch manslaughter case", although such a description fails to do justice to the many different circumstances in which a single blow can cause death.
23. We have re-examined this sentence in the light of the decision of this court in
Attorney General's Reference Nos. 60, 62 and 63 of 2009
(
R v Appleby and Others
)
[2009] EWCA Crim 2693
. We acknowledge the mitigating features correctly taken into account by the judge. None was wrongly taken into account. The discount for the guilty plea plainly had to be allowed, and some small allowance had to be made for the fact that, notwithstanding the first conviction, the offender is still young. It is accepted on behalf of the offender that the sentence was a lenient one in all the circumstances, but the contention is that, looking at previous cases and looking at the matter in the round, it would be wrong to treat the sentence as unduly lenient.
24. We disagree with the submission made on behalf of the offender. In our judgment this was an unduly lenient sentence. It must be increased to one of three-and-a-half years' detention.
_______________________________ | ```yaml
citation: '[2010] EWCA Crim 351'
date: '2010-02-10'
judges:
- MR JUSTICE PENRY
- MR JUSTICE IRWIN
- THE CRIMINAL JUSTICE ACT 1988
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| 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: 2024/00038/A5
[2024] EWCA Crim 318
Royal Courts of Justice
The Strand
London
WC2A 2LL
Wednesday 14
th
February 2024
B e f o r e:
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(
Lord Justice Holroyde
)
MR JUSTICE TURNER
MR JUSTICE BRYAN
____________________
ATTORNEY GENERAL'S REFERENCE
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
____________________
R E X
- v –
JENNIFER BLACKADDER
____________________
Computer Aided Transcription of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
____________________
Miss C Pattison
appeared on behalf of the Attorney General
Mr D Hughes
appeared on behalf of the Offender
____________________
J U D G M E N T
(
Approved
)
__________________
Wednesday 14
th
February 2024
LORD JUSTICE HOLROYDE:
1.
Miss Blackadder, to whom we shall refer as "the offender", appeared before the Crown Court at Sheffield on 7
th
December 2023 to be sentenced following her guilty pleas to offences of breach of a restraining order, assault by beating, stalking involving fear of violence and intimidating a witness. The judge (Mr Recorder Myerson KC) deferred sentence for three months.
2.
His Majesty's Solicitor General believes that sentence to be unduly lenient. Application is accordingly made, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer the case to this court so that the sentencing may be reviewed.
3.
The offender was formerly the partner of Ezekiel Roberts. They have two children, one now a young adult, the other aged about 10. There appear to have been a number of issues between them, and they separated in 2014. Mr Roberts has subsequently formed a relationship with Megan Harris. They have now been together for several years and have a young child.
4.
Since the separation, there have been repeated incidents which have brought the offender, who was previously of good character, before the criminal courts. There have also been proceedings in the Family Court.
5.
It is necessary to summarise in chronological order the key features of the offender's conduct towards Mr Roberts and Miss Harris.
6.
On 24
th
May 2016, the offender pleaded guilty before a magistrates' court to an offence of harassment of Mr Roberts. She was conditionally discharged for 12 months, and a restraining order was made against her.
7.
Four months later, in breach of the conditional discharge and in breach of the restraining order, she committed a further offence of harassment, for which she was fined by a magistrates' court. The restraining order remained in force. Within the next few months the offender twice breached it by further harassment. On 19
th
May 2017, a magistrates' court imposed a community order for 12 months, with a rehabilitation activity requirement.
8.
Within months, and whilst subject to that community order, the offender committed five further offences: breach of the restraining order by harassment and criminal damage in November 2017; breach of the restraining order by harassment in March 2018; and less than a fortnight later, a further breach of the restraining order by harassment and a Public Order Act offence. All of those matters were dealt with by a magistrates' court on 29
th
May 2018, when a new community order for 12 months, with a rehabilitation activity requirement, and a new restraining order for 12 months were imposed.
9.
No further offences were committed whilst those orders were in force. In January and February 2020, however, the offender was again before a magistrates' court for offences committed in November 2019 of damage and breach of a non-molestation order made by the Family Court, and for further offences in January 2020 of damage and breach of the non-molestation order. On 2
nd
March 2020, she was sentenced for those offences to a total of 12 weeks' imprisonment, suspended for 12 months.
10.
On 17
th
May 2020, and again on 19
th
May 2020, the offender acted in breach of the non-molestation order, thereby putting herself in breach of the suspended sentence order which had been imposed less than three months previously. On 22
nd
May 2020, a magistrates' court dealing with those latest offences deferred sentence to 21
st
August 2020, on which date it imposed suspended sentences totalling 15 weeks' imprisonment, suspended for 12 months, with a rehabilitation activity requirement.
11.
A similar sentence was imposed for another breach of a non-molestation order committed on 20
th
August 2020, which was the day before the offender was due to come before the court to be sentenced for her earlier offences.
12.
Further offences followed a few months later, whilst the offender was subject to the suspended sentence order. In September 2020, she breached a restraining order by harassment. In March 2021, whilst on bail, she committed a further breach of the restraining order by harassment and an offence of dangerous driving. Her conduct on that occasion involved driving her car at a car driven by Mr Roberts, in which their older child was a passenger. She was committed to the Crown Court for sentence.
13.
On 6
th
July 2021, the judge deferred sentence for six months. In his sentencing remarks he said that the offender had breached orders requiring her to leave Mr Roberts alone, and in these recent offences had taken matters to a different level by involving the children. He noted that the offender had spent three months remanded in custody and observed that it might just be possible for him to suspend the sentence of imprisonment. But, he said, all the evidence suggested that a suspended sentence meant nothing to the offender, so he would not take that course immediately. Instead, he deferred sentence on conditions that the offender committed no further offending of any kind and complied with the restraining order. The judge indicated that if she complied with those conditions, and with any directions the Family Court might give, he would be prepared to suspend the sentence at the next hearing.
14.
The judge, in those sentencing remarks, had made clear that the offender faced a stark choice as to her future. Nonetheless, on 23
rd
August 2021, she again breached the restraining order by harassment. She went on to do so again on two further occasions in November 2021.
15.
The offender again came before the judge on 27
th
January 2022, to be sentenced for the offences in respect of which the sentence had been deferred and for the subsequent offences. Her total sentence on this occasion was 24 months' imprisonment, suspended for 24 months, with a curfew requirement and a rehabilitation activity requirement. A fresh restraining order was imposed. The judge in his sentencing remarks on that occasion noted that the medical evidence which had been obtained showed that the offender did not suffer from any specific mental disorder. He very clearly warned her that any breach of the suspended sentence order, even if it were committed at the very end of the two year operational period, would put her at risk of having to serve the full two year term.
16.
We now turn to the facts of the present offences. On 24
th
October 2023, some nine months after the suspended sentence order was made, there was a hearing in the Family Court concerning contact between the offender and her younger child. The decision of the Family Court was adverse to the offender. As Mr Roberts and Miss Harris were leaving the court building, the offender shouted abuse at Mr Roberts. She followed them to their parked car. As the car approached the exit of the car park, the offender came towards the car in a manner which made Mr Roberts think that she was going to attack Miss Harris. He got out of the car. The offender then hit him in the face several times with her umbrella, causing bruising.
17.
The offender was subsequently arrested. She appeared before a magistrates' court on 28
th
October 2023 and was bailed, subject to conditions which included a prohibition on contacting either Mr Roberts or Miss Harris. She was, of course, still subject to the suspended sentence order.
18.
Over the next three weeks, however, she stalked and intimidated Miss Harris, calling her phone up to 100 times, including in the early hours of the morning, and sending approximately 200 text messages. The contents of the messages caused Miss Harris fear and distress. They included threats of harm, upsetting personal abuse, and references to places where Miss Harris had been, of which the offender should not have been aware.
19.
On 27
th
November 2023, the offender pleaded guilty at a plea and trial preparation hearing to counts on an indictment charging her with assault by beating of Mr Roberts, and breach of the restraining order. One of the counts to which she pleaded guilty was incorrectly drafted and referred to the wrong statutory provision; but we are satisfied that the error does not invalidate the conviction and we need say no more about it. Also on 27
th
November 2023, before a magistrates' court, the offender admitted offences of stalking Miss Harris involving fear of violence, and intimidating a witness. She was committed to the Crown Court for sentence.
20.
All those matters came before the judge for sentence on 7
th
December 2023. There was no up to date pre-sentence report, but one had been prepared at an earlier hearing.
21.
Each of the victims of the offending had provided a Victim Personal Statement. Mr Roberts said that he had experienced constant harassment since 2014 which had affected his mental health. Miss Harris expressed her concern that the offender had discovered personal details which she had tried to keep confidential, such as the home address of Miss Harris' parents and the address of the school then attended by the offender's younger child.
22.
The judge indicated that he regarded the stalking offence as the most serious. It has been intended to cause Miss Harris to fear violence and it had done so. The witness intimidation, though also serious, related to the same offending. Taking the appropriate guideline starting points, and adjusting them upwards because of the previous convictions and breach of bail conditions, the judge said that the appropriate sentences for those offences were three years six months and two years' imprisonment respectively, reduced by giving full credit for the guilty pleas to concurrent sentences of 28 months and 24 months' imprisonment. The judge went on to say that the offences against Mr Roberts involved a different victim and merited consecutive sentences of 18 months' imprisonment for the breach of the restraining order and four months' imprisonment for the assault which marked an escalation in the offender's previous behaviour. Credit for the guilty pleas, he said, reduced those sentences to 12 months and three months' imprisonment respectively.
23.
As to the commission of those offences during the suspended sentence order, the judge acknowledged that the offender had kept away from her victims for some 20 months, but referred to the warning he had given her when the suspended sentence order was imposed. He concluded that the full two year term should be activated consecutively.
24.
The judge said that those sentences added up to six years and one month's imprisonment, subject to a reduction for totality. He recognised that a sentence of that order would be, as he put it, an enormous relief to the victims of the offending, but he feared that the offender would leave prison a "broken woman". He reflected on whether there was any alternative which would avoid a long sentence, whilst also protecting the victims. He recognised that to reduce all the sentences he had identified as appropriate to a total term of two years and then to suspend that total term would likely result in an application for leave to review the sentencing as unduly lenient.
25.
The judge concluded that he would take "a very limited chance" with the offender by deferring sentence for three months. He imposed no conditions, but said that if the offender contacted Mr Roberts or Miss Harris during that period, he expected her to be locked up. He added that he expected that at the next hearing the offender would provide evidence that she had deleted all contact details for Mr Roberts and Miss Harris from all her devices. He told the offender that at the next hearing, even if she had kept away from her victims, he would still have to consider whether he could justify a non-custodial sentence. It seems to us that by that phrase the judge must in fact have meant a suspended sentence. Certainly if he was referring to an entirely non-custodial sentence, he said nothing to explain how he could reach such a sentence from what he had identified as appropriate sentences totalling more than six years' imprisonment. The judge ordered an updating psychiatric report directed in particular to the offender's motivation to avoid further offending.
26.
We turn to the relevant statutory provisions. By section 3 of the Sentencing Code introduced by the Sentencing Act 2020, deferment of sentence means deferring passing sentence until a specified date in order to enable the court, when dealing with an offender, to have regard to the offender's conduct after conviction and to any change in the offender's circumstances.
27.
By section 5(1), a court may made a deferment order only if, amongst other things, the offender consents and undertakes to comply with any deferment requirements the court proposes to impose and "the court is satisfied, having regard to the nature of the offence and the character and circumstances of the offender that it would be in the interests of justice to make the order". Deferment of sentence is a "sentence" for the purposes of sections 35 and 36 of the Criminal Justice Act 1988 and may therefore be the subject of an application to this court for leave to review such a sentence as unduly lenient.
28.
For His Majesty's Solicitor General, Miss Pattison submits that the judge's decision was unreasonable and the deferment of sentence unduly lenient. Under the relevant sentencing guideline, the stalking offence alone merited a sentence outside the range of imprisonment which could be suspended. The appropriate total sentence was well outside that range. Furthermore, Miss Pattison submits that the offender had continued to commit offences against the same victims during the period of the suspended sentence order, which merited activation of that sentence in full. Deferment did not constitute a real test of the offender's current motivation, she submits, and the judge had given no specific reasons why deferment was appropriate.
29.
For the offender, Mr Hughes submits that the judge did not, in reality, defer sentence, but rather adjourned sentence for three months so that a further psychiatric report and further pre-sentence report could be obtained. In any event, Mr Hughes submits, the judge was in the best possible position to consider all relevant factors and it was reasonable in all the circumstances for him to take the step of adjourning sentence with a view ultimately to imposing a non-custodial sentence.
30.
We are grateful to both counsel for their written and oral submissions. We are also grateful to the offender's probation officer, who has prepared a pre-appeal report for the assistance of this court.
31.
We say at once that we are unable to accept Mr Hughes' submission that the judge merely adjourned sentence. The terms in which he expressed himself in his sentencing remarks, including a discussion with counsel as to what orders might properly be combined with a deferment of sentence, makes it abundantly plain that he was intending to, and did, defer sentence. Mr Hughes' invitation to us to "look behind the label" is not an invitation which we can accept. This is not simply a matter of putting an inappropriate label on an adjournment; it was a form of sentencing. In any event, there was no basis, in our view, on which the judge could properly have adjourned sentence, and we are satisfied that he did not purport to do so. We must therefore consider the principles applicable to deferment of sentence.
32.
The use of deferred sentence is a topic of current interest to academic lawyers. In July 2022 the Sentencing Academy published a thoughtful review of the law, guidance and research on that topic. The learned authors of that review, emphasising the need for further research, concluded that greater use should be made of deferment and put forward a number of proposals as to how best that should be done. We must, however, focus on the law as it presently stands.
33.
There is at present no Sentencing Council guideline in relation to deferment of sentence in the Crown Court. In that respect, the Sentencing Guidelines Council's guideline: "New Sentences – Criminal Justice Act 2003", published in December 2004, remains in force. At paragraph 1.2.7 that guideline states that the use of deferred sentences should be predominantly for a small group of cases close to a significant threshold where, should the defendant be prepared to adapt his behaviour in a way specified by the sentencer, the court may be prepared to impose a lesser sentence.
34.
Similar language is used by the Sentencing Council in explanatory materials which it provides for the assistance of magistrates.
35.
The effect of that guidance, and the principles well established by case law, were considered by this court in July 2023 in
R v Swinbourne
[2023] EWCA Crim 906, [2024] 1 Cr App R(S) 8 – a case regrettably not cited either to the judge or to this court. The court there emphasised that deferment should be sparingly used. At [21] of the judgment of the court, William Davis LJ said that the guideline provides that sentence should be deferred
" … in a small group of cases, at either the custody threshold or the community sentence threshold, where the court may be prepared to impose a lesser sentence provided the defendant is prepared to adapt his behaviour in a way clearly specified by the court. When passing sentence, the court should indicate the type of sentence it would be minded to impose if the defendant does not comply. Deferment can only be appropriate if a sentence other than one of immediate custody will follow in the event of compliance."
At [22], William Davis LJ went on to say:
"… Deferment of sentence is not to be used where the court cannot state in clear terms what the sentence will be if the defendant complies. …"
36.
We respectfully agree with and endorse that statement of the applicable principles. We would add that in order to give effect to them, the judge who defers sentence should, save in exceptional circumstances, also conduct the sentencing hearing at the end of the deferment period, even if that involves practical and listing difficulties.
37.
In their commentary on
Swinbourne
, the learned authors of Harris and Walker's Sentencing Principles, Procedure and Practice 2024 suggest that in the light of that decision it is vital for sentencers to consider whether the lesser sentence, which is expressly or implicitly offered as an alternative disposal, is in fact a realistic possibility. They suggest, accordingly, that if a custodial sentence of two years or less could never be justified for the offending, and the sentence therefore could not be suspended, a decision to impose a deferred sentence will always be improper. We respectfully agree, and endorse those observations.
38.
We recognise that the judge here was faced with a difficult sentencing decision. Having sentenced the offender on previous occasions, he was, as Mr Hughes submits, particularly well placed to judge how best to deal with this further offending. We understand why he felt that a disposal which would promote the rehabilitation of the offender would provide the best prospect of putting an end to her conduct and thereby assisting the victims, and we commend the transparency with which he stated his views. The failure to alert him to the recent decision in
Swinbourne
added to the difficulty which he faced.
39.
We are, however, in no doubt that deferment of sentence was not a course which was properly open to the judge in the circumstances of this case. His decision was unduly lenient. We can state our reasons briefly.
40.
The lengthy history of previous court orders and sentences and the offender's repeated breaches and further offences were significant aggravating features. Against that long background, it was unavoidably necessary, when dealing with the latest offending, to give much greater weight to punishment and to the protection of the victims than to the rehabilitation of the offender. The judge rightly approached sentencing on the basis that nothing less than a custodial sentence could be sufficient to mark the seriousness of the latest offending. He was also right to conclude that even making a generous reduction for totality, the overall sentence would inevitably be well in excess of the range which would permit consideration of suspension. With respect to him, it was therefore unrealistic to suggest that there could ever be consideration of a suspended sentence, however well the offender might behave during the period of deferment. If a suspended sentence order ever were imposed in the circumstances of this case, that would in itself be an unduly lenient sentence.
41.
It follows that this case is far beyond the custody threshold and therefore well outside the category of case in which deferment might be appropriate in accordance with the principles in
Swinbourne
.
42.
Further, the three month period of deferment could not in reality achieve anything which might significantly affect the eventual sentencing decision. The judge did not impose any specific requirement, the fulfilment of which would materially inform the court's assessment of the realistic sentencing options. The offender was simply being given a chance to refrain from acting in further breach of the restraining order and the suspended sentence order. In any event, a period of three months of compliance with those orders could not provide any reliable guide to her future behaviour, given the many times when she had re-offended after short periods of good behaviour in the past.
43.
In addition, it does not appear from the transcript that the offender was ever asked whether she consented to the deferment of sentence. By section 5(1)(a) of the Sentencing Code, the consent of the offender is a necessary condition of deferment. Had she been asked to consent, that would have provided an opportunity for reflection on why that course was being proposed and what were the precise requirements with which, by section 5(1)(b), she must undertake to comply.
44.
We should add that there is nothing in the pre-appeal report which can assist the offender.
45.
For all those reasons, deferment was not a course which could properly be taken. It was necessary to grasp the nettle. There was, in reality, no realistic alternative to a significant custodial term, difficult though that would undoubtedly be for the offender.
46.
As for the length of that term, we take the view that the judge correctly categorised the several offences under the relevant guidelines. We do, however, feel that we can properly adjust the appropriate individual sentences to achieve a lesser total than that provisionally reached by the judge. We do that for three reasons: first, because we give some weight to the contents of the psychiatric reports, which somewhat reduce the offender's culpability for her actions; secondly, because this will be the offender's longest experience of custody; and thirdly, because, as the judge recognised, there must be an appropriate reduction for totality. We conclude that the least total sentence which can be imposed is one of four years and six months' imprisonment.
47.
For those reasons we grant leave to refer. We quash the deferment of sentence as unduly lenient. We substitute the following sentences of imprisonment: on count 1 of the indictment, breach of the restraining order, 12 months' imprisonment; on count 2 of the indictment, assault by beating, three months' imprisonment concurrent; on the first charge committed for sentence (stalking) and the second charge (witness intimidation), two years' imprisonment on each charge, concurrent with each other but consecutive to the sentences on indictment. We reduce the suspended sentence of 27
th
January 2022 to a total term of 18 months' imprisonment, and we activate it consecutively to the other sentences. Thus, the total sentence is one of four years and six months' imprisonment. The offender will serve up to half of that term in custody before being released to serve the remainder on licence.
48.
We direct that the offender must surrender to Shepcote Lane Police Station, Tinsley, Sheffield by 3 pm today. Four days shall count as served by reason of her having been on a qualifying curfew.
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______________________________ | ```yaml
citation: '[2024] EWCA Crim 318'
date: '2024-02-14'
judges:
- MR JUSTICE TURNER
- MR JUSTICE BRYAN
- THE CRIMINAL JUSTICE ACT 1988
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2008] EWCA Crim 2515
Case No.
2008/04319/A7
,
2008/05049/A7
2008/04320/A7
,
2008/04351/A7
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date:
Wednesday 15 October 2008
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Judge
)
MR JUSTICE OWEN
and
MR JUSTICE SWEENEY
- - - - - - - - - - - - - - -
R E G I N A
- v -
MATTHEW PEASE
ANDREW GILLMAN
SLAV ZINOVIEV
ZIGGY GRUDZINSKAS
- - - - - - - - - - - - - - -
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
Mr Y Chandarna
appeared on behalf of the Appellant Matthew Pease
Mr A Krikler
appeared on behalf of the Applicant Andrew Gillman
Mr S Mejzner
appeared on behalf of the Appellants
Slav Zinoviev and Ziggy Grudzinskas
Mr D Durose
appeared on behalf of the Crown
- - - - - - - - - - - - - - -
J U D G M E N T
THE LORD CHIEF JUSTICE:
1. These are appeals by Matthew Pease, Slav Zinoviev, Ziggy Grudzinskas and Andrew Gillman against the sentences imposed by His Honour Judge Hardy sitting in the Crown Court at Southwark on 11 July 2008. All four had eventually pleaded guilty to conspiracy to commit criminal damage. Their pleas were delayed until after the trial had started and the judge had given a number of evidential rulings. They were sentenced as follows: Gillman to 24 months' imprisonment; Zinoviev and Grudzinskas to 18 months' imprisonment; and Pease to 15 months' imprisonment.
2. There were a number of other members of the conspiracy: McLelland was sentenced to nine months' imprisonment suspended for twelve months; Stewart was sentenced to 18 months' imprisonment; and Binnie and Tanti were each sentenced to twelve months' imprisonment suspended for twelve months.
3. Pease, Zinoviev and Grudzinskas appeal with leave of the single judge. Gillman's application for leave was referred by the Registrar who also granted a representation order. In view of the fact that the other three conspirators had been granted leave to appeal against sentence, we shall give Gillman leave to appeal against sentence so that his position will be identical to that of the other three.
4. The facts of this case disclose a serious offence. All the accused (including those who have not appealed against their sentences) were part of a group who referred to themselves as the DPM Crew ("DPM" standing for "Don't Push Me"). They were self-styled graffiti artists. Some indeed were talented artists, but they caused substantial vandalism to trains, to rolling stock and other infra-structure, most of it in London, but also in other parts of the country as well as abroad. The appellants had their own "tags" or signatures which would be incorporated into the graffiti. Often their "work" was filmed and posted on web-sites. During the investigation videos seized from Pease's bedroom showed trains with the DPM graffiti. In May 2006 Grudzinskas and Zinoviev were seen filming trains with DPM graffiti while at London Bridge. While on bail awaiting trial, Gillman had taken a job with the BBC to put graffiti on the sets of "Eastenders" to add realism. To add to his own notoriety he used his own "DPM" tag on the sets.
5. The Crown's case, which was plainly established, was that these attacks were well planned and executed. The defendants gained access to train depots and stations late at night, often using tools to remove or to damage fencing in order to gain access. Having gained access, they then carried out these graffiti attacks. An operation was launched in March and April 2006 as a result of which a great deal of surveillance was carried out.
6. On 26 and 27 June 2006, following a graffiti attack on trains at Orpington sidings, Gillman, Zinoviev, Grudzinskas and McLelland were arrested. Along with spray cans and latex gloves, Gillman's mobile telephone was recovered. Analysis showed that he had been in contact with the others and Tanti before the attack. On the next day Pease and Binnie were arrested.
7. This was not simply a matter of young men having silly, irresponsible fun. This was very serious criminal damage. The Crown's case was that within the conspiracy the hierarchy ran as follows. The prime mover was Gillman. Very little DPM activity did not involve him. He had a close responsibility for the organisation of these crimes. He was also responsible for uploading DPM material on to the internet. It was he who decided those who should and those who should not be permitted to join the DPM Crew. Zinoviev and Grudzinskas were at the next level. They were not controllers in the same way that Gillman was, but they were involved in many more of the incidents than the rest of the defendants; they were involved in the North East of England and abroad. Zinoviev was involved in attacks in the North West of England and Grudzinskas on attacks in Paris. Pease was slightly lower down the scale. He was described as a "general member" of the DPM Crew. He was involved with DPM activity during the period covered by the indictment, but not on quite the same high level as Zinoviev and Grudzinskas. Pease had in his possession video tapes of DPM activity which had taken place over a very long period. He had also been to a legal graffiti workshop in Prague in October 2005, where he considered himself to be representing the DPM Crew.
8. It is fair to say that, as far as can be ascertained, the graffiti activity did not create any danger to the public using trains; but it caused a great deal of inconvenience because the vandalism was felt when trains had to be taken out of service as unfit for use. It is also true that the graffiti did not contain offensive, racist or similar material. However, in the end the damage caused by the DPM Crew was impossible to quantify because it was so large. A figure of £267,000 was established as the damage caused in relation to twenty of the DPM related attacks on South Eastern trains. However, that figure was linked only to a three month period within the indictment. The Crown's case was that the true figure of the damage caused by this conspiracy was likely to run into millions of pounds.
9. All four appellants were men of previous good character. Grudzinskas had three cautions for criminal damage, but the sentencing judge was prepared to treat him as a man of good character. There were positive, supporting testimonials before the court. The pre-sentence reports described different attitudes by the different appellants. In the case of Gillman the author of the report recorded that Gillman had become interested in graffiti art from an early age and that the experience of the comradeship and joint artistic impression had provided a powerful motivation for his involvement in these offences. He accepted that he had carried the Crew's name, but denied that he had orchestrated their activities. The graffiti had become part of his life, but he told the author of the report that he intended to pursue legitimate artistic endeavours in the future. His arrest had led to some impact and insight into the fact that he was now in a serious position. He did not seek to minimise his own actions. The author considered that his behaviour had been motivated by a desire to gain kudos among his friends. Gillman had the advantage of supportive parents who disapproved of his behaviour. There was nothing to indicate that there would be a risk of harm to the public in the future. The likelihood of his re-conviction was assessed as low.
10. Zinoviev told the author of the report on him that he had become involved in the offences for the thrill of it. He knew that it was unlawful, but he did not appreciate that his activities and those of the other conspirators would cause much disruption. He came across to the author of the report as a mature individual who regretted his actions. Again he had a good family background. His parents were disappointed at his involvement in these offences. The likelihood of reconviction was assessed as low. Zinoviev did not suggest that he was anything other than a willing party to these offences. It was to his credit that he did not seek to blame anyone else.
11. Grudzinskas also accepted full responsibility for his offending. He recognised the impact of his behaviour on the community generally. In his case it was recorded that he was seduced by the notoriety that the group had attracted. However, by the time he was interviewed by the author of the report, he recognised the gravity of the offence. Again in his case the likelihood of reconviction was assessed as low.
12. The report on Pease recorded his assertion that his involvement was minimal. He believed that what he had done was creative. At the time when he carried it out, he did not consider that it was wrong. He got a "buzz" from his activities, but he was adamant that he would not repeat his behaviour. The likelihood of reconviction in his case, too, was assessed as low.
13. It is unnecessary for the purposes of this appeal to relate the individual bases of plea that were advanced by the different appellants.
14. The sentencing judge, who had all this material available to him, acknowledged in his sentencing remarks that some of the examples of the work showed considerable artistic talent. However, it had been sprayed all over other people's property without their consent and that was "simply vandalism". He noted that the offence took place over a long period on "an almost industrial scale". All the offenders before him (which included the appellants) were part of the conspiracy in varying degrees. The conspiracy was carried out on the basis of a wholesale, self-indulgent and carefully planned campaign to damage property, panel railway rolling stock and stations, in London, elsewhere in England, and abroad. He said:
"In short, this was a shocking attack on property on a massive scale ...."
The judge recorded the impossibility of producing an exact figure to describe the cost of rectifying the damage, but he noted the number of estimates and the way in which they would run into seven figures. He said:
".... each train that has been heavily vandalised .... has had to be withdrawn for about eight days from service. Those trains are hired [at a cost]."
The respraying of each train cost £50,000. In addition, the judge was concerned about the inconvenience caused to the public and indeed the site of the urban landscape being defaced which "adds to anxiety faced by society as a whole that things are out of control".
15. The judge examined two earlier decisions of this court in
R v Verdi
[2005] 1 Cr App R(S) 197 and
R v Dolan and Whittaker
[2008] 2 Cr App R(S) 67. He concluded that the activities had crossed the custody threshold, each defendant having taken part in a criminal conspiracy which specialised in widespread and persistent attacks. He then made his own analysis of the involvement of the different conspirators and passed the sentences which we have already described.
16. The arguments on appeal, well presented to us by each counsel on behalf of the different appellants, in summary come to this. It is conceded that the custody threshold was passed. However, it is submitted that the sentence in the case of each appellant was not the shortest sentence that could properly have been passed to reflect his own individual criminality. For each appellant emphasis is placed on his previous good character; the fact that pleas of guilty were tendered; that between the time of arrest and the time when the pleas were eventually entered there was no further offence committed by any of them and that there was positive good conduct during that period; and emphasis was also placed, understandably, on the fact that in the view of the authors of the different reports there was no realistic prospect that the appellant would re-offend.
17. In the case of Gillman it was submitted that he had learned his lesson. Although he may have been the prime mover, as the judge found, there was a potential disparity of sentence between him and Zinoviev and Grudzinskas. In that context our attention was drawn to the alarming figures: that of the 31 tags of the DPM Crew which were identified as such, 28 had Gillman's tag, 24 had Zinoviev's, and 21 had Grudzinskas'. The difficulty with that submission is that the judge was entitled to examine the overall criminality as it was presented to him on the evidence and then to conclude that Gillman's role was more distinctly established as that of one of the prime movers. Finally, our attention was drawn to very positive reports from prison in his case.
18. Much the same broad approach was taken in relation to the remaining appellants. In the case of Zinoviev it was suggested that the judge's starting point was too high; that he failed to consider whether the sentence actually passed was a necessary sentence; and that the purposes of sentencing could have been met by a shorter sentence with particular emphasis on his recorded contribution since his arrest to the wellbeing of the community.
19. For Grudzinskas the submissions were much the same. If the judge had taken sufficient account of his previous good character, the change in his life that he had achieved since his arrest, the absence of any prospect of re-offending, and the difficulties the appellant would have in serving his sentence and therefore his inability to take up his place at university, the overall sentence would have been shorter.
20. In Pease's case the submission was that the sentence on him was too long for many of the same reasons, which we shall not repeat. It was also said that there is a disparity in particular as between him and the sentences imposed on Binnie and Tanti. As to that issue, we have examined the information before the sentencing judge. There were features of the evidence directly affecting Pease which were not available to inculpate Tanti and Binnie. We find nothing in the disparity argument.
21. In broad support of the submissions, our attention too was drawn to the previous decisions of this court in
Verdi
and in
Dolan and Whittaker
. We need not trouble to analyse
Verdi
, where the sentence was more severe than the sentence passed in
Dolan and Whittaker
. There are a number of features in
Dolan and Whittaker
that are relevant. First, it was not a guideline case; it was a decision of this court on specific facts. Second, in that case the court concluded that the custody threshold was passed. Third, there were specific mitigating features in that case, not least immediate admissions, which led the court to take what might with hindsight be described as a merciful view.
22. At the time they were involved in these offences, the appellants were all intelligent and relatively mature. The conspiracy in which each involved himself was well organised. One of its consequences was significant damage on a vast scale which caused considerable cost to repair. Although the appellants now appear to have genuine insight into the consequences of their activity and are resolved not to commit further offences, at the time when the offences were committed all four perpetrators were immensely pleased with themselves. Some of them indeed relished their own notoriety and the attention which it drew.
23. In our judgment these sentences were fully justified. Where there is vandalism on this scale, we make it absolutely clear that custodial sentences in the range of those imposed here are appropriate -- not least because the sentence of the court in this kind of case must have a deterrent element. Accordingly, notwithstanding the care with which these appeals have been presented by counsel for the appellants, they will be dismissed.
________________________ | ```yaml
citation: '[2008] EWCA Crim 2515'
date: '2008-10-15'
judges:
- MR JUSTICE OWEN
- MR JUSTICE SWEENEY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2008] EWCA Crim 2923
No:
2008/4988/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 14th November 2008
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE BEATSON
HIS HONOUR JUDGE JACOBS
(
sitting as a judge of the Court of Appeal, Criminal Division
)
- - - - - - - - - - - - -
R E G I N A
-v-
GARY GOOD
- - - - - - - - - - - - -
Computer Aided Transcript of the Palantype Notes of
Wordwave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
Mr M Butt
appeared on behalf of the
Appellant
Mr R Cherrill
appeared on behalf of the
Crown
- - - - - - - - - - - - -
J U D G M E N T
1.
LORD JUSTICE HOOPER: On 14th August 2008 at the Crown Court at Hove, before Mr Recorder Gold QC and a jury, the appellant was convicted of one count of assault occasioning actual bodily harm, contrary to
section 47 of the Offences Against the Person Act 1861
.
2.
We can take the facts briefly, because the point of law raised in the conviction appeal only incidentally concerns the facts. The case against the appellant was that he had punched the complainant in the face. There had been some earlier altercation. As the complainant left the nightclub it was his evidence that a man he was to identify as the appellant punched him, and he sustained a broken nose and two broken front teeth. There was other evidence supporting the prosecution's case and, from the appellant himself and from evidence he called, evidence to contradict the prosecution case.
3.
The appellant was examined-in-chief and then cross-examined. We do not have a transcript of the cross-examination, but a number of matters were put to the appellant by Mr Cherrill on behalf of the prosecution and it was, it has been agreed, a significant cross-examination.
4.
Having put all the matters that Mr Cherrill wanted to put in detail, he ended up with this question:
"You were acting out of a desire for revenge. You punched him twice in the face and then celebrated by raising your hand and saying, 'I am the master, I am the master'; is that true?"
Mr Cherrill fairly accepts that that was a question which could be described as self-indulgent. It was, again to use his words, "the big flourish at the end of the cross-examination".
5.
The appellant replied either "I am not that type of person" or "that's not the kind of person I am", both of which mean the same thing.
6.
Mr Cherrill told the judge that he had an application to make. The jury were sent home. Mr Cherrill told the judge that he wanted to consider overnight as to whether to make an application to allow the previous convictions of the appellant to go in under
section 101(1)(f)
of the
Criminal Justice Act 2003
, namely the provision that relates to the creation of a false impression.
7.
The next morning Mr Cherrill, having decided he wished to make the application, made his submission and Mr Butt replied. As part of his reply he submitted that this was an ambiguous rolled-up question and that the judge could not be sure that the answer given by the appellant related to the whole of the question or only to the last part namely, "You shouted 'I am the master, I am the master.'"
8.
The judge, having heard argument from both counsel, expressed his conclusion in the following way:
"... I have no doubt that what the impression the defendant was trying to convey was that he was not someone who would behave as a question of totality in the way that Mr Stone's assailant behaved on the night in question; that is a false impression and it is a false impression in my judgment which the prosecution are entitled to correct."
9.
Having been given leave to correct the alleged false impression, Mr Cherrill established that the appellant had been convicted of assault occasioning actual bodily harm shortly before and that in 2005 he committed a common assault, for which he had received a conditional discharge. Mr Butt then established that the appellant had pleaded guilty to both those offences.
10.
Mr Butt complains about the directions that thereafter followed. However, we do need to examine those directions. We have no doubt that the judge was wrong to reach the conclusion on the evidence that was available to him that the appellant was answering the whole of the question, rather than merely the last part.
11.
Mr Butt submits that at least the appellant should have been given an opportunity to clarify the answer. He should have been asked what he meant by "I am not that type of person". Mr Cherrill points out that unless that had been done first thing at 10.30 in the morning, the appellant would have learnt the nature of the argument being proposed by Mr Butt and could have tailored his evidence accordingly.
12.
Mr Butt also argues that the appellant should have been given an opportunity to withdraw or distance himself, pursuant to section 105(3).
13.
Whether Mr Butt be right or wrong about an opportunity being given to the appellant to clarify the answer, no such opportunity was in fact given. As we say, we have reached the conclusion that the judge was wrong to conclude that the appellant was answering the whole question rather than the last dramatic part of it. In those circumstances we take the view that the judge made an error. The evidence was not admissible.
14.
Mr Cherrill does not seek to argue that the conviction is safe anyway. As he fairly pointed out, he made it clear that the introduction of those two convictions was likely, on the facts of the case, to have a monumental effect on the outcome adverse to the appellant.
15.
We will hear any application for a retrial at 2 o'clock this afternoon.
(
Other cases interposed
)
16.
LORD JUSTICE HOOPER: What is your decision?
17.
MR CHERRILL: My Lords, I am instructed to apply for an order that there be a retrial.
18.
LORD JUSTICE HOOPER: Right. What do you have to say? Do you want to say anything in support of that or it is self-evident?
19.
MR CHERRILL: It is self-evident, we would respectfully say. It is a serious offence, if it be an offence, and it is not the only one of its kind perpetrated by this defendant during a fairly short period.
20.
LORD JUSTICE HOOPER: Yes.
21.
MR CHERRILL: Certainly the alleged victim sustained both physical and psychological damage of no mean order.
22.
LORD JUSTICE HOOPER: Thank you.
23.
What do you say?
24.
MR BUTT: My Lord, it might be that one of my three submissions on retrial depends upon what your Lordships decide in relation to the appeal against the other sentence.
25.
LORD JUSTICE HOOPER: Sadly blackmail is unlawful in this court.
26.
MR BUTT: My Lord, I think it is the other way round actually.
27.
LORD JUSTICE HOOPER: You are saying, "Please, tell me the answer to the appeal against sentence, and when I know that I will decide whether to oppose this application."
28.
MR BUTT: No, not at all. The difficulty is that my third point in relation to why there should be no retrial is that Mr Good has in fact effectively a significant proportion of this sentence.
29.
LORD JUSTICE HOOPER: Which sentence? He has done three months.
30.
MR BUTT: He has done 15 months in total, six months for the matter to which he pleaded.
31.
LORD JUSTICE HOOPER: He has done three months.
32.
MR BUTT: He has done three months. However, his release date for home detention curfew is 14th December, his automatic release date on the six-month sentence.
33.
LORD JUSTICE HOOPER: At the moment the only sentence he has is six months.
34.
MR BUTT: It is, yes.
35.
LORD JUSTICE HOOPER: And he has served half of that and one would imagine he will be released today if we were to order a retrial and we were to grant him bail.
36.
MR BUTT: My Lord, yes. But were it not for this sentence of nine months' imprisonment, Mr Good would have been released significantly earlier because he was sentenced to a sentence over three months' imprisonment and would have been eligible for home detention curfew. As matters stand, if this conviction had not been quashed, Mr Good would be eligible for release in a month's time, but if there were a retrial it would have the perverse situation that should Mr Good be convicted, he would have to go back to prison and probably serve longer than he would have served had he remained in custody in relation to this matter. That is the difficulty.
37.
MR JUSTICE BEATSON: Such is the glory of our sentencing legislation and administrative practice.
38.
LORD JUSTICE HOOPER: Let us just take the current position. He is serving six months.
39.
MR BUTT: Yes.
40.
LORD JUSTICE HOOPER: If he had not been convicted of the assault occasioning actual bodily harm, he would have been released on home detention curfew about two or three weeks ago?
41.
MR BUTT: I must admit I am not entirely sure what the date would be for six months' imprisonment. Any sentence over three months is entitled --
42.
LORD JUSTICE HOOPER: Can you help us?
43.
THE PRISON OFFICER: I have nothing in the file about home detention curfew.
44.
MR BUTT: Certainly he would have been eligible for an earlier release.
45.
LORD JUSTICE HOOPER: He would have been.
46.
MR BUTT: The real difficulty is the effect it will have upon his later release in relation to this matter. He will be in a worse position for the conviction being quashed, in my submission, should he be convicted on a retrial. But quite aside from that, my Lord --
47.
LORD JUSTICE HOOPER: If he were to be convicted, if he were to be, then when he had to be sentenced you would tell the judge, actually, this is all been a bit unfair and he should not get the full nine months.
48.
MR BUTT: My Lord, yes.
49.
LORD JUSTICE HOOPER: He cannot get more than nine months.
50.
MR BUTT: He should barely get anything at all because he could be released in a month's time. The judge would also have to have regard to the unfairness and the oppressive impact on a defendant serving time in custody being released and then being sent back to prison, and it may well be the case that this court would conclude the trial judge would feel his hands were tied and that in effect there would be a retrial, there would be the expense of a retrial but the sentencing judge could do very little to Mr Good, or if he were to do anything significant it would be extremely unfair.
51.
My Lord, aside from that difficult issue of home detention curfew, I understand what my learned friend says concerning the serious nature of this offence and I would not wish to trivialise it at all. However, it was a case of assault occasioning actual bodily harm. There were injuries, a broken bone which has healed and a tooth was lost. Not of the most serious nature. I know that the complainant said he suffered problems going out and feeling uncomfortable in public afterwards. He was able to give evidence at trial in a reasonably confident fashion. It has not had the most serious long-lasting effects upon him.
52.
The offence dates back to March 2006, so already the matter of assault occasioning actual bodily harm is 2½ years old and, my Lord, that is through no fault at all of Mr Good. I have represented him throughout these proceedings and he has been desperate --
53.
LORD JUSTICE HOOPER: October 2006 was the offence.
54.
MR BUTT: I am sorry, October 2006, but still over 2 years old. This case went in, I believe, four different warned lists and went straight out at the other end, such is the busy nature of Lewes Crown Court. So it is a dated allegation. Mr Good has been awaiting trial for a long time.
55.
Finally, my Lord, in relation to another matter, the matter to which the appeal against sentence is to be brought, Mr Good spent somewhere in the region of six months on curfew, between seven in the evening and seven in the morning. I do not believe it is in force yet, but in due course it will be.
56.
LORD JUSTICE HOOPER: I think it is in force, but I do not think he gets the benefit of it.
57.
MR BUTT: No, because when he was sentenced it was not in force. The latest supplement in
Archbold
says it is not in force yet.
58.
LORD JUSTICE HOOPER: This is the half-day one.
59.
MR BUTT: The court should take into account the time spent, providing it is more than nine hours. So that if itself also should weigh in the balance as to whether it would be in the interests of justice for there to be a retrial.
60.
LORD JUSTICE HOOPER: Thank you very much. Do you want to say any more?
61.
MR BUTT: The only other matter is it might depend upon what your Lordships do in relation to appeal against sentence on the other matter, because if, for example, that sentence were reduced to four months' imprisonment, then Mr Good would have spent longer in custody effectively doing time on this sentence than he has to date.
62.
LORD JUSTICE HOOPER: I think one needs a computer for your arguments.
63.
Do you want to say anything in reply?
64.
MR CHERRILL: My Lord, no further submissions, thank you.
65.
LORD JUSTICE HOOPER: We will retire.
(
Short adjournment
)
66.
LORD JUSTICE HOOPER: This court quashed the appellant's conviction on one count of assault occasioning actual bodily harm and did so this morning. An application has now been made by the respondent for a new trial.
67.
Mr Butt has developed a significant number of arguments in opposition to that application. We take the view that it is not in the public interest now to order a new trial. We are mindful, of course, of the position of the complainant and the distress that he may feel about the outcome of this case. On the other hand, the appellant has already served a period of imprisonment in connection with another assault and but for the outstanding conviction, which we have quashed, it seems likely that he would have been released on home detention curfew and/or under the discretionary early release scheme.
68.
We also note that this alleged offence took place in October 2006. There has been a very substantial delay in bringing the proceedings to a conclusion. Mr Butt has also told us that for some considerable time the appellant was subject to electronic curfew whilst awaiting trial.
69.
In all those circumstances, we reach the conclusion that it is not in the public interest to order a new trial.
(
Submissions on the appeal against sentence
)
70.
LORD JUSTICE HOOPER: On 11th February 2008 at the Crown Court at Hove, the appellant pleaded guilty on the day of the trial to one count of assault occasioning actual bodily harm, contrary to
section 47
of the Offences Against the Person Act. He was sentenced on 14th August 2008 to 6 months' imprisonment. That sentence was made consecutive to another sentence, but we have quashed the conviction in relation to that sentence. Thus, he now faces a total sentence of six months' imprisonment only.
71.
Mr Butt, who has said everything that could be said on behalf of the appellant, seeks to renew the application for leave to appeal sentence. We accept his argument that there seems to have been some confusion in the mind of the single judge as to which sentence was being appealed. So we will look at it now on its merits and ask ourselves whether or not it is arguable that the sentence is manifestly excessive.
72.
The facts can be simply stated. On 24th March 2007 at around 2.20 in the morning, the complainant was in a kebab house on London Road, East Grinstead. He had been drinking and was leaning against a wall, when the appellant ran into the kebab house and punched him in the face. The complainant slid down the wall and collapsed onto the floor. The appellant ran out of the kebab house and departed in a taxi.
73.
The complainant suffered a cut to the eyelid and swelling round his eye. He attended a local hospital and was discharged the following afternoon, but had to return on a number of occasions thereafter to check for injury to his eye.
74.
The appellant had a previous conviction dating from 2006 for common assault. That was an assault in a public house or near a public house and the offence has similarities to the offence with which we are concerned. For that the appellant was conditionally discharged for a period of 18 months.
75.
We have looked at the Definitive Guidelines of the Sentencing Guidelines Council. This assault is in the lower category, assault resulting in minor non-permanent injury, with a starting point of a community order and a sentencing range of community order to 26 weeks' custody.
76.
However, that is not dispositive of this case because there are three aggravating factors here: first, that he has committed a similar sort of offence before; second, when committing this offence he was in breach of the conditional discharge made in respect of that common assault; and third, when he committed this offence he was on bail for an offence committed on 28th October 2006.
77.
In the light of those aggravating features, we take the view that it is not arguable that a sentence of six months' imprisonment is manifestly excessive. Therefore the renewed application for leave to appeal sentence is refused.
78.
MR BUTT: I am grateful, my Lord.
79.
LORD JUSTICE HOOPER: Thank you. That will mean he is released today, will it not?
80.
MR BUTT: Yes, today is the release date.
81.
LORD JUSTICE HOOPER: You will make sure that that happens or should happen today. Thank you for your help both of you. | ```yaml
citation: '[2008] EWCA Crim 2923'
date: '2008-11-14'
judges:
- LORD JUSTICE HOOPER
- MR JUSTICE BEATSON
- HIS HONOUR JUDGE JACOBS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2020] EWCA Crim 557
Case No: 201904144 A4, 201903591 A4, 201903543 A2 & 201903507 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT TAUNTON
HHJ TICEHURST
S20190294, 20190225, S20190236, S20190116 & S20190249
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 29/04/2020
Before :
THE VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
LORD JUSTICE FULFORD
LORD JUSTICE HOLROYDE
and
SIR PETER OPENSHAW
-
- - - - - - - - - - - - - - - - - - - -
Between :
Steven Mark PRIVETT
1stAppellant
Tony John WEST
Philip Richard SMISSON
Marcello BUONAIUTO
2
nd
Appellant
3
rd
Appellant
4
th
Appellant
- and -
REGINA
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr Patrick Mason
(instructed by
Boyce & Co Solicitors
) for the
1
st
& 2
nd
Appellant
Mr Nicholas Wragg
(instructed by
Stone King LLP
) for the
3
rd
Appellant
Mr Will Rose
(instructed by
Alletsons Solicitors
) for the
4
th
Appellant
Mr Timothy Cray QC (
instructed by
CPS Appeals & Review Unit)
for the
Respondent
Hearing dates:
25
th
February 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Lord Justice Fulford :
The Issue of Principle
1.
These four otherwise unrelated cases have been listed together in order to give the Court of Appeal (Criminal Division) an opportunity to address sentencing practice for offences under section 14 Sexual Offences Act 2003 (arranging or facilitating the commission of a child sex offence) (a “section 14 offence”), and in particular the correct approach to assessing harm. There is tension within the relevant jurisprudence on this issue which requires consideration. The common feature between these cases is that when the individual defendants arranged, via the internet, to commit a sexual offence with a child, they were unaware they were in contact with a police officer.
Introduction
2.
Privett and West both appeal against sentence by leave of the single judge. Smisson and Buonaiuto’s applications for leave to appeal sentence have been referred to the full court by the single judge. Given the importance of the issue of principle and its potential impact on the sentences passed on them, we grant leave to appeal to Smisson and Buonaiuto.
3.
Aside from certain discrete submissions relating to the individual cases, the central argument advanced on behalf of the appellants is that whenever there is a fictional child victim, sentencing will fall into the lowest category of harm under the guideline (category 3), subject to upward adjustment to reflect any relevant factors in the case. The Crown suggests that it would be wrong in principle to “pre-categorise” offences, simply on the basis that a police officer pretended to be a child victim. Instead, the respondent submits each case should be assessed on its own facts, and the court should adopt a flexible approach, determining the category of harm on the basis of the facts and the circumstances of the case.
The Facts
4.
We have dealt with the four cases in the order in which sentence was passed.
Phillip Smisson
5.
On 31 May 2019 the appellant (who is aged 45 and was previously of good character) pleaded guilty to four crimes: an offence contrary to section 14, two offences of possession of an indecent photograph of a child contrary to section
160(1) Criminal Justice Act 1988 and an offence of making indecent photographs of a child contrary to section 1(1)(a) Protection of Children Act 1978. He was committed to the Crown Court at Taunton for sentence, and on 31 July 2019 he was sentenced to an extended sentence of 8 years for the section 14 offence (comprising a custodial term of 6 years and an extended licence period of 2 years), and 6 months’ imprisonment concurrent on the other two offences. The judge imposed a sexual harm prevention order.
6.
Between 4 April 2019 and 30 May 2019, the appellant communicated via the internet with an undercover officer using the name “Tia” who was posing as the mother of a fictional six-year-old girl. The appellant expressed his sexual interest in children and his desire to engage in vaginal and anal penetrative sexual activity with Tia’s daughter. He used extremely explicit and graphic language. He sent the police officer images of his erect penis which he asked to be shown to the child so she would not be “freaked out”. Arrangements were made for them to meet in Taunton on 30 May 2019, where the appellant drove from his home in Bath. He was arrested at the meeting point and his car was searched. He was in possession of two mobile phones, a laptop, a child’s toy, two tubes of lubricant, an “anal plug” sex toy, a packet of moist toilet wipes and a partially consumed bottle of vodka. He claimed in interview that what had happened was a fantasy that had got out of hand and he implausibly suggested that he had never intended to have sex with a sixyear-old child.
7.
An iPad was subsequently seized from the appellant’s work address, which was examined, along with the appellant’s laptop and mobile telephones. The contents gave rise to the indecent image charges. All the devices contained category C images of girls (three images on the iPad, three on the laptop and twenty-one on one of the telephones), many of which were images of girls in the age range of 7 to 9. The prosecution submitted that section 9 Sexual Offences Act 2003 (sexual activity with a child) represented the relevant substantive offence.
8.
The author of the pre-sentence report determined that the appellant posed a high risk of sexual harm to all children which could not be managed in the community. Dr Oliver White, a psychiatrist, expressed the view that
t
he appellant has significant mental health difficulties, particularly depression and anxiety. It is suggested that sexual abuse of him as a child has resulted in the indications of post-traumatic stress disorder. He has a long history of excessive alcohol consumption. Doctor White indicated that any future sexual offending was likely to be towards children, including those not previously known to the appellant, and could potentially be serious in nature.
9.
The judge gave full credit for the appellant’s guilty plea, entered at the first opportunity. He determined that it was abundantly clear from the transcripts of the conversations that the appellant’s entire interest and purpose was the sexual abuse and rape of a six-year-old girl. The judge was in no doubt that had the girl existed the appellant would have carried out what he described as these degenerate plans.
10.
The judge determined that this was an offence which fell into category 1A of the Sentencing Guideline (“Arranging or Facilitating the Commission of a Child Sex Offence”, effective from 1 April 2014). The relevant starting point was 5 years’ imprisonment with a range of 4 to 10 years’ imprisonment. The appellant had intended to engage in sexual activity with a six-year-old child and the fact he was unable to do so provided little mitigation. The judge concluded that his suggestion in interview and repeated by his advocate that it was a fantasy that would not have been carried out was contradicted by the comments he made to Tia, the purchase of the lubricant and condoms and the gift for the child. There was a significant degree of planning and significant disparity in age. He sent sexual images to the girl and it was clear there was grooming behaviour intended to be used against the victim.
11.
On the basis of the material before the court, the judge concluded that the appellant was a dangerous offender. He placed the appellant’s offending at the top of the sentencing range. An appropriate sentence after trial for the substantive offence was 9 years’ imprisonment, reduced with full credit for the guilty plea to 6 years’ imprisonment.
12.
The appellant was assessed by the judge as being a dangerous offender and was sentenced as set out at [5] above.
Marcello Buonaiuto
13.
On 12 July 2019 having pleaded guilty before the Taunton Magistrates, the appellant (who is aged 43) was committed for sentence to the Crown Court at Taunton pursuant to section 3 Powers of Criminal Courts (Sentencing) Act 2000 in respect of three offences. On 30 August 2019, he was sentenced to an extended sentence of 7 years 4 months for a section 14 offence (a custodial term of 5 years 4 months and an extended licence period of 2 years), 6 months’ imprisonment to be served concurrently for distributing an indecent photograph of a child, contrary to section 1(1)(b) Protection of Children Act and 9 months’ imprisonment, also to be served concurrently, for possession of an extreme pornographic image, contrary to section 63(1)(7)(d) Criminal Justice and Immigration Act 2008. The judge made a sexual harm prevention order.
14.
Between 16 May 2019 and 11 July 2019, the appellant communicated via the internet with a law enforcement officer (“Kim”) who was posing as the mother of a fictional six-year-old girl. The appellant said he had sexually abused his ex-girlfriend’s daughter between the ages of nine and eleven, and expressed a desire to meet Kim and engage in penetrative sexual activity with her daughter which he described in extremely explicit and graphic terms. During their sexual conversations, he sent indecent (class C) images of children to Kim and extreme pornographic images portraying women providing oral sex to horses. He then arranged to meet Kim and her daughter, and on 11 July 2019 travelled by train from London to Taunton with toys for the child. He was arrested upon arrival. In interview he stated that the conversations with Kim began as a fantasy which turned into reality. He admitted that he travelled to Taunton intending to engage in penetrative sexual activity with a child which included the penetration of her mouth with his penis, the penetration of her vagina with his tongue and the child performing oral sex upon her mother. He claimed that he changed his mind en route to Taunton and would not have carried out the acts previously intended. Section 9 Sexual Offences Act 2003 represented the substantive criminal offence.
15.
The appellant had one previous caution from 2016 for offences of possessing an indecent photograph of a child and possession of an extreme pornographic image.
16.
The author of the pre-sentence report expressed the view that the appellant had minimised the seriousness of his offending behaviour, suggesting there was no “harm” because the 6-year-old girl did not exist. He maintained his denial that he would have gone through with his plan. He was assessed as posing a high risk of serious harm to children.
17.
In passing sentence, the judge gave full credit for the appellant’s guilty plea which was entered at the earliest opportunity. He concluded that it was abundantly clear from the conversations between the appellant and the officer that if the child had existed the appellant would have carried out his plan in full. In the judge’s view, this case clearly fell within category 1A of the guidelines for the section 14 offence: the appellant intended to engage in sexual activity with a six-year-old girl, and the fact he was unable to do so provided little mitigation. The appellant had intended to penetrate the vagina and/or anus of a six-year-old, there had been a significant degree of planning and there was notable disparity in age.
18.
The judge determined that the appellant was a dangerous offender based upon the nature of the offence, the detail of the text messages and the conclusions of the author of the pre-sentence report.
19.
The judge took a sentence after trial for the substantive offence of 8 years’ imprisonment. Giving full credit for the guilty plea, this was reduced to 5 years 4 months’ imprisonment. An extended sentence was imposed in light of the judge’s finding that the appellant was a dangerous offender.
Steven Privett
20.
The appellant (who is aged 62) pleaded guilty on 27 June 2019 in the Taunton Magistrates’ Court to an offence of arranging a section 14 offence and was committed to the Crown Court at Taunton for sentence. On 6 September 2019, he was sentenced to an extended determinate sentence of 7 years 4 months (the custodial term was 5 years 4 months, with an extended licence period of 2 years). The judge imposed a sexual harm prevention order.
21.
Between 29 April 2019 and 26 June 2019, the appellant communicated via the internet with a police officer who was posing as the mother of a fictional sixyear-old girl, “Mia”. The appellant, in extremely explicit and graphic terms, expressed his wish to engage in penetrative sexual activity with the child, with the active participation of the mother. In due course he arranged to meet them in Taunton in order to commit this serious criminal offence. He travelled with a collection of items to facilitate the abuse (e.g. condoms, lubricant, a vibrator and gifts for the child). He was met by police officers and arrested. In interview he admitted his guilt, and agreed he had intended to penetrate the child sexually with a vibrator, along with his fingers and penis. The judge in passing sentence stated that he had no doubt that if the child had existed the offence (including vaginal and anal rape) would have been committed. The prosecution submitted that section 9 Sexual Offences Act 2003 represented the relevant substantive offence.
22.
The appellant had 3 previous convictions for 7 offences spanning the years from 1997 to 2014. These included two offences of indecent assault on a female under 14, two offences of gross indecency with a child in 1997 (involving his nine-year-old daughter) and two offences in 2012 of failing to comply with notification requirements.
23.
The judge gave full credit for his guilty plea, which was entered at the first opportunity. He placed the section 14 offence in category 1A of the
Sentencing Guideline, given the offending clearly involved penetration of the vagina or anus and there had been a significant degree of planning. In considering the question of dangerousness, the judge took into account the appellant’s convictions. The transcript of the conversations over the internet provided clear insight into what the judge described as the appellant’s depraved and perverted way of thinking. For instance, he said to the woman he believed to be the child’s mother, “You are going to be there when she has her first fuck and her virginity is taken, a beautiful moment.” The presentence report assessed the appellant as posing a high risk of serious harm to children and the judge unsurprisingly assessed the appellant as being a dangerous offender.
24.
Having considered some of the relevant case law,
the judge determined that the appropriate sentence, after a trial for the substantive offence, was 8 years’ imprisonment. Giving the appellant full credit for his guilty plea, this was reduced to 5 years 4 months. The extended licence period was 2 years, as set out above.
Anthony West
25.
On 7 October 2019 the appellant (who is aged 48, and who had no relevant previous convictions) pleaded guilty in the Magistrates’ Court to a section 14 offence and was committed for sentence to the Crown Court. On 1 November 2019, again at the Crown Court at Taunton, he was sentenced to 3 years 4 months’ imprisonment. The judge imposed a sexual harm prevention order.
26.
Between 10 September 2019 and 5 October 2019, the appellant communicated online with a police officer who was posing as the mother of a fictional 10year-old girl. The communications rapidly turned sexual and the appellant expressed his wish to engage in vaginal and oral sexual intercourse with the child. Arrangements were made for the appellant to visit the mother and daughter on 5 October 2019 to commit this offence. The appellant travelled approximately 180 miles from the Midlands to Somerset where he was arrested in possession of condoms, Viagra, handcuffs and a tub of Haribo (the girl’s favourite sweets). In interview he admitted that he had travelled to meet the mother with the intention of having sex with the child.
27.
The judge indicated that section 9 Sexual Offences Act 2003 represented the relevant substantive offence. He was in no doubt that if the child had existed the appellant would have acted as arranged. In one of his conversations with her mother he said “I can’t wait to make her happy, me inside her.”
28.
Although the appellant was a self-confessed paedophile, the judge, taking everything into account, did not consider he met the criteria for designation as a dangerous offender. He was accorded full credit for his guilty plea which was entered at the first opportunity. He had one unrelated driving conviction.
29.
The author of the pre-sentence report indicated that loneliness was part of the motivation for this offending and suggested that there needed to be appropriate intervention to reduce the risk he would otherwise pose in the community.
30.
The judge considered a number of the relevant sentencing decisions, and he took into account the extremely graphic nature of the messages which provided insight into the appellant’s way of thinking, his sexual desires and his deviance. The judge determined this was a category 1A offence within the Sentencing Guideline. We note particularly that in this case the judge reduced what would otherwise have been a sentence after trial of 6 years’ imprisonment to 5 years on the basis that the appellant could not have put his plans into effect. Applying full credit for his guilty plea, this reduced the sentence to one of 3 years 4 months’ imprisonment.
The Submissions
31.
The appellants have helpfully provided a joint skeleton argument. The court is reminded that section 14 of the Sexual Offences Act 2003 creates the offence of arranging or facilitating an act or acts which will involve the commission of an offence under sections 9 to 13 of the 2003 Act. The maximum sentence for offences under section 9, 10 and 14 (the relevant sections in the context of this case) is 14 years’ imprisonment.
32.
The Sentencing Guideline provides that when sentencing for section 14 offences, the courts “should refer to the guideline for the applicable, substantive offence of arranging or facilitating under sections 9 to 12” (namely, section 9: sexual activity with a child; section 10: causing or inciting a child to engage in sexual activity; section 11: engaging in sexual activity in the presence of a child; and section 12: causing a child to watch a sexual act).
33.
The appellants’ advocates have understandably based their submissions, in part, on the relevant jurisprudence. Given the tensions in the case law to which we have already referred, it has been helpful briefly to review the various decisions chronologically.
34.
In
R v Bayliss
[2012] EWCA Crim 269
; [2012] 2 Cr App R (S) 61 (which predated the present sentencing Guideline) the facts were markedly similar to the instant cases, in that the section 14 offence
related to a fictional ten-yearold boy. In the course of giving judgment, Openshaw J observed
“of course, the requirements for punishment, deterrence and indeed public protection remain but we accept that the absence of a victim and with it the absence of actual harm does require that some reduction should be made from the
starting point […]” [11]. As a result, the court reduced the starting point from 4 years to 3 years’ imprisonment.
35.
In
Attorney General’s Reference No. 94 of 2014 (R v Baker)
[2014] EWCA Crim 2752
(“
Baker
”), the offender incited
a real 13-year-old girl, to engage in sexual activity (an offence under section 10 (1) and (2) Sexual Offences Act 2003), namely the penetration of the girl's mouth with the offender's penis. The proposed sexual activity never took place. In giving the judgment of the court, Sir Brian Leveson P stated:
“34. In our judgment, what happened here did not fall within category 1 at all. In the circumstances, because the offending did not proceed beyond incitement, it was “other sexual activity” within category 3. That accords not only with the judge's rejection of the suggestion that the offender's behaviour justified a starting point of five years but also provides appropriate headroom between the sexual suggestion and any actual activity without necessarily engaging upon the exceptional basis for departing from the Guideline.
35. The offence was undeniably one of high culpability but as category 3 had a starting point of 26 weeks in custody and a range up to three years' imprisonment the sentence passed by the learned judge fell fairly and squarely within it. […]”
36.
We return to
Baker
in greater detail later in this judgment.
37.
R v Buchanan
[2015] EWCA Crim 172
; [
2015] 2 Cr App R (S) 13
was another section 10 offence in which there were conversations with a real
14-year-old child
over the internet
of an explicit sexual nature but with no physical contact, and, particularly, no intention to engage in such activity. The court concluded that this was a category 3A case.
38.
In
R v Collins
[2015] EWCA Crim 915
; [2015] 2 Cr App R (S) 50, the court
(which included the Vice-President of the Court of Appeal (Criminal Division), Hallett LJ) dealt with a section 14 offence in which the appellant, after a significant degree of planning, had contacted a person he believed was the parent of a young child in order to sexually abuse the latter (the parent and child were fictional). The court concluded that an extended sentence comprising 10 years’ imprisonment with an extended licence of two years was not manifestly excessive.
39.
In giving the judgment of the court, Parker J said:
“17. The starting point for an offence under
s.9
in respect of Category 1A penetration of a victim’s vagina or anus using body or object with high culpability is five years’ custody, with a range of 4–10 years. In this case the harm was plainly in Category 1 and there were factors showing culpability of a very high order indeed: there was a significant degree of planning, the offender acting together with others to commit the putative offence. The judge concluded that there was an abuse of trust where the appellant intended to act together with and in the presence of the child’s step-mother in order to engage in the sexual activity. Whether that is strictly correct analytically is not relevant because if it were not an abuse for the purposes of culpability, it would be a proper factor to take into account as aggravating the particular offence, and, as the judge held, there was a significant disparity in age.”
40.
In
R v Lewis
[2016] EWCA Crim 304
was another case involving a section 14 offence, with a fictional 15-year-old schoolgirl when the appellant had suggested vaginal penetration. The court observed,
inter alia
:
“9. […] This was category 1 harm, as penetration of the vagina was intended. Culpability was category A because there was a significant degree of planning in the conversing through Facebook and the appellant took alcohol with him, albeit at the request of the other person. There was a significant disparity of age and so the starting point of 5 years with a range of 4 years to 10 years was appropriate here. Whilst it has to be accepted that no sexual act in fact took place and none could have, we agree with the learned judge that the fact that the person the appellant was to meet was not in fact a 15-year-old virgin is not relevant to the culpability for the circumstances of the section 14 offence that this appellant admitted.”
41.
In
R v Stillwell
[2016] EWCA Crim 1375
, a section 14 case, the court was dealing with fictional children under the age of 13. In giving judgment, the court referred to
Baker
(see above), and it was observed:
“24. In the light of those principles one is driven to conclude that before any question of adjustment arises, as provided for by the Sentencing Guidelines, the offence committed under
section 14 was a category 3A offence and not a category 1A offence. Thus, a starting point of 26 wee
ks is provided for with a range of a high level community order to a sentence of 3 years' imprisonment.”
42.
The court went on to observe, however, at [35] “ the absence of actual harm is not the sole criterion by which harm is assessed. Intended harm is something to which the sentencing court must have regard”.
43.
In
R v Solanki
[2017] EWCA Crim 1282
;
[2018] 1 Cr App R (S) 34
the appellant was sentenced for two offences: the first was attempting to cause or incite a real person under 16 to engage in sexual activity ( the 14-year-old taking naked pictures of herself) (section 10 Sexual Offences Act 2003), and the second was attempting to meet a real person under 16 with intent following grooming (section 15 of the Sexual Offences Act 2003). The intent was penetrative sexual assault. In relation to each count, the judge passed concurrent 15-month sentences of imprisonment. The court decided
that as no actual sexual activity of the sort described in categories 1 or 2 had taken place, the case should have been placed within category 3A on the basis that this amounted to “other sexual activity”, with culpability A factors.
44.
In
R v Gustafsson
[2017] EWCA Crim 1078
,
the appellant pleaded guilty to one offence of attempting to incite a child to engage in sexual activity, contrary to section 1(1) of the Criminal Attempts Act 1981 . He was sentenced to a term of 32 months' imprisonment.
The appellant had been communicating online with a person he believed to be a 14-year-old girl. Instead, it was an adult male who was “investigating” offences of this kind and who had set up a profile on Facebook purporting to be a 14-year-old schoolgirl called Jodie.
Having referred to
R v Buchanan
and the
Attorney General’s Reference (No. 94 of 2015)
[2015] Crim EWCA 2384 the court (at [19]) indicated that the starting point was category 3 and not category 1.
45.
In
R v Cook
2018 EWCA Crim 530
; [
2018] 2 Cr App R (S) 16 (a case of attempting to incite non-existent children to engage in sexual activity)
and
R v Allington
[2019] EWCA Crim 1430
;
[2020] 1 Cr App R (S) 16 (a case involving a section 14 offence and a fictional child)
, the court, following
R v Gustafsson
,
R v Buchanan
and the two Attorney General References set out above, indicated that category 3, as opposed to category 1, was the appropriate bracket.
46.
The Sentencing Guideline “Arranging or Facilitating a Child Sex Offence” sets out:
“Sentencers should refer to the guideline for the applicable, substantive offence of arranging or facilitating under sections 9 to 12:
•
Sexual activity with a child, Sexual Offences Act 2003, s.9
•
Causing or inciting a child to engage in sexual activity, Sexual Offences Act 2003, s.10
•
Engaging in sexual activity in the presence of a child, Sexual Offences Act 2003, s.11
•
Causing a child to watch a sexual act, Sexual Offences Act 2003, s.12
The level of harm should be determined by reference to the type of activity arranged or facilitated. Sentences commensurate with the applicable starting point and range will ordinarily be appropriate. For offences involving significant commercial exploitation and/or an international element, it may, in the interests of justice, be appropriate to increase a sentence to a point above the category range. In exceptional cases, such as where a vulnerable offender performed a limited role, having been coerced or exploited by others, sentences below the starting point and range may be appropriate.”
47.
Taking the Sentencing Guideline for sexual activity with a child/causing or inciting a child to engage in sexual activity as an example, it sets out the following:
“Harm
Category 1
•
Penetration of vagina or anus (using body or object)
•
Penile penetration of mouth
In either case by, or of, the victim
Category 2
•
Touching, or exposure, of naked genitalia or naked breasts by, or of, the victim
Category 3
•
Other sexual activity
48.
Against that background, the appellants submit that in assessing harm there are three broad categories of cases: i) a real child is contacted or incited by way of “face to face” meetings (greatest harm); ii) there is “ remote” contact with a real child or arrangements are made with that individual’s parents or guardian (lesser harm); iii) the child is fictional (least harm).
49.
It is accepted that the language of the guideline in categories
1, 2 and 3 is directed at sexual activity or contact with a “real” child, albeit the mitigating features allow, as appropriate, for the situation in which the activity did not, in fact, take place (“sexual activity was incited but no activity took place because the offender voluntarily desisted or intervened to prevent it”).
Therefore, the “harm” component of the relevant Guidelines is not evidently engaged when the scenario intended by the offender did not and could not take place. In contrast, it is accepted by the appellants that culpability is not diminished because the child was fictional.
50.
Based on a selection of the decisions of this court set out above, it is submitted that cases such as the present should always be treated as coming within the bracket of “other sexual activity” (category 3). It is accepted that with the more serious cases of this kind, the court will move upwards from the starting point.
51.
Timothy Cray Q.C. on behalf of the respondent submits that this case falls into the exceptional category envisaged in
R v Thelwall
[2016] EWCA Crim 1755
:
“21. […] As the court has made clear in other cases where the offence is the subject of a Sentencing Council Guideline, and also in relation to
Schedule 21, guidelines are guidelines. The citation of decisions of the Court of Appeal Criminal Division in the application and interpretation of guidelines is generally of no assistance. There may be cases where the court is asked to say something about a guideline where, in wholly exceptional circumstances – and we wish to emphasise that these are rare – the guideline may be unclear. In such circumstances the court will make observations which may be cited to the court in the future. However, in those circumstances it is highly likely that the Council will revise the guideline and the authority will cease to be of any application.
22. It is important that practitioners appreciate that our system now proceeds on the basis of guidelines, not case law. It will, therefore, be very rare, where there is an applicable guideline, for any party to cite to this court cases that seek to express how the guideline works, other than in the rare circumstances we have set out. Decisions of this court are of particular importance to the individuals concerned, but they are unlikely to be of any assistance to further appeals where the guidelines are in issue.”
52.
Mr Cray invites the court to give guidance as to how the Guidelines operate in these circumstances.
53.
He submits that it would be wrong in principle to predetermine (or “precategorise”) the seriousness of a section 14 offence by reference to whether there was a fictional child. He argues that cases in this context need to be considered flexibly, by reference to the circumstances of the particular offending. Therefore, when the evidence demonstrates that there was an intention to cause serious harm to a child victim, it may potentially come within category 1A notwithstanding the fact that this intention was revealed to an undercover police officer.
54.
It is suggested that this meets the legislative requirements of section 143(1) Criminal Justice Act 2003:
“Determining the seriousness of an offence
(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.”
55.
“Harm”, therefore, is given a wide definition and includes the harm the offender intended to cause. This has been reflected in the Attempted Murder Guideline:
“Attempted murder requires an intention to kill. Accordingly, an offender convicted of this offence will have demonstrated a high level of culpability. Even so, the precise level of culpability will vary in line with the circumstances of the offence and whether the offence was planned or spontaneous. The use of a weapon may influence this assessment.
The level of injury or harm sustained by the victim
as well as any
harm that the offence was intended to cause or might foreseeably
have caused, must be taken into account and reflected in the
sentence imposed
.
The degree of harm will vary greatly. Where there is low harm and high culpability, culpability is more significant. Even in cases where a low level of injury (or no injury) has been caused, an offence of attempted murder will be extremely serious.” (emphasis added)
56.
Mr Cray emphasises the wording of section 14:
“Arranging or facilitating commission of a child sex offence
(1) A person commits an offence if–
(a)
he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and
(b)
doing it will involve the commission of an offence under any of sections 9 to 13.”
57.
It follows that what the offender “intends” or “believes” is a critical element of the offence, which encompasses preparatory behaviour that falls short of an attempt. Against that background, it is submitted that it would be wrong in principle routinely to reduce the seriousness of a section 14 offence to the lowest category of seriousness on the basis that no real child was involved. It is submitted the appellants in the present cases merit being placed in category 1A given they had done all they could to prepare themselves to carry out very serious forms of child sexual abuse and they intended to commit those crimes.
58.
Mr Cray submits, therefore, that whether a case falls into category 1A will depend on factors such as the degree of preparation, the length of time over which the offender had the crime in contemplation and the way in which he demonstrated his intention.
Discussion
59.
It is necessary, in our judgment, to keep in mind the terms of this offence. It is intentionally arranging or facilitating activity which would constitute a child sexual offence, intending that it will happen. This is a preparatory offence, albeit it could cover the case in which the offence was carried out. However, in that latter situation, the offender would ordinarily be charged as a participant in the full offence.
60.
The offence is complete when the arrangements for the offence are made or the intended offence has been facilitated and it is not, therefore, dependent on the completed offence happening or even being possible, and the absence of a real victim does not, therefore, reduce culpability.
61.
As a general proposition, the harm in a case will usually be greater when there is a real victim than when the victim is fictional. By way of analogy, the situation when an offender shoots and hits his victim is likely to be considered as involving greater harm than a case in which the offender shoots and misses. Nonetheless, as set out above, section 143(1) Criminal Justice Act 2003 requires the court to consider the intended harm.
62.
The Guideline for section 14 (arranging or facilitating the commission of a child sex offence) reflects these considerations: “(t)he level of harm should be determined by reference to the type of activity arranged or facilitated.
Sentences commensurate with the applicable starting point and range will ordinarily be appropriate” (see [46] above). The court will consider, therefore, the sentence that would be appropriate for the full offence and then impose a
sentence for arranging or facilitating that is “commensurate” with (put otherwise, that is in proportion to) that sentence.
63.
The Guideline for sections 9 and 10 Sexual Offences Act 2003 (sexual activity with a child/causing or inciting a child to engage in sexual activity) mirrors this approach:
“
Arranging or facilitating the commission of a child offence (section 14 of the Sexual Offences Act 2003
The starting points and ranges in this guideline are also applicable to offences of arranging or facilitating the commission of a child offence. In such cases, the level of harm should be determined by reference to the type of activity arranged or facilitated. Sentences commensurate with the applicable starting point and range will ordinarily be appropriate. […]”
64.
Baker
has been a critical decision in the development of the relevant jurisprudence for section 14 offences. The offender in that case
pleaded guilty to one count of inciting a real child to engage in sexual activity, contrary to
section 10(1) and (2) of the Sexual Offences Act 2003
. The sexual activity the offender had proposed to the victim, however, never took place (see [35] above): after a comparatively brief exchange of text messages, in which the offender effectively offered to buy the girl a telephone if she would perform oral sex on him, the offender abandoned the correspondence, telling the girl that it had been a silly idea. The question posed by the court was whether
incitement to behave in the way the offender intended, which does not involve anything more, falls within the same category of harm as when the activity intended takes place, deserving as a result of similar sanction, subject to culpability and such aggravating and mitigating circumstances as might otherwise exist (see [28] in
Baker
). The court observed that if that was the case it could result in incitement to behaviour which never occurred, but which is in category 1, as being treated more seriously than an offence involving actual contact or exposure which falls into categories 2 or 3. The President stated:
“29. On this basis, such incitement, which does not involve physical contact or exposure of any sort is more serious than a category 2 offence which involves touching or exposure of naked genitalia or naked breasts by or of the victim. To provide colour to this example, if the analysis is correct, it is more serious to incite a child as this offender did than had he actually persuaded her to undress before a web camera and expose to him her breasts or genitalia. It would equally be more serious than persuading a boy to masturbate in front of a web camera. In our judgment, that simply cannot be right.”
And the court added:
31.
The answer however is to recognise that this guideline covers very different offending and that the language used within it must be construed by particular reference to the offence then under consideration. Thus, if over a web camera, a female child is incited to insert an object into her vagina and she does so, a category 1 offence is committed; if a child is persuaded to touch or expose his or her naked genitalia and does so, that is a category 2 offence. Similarly, if a child is incited to persuade someone else (whether or not the offender) actually to behave in that manner, the offence is correctly characterised as category 1 or 2 respectively. The harm is the impact on the victim of behaving as he or she has done, whether in the presence of the offender or remotely or on line.
32.
To that extent, the offence of causing sexual activity is potentially more serious than inciting such activity because the actual activity is a necessary part of the offence. Incitement can lead to actual activity which can be categorised accordingly. But where the incitement does not lead the child to behave in the manner incited, although the culpability is likely to be identical, the harm is necessarily less: the same is so in relation to attempts.
On this issue the court concluded (as set out above):
“34. In our judgment, what happened here did not fall within category 1 at all. In the circumstances, because the offending did not proceed beyond incitement, it was "other sexual activity" within category 3. […]”
65.
There are clearly some similarities between the position in
Baker
and the present appeals. There was no actual sexual activity in any of the cases. These four appellants were charged with “arranging or facilitating the commission of a child sex offence”, and (as rehearsed above) sentencers are enjoined to refer to the relevant guideline for the applicable substantive offence of arranging or facilitating under sections 9, 10, 11 and 12. Indeed, under the Guideline, for sections 9 and 10 the level of harm for a section 14 offence should be determined by reference to the type of activity arranged or
facilitated ([63] above). In
Baker
, the offence
to which the offender pleaded guilty was one of “inciting a child to engage in sexual activity” (section 10). Accordingly, whilst in the instant appeal the four appellants were charged under section 14, the relevant guideline to which the sentencer needed to refer was the same as that which applied in
Baker
. The three categories of harm applicable to both cases are set out at [47] above.
66.
Notwithstanding those similarities, the court in the present case is dealing with a different offence and, at least to an extent, different circumstances from those that applied in
Baker.
We are unable to accept the submission that
Baker
requires that section 14 offences in which there is no real child must always be treated as category 3A offences under the Guideline. We recognise that aspects of the decision in
Baker
may well need to be revisited in the light of this judgment, but our present concern is with these section 14 offences.
67.
Focusing on the particular issue raised in these appeals, we consider that for a section 14 offence, the position under the Guideline is clear: the judge should, first, identify the category of harm on the basis of the sexual activity the defendant intended (“the level of harm should be determined by reference to the type of activity arranged or facilitated”), and, second, adjust the sentence in order to ensure it is “commensurate” with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim was fictional) (“sentences commensurate with the applicable starting point and range will ordinarily be appropriate”).
68.
This approach was applied in
Bayliss,
the first of the cases reviewed above ([34]
et seq.
), albeit it was decided before the present sentencing Guideline came into force. That appeal concerned a section 14 offence involving a fictional child, and, as already rehearsed, the court decided that although all of the usual considerations on sentence apply, the absence of actual harm requires some reduction from the starting point (reduced in that case from 4 years to 3 years).
69.
Baker
was the next decision of note, and there have been a number of subsequent decisions involving section 10 offences (
e.g.
Buchanan
and
Solanki
) which have affirmed the approach that
Baker
established. In
Gustafsson
and
Cook
, cases of attempting to incite non-existent children to engage in sexual activity, the court similarly has followed
Baker.
70.
For section 14 offences, the court in
Collins
applied the Guideline and assessed harm in a manner consistent with
Bayliss
: “
the harm was plainly in Category 1” given the intended penetration was “of a victim’s vagina or anus using body or object”. This approach was adopted in
Lewis
(another section 14 case involving a fictional child). In
Stillwell
and
Allington
, cases also involving a section 14 offence and fictional children,
the court followed the approach in
Baker
rather than that adopted in
Bayliss
,
Collins
and
Lewis
.
71.
It is clear from the conclusions we have set out above that in our judgment the decisions involving section 14 offences in
Stillwell
and
Allington
failed properly to follow the approach established in
Bayliss
,
Collins
and
Lewis
and the requirements of the Sentencing Guideline. Section 125(1) Coroners and Justice Act 2009 provides:
“Every court –
a.
Must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
b.
[…]
unless the court is satisfied that it would be contrary to the interests of justice to do so.”
72.
Sentencers in future with section 14 offences in these circumstances should follow the Sentencing Guideline in the way we have described above at [67]. This may lead to the result that a defendant who arranges the rape of a fictional 6-year-old is punished more severely than a defendant who facilitates a comparatively minor sexual assault on a real 15-year-old. In our view, there is nothing necessarily wrong in principle with that result. The sentence should be commensurate with the applicable starting point and range, and in cases where the child is a fiction this will usually involve some reduction (as in
Bayliss
) to reflect the lack of harm.
73.
Against that background, we turn to the individual appeals. Notwithstanding Smisson’s previous good character and personal problems as set out particularly in the psychiatric report, we are unable to fault the judge’s decision that the offending came at the top of the range for a category 1 A offence. The crime which the appellant intended to carry out was extremely serious. We accept that the starting point of 9 years’ imprisonment, reduced to 6 years to reflect his guilty plea, resulted in a long sentence. We also recognise that the judge did not reduce the starting point to reflect the absence of harm, but even allowing for those factors, we conclude that the sentence was not manifestly excessive, given Smisson intended on arrival in Taunton to engage in vaginal and anal penetrative sexual activity with a sixyear-old girl.
74.
Smisson’s challenge to the judge’s finding of dangerousness is without merit. As set out above, the author of the pre-sentence report determined that the appellant posed a high risk of sexual harm to all children which could not be managed in the community. Dr Oliver White, a psychiatrist, indicated that any future sexual offending was likely to be towards children, including those not previously known to the appellant. As the judge found, the appellant’s overriding focus had been to abuse sexually and rape a six-year-old girl. The judge concluded that had the girl existed the appellant would have committed these extremely serious offences. Although various explanations for Smisson’s offending have been proffered, these do not materially lessen the danger this appellant poses to young people, which the present offence exemplified. The concurrent sentences of 6 months’ imprisonment for the combination of three offences relating to indecent photographs were appropriate. The only element of Smisson’s sentence that requires adjustment relates to the victim surcharge order, because some of the offences for which he was sentenced dated back to 31 May 2013 (see
R v Abbot and others
[2020] EWCA Crim 516
at [83])
. The order should have been in the sum of £120.
75.
With Buonaiuto, the intended offending was, although undoubtedly grave in nature, of slightly less seriousness than that contemplated by Smisson. In the result, the starting point was 8 years’ imprisonment, reduced to 5 years 4 months to reflect the appellant’s guilty plea. We have borne in mind the lack of relevant previous convictions, appellant’s marital difficulties and the apparent remorse he has expressed, but given the appellant intended to engage in penetrative sexual activity with a six-year-old child which included the penetration of her mouth with his penis, the penetration of her vagina with his tongue and the child performing oral sex upon her mother, as with Smisson we do not conclude that this lengthy sentence was manifestly excessive. Again, there is no challenge to the judge’s finding of dangerousness.
76.
Privett, in extremely explicit and graphic terms, expressed his wish to engage in penetrative sexual activity with a six-year-old child, with the active participation of her mother. He admitted in interview he had intended to penetrate the child sexually with a vibrator, along with his fingers and penis. In those circumstances, a starting point of 8 years’ imprisonment, reduced to 5 years 4 months to reflect the appellant’s guilty plea cannot sustainably be characterised as manifestly excessive. This is particularly the case for an appellant with previous convictions of the kind Privett had accrued.
77.
With West, the appellant expressed his wish to engage in vaginal and oral sexual intercourse with a 10-year-old girl. The judge determined that the appellant was not dangerous and he reduced what would otherwise have been a starting point after trial of 6 years’ imprisonment to 5 years on the basis that the appellant could not have put his plans into effect. Applying full credit for his guilty plea, this reduced the sentence to one of 3 years 4 months’ imprisonment. In those circumstances the sentence was not manifestly excessive.
78.
For the reasons set out above, these four appeals against sentence are dismissed, save that in Smisson’s case the appeal is allowed to the extent that the Victim Surcharge Order is reduced to £120.
Postscript
79.
We invite the Sentencing Council to consider whether any and, if so, what clarification of the relevant Sentencing Guideline is necessary, and whether further guidance can be given to sentencers. This exercise may involve consideration of other Guidelines. | ```yaml
citation: '[2020] EWCA Crim 557'
date: '2020-04-29'
judges:
- HHJ TICEHURST
- LORD JUSTICE FULFORD
- LORD JUSTICE HOLROYDE
- SIR PETER OPENSHAW
- 'Lord Justice Fulford :'
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200600980 A7
Neutral Citation Number:
[2006] EWCA Crim 1899
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 12th May 2006
B E F O R E:
MR JUSTICE NELSON
SIR JOHN ALLIOTT
- - - - - - -
R E G I N A
-v-
VICTOR MCDERMOTT
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR T CROWTHER
appeared on behalf of the APPLICANT
- - - - - - -
J U D G M E N T
1.
MR JUSTICE NELSON: On 19th January 2006, before Magistrates, the appellant pleaded guilty to assault occasioning actual bodily harm and was committed for sentence to the Crown Court. On 10th February 2006, at the Crown Court at Cardiff, he was sentenced to one year and three months' imprisonment for the offence, less one day for time spent in custody on remand. He appeals against that sentence by leave of the Single Judge.
2.
The facts are that, about 10 o'clock in the evening of 9th December 2005, the complainant, an ambulance man, went with a colleague to a road in Cardiff after they had received a report that a man was lying on the ground. It was in fact the appellant, who was lying on the pavement outside a public house and, as the ambulance team approached him, he became verbally abusive. They still approached him, assisted him to the ambulance and sat him on the step of the ambulance. The police had by that time already been summoned. After a few minutes, the complainant's colleague was concerned that the police had not arrived and so she went to the front of the ambulance to contact control to find out where they were. At that point the appellant stood up, walked across to the complainant and punched him to the head. The complainant then grappled with him and he and his colleague then managed to get the appellant to the ground. The police shortly after arrived and arrested the appellant. He said in interview that he had drunk about 15 pints of lager and two and a half pints of whisky, brandy, Tia Maria and coke. He said he could remember nothing at all about the offence. the complainant suffered a ruptured eardrum as a result and was not allowed to drive for six weeks and was off work for the week.
3.
The appellant was born on the 24th March 1969. He had six previous court appearances for seven offences between May 1987 and January 2006. These included assault occasioning actually bodily harm, criminal damage, driving with excess alcohol, assault on a constable and failing to surrender for bail. The offences were described by the judge as showing that he had a proven violent streak, particularly when he had been drinking. In his late teens he had been convicted twice of unlawful violence to others: in 2000 for assault on a custodial officer at a police station, poking him in the eye, and in 2004 assaulting his estranged wife, first pouring a kettle of warm but not boiling water over her and then beating her to the face and body.
4.
There was also before the sentencing judge, as there is before this court, a pre-sentence report. That indicated that the offence fell into a pattern of alcohol-related violence. The appellant had played down in the past the seriousness of his alcohol problem but in interview admitted that it was a problem and believed that the offence was a wake-up call. He expressed remorse and started to address his drinking, dealing with it with a new partner. He is unemployed, as he lost his last job when he failed a random alcohol test. His offending had a gap of some ten years and during that time he obtained a law degree. There was another gap of two years, indicating a low risk of offending in terms of general criminal behaviour. However, his last two offences were committed in a period of just over 12 months and represented an increase in seriousness. Whilst he had his alcohol problem he continued to pose a risk to the public in respect of violent behaviour.
5.
There were also before the court two documents about the appellant. The relevant one was a character reference, indicating his attempts to solve his problems and his success in doing so from the Big Issue Cymru and a note regarding his contact with the Drug and Alcohol Unit. The judge, when sentencing the appellant, said that this was a forceful blow, as it had ruptured the complainant's eardrum, causing it to bleed. The appellant had expressed remorse for his behaviour and steps had been taken to address the drinking but alcohol was a real problem. Ambulance personnel were entitled to protection and so the courts had to impose severe sentences on those who assaulted them. This case was aggravated by the appellant's previous convictions for violence. The sentence was intended to punish and to protect the public and it took into account his remorse, his plea of guilty, his age, his antecedents, the contents of the pre-sentence report and his efforts to deal with his alcohol problem. He was not a dangerous offender.
6.
The principal ground which has been put before the court, in both the written grounds and also in his helpful and succinct submissions today, by Mr Crowther is that this is a case where insufficient attention was paid by the sentencing court to the case of
R v McNally
[2000] 1 Cr.App.R (S) 535. There a sentence of 12 months' imprisonment for assault occasioning actual bodily harm on a doctor at hospital was reduced to six months. In the course of the judgment, Rose LJ Vice President indicated that doctors, nurses and other staff are entitled to whatever protection the courts could give and those who used physical violence against them could expect a sentence of immediate imprisonment. The length of the sentence must depend on the circumstances of the particular case. Aggravating features would including striking repeated blows and the use of a weapon or feet or headbutting, the infliction of serious or lasting injury, the use of violence on more than one person. Mitigating features would include immediate and genuine remorse, a plea of guilty, good character and personal circumstances.
7.
The facts of that case have been analysed by Mr Crowther and various distinctions drawn between that and Mr McDermott's case. Mr Crowther accepts that there are differences which indicate that the case of this appellant is more serious than that of Mr McNally but, to summarise the effect of his submissions, the final submission he made is that the sentence should not have been two-and-a-half times as long a sentence as that of Mr McNally. He draws attention to the fact that McNally had good character whereas here the appellant does not. McNally's case was more sympathetic in the sense that he was depressed and suffering grief at the illness of his son, whereas here the appellant is an alcoholic. But there are none of the aggravating features indicated by Rose LJ in
McNally
present in this case and, although the matter is not one of complete clarity, it would appear that the injury is less serious here than that in
McNally
. In each a single blow only was delivered. The guilty plea here was at the very earliest stage possible, namely at the Magistrates' Court. There is clear remorse here, steps taken to address the alcohol problem and, when all these factors are taken into account, it can be seen that this is a case where, although a severe sentence was required, the sentence of one year and three-months was excessive.
8.
Offences of this nature are rightly treated as serious by the courts and it was appropriate for the judge to say in his sentencing remarks, as he did, that the sentence he passed was intended to send a message to others who might behave in a similar manner. The case of
McNally
makes it clear that sentences in assaults on medical staff, ambulance men and other such public servants will frequently be custodial, as such public servants should have, and, sadly, have often needed, the protection of the courts. What sentence is passed will plainly depend upon the circumstances of the individual case. It is certainly not in any way to be thought, and indeed Mr Crowther does not submit it, that
McNally
lays down any guideline as to what the sentence should in fact be. It was a decision on its own facts, the guideline element being, as we have indicated, that each case will depend upon its own fact. Here, in general terms, immediate custody is required in cases of assaults on medical staff.
9.
Here, the appellant, in the view of this court, is in an entirely different situation to that of
McNally
. The previous convictions he has include four for violence, two some years ago but two relatively recently and such offences are frequently carried out when the appellant has been in drink. In addition, McNally had, as his reason for carrying out the assault (although there never can be an excuse for such an assault) the fact that he had attended the hospital, deeply anxious about the health of his son, who had attended there. Whereas, in the present case, the offence was simply carried out because the appellant had taken alcohol. Alcohol is in fact, as this court has often said, an aggravating feature, not a mitigating feature, and, when set against the previous convictions for violence, and having taken into account all the helpful submissions made to us by Mr Crowther, this court is of the view that 15 months was not an excessive sentence.
10.
The appellant is to be commended for his new determination to control his drinking. This bodes well for the future but does not, in the view of this court, amount to a reason for reducing his sentence, which, as we have indicated, we do not regard as excessive in all the circumstances.
11.
Accordingly, the appeal is dismissed. | ```yaml
citation: '[2006] EWCA Crim 1899'
date: '2006-05-12'
judges:
- MR JUSTICE NELSON
- SIR JOHN ALLIOTT
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
2013/5823/C2 & 2013/6215/C2
Neutral Citation Number:
[2014] EWCA Crim 2438
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Friday, 14 November 2014
B e f o r e
:
LORD JUSTICE FULFORD
MR JUSTICE HAMBLEN
HIS HONOUR JUDGE WAIT
(Sitting as a Judge of the CACD)
- - - - - - - - - - - - - - - - - -
R E G I N A
v
EWA DRYZNER
PLAY MEDIA DISTRIBUTION LIMITED
- - - - - - - - - - - - - - - - - -
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 A Zalewski
appeared on behalf of the
Applicants
Mr M Bennett
appeared on behalf of the
Crown
Mr R Palmer
appeared on behalf of the
Treasury Solicitor
- - - - - - - - - - - - - - - - - -
J U D G M E N T
1.
JUDGE WAIT: The applicants were convicted on an indictment at the Luton Crown Court on 17th September 2013 on eight counts alleging that they, on or before 20th May 2011, supplied video recordings containing a video work in respect of which no classification had been issued, contrary to
section 9 of the Video Recordings Act 1984
. The applicants renew their application for leave to appeal against conviction, leave having been refused by the single judge. The respondents have attended today and have provided written grounds of opposition for which we are very grateful.
The Background
2.
The applicant Ewa Dryzner and her husband Bartosz Dryzner were directors of a company called Play Media Distribution Limited. It was common ground that from about January 2011 the applicant and her husband had supplied DVDs imported from Poland through the applicant company Play Media Distribution Limited to a shop in Luton.
3.
On 20th May 2011 an officer from Luton Borough Council's Trading Standards Service visited the shop. She examined DVDs being offered for sale and took a note of some 15 titles all in Polish and left the premises. She attempted to find any of these titles on the website of the British Board of Film Classification ("BBFC") but without success. She returned to the shop with a colleague the same day and formally seized 73 DVDs, all of which had been supplied by the applicants to the shop. It was common ground that as at the date of seizure no classification certificate had been issued by the BBFC in respect of any of the works in question. Although none of the boxes containing the eight DVDs particularised in the indictment bore any age classification, the cellophane packaging of each case contained a labels that was similar, if not identical, to a genuine BBFC classification. The labels on the packaging were either a U or a 15 certificate.
4.
The applicant Ewa Dryzner and her husband were subsequently interviewed under caution by Trading Standards Officers. Unhappily the tapes of the interview are seriously corrupted and there remained at trial an issue as to their state of mind about the need for classification. But for the avoidance of any doubt it was conceded by the prosecution during the course of the trial that the content of the DVDs in question, some of which were cartoons plainly intended for children, was not such that had they been submitted to the BBFC any would have been deemed unsuitable for the issue of a classification certificate.
5.
The defence case was to the effect that the applicant Ewa Dryzner was responsible for the importation of DVDs from Poland by the second applicant company and her husband Bartosz Dryzner was responsible for their supply to shops in the United Kingdom. They had been unaware of the need for video works to be classified by the BBFC. At a point in 2010 they had become aware of the need for DVDs to carry, as they put it, “age labels”, whereupon Mr Bartosz Dryzner arranged for the creation of his own labels, choosing the age classification himself and applying the stickers that he had chosen to the cellophane wrappers.
6.
The learned trial judge ruled that the requirement under the Act to submit video works to the BBFC did not amount to an unlawful interference with trade within the European Union. The only issue then left for the jury was whether they were sure that the applicants had supplied DVDs containing video works or films to which no classification certificate had been issued at the time they were supplied.
The Grounds of Appeal
.
1. The learned judge had erred in law by ruling that a defence under article 34 of the Treaty on the Functioning of Europe did not apply.
2.
Section 9 of the Video Recordings Act 1984
is incompatible with article 10 of the European Convention of Human Rights and the court is asked to make a declaration of incompatibility.
3. (Added after the decision of the single judge) The arguably inflexible classification regime set up under the
Video Recordings Act 1984
is disproportionate and infringes the applicants' engaged rights under article 10 of the European Convention of Human Rights as enacted by the
Human Rights Act 1998
.
Discussion
7.
Section 9 of the Video Recordings Act 1984
reads:
"9 Supplying video recording of unclassified work
(1) A person who supplies or offers to supply a video recording containing a video work in respect of which no classification certificate has been issued is guilty of an offence unless—
(a) the supply is, or would if it took place be, an exempted supply, or
(b) the video work is an exempted work.
(2) It is a defence to a charge of committing an offence under this section to prove that the accused believed on reasonable grounds—
(a) that the video work concerned or, if the video recording contained more than one work to which the charge relates, each of those works was either an exempted work or a work in respect of which a classification certificate had been issued, or
(b) that the supply was, or would if it took place be, an exempted supply by virtue of section 3(4) or (5) of this Act.
(3) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both..."
8.
The applicant does not suggest that any defence or exemption to this charge is afforded by
the 1984 Act
. She submits that the statute is in breach of article 34 of the Treaty on the Functioning of Europe and is incompatible with Community Law. Article 34 provides:
"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States."
Mr Zalewski does not refer in his grounds of appeal or advice on appeal to article 36 which was the basis upon which the learned judge at the Crown Court determined this matter. Article 36 provides:
"The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States."
The plain purpose of article 36 is to qualify article 34 by permitting Member States to make prohibitions or restrictions on imports and exports on the grounds of, among other matters, public morality. Under the
Video Recordings Act 1984
and the
Video Recordings Act 2010
which re-enacts these provisions unchanged, the BBFC has a duty to review and classify all video works, subject to certain exemptions for works that are educational or concern religion, sport or music, and are not supplied for profit. The purpose of this legislation as set out by the trial judge in his ruling on the issue was to provide information to the public as to the suitability for viewing of particular DVDs or videos to enable e.g. parents to protect their children from viewing unsuitable material and to protect the public in general from exposure to extreme pornography, whether sexual or violent. As such, its purpose was one which was wholly within the ambit of article 36.
9.
Those who supply or offer to supply video works are required to submit them to the BBFC for classification and pay the appropriate fee. The purpose of the BBFC is then to review and classify the works as being suitable for viewing by all, or with parental guidance, or by those who have achieved an age specified on the certificate, or not at all. The classifications of U, PG, 12, 15 and 18 are familiar to all. The fee charged by the BBFC is dependent upon the work submitted to provide classification.
10.
Reference is made in the grounds of appeal to a number of European authorities. We have reviewed the authorities and none suggest that a Member State cannot provide for the regulation of works to be supplied to the public for the purpose of protecting the public from unsuitable material. We refer to just one authority that has been selected by both the applicant and the respondent in their submissions as being of particular significance. It is the decision of the European Court of Justice in the case of
Dynamic Medien Vertriebs GmbH v Avides Media AG
C-244/06. The significant part of the judgment in that case is that article 34 does not preclude national rules which prohibit the sale and transfer, in that case by mail order, of image storage media which have not been examined and classified by the competent authority for the purposes of protecting young persons and which do not bear a label from that authority indicating the age from which they may be viewed, unless it appears that the procedure for examination is not readily accessible or cannot be completed within a reasonable time.
11.
In the United Kingdom a fee is payable on all works submitted to the BBFC whether originating from within or outside of the United Kingdom. It is in no way discriminatory. The applicants assert at paragraph 14 of the grounds that the cost of submitting titles to the BBFC, including translation costs, would have been in the region of £1,000 per title and that such a figure is "disproportionate and relatively high cost in terms of an SME, financing and may be a barrier to intra-community trade itself." No evidence of such a figure was put before the judge when making submissions on the restriction of trade. It is not a figure which is admitted. The respondent tells us in this case through his notice that the fees payable on DVDs in this case would have been between £315 and £741, depending on the length of the work. Whatever be the correct figure, there has never been a suggestion that it was set to restrict trade in any way.
12.
Turning now to the principal point made by the applicants this morning, which is that where there is innocuous material the requirement that it be provided for classification is not reasonable and proportionate. On the evidence that there was in this case, we see nothing in this ground.
Decision
Ground 1 under article 34 TFEU
13.
The whole of this matter was dealt with carefully and in our view correctly by the learned trial judge in his ruling of 25th January 2013. It is a ruling we accept in its entirety and we refuse leave to appeal on this ground.
14.
Grounds 2 and 3, under article 10
15.
The applicants submit that the restrictions of the Act are disproportionate and infringe the applicants' right to freedom of expression under article 10 of the Convention. Article 10 provides:
"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority."
It is acknowledged that the right is qualified in article 10(2) which in part reads:
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals... "
In our judgment, the qualification in article 10(2) raises the same issue as the qualification of article 34 of TFEU by article 36.
16.
Our answer on these grounds is the same as on Ground 1. The provisions of this Act are lawful, are necessary, are justified for the protection of health and morals and are within the qualification of Article 10(2).
17.
For the reasons above, and those set out by the single judge in the section 31 application, these renewed applications for leave to appeal the convictions are refused.
18.
MR PALMER: My Lord, can I then turn to the next application which is my only advocacy this morning which is an application for costs.
19.
LORD JUSTICE FULFORD: Is the problem with that that this was a renewed application, for which we are very grateful to have had your attendance, but which you were not required to attend. Is it not, as a matter of principle, wrong for an applicant who is entitled to maintain and advance his application, as it were alone, to bear the costs of the other side who have, helpful though it may be, chosen to turn up?
20.
MR PALMER: Can I deal with that in two ways? I shall be very brief because I can already see the mood of the court.
21.
LORD JUSTICE FULFORD: I think it is a matter of principle really.
22.
MR PALMER: One has to remember one of the applicants is a commercial enterprise that still trades. Secondly, you are right that there are matters where we chose to assist, but equally of course you are dealing with a situation where there had already been, because of the number of legal challenges in this case, substantial costs incurred and substantial costs ordered at the conclusion of the trial. In our respectful submission because a local authority, as your Lordships will know, cannot recoup any of its costs from central funds because of section 60 of the Prosecution of Offences Act, it becomes slightly different. But, I have made the application, I have not yet quantified it. In any application, whatever the principle, I entirely accept that it is at the discretion of the court.
23.
LORD JUSTICE FULFORD: Thank you. Please give us one moment. Thank you for the application. For the reasons that I indicated at the outset, I am afraid it would be inappropriate in this case to order costs. We are nonetheless grateful for the assistance with which you have provided us. | ```yaml
citation: '[2014] EWCA Crim 2438'
date: '2014-11-14'
judges:
- LORD JUSTICE FULFORD
- MR JUSTICE HAMBLEN
- HIS HONOUR JUDGE WAIT
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2020] EWCA Crim 768
Case No:
201900464 C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
His Honour Judge Thomas QC
Indictment Number: T20150476
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 17/06/2020
Before :
THE RT. HON. LORD JUSTICE IRWIN
THE HON. MR JUSTICE HOLGATE
and
THE RECORDER OF LONDON, HIS HONOUR JUDGE LUCRAFT QC,
(sitting as a judge of the Court of Appeal, Criminal Division)
-
- - - - - - - - - - - - - - - - - - - -
Between :
Paul Joseph Waite
Applicant
-
and -
Regina
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Mr Matthew Paul
(instructed on a public access basis) for the Applicant
Hearing date: 4 June 2020
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
The Recorder of London
:
1.
There are two matters before the court where this applicant seeks to renew his application for leave to appeal and for an extension of time. On June 3, the Court was notified that the applicant had instructed counsel, Matthew Paul, to appear on his behalf at the hearing. Mr Paul submitted a document headed “Amended Grounds of Appeal”. The document makes clear that the applicant relies on all the grounds he has himself set out in relation to both matters before this Court, and the further document seeks to focus the Courts attention to just some of the grounds relied upon.
2.
The first of the two matters before the Court dates back to 2008. On April 9, 2008 in the Crown Court at Leicester before His Honour Judge Collis and a jury, the applicant was convicted of conspiracy to defraud. He was sentenced to a term of imprisonment of 5 years. On August 14, 2008 a confiscation order was made in the same court by consent. It was agreed that the applicant’s benefit from his general criminal conduct amounted to £36,572.00. Because the available amount was nil, it was formally assessed at a nominal amount of £1, a sum which he was ordered to pay within 14 days. It has not been paid.
3.
The applicant appealed to the Court of Appeal against his sentence but not against the confiscation order. The appeal against sentence was successful in that on 1 October 2008 the Full Court reduced the term from 5 years to 3 years 6 months. The confiscation order remained unaffected.
4.
The confiscation order was one based upon a lifestyle category. Therefore, it remained open to the Crown to issue a section 22 notice under the Proceeds of Crime Act 2002, in the event of the applicant coming into assets sufficient to satisfy the order.
5.
The applicant was convicted of 7 offences of fraud in July 2016. The prosecution then discovered that he owned 5 properties with equity amounting to £127,716.00. The prosecution therefore applied under section 22 for the available amount in the 2008 confiscation order to be increased from £1 to £36,572.00.
6.
In his grounds of appeal, the applicant asserts that he was not properly advised by his barrister in relation to the confiscation order so that he was unaware that it would remain in force until satisfied. In his application for an extension of time of about 10 years 5 months, the applicant says that it was only when he was imprisoned for the further offence in 2016 that he discovered that the confiscation order was still in fact active and that the prosecution wished to recover assets under it. Even then, however, he did not make an application for permission to appeal until 3 February 2019.
7.
In summary, the applicant seeks to raises two grounds of appeal. First, he says that the judge erred in imposing a confiscation order against both the applicant and his coaccused for the same amount. He says this would allow for recovery of more than the benefit obtained by the offending and is therefore contrary to the ruling in
R v Ahmad
and another (Respondents)
[2014] UKSC 36
. Second, he contends that in its judgment in 2008 the Full Court stated that the applicant and his co-accused had received just 10% of the monies obtained from their fraud. Accordingly, he says that the confiscation order should be amended so as to be based on the figure of £5,137.00 shared between the applicant and the co-accused rather than the larger figure set out in
the order. This is supported by the written and oral submissions of Mr Paul. Mr Paul submitted to this Court that a consideration of the appropriate amount of the order is hampered by the lack of access to contemporaneous documents from the trial.
8.
The prosecution has filed a respondent’s notice opposing the application. In short, they say that the judge did not make a joint confiscation order and therefore the decision in
Ahmad
does not apply. On the second point, the prosecution says that the judgment in the Court of Appeal did not decide that only 10% of the proceeds was received by the applicant and/or his co-accused. That was not an issue for determination by the Court of Appeal. That court was only dealing with an appeal against the length of the term of imprisonment imposed.
9.
In her reasons for refusing leave to appeal the single judge said as follows:
“His application is more than 10 years out of time. There is no good reason such as to justify this extreme delay. I know that the applicant brought a successful appeal against the custodial sentence imposed, but not the confiscation order. The delay has caused prejudice since the relevant papers were destroyed 6 years after the conclusion of the matter. I therefore refuse the application for an extension of time.
In any event, the confiscation order in 2008 was made by consent. There is no clear evidence that the Court of Appeal ruled (or was in a position to find) explicitly that the applicant received only 10% of the value of the fraudulent transactions. Paragraph 3 of its judgment does not go that far. Nor does it appear that the trial judge made a joint confiscation order against the applicant and his co-conspirator, Mr Archer, for joint amounts, as suggested.”
We agree and would add that the applicant has not put forward any proper explanation, let alone justification, for the delay in this appeal. Mr Paul submits that it is in the interests of justice that an extension be granted considering the reach of section 22 of the 2002 Act. If that was right, it would potentially apply to every confiscation order of this type.
10.
Despite the submissions of Mr Paul on behalf of the applicant in our judgment there is no merit at all in the application for permission to appeal and it is dismissed.
11.
The second matter before this Court relates to the applicant’s conviction in 2016. On 21st July 2016, in the Crown Court at Swansea before HHJ Thomas QC and a jury, the applicant was convicted of seven counts of fraud contrary to section 1 of the Fraud Act 2006. On the same date he was sentenced to a total of 30 months imprisonment. He was also disqualified under section 2 of the Company Directors Disqualification Act 1986 from serving as a company director for a period of 5 years.
12.
Confiscation proceedings followed the conviction. On 17th October 2018, the applicant was ordered to pay a Confiscation Order under the Proceeds of Crime Act 2002 for £55,049.36 within 3 months or in default to serve a period of 12 months imprisonment consecutive to his substantive sentence. He was ordered to pay a compensation order of £37,653.32 within 3 months or in default to serve 18 months imprisonment. He was also ordered to pay £6,218.87 towards the costs of the prosecution and a victim surcharge order of £120 within 3 months. A renewed application for leave to appeal against conviction was refused by the Full Court on 6th June 2019.
13.
In the applicant’s own grounds of appeal on the Confiscation Order he sets out eight points to seek to demonstrate that the order was unjust. Those eight points are in summary as follows:
a)
counsel originally instructed to deal with is case was not available when a new date was set, and alternative counsel had to be instructed. He states that the Judge refused to accede to the application for an adjournment and counsel subsequently stepped down as she was professionally embarrassed. This was extremely unfair and detrimental to his case particularly because the case was subject to subsequent adjournments following an amended confiscation statement being lodged by the Crown;
b)
a large proportion of the evidence demonstrated that the money obtained was in fact used by the applicant’s companies and that he had not personally gained from the offending. The Judge therefore erred in ruling that it was appropriate to pierce the corporate veil. He should not have concluded that the applicant’s evidence was vague and dishonest and should not have concluded that the companies were operations under the direct control of the applicant who used the funds for his own personal gain;
c)
the Judge erred in extending the 2-year deadline pursuant to section 14 of the Proceeds of Crime Act 2002. There were no exceptional circumstances which justified such a course of action;
d)
the applicant had produced evidence to demonstrate that four of the properties listed as assets were in fact owned by a company and that the shareholdings of the company were held by him on trust for his children. The Judge’s earlier incorrect ruling in relation to the corporate veil impacted upon his decision to include these properties as part of the applicant’s available assets;
e)
it was unfair to allow the Crown to change their position and argue that the applicant had a criminal lifestyle. There was insufficient evidence to justify this change in position which was highly prejudicial to the applicant;
f)
the Judge was inconsistent in relation to his position regarding the applicant’s companies. He initially ruled that the corporate veil had been pierced but then commented that there had never been any legitimate income from the companies before finally stating that there was legitimate income but that this had not been sufficient to purchase the property at 9 Ropewalk Road;
g)
the Judge erred in ruling that the applicant had a criminal lifestyle and that his benefit amounted to around £55,000 on the basis of his income and the finding that the applicant had hidden assets. The final order made was clearly disproportionate to the circumstances of the applicant and the offending;
h)
the Judge erred in relying upon the prosecutor’s figures in relation to the available amount. He did not afford sufficient weight to the valuation provided by a chartered surveyor instructed on behalf of the applicant.
The points at (b) and (c) above are further supported by the written and oral submissions made on the applicant’s behalf by Mr Paul.
14.
Mr Paul takes issue with the approach of the Judge to the applicant and the companies he operated as a ‘one man’ business and submits that a broad-brush approach to each of them was not the right approach. Treating them all in the same way and indiscriminately piercing the corporate veil was not warranted.
15.
The Prosecution lodged a Respondent’s Notice and Grounds of Opposition in which they set out responses to each of these points made by the applicant. In summary they say:
a)
The Judge did not err in refusing the application to adjourn the hearing of 17th May 2018 so that the applicant could have counsel of his choice. He did however agree to move the hearing until 22nd May 2018 so that newly instructed counsel had time to prepare and take instructions. This did not result in any unfairness to the applicant;
b)
the Judge did not err when deciding to pierce the corporate veil. He had the benefit of considering the reports from the financial investigator and the evidence from the applicant at the confiscation hearing. He considered the relevant legal principles and correctly decided that the companies were the alter ego for the applicant. It was therefore entirely appropriate for the veil of incorporation to be torn away for the purposes of the confiscation proceedings;
c)
The Judge considered that the applicant had employed a deliberate tactic of delaying the proceedings and that it was appropriate to extend the two year time period. As it transpired, the case came to an end around 3 and a half months beyond the end of the period. The Judge did not err when making this ruling;
d)
The Judge did not err in permitting the prosecution to change its position with regard to the calculation of the applicant’s benefit. It is submitted that the prosecution had not sought to change their position. The Court was required to consider whether the applicant had a criminal lifestyle and if so whether he had benefitted from it and in error this had not been raised by the prosecution sooner. In lodging an amended section 16 statement the prosecution were simply correcting their earlier error and assisting the Court to comply with its statutory duty. The fact that the Judge permitted the defence further time to consider the amended statement meant that the applicant was not prejudiced in the preparation of his case;
e)
The Judge did not alter his ruling in relation to the corporate veil. The applicant has incorrectly interpreted the Judge’s comments at later hearings. The Judge clearly ruled that the companies were set up by the applicant as “his own personal fiefdoms” and were “his alter ego from the word go.”;
f)
The defence conceded that the applicant had a criminal lifestyle and therefore the sole issue was whether or not it was just for the section 10 assumptions to be made. The Judge was quite satisfied that there was no good reason to displace the assumptions and there is no error of law that can be discerned from that ruling;
g)
The Judge did not err in discounting the Deeds of Trust when forming a view as to the extent of his available assets. His ruling that there was no intention on the part of those named in the deeds to create a genuine relationship of trustee and beneficiary was entirely appropriate considering the facts of the case; and
h)
The order imposed was neither wrong in law nor disproportionate. The Judge assessed the applicant’s case in a fair and measured way and made appropriate findings of facts. There are no arguable grounds to challenge the imposition of the confiscation order.
16.
In her reasons for refusing leave to appeal the single judge set out that she did not:
“consider it to be arguable that the confiscation order made on 17 October 2018 (“the confiscation order”) was “wholly unjust”. The proceedings were not arguably unfair; nor can it be said that the confiscation order was either wrong in principle as a matter of law or produced a result that was manifestly excessive”.
17.
The single judge then goes through the applicant’s points and summarised her reasons for refusing leave.
“As a preliminary and overarching point, the applicant seeks essentially to appeal the Judge’s case management decisions and/or findings of fact. There is no real prospect of an appellate court interfering with those decisions or findings.
a) Refusal of adjournment due to unavailability of Counsel: the Judge’s decision not to adjourn for a full 2 weeks but rather for a few days only in order to allow fresh Counsel to be instructed was entirely reasonable. There is no suggestion that fresh Counsel provided anything other than adequate representation. There was no unfairness;
(b)
Piercing of the corporate veil: the Judge correctly identified the relevant legal principles. He was then entitled to make the findings of fact that he did. They turn on his evaluation of the evidence overall, including the applicant’s demeanour and performance in the witness box. There is no prospect of an appellate court overturning the material findings;
(c)
Extension of the 2 year deadline: it is by no means clear that an extension was needed (on the basis that the proceedings had in fact already started). But in any event the Judge was entitled to find that there were exceptional circumstances justifying an extension for the reasons that he gave, including the fact that the applicant had in the past sought multiple adjournments for no good reason and produced new documents late in the day;
(d)
Trusts: the applicant’s complaints here rely on his complaints as to the Judge’s finding that the corporate veil should be pierced. Those complaints are without merit, as already identified. The Judge was entitled to disregard the deeds of trust as complete shams when deciding the quantum of the applicant’s assets, based on his findings of fact;
(e)
CPS changing position at 11th hour: there was no unfair prejudice to the applicant arising out of the service by the prosecution of an updated s. 16 statement (to address the question of criminal lifestyle as required by the legislation). The Judge allowed the applicant 4 weeks to respond to the amended statement;
(f)
The Judge changing position on companies: on a proper understanding there was no change of position as suggested. In response to the defence request, the Judge merely confirmed that his view was that the applicant’s companies were his alter ego from inception;
(g)
Criminal lifestyle: the defence conceded that the applicant had a criminal lifestyle. The Judge was entitled to conclude that it was not incorrect or unjust to assume that the money expended on 9 Ropewalk Road represented benefit from his general criminal conduct - for the reasons that he gave;
(h)
Available amount: the Judge arrived at the final orders after careful consideration of all the evidence and bearing in mind the question of proportionality. His approach to the question of the deeds of trust when considering the available amount cannot be impugned.”
18.
The single judge then concludes with this statement.
“In the absence of any merit in the appeal, given the length of the delay and the absence of any good reason for it, I am not prepared to grant the necessary extension of time.”
19.
We too have read through the extensive material in this case including the grounds set out by this applicant, the recent addition submissions ably made by Mr Paul, the transcripts of the various rulings made by the learned Judge in the course of the confiscation process as well as the final ruling and order and we agree with the conclusions of the single judge on the eight key matters set out above and also with the concluding statement. In our judgment there is no merit to the points made in this application for leave to appeal and it is dismissed.
20.
We have said this is a renewed application without any merit in respect of both matters and we make a costs order in the sum of £353.60. | ```yaml
citation: '[2020] EWCA Crim 768'
date: '2020-06-17'
judges:
- His Honour Judge Thomas QC
- THE RT. HON. LORD JUSTICE IRWIN
- THE HON. MR JUSTICE HOLGATE
- THE RECORDER OF LONDON, HIS HONOUR JUDGE LUCRAFT QC,
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2006] EWCA Crim 1404
Case No:
200504953/B2
200504944/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM DORCHESTER CROWN COURT
His Honour Judge Wiggs
ON APPEAL FROM LEEDS CROWN COURT
The Recorder of Leeds
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20/06/2006
Before :
THE PRESIDENT OF THE QUEENS BENCH DIVISION
MRS JUSTICE RAFFERTY
and
MR JUSTICE OPENSHAW
- - - - - - - - - - - - - - - - - - - - -
Between :
R
- v -
Jonathan Charles Walker Snell
R
-v-
Malcolm Wilson
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr R Offenbach for the Applicant Snell
Mr T. Bradbury for the Crown
Mr M Davies for the Applicant Wilson
Mr S. Waley for the Crown
Hearing dates : 16
th
May 2006
- - - - - - - - - - - - - - - - - - - - -
Judgment
President of the Queen’s Bench Division:
1.
On 18
th
August 2005, at Dorchester Crown Court, before His Honour Judge Wiggs and a jury, Jonathan Snell was convicted of one count of attempted buggery, five counts of indecent assault and one count of inciting a child to commit an act of gross indecency. The victim of these offences was C, born on 21 May 1985, the youngest son of the appellant and his wife. The sexual interference with the boy began when he was about six years old and went on until his eighth birthday. It then stopped. The trial took place when C was 20 years old. The defence was straightforward: nothing of this kind had ever happened.
2.
Snell was sentenced to a total of six years imprisonment, with consequential orders arising from the nature of his convictions. He seeks leave to appeal against conviction.
3.
On 21 January 2005, at Leeds Crown Court, before the Recorder (HH Judge Norman Jones QC) and a jury, Malcolm Wilson was convicted of two counts of indecent assault (counts 2 and 3) and rape (count 7). He was acquitted on three further counts of indecent assault (counts 1,5 and 6) and attempted rape (count 4). The victim in each case was S, who was twenty seven years old at the date of the trial. The appellant was her grandfather. He indecently assaulted the complainant over a number of years from before the age of three years or so until she was just under eleven years old, and thereafter raped her. The offences took place when the appellant visited the complainant’s family home, both at the home and in the car, and on occasions when she was visiting him at his home. The defence was straightforward, identical to that of Snell: nothing of the kind had ever happened.
4.
Wilson was sentenced to a total of seven years six months imprisonment, and made subject to the appropriate requirements which followed his conviction of sexual offences. He also seeks leave to appeal against conviction.
5.
Neither application suggests that there was insufficient evidence on which to found proper convictions. No criticism is made of the conduct of Wilson’s trial. One criticism is made of Snell’s trial. Subject to that one matter no other criticism is advanced. Neither application involves any criticism of the summing up or the directions to the jury. We shall therefore not require to address the detailed evidence on which the convictions were founded.
6.
With the agreement of counsel, these applications were heard together. They raised an identical point arising from “fresh evidence”, to which we will come in due course. However we must first deal with the admissibility point arising in the Snell case.
Admissibility (Snell)
7.
C’s parents separated in 1998, when he was twelve or thirteen years old. Thereafter he visited his father and indeed worked for him in his repair business. C was able to use the computer, and he had his own personal files segmented into the office computer. One day he opened a file in his segment marked “Chris’s BMW”. He there found not only photographs of BMW cars, but also photographs of naked, pierced and decorated male genitalia. No further description is needed. The Crown’s case was that the photographs were indeed sent by the appellant to C, and that they were photographs of the father’s genitalia. When C found these images, he complained to his mother, at first she did not believe him. He copied the material on to a floppy disc to show them to her. She took issue with her husband, warning him against showing children pornographic material, but at the same time preserving the confidentiality of C’s report to her. At a much later date, when these offences were investigated, this floppy disc was made available to the investigating authorities. So the photographs from C’s section of the computer were available to be examined.
8.
It was submitted to the judge that this area of evidence should be excluded. He admitted it, and the decision is now criticised on a number of different grounds. It is said that there was insufficient evidence to confirm that the images had indeed come from the defendant’s hard disc. That was a question for the jury to consider. It was also argued that even if the material had been transferred by the appellant to his son’s computer files, they did not prove a sexual interest in the son at the time when the alleged offences took place, several years earlier. Moreover the suggestion that the transfer demonstrated a sexual interest by the appellant in his son was purely speculative, a theory without foundation.
9.
These arguments are without merit. Dealing with it briefly, the Crown’s case is that this father had demonstrated perverted sexual interest in his son which extended to childhood sexual abuse. The photographs had plain sexual connotations, and even on the most dispassionate view, it was bizarre for a father to be sending such photographs to his adolescent son. They tended to confirm that it was indeed true that the father’s attitude to his son was sexually warped. Therefore the material was rightly admitted. In due course the judge carefully directed the jury about their approach to this material, and presented them with a fair and balanced summary of the relevant evidence. There is nothing in this proposed ground of appeal.
Fresh Evidence
10.
The single issue in these applications arises from “fresh evidence” provided by Professor Martin Conway on the topic of childhood amnesia, not, we emphasise, the problems of false memory syndrome or recovered memory. As already indicated, the applications were heard together. Counsel in each application heard the submissions in the other. Professor Conway gave evidence de bene esse on a single occasion, and where appropriate, his evidence was treated as common to both appeals. He gave evidence in the Snell application first, and was examined in chief and cross-examined by counsel in that case. The process was then repeated by counsel in the Wilson application.
11.
The submission on behalf of these applicants is largely dependent on the partially successful applications in
R v JH: R v TG (deceased)
[2005] EWCA 1828 that the fresh evidence of Professor Conway be admitted under
section 23 of the Criminal Appeal Act 1968
. JH was convicted of six counts of sexual abuse of his daughter. His daughter, then twenty one years old, gave a claimed, detailed account of sexual abuse which began before she was three years old, which continued thereafter. The appellant was convicted of six counts of sexual offences against his daughter, the first of which was said to have occurred when she was aged four or five years. She gave significant detailed evidence of this, and indeed the first such incident, when she was under three years old, as well as her emotional response to them. According to Professor Conway’s evidence in the present applications, she gave “highly specific and very detailed” memories of one off experiences at a very early age indeed.
12.
The complainant also alleged that she had been separately subjected to significant abuse by TG, a peripatetic music teacher, who began indecently assaulting her when she was just ten years old.
13.
In addition to the evidence of Professor Conway, post trial medical records were put before the court. These revealed that the complainant had said things which were inconsistent with her earlier evidence at trial, and that one of the statements made by her to her doctor was demonstrably untrue. Indeed reports of the first consultations with the psychotherapist suggested that the complainant had given “at least an exaggerated or over-dramatised” account of past events. There were significant inconsistencies between her evidence at trial and her original witness statement in respect of one count of alleged rape by her father in the presence of four other adult men. No doubt these inconsistencies contributed to his acquittal of this count. The court was also asked to reflect on the “inherent implausibility” that the complainant would have been abused by two completely unconnected men at the same time.
14.
The evidence of Professor Conway was admitted as expert evidence which provided information likely to be outside “the knowledge and experience of the jury”. Nevertheless where he expressed the view that some parts of the complainant’s evidence were “unreliable”, the evidence was inadmissible because it usurped the responsibilities of the jury. In essence, Professor Conway suggested that adults do not remember events of their very early childhood in such a way that they can give a coherent narrative account of events. Their recall of this part of their lives is usually “fragmentary, disjointed and idiosyncratic”. In the judgment of the court, the case was “exceptional” in that the adult complainant provided “quite remarkably detailed accounts of events” which had taken place when she was aged three, four and five years. Although the evidence on this topic would be admitted, the court emphasised that it
“would be relevant only in those rare cases in which the complainant provides a description of very early events which appears to contain an
unrealistic amount of detail.
A witness’s ability to remember events will, absent the special considerations arising from the period of early childhood amnesia, ordinarily be well within the experience of jurors. We would not wish it to be thought that the introduction of evidence such as that heard from Professor Conway will be helpful in any but the most exceptional case”. (the emphasis is provided in the judgment).
In summary, the evidence admitted in
R v JH: R v TG
was very limited in its scope. It was confined to cases in which an adult claimed very detailed memory of events said to have taken place when the adult was very young indeed. Although not expressly argued, the reality is that the present applications seek to widen the ambit of
R v JH: R v TG
. It is this issue which requires attention.
15.
In the result, the appeal in respect of the allegations made by the complainant against her father was allowed, and a retrial ordered. The appeal by the deceased music teacher was adjourned, pending the outcome of the retrial.
The present applications
16.
We need not repeat Professor Conway’s qualifications. He is the Director of Research at the University of Leeds, Institute of Psychological Sciences, who has made a study of human memory for approaching thirty years. He describes himself, and we have no reason to doubt that he is, “probably a world expert” in the study of people’s memories and the experiences of their lives.
17.
An important aspect of his evidence however, not as far as we can assess from the judgment directly addressed in
R v JH: R v TG,
related to just how far this particular area of expertise actually goes. Professor Conway’s essential theory was that all memory was inherently unreliable and malleable. That did not “…. mean to say that it is always false or always wrong. It does not mean to say that you cannot have memories which are simultaneously true and incorrect”. Memory researchers were seeking to find a way to assess these challenges. Research techniques which allowed a study of what the brain was doing when people were “remembering” had only been developing in recent years. Even so, it was too “state of the art” for the present at any rate to feed into the “very practical issues that the courts are concerned with”. Although Professor Conway believed that in the future this would be “influential and important”, this commendable acknowledgement of the current limitations of this “very difficult science” needs emphasis, and, as we have borne it, should be clearly in mind whenever it is sought to adduce evidence relating to childhood amnesia.
18.
Professor Conway suggested that the memories of adults, going back into their childhood, could often be wrong. That is unremarkable. The memories of adults about relatively recent events can similarly be wrong. That, too, is unremarkable. If witnesses were dealing with a “trauma memory” arising from what was described as “an awareness of mental defeat”, then the memory might combine to produce some three to five “hot spots”, that is, very vivid images of moments during the trauma, either related to the trauma itself, or to the inner feelings of the person undergoing the trauma, which would be very difficult to handle. However the question whether there was indeed any such traumatic event depended on the perception of the victim at the time when it was suffered. As we understood it, that would mean that although an adult might perceive a particular event as traumatic to any child, the child, at the time, might not be of an age or understanding to see it, and therefore remember it, in the same way. Again, this is unremarkable.
19.
Professor Conway was extremely concerned about claims for detailed memories of events from the age of three and below, less so, but still with considerable reservations for such detailed memories from three to five, and less so, again, from five to seven years. He emphasised, as we fully understand, that these delineations by age represent generalisations, and that the boundaries are inevitably fuzzy, varying from individual to individual. His clear opinion was that the quality of memory by an adult of detailed events taking place when the adult was aged three or under would be very doubtful. This evidence was admitted in
R v JH: R v TG
. However so far as events occurring at six to eight years (again emphasising the dangers of over-generalisation) an adult’s recall of such childhood events is much more like that of an adult recalling events which occurred in adulthood. Professor Conway thought that these memories would not be quite the same in their qualities as adult memories of adult experiences, but he had “no problem” with the view that adults could recall specific events that happened when they were seven and eight years old. That view was subject to his overall reservations about the inherent unreliability or fallibility of all human memory, including adult memory, which led him to the conclusion that the truth of the content of memory could not fully be assessed without independent corroborating evidence. It is of course elementary to our process that the evidence of a single uncorroborated witness may be sufficient to justify conviction.
20.
It was therefore not suggested that an adult, looking back at his or her childhood, could not remember whether he or she was abused. In the context of the study of memory, it was possible that the adult would be fantasising, or lying, deliberately or unconsciously (because he had come to believe the truth of what he was saying) or telling the truth. The expert could simply say that the record of memory described in the witness statement either looked like memory or that it did not. Professor Conway said that the point of his reports in the present applications was that the memory described in the witness statements looked “unusual in my perspective as a memory researcher”, but that did not rule out any of the possibilities of fantasy, lies or truth.
21.
The broad issue addressed by Professor Conway in the present applications was whether the contents of witness statements made by adult witnesses were or could be based on memories of events experienced before they were seven years old. He was particularly concerned at the production of a “rather polished narrative”, rolling account, and indeed the witness statements given by the complainants in the present applications seemed to him to reflect a kind “joint effort” between the interviewing officer and the complainants. He based his assessment exclusively on this material. He did not consider, perhaps because he was not asked to do so, the actual evidence given by the complainants at the trials, but he would in any event have discounted any suggestion that an expert in this field should make an assessment of the character or demeanour of the witnesses. As a memory researcher, and psychologist, he knew that he would be influenced in “unconscious ways” if he encountered the individuals giving evidence. His opinion about the accuracy of their memories would be influenced by his assessment of their characters.
22.
Effectively, of course, this is the antithesis of the decision making process in court to which the demeanour and character of the witness is integral. The trial process is intended to enable the accuracy, or fallibility, of the witnesses, particularly when they purport to speak directly from their own experience, to be tested and assessed. Their evidence is subject to a close scrutiny, and after such scrutiny, evaluation by the jury. As it seems to us, one of the potential problems created by Professor Conway’s exclusive focus on the “witness statement” is illustrated by the following passage from his evidence.
“A …. What I would say is that sometimes one has the powerful impression that what has been produced in a kind of joint effort between the interviewer and interviewee. It is a difficult thing to do I guess. But if you were a memory researcher and you wanted to know about someone’s childhood memory, what you would say to them is: remember an event…do not edit it, do not try to present, do not try to put it in any coherent order, just tell me what you had in mind. What people have in mind is usually rather fragmentary, disorganised, disordered bits of information that they often do not know why they remember… if one then encounters something that is very different from that one does wonder what its source is. It cannot simply be one of these fragmentary, idiosyncratic, enigmatic childhood memories.
Mrs Justice Rafferty: Does that translate, Professor Conway, into the more coherent the presentation, the more worried you become?
The witness: It pretty much does……I would want to wonder how has this account arisen, where has it come from. Perhaps the person has thought about this experience again and again and again and developed a rather elaborate narrative. That is one possibility. Another possibility is that questions which have been to them by people who have spoken to them about the event, have led them to introduce information which is not remembered as such but which is consistent…. An example might be of somebody who said to you, can you remember the colour of the pyjamas you were wearing? Then the implication is that you probably can, otherwise why would they ask you the question. So, then you might say: well, I used to wear blue stripey pyjamas when I was three years old, probably what they were, blue stripey. So that might add to a narrative which for me as a memory researcher would be a straight account of memory at the very least…
Q: would be ?
A: would not be ”
In effect, therefore, the introduction of the detail about the blue stripey pyjamas might not be “a straight account of memory”.
23.
It is elementary that any witness statement should accurately reflect the most precise recollection which the witness has. It purports to be the truth. In fact, however, our process recognises that many witnesses describing events of which they have a clear memory, do not immediately provide an utterly coherent, sequential, narrative account. Often, the account has to begin earlier than where the witness would otherwise have started. It is interrupted from time to time, for clarification purposes, and indeed to check for further details, not so as to “fabricate” the story, but to enable the details themselves to be checked against other accounts. Sometimes the words used by the witness may convey a slightly inexact account of what the witness is saying. All this is “translated” into the witness statement. In the end the complainant usually gives evidence at trial.
24.
Professor Conway said that he was unaware of police practices. He did not realise that police officers taking a statement would ask a series of questions, and then, having received the answers, and taken notes in relation to them, proceed to draft a statement for the witness to read, and sign. He appeared concerned that a statement might include “scene setting”, or prompting, and appeared troubled at the language sometimes used in witness statements made by adult complainants about incidents in childhood. If we understood this correctly, (and we should indicate that we may not be doing full justice to this part of the evidence) we should record that we would expect an adult, describing early childhood experiences, to use adult language. An adult referring to, say, the penis or vagina, would not use, nor should be expected to use, what ever childhood nomenclature the witness would have used when a child. The fact that a childhood experience is being described does not require the witness to confirm the accuracy of his memory by reverting to childishness, or childish names.
25.
An exchange during the course of his evidence precisely illustrates the concern about “scene setting”. In his statement, Professor Conway identified as potentially significant that C had referred to an incident which happened on a rainy Saturday afternoon in Autumn. He described this memory as a matter of “implausible detail for someone aged six”. He was however unaware that in his evidence, C explained that his reference to the incident happening in Autumn was based on an assumption made by him about the season because of weather at the time. Professor Conway was asked whether the evidence given by C on this issue may have had any impact on his findings, if he had known of it. He thought that this evidence would confirm his findings. He was “right to be suspicious that this was a remembered detail when clearly it was an inference”. From the point of view of the trial, it was, of course, as counsel for the Crown suggested, and as the witness himself recognised, an inference which explained his evidence.
26.
These considerations demonstrate the danger inherent in general deployment of evidence of this area of expertise. Professor Conway’s written statements, based on his analysis of the accuracy, or otherwise, of the contents of the complainants’ witness statements, perhaps inevitably, may be read to indicate his view of the accuracy and truthfulness, or otherwise, of the allegations made by them. Indeed, counsel for one of the applicants asked Professor Conway to consider whether the witness statements suggested that the accounts in them might not be based on “experienced events”. That, however, was the critical issue for the jury. Carefully reflecting on a claimed memory of distant childhood events, the jury must decide whether any witness, and in particular the complainant, is truthful and accurate. Unless the jury believes that the witness is accurately describing an actual experience, the defendant is to be acquitted. Where an adult is speaking of events which occurred in his or her childhood, for the time being, it is indeed correct that this area of expertise does not address “the very practical issues” which concern the court, and, save where there is evidence of mental disability or learning difficulties, attempts to persuade the court to admit such evidence should be scrutinised with very great care. That is why the court in
R v JH: R v TG
emphasised, as we repeat and endorse, the current strict limits of admissible expert evidence based on memory research.
27.
We can now return to the individual cases. C complained of abuse by his father which started when he about six years old and went on for eighteen to twenty four months. It happened regularly. It stopped on his birthday; he thought when he was eight years old. Having been reminded of the significance he attached to the age of seven in this context, and Professor Conway responding that he had already pointed out that the boundary was fuzzy, the eventual criticism of C’s evidence was that if the abuse had continued as frequently as he asserted, over this period, there would or should have been “other memories” and greater detail. This possible area of criticism contrasts with the specific concern about the presence of highly specific detail for which the witness in
R v JH: R v TG
was criticised. In any event, however, there being nothing to suggest that C’s mental capacity and maturity did not reflect his actual age, Professor Conway’s evidence did not fall within the area of expertise regarded as permissible in
R v JH: R v TG
. And in fairness to him, he acknowledged that if C had clearly said “this is a memory of abuse that happened when I was aged eight or aged seven and a half or around about that age,” then this account “might well” fall outside his area of concern when adults describe memories of early childhood experiences.
28.
In relation to the complainant’s evidence in
Wilson
the essence of the complaint was of a pattern of sexual abuse which went on until S was about thirteen years old. She estimated that it began when she was about three and a half years old, but she could not remember precisely when. In essence what she was saying was that the pattern of abuse went back as long as she could remember. As before, Professor Conway emphasised that his focus related to memories for the period of about seven years and earlier. His concern about this complainant’s evidence was the absence of specific memories in the context of abuse at or before seven years. He found it “extraordinary” that the complainant did not have early memories of when the abuse first occurred.
29.
In our judgment, however, it is difficult to see how this expert evidence can properly be tendered to establish a justifiable criticism of an adult witness who says that she suffered abuse throughout her childhood, which must have begun at too early an age for her to remember the first occasion. Second, the concerns in this case are the opposite of the concerns which troubled the court in
R v JH: R v TG,
that is, the presence of highly specific details of abuse at such an early age. It was this area of expertise which was regarded as admissible, not as suggested here, the contrary. Finally, this issue was addressed at trial. In the submissions advanced to the jury by counsel for the applicant, he suggested that the jury should consider their own experiences, searching their recollections for their earliest memories, and analysing what they could actually remember, and how far back their memories went. The judge, too, carefully addressed the issue of delay in all its relevant manifestations. The jury appeared to have acknowledged the force of a legitimate argument, because they acquitted the applicant of count one, which was directly linked to the complainant’s earliest memory of sexual abuse. They did not require, and would not have been assisted by the evidence of an expert.
30.
Having examined Professor Conway’s evidence closely, we have come to the conclusion that it should not be admitted, and would not have been admissible at either of these trials. Neither falls anywhere near the category of “exceptional case” referred to in
R v JH: R v TG.
Accordingly these applications are refused. | ```yaml
citation: '[2006] EWCA Crim 1404'
date: '2006-06-20'
judges:
- MRS JUSTICE RAFFERTY
- MR JUSTICE OPENSHAW
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
200805483/D5
Neutral Citation Number:
[2008] EWCA Crim 2751
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 4 November 2008
B e f o r e
:
MR JUSTICE RICHARDS
MR JUSTICE FOSKETT
HIS HONOUR JUDGE JACOBS
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A
v
M
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr C Row
appeared on behalf of the
Appellant
Mrs L Matthews
appeared on behalf of the
Crown
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J U D G M E N T
1.
LORD JUSTICE RICHARDS: The prosecution appeals with leave granted by this court under
section 58 of the Criminal Justice Act 2003
against a terminating ruling by His Honour Judge Darwall-Smith sitting at Bristol Crown Court. The defendant faced trial on an indictment containing four counts alleging unlawful sexual behaviour with child complainants. The two relevant counts for present purposes are count 3, engaging in sexual activity in the presence of a child contrary to
section 11(1) of the Sexual Offences Act 2003
, and count 4, causing or inciting a child under 13 to engage in sexual activity contrary to section 8(1) and (3) of the
Sexual Offences Act 2003
. The complainant in those counts is a nine year old boy, KW, who has learning difficulties. At the beginning of the trial, before the jury were sworn, the judge ruled that KW was not a competent witness. That is the ruling against which the prosecution appeals.
2.
The charges relate to an evening in November 2007 when KW's father and stepmother held an evening reception to which the defendant was invited to celebrate their marriage. The defendant is an openly gay man, who lived close to KW's home, had been befriended by KW's stepmother and often visited the home.
3.
On the evening of the reception he was seen to buy KW soft drinks regularly. The next morning KW told his father that during the reception the defendant had asked him to show him his "willy". KW repeated the allegation to his stepmother and step-brother and the police were contacted.
4.
An ABE interview of KW was conducted by the police without the presence of an intermediary. His learning difficulties are apparent in the interview but the essence of the account he gave was that he went to the toilet three times during the evening. During one of those visits the defendant showed him his penis and told KW to show the defendant his own penis. When KW did so the defendant told him it was gorgeous. During another visit the defendant tried to pull down KW's trousers but was pushed away by KW who then ran out of the toilets.
5.
When the defendant was interviewed by the police he denied the allegations. He said he had followed KW into the toilets and had watched him urinate. KW had shown him his penis and had played with it. The defendant believed that KW had been making sexual advances towards him. He denied having purchased drinks for KW in order to make him go frequently to the toilet. He gave answers indicating that he fancied KW but denying any impropriety.
6.
KW is subject to a statement of special educational needs in which he was described as presenting with a severe receptive language delay and a severe delay to his attention development. He had a very limited understanding of oral language and interpreting simple instructions. He had difficulties with classroom relationship skills and communication. According to the statement, he was unable to sustain concentration for longer than two to three minutes on any classroom task.
7.
With a view to assisting the Crown Court a report on him was prepared by Miss Cheryl Berriman, a registered intermediary and speech and language therapist. In a summary of her conclusions she said in the report that KW was a young man with moderate learning difficulties, including delayed and disordered language comprehension and expression. He was under investigation for the possibility of having Torette's Syndrome and/or Attention Deficit Hyper-activity Disorder. He had a fluctuating hearing loss. In her view he could give evidence at court but she recommended that an intermediary, namely herself, be used during the trial to enable effective communication and to improve the quality of the evidence given.
8.
The report referred to the statement of special educational needs and to KW's medical condition. It said that the results of a test of abstract language comprehension indicated that he had language understanding at around a five year level. He had difficulty understanding and answering why questions and how questions, in understanding some words fully, in predicting, in inference and reasoning, in problem solving, in sequencing and in memory, but he was able to understand and remember when the information was requested in context. The report also stated that he had difficulties in constructing sentences. It said too that during the assessment he maintained concentration for more than an hour, though this was a one-to-one situation and in a different situation he could find concentration a problem. He did not always answer a question directly, but gave information relating to the topic. He tended to jump in with an answer before taking time to work out what was actually being asked or before the questioner had finished speaking. He watched people's faces to guess the answer they wanted and would say what he thought they wanted to hear. He always attempted an answer rather than say he did not know or did not understand. He very much wanted to please and was easily led by questions that implied the questioner wanted a certain answer.
9.
All this led to the conclusion that he could give evidence in a trial but subject to a number of recommendations. In addition to recommendations about the use of an intermediary, allowing him to refresh his memory by watching his video the day before and so forth there were specific recommendations that questions were simple, asking one piece of information, that he was questioned in chronological order of events, that how and why questions be avoided, that leading questions be avoided and that the questioner should be prepared to ask the question again if it was possible, if he had jumped in too soon with an answer, should check he knew the answer and was not just guessing, should refocus him on the question if he was going away from the issue and should be prepared to ask questions again as an odd answer might indicate he had not heard correctly or not had processed exactly what was wanted.
10.
In an appendix to the report, after watching the ABE interview, Miss Berriman said that it was evident that KW did not understand the words truth and lies but was guessing. He did, however, understand right and wrong. He had the concepts not the vocabulary. The interview also confirmed to her that he had difficulty with sequencing events. He understood first, second and third, but had difficulty processing the information to put into those categories when going over events with no visual support. He would have difficulty clarifying any ambiguity around the significance of events. Questions involving sequencing of events should be avoided.
11.
The judge had that report before him and also heard oral evidence from Miss Berriman. He said he had read the transcript of KW's evidence but had not seen the DVD. We ourselves are in the same position. He also asked some questions of KW himself over the live link with a few interventions from Miss Berriman. That took some ten minutes in total. After this the judge ruled as follows:
"I am aware, and both parties agree, that competence is really the witness understanding what is being asked and whether the jury would understand the answers that would be given in answer to those questions.
I have to say that the questioning in relation to the police interview was faultless; there is no blame whatsoever attached the to questioner in this case. She did not have the benefit of the report by what would have been, and what is, the intermediary in this case but without it the officer did extremely well and brought out what was brought out in that case.
However, there are substantial difficulties in that interview and there are substantial difficulties, it seems to me, in the trial of a case in which KW would be a witness. I have to have in mind that there must be a situation where the defendant must be able to put his case. He has to put it in a way which is not just simply repeating the expressions that are given by the witness. There must be a real ability to challenge in a case such as this, and I am afraid I have come to the conclusion that the understanding and language difficulties of KW are not such that he could be a competent witness in a court of law, and, although indeed the special measures are designed to assist those in his unfortunate position, I am afraid he is in a situation where even that help is not going to deal with the difficulties that I foresee during the course of a trial with a jury who have to unravel, really, the difficulty that he has, this witness, of getting over the points and of dealing with the questions that are put to him.
Regrettably, I have come to the conclusion that he is not a competent witness."
12.
After further discussion the judge made a separate ruling that the DVD of KW's police interview should be excluded from evidence even if he were to be treated as a competent witness. The judge did not feel it safe for the interview to be placed before the jury. It was, however, somewhat artificial to ask the judge to rule on this as a separate issue because it is clear that his concerns about the interview were closely bound up with his views on the issue of competence.
13.
The correct approach to competence in a case of this kind is set out in
MacPherson
[2005] EWCA Crim 3605
which upheld a trial judge's ruling that a six and a half year girl complainant was competent to give evidence in relation to an allegation of indecent assault. In its judgment the court referred to the relevant provisions of the
Youth Justice and Criminal Evidence Act 1999
. In particular section 53(3) provides that a person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able (a) to understand questions put to him as a witness And (b) give answers to them which can be understood. Section 54(2) provides that it is for the party calling the witness to satisfy the court that on a balance of probabilities the witness is competent to give evidence.
14.
Paragraphs 25 to 27 of the judgment in
MacPherson
are in these terms:
"In the ordinary way that issue [of competence] should be determined before the witness is sworn, usually as a preliminary issue at the start of the trial. In cases such as this, the judge should watch the videotaped interview of the child witness and/or ask the child appropriate questions. The test of competence is clearly set out in the Act and it is as follows:
'(a) Can the witness understand questions put to him or her as a witness?
And (b) give answers which can be understood?'
Those are the plain words of section 53(1)(a) and (b) of
the 1999 Act
.
We agree with the submission put forward on behalf of the Crown by Mr Ward-Jackson in paragraph 7 of his written skeleton that the issue raised by paragraphs (a) and (b) of section 53(1) is one of understanding, that is to say: can the witness understand what is being asked and can the jury understand that witness's answers? That is precisely the test which the judge set himself i this case, and to which we have referred in the passage quoted from his ruling.
We also agree with Mr Ward-Jackson's submission that the words 'put to him as a witness' mean the equivalent of being 'asked of him in court.' So, it would be the case that an infant who can only communicate in baby language with its mother would not ordinarily be competent. But a young child like the witness in this case, who can speak and understand basic English with strangers would be competent."
15.
Paragraph 29 states that questions of credibility and reliability go to the weight of the evidence and are not relevant to competence. Paragraph 31 states that the question of competence can be kept under review, and the judge in that case had made it clear that he was going to keep it under review during the course of the complainant's evidence.
16.
Before the judge in the present case it is accepted by both sides that the relevant law is as set out in
MacPherson
and the judge was referred to that case. It is evident from the terms of his ruling that he had the principles in
MacPherson
well in mind.
17.
We should also mention
Powell
[2006] EWCA Crim 3
, another case on the competence of a young victim in relation to a charge of indecent assault. The court in
Powell
cited
MacPherson
and considered the application of the relevant principles in a different factual context but we do not think that it adds materially to
MacPherson
for present purposes.
18.
The prosecution case before us is not that the judge's ruling was wrong in law, or involved an error of law or of principle, but that it was a ruling that it was not reasonable for the judge to have made on the particular facts. Thus the case is put under
section 67(c)
of the
Criminal Justice Act 2003
rather than under paragraphs (a) or (b) of that section.
19.
The submission made by Mrs Matthews on behalf of the prosecution is that KW should have been given the opportunity to give evidence and to cope with questioning and to try to sequence events. Miss Berriman had provided evidence he might be able to sequence events with a visual aid. She had in mind three pieces of paper on which were written first, second and third. This, it is submitted, might have been an effective way of dealing with KW's difficulty in that respect. As to the judge's concerns about the defence being unable to put their case, it is submitted that defence counsel can challenge a witness even if leading questions are to be avoided, just as prosecuting counsel have to challenge in the course of evidence in reply concessions made by child witnesses in cross-examination. The competence of a witness is to be considered in the light of all the special measures available. The use of an intermediary was not opposed in this case. It is further said that whilst credibility and reliability are separate from competence it cannot be irrelevant that the witness is able to make an understandable unprompted complaint as to an unusual type of behaviour by a defendant, who, as it turns out, happens to want to engage in that type of behaviour with the witness. It is submitted that the special measures regime is designed to help vulnerable witness improve the quality of their evidence and that the ruling in this case effectively denied a vulnerable child complainant access to justice.
20.
In summary the grounds contend that the ruling was unreasonable and wrong, that it was premature and that insufficient consideration was given to the aid to communication available from the intermediary.
21.
There is a separate contention that the judge's ruling that the interview was inadmissible was itself unreasonable and wrong.
22.
As we have already made clear, it seems to us that the judge directed himself correctly in this case by reference to the principles set out in
MacPherson
. We are concerned here not with an issue of law or principle, but with the application of settled law to a particular factual situation. The question we have to decide is simply whether the judge's ruling was one that it was reasonably open for him to have made.
23.
We should stress that on the basis of the material we have seen the members of this court think it very likely that if they have been dealing with the matter at first instance they would have allowed KW to give evidence so as to see how things worked out in the course of cross-examination before making a final ruling on the issue of competence. It does not follow, however, that the judge acted unreasonably in taking a different approach. Our task in an appeal of this nature is to review the judge's decision by reference to the criterion of reasonableness, not to substitute our own view of how we would ourselves have proceeded.
24.
We have to bear in mind that the judge had the benefit of not only reading the transcript of KW's interview and the report of Miss Berriman, but also of hearing oral evidence from Miss Berriman and of speaking directly to KW over the video link. It is plain, as it seems to us, that he examined the matter with care. He was in a very good position to form the necessary judgment on KW's competence. This court will be slow to interfere with an assessment made by a judge in such circumstances. The interview did certainly give rise to some concerns about KW's ability to understand and answer what he was being asked, but, in our view, it would not have been enough in itself to justify a finding that he was not competent.
25.
However the judge also had to take account of the various reservations expressed in Miss Berriman's report and explored in the course of her oral evidence. She took the view that KW would be able to give evidence at the trial but subject to a substantial number of provisos embodied in the various recommendations to which we have referred. The judge plainly and understandably had concerns about those provisos. He was concerned, in particular, that if KW gave evidence it would not be possible to give effect to all the provisos if the rights of the defence were to be respected and if the defence were to have a fair opportunity to challenge the evidence. It was his considered view that the difficulties KW would have in getting over the points and dealing with the questions put to him would be simply too great. In reaching this view he had, of course, the additional benefit of having talked to KW himself.
26.
Even though we ourselves might have reached a different conclusion, it seems to us impossible to say that the conclusion reached by the judge was one not reasonably open to him on the evidence before him. He reached it, moreover, with proper regard to the special measures that would be available if KW were to give evidence, and having reached that conclusion he was entitled, as it seems to us, to make a ruling immediately rather than adopt the wait and see approach adopted by the prosecution. If a judge concludes that a witness is or may be competent then certainly the right course is to allow the witness to give evidence whilst the question of competence is kept under review as indicated in
MacPherson
, but if, as in this case, the judge concludes that a witness is not competent it is not unreasonable for him to rule accordingly at the outset rather than to allow the witness to give evidence, which, on this hypothesis, the judge will have already decided the witness not to be competent to give. If, as we have held, the judge was entitled to conclude that KW was not a competent witness the challenge to his further ruling that the DVD of KW's interview should be excluded falls away. In any event, his ruling would be entirely sustainable.
27.
For those reasons we dismiss the prosecution's appeal against the terminating ruling. It follows, subject to anything that counsel may wish to say to us, that pursuant to
section 61(3) of the Criminal Justice Act 2003
we must order that the defendant be acquitted of the offences which are the subject of the appeal, namely counts 3 and 4 on the indictment.
28.
MRS MATTHEWS: Yes, my Lord, I give that understanding.
29.
LORD JUSTICE RICHARDS: As to the trial on counts 1 and 2 that is a matter for the Crown and the Crown Court to deal with.
30.
MRS MATTHEWS: We will review the situation.
31.
LORD JUSTICE RICHARDS: There is nothing that we need say on any of that?
32.
MRS MATTHEWS: No, thank you, my Lord. | ```yaml
citation: '[2008] EWCA Crim 2751'
date: '2008-11-04'
judges:
- MR JUSTICE RICHARDS
- MR JUSTICE FOSKETT
- HIS HONOUR JUDGE JACOBS
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2018] EWCA Crim 2165
Case No:
201704240/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 21 September 2018
B e f o r e
:
LORD JUSTICE DAVIS
MRS JUSTICE SIMLER DBE
MR JUSTICE DOVE
- - - - - - - - - - - - - - - -
R E G I N A
v
JAMES LARKIN
- - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Email:
[email protected]
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr A Waterman QC
appeared on behalf of the
Appellant
Mr D Enoch QC
appeared on behalf of the
Crown
- - - - - - - - - - - - - - - -
J U D G M E N T
(As Approved by the 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 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 DAVIS:
Introduction
1.
This appeal against sentence arises in the result of the appellant's conviction on a count of manslaughter. His conviction followed a trial at the Crown Court at Sheffield before Andrews J and a jury, the verdict being delivered on 9 November 2016. A few days later he was sentenced by the trial judge to a term of 12 years' imprisonment on the count of manslaughter. In addition, he was also facing a count of conspiracy to pervert the course of justice in respect of which he was also convicted; and a one year concurrent sentence was imposed on that.
2.
There was a co-accused, a woman called Laura Marie Ostle, who was convicted of the count of conspiracy to pervert the course of justice. She was sentenced to a term of 18 months' imprisonment. The appeal against sentence on the part of this appellant is brought by leave of the single judge.
Background facts
3.
The background facts, relatively shortly stated, is this. Christopher Larkin was born on 30 June 2014. His mother was the co-accused, Laura Marie Ostle, who was 19 years old at the time. The birth was by way of Caesarean section under general anaesthetic. The appellant was named as the father on the birth certificate. He had been in a relationship with the co-accused since 2012. However, that relationship had at least temporarily come to an end and there was a possibility that the appellant was not himself the father of Christopher.
4.
The appellant and the co-accused also had another child, who may be called R, then aged two years. The appellant was also named on the birth certificate as the father of R. In fact, the co-accused had already been pregnant when the two started their relationship. The actuality was that the appellant regarded himself, and acted nobly, as the father of both children.
5.
The co-accused herself had been adopted as a baby and her adoptive parents and their subsequent partners had been closely involved with helping look after both R and Christopher.
6.
On 16 September 2014 at 7.22 in the morning, the ambulance service was called to the address where the appellant and the co-accused lived. This was consequent upon a report of a baby who had stopped breathing. Upon arrival the ambulance crew found that Christopher was in cardiac arrest. He was resuscitated and taken to hospital. The co-accused travelled with Christopher whilst the appellant stayed at home with R. Christopher was taken to the hospital's children's intensive care unit. A scan revealed swelling and bleeding to the brain and retinal hemorrhaging. The injury was considered to be non-accidental and both parents were arrested. Tragically, Christopher was unable to survive the injuries he had suffered and he died at 1.18 am on 18 September 2014.
7.
A postmortem report subsequently conducted revealed that he had died of a head injury consistent with baby shaking or a sudden impact on a soft surface. A full pathology report had stated that there was no medical condition present which contributed to his death. Specialists in fact recorded two episodes of bleeding, the most recent being the cause of death. Thus there had been a brain bleed, as it was said, timed some one to three months before the final incident. The historic retinal hemorrhaging was, however, unlikely to be the causation of the historic bleeding due to Christopher having been born by Caesarean section.
8.
The appellant and the co-accused were interviewed. Both denied being responsible for the injury, claiming that Christopher had been suffering medical problems since he was born. It was also said that Christopher had been suffering from apnoea attacks and it was felt that these were in some way linked to his death.
9.
On 23 September 2014 the appellant went to the police station stating that he had more things that he wanted to tell the police about what had happened. (He had already told the co-accused and one of her adoptive parents certain things by that point and had been asked to leave in consequence.) He was to say to the police that on the morning Christopher had collapsed and he had accidentally banged Christopher's head on the side of the cot after slipping on a changing mat. This had caused Christopher to stop breathing and then the appellant shook him to try to get him breathing again. When further interviewed, he declined to comment.
10.
Subsequently at trial it was suggested, although the appellant did not himself give evidence, that he may have shaken Christopher because he was in a panic that Christopher was not moving.
11.
All phones belonging to the appellant and the co-accused were examined and data deleted from them were recovered. It was considered significant that within a few minutes of the ambulance setting off to the hospital the co-accused was texting the appellant warning him that the police were on their way and telling him what to say to the police. She instructed him amongst other things to say that Christopher had been with them in their room and that they were asleep when it all started. This was not true, as Christopher's moses basket had in fact been in the next door room. She asked him to sort out Christopher's blankets and to put his moses basket in their room. In addition, it emerged that text messages had also been sent by the co-accused to a man called Smalley prior to Christopher's collapse - the prosecution's theory at trial was that this could have been the motive for the appellant losing his temper while handling Christopher borne out of jealousy; but the judge in due course in terms rejected that theory.
12.
During the investigation, it had become clear that the co-accused had a second mobile phone which was unaccounted for. This was never produced. Ultimately, the co-accused did hand over the missing phone to the police which revealed that data had been deleted from it.
13.
When the trial judge came to pass sentence, she did so in conspicuously full terms, her sentencing remarks covering 19 pages of transcript. The appellant himself was effectively a man of good character having but one trifling conviction for an offence of dishonesty some years earlier. The judge was fully to recount the evidence relating to his conduct as a father of R and Christopher. That evidence had been to the effect that he had been an excellent and caring father to R, indeed one of the witnesses, whose evidence the judge accepted in this regard, had described him as a "brilliant dad". The evidence also was, as the judge accepted, that he had looked after Christopher no less well up until the time of that incident.
Sentencing remarks of the trial Judge
14.
At the time when the judge had to pass sentence, there was no relevant definitive guideline on sentencing in manslaughter cases issued by the Sentencing Council. There has recently been published a guideline for such sentences; but that only applies to cases of manslaughter where sentence is passed on or after 1 November 2018. However, we are told by Mr Waterman that there were cited to the judge two particular authorities - authorities which have been cited to us and to which we will come - which do provide some degree of assistance in assessing the appropriate level of sentencing in manslaughter cases of this kind involving babies.
15.
As we have said, the judge expressly rejected the prosecution's suggestion that what happened had been borne out of jealousy. Equally, the suggestion was rejected, as indeed the jury must have rejected, that the appellant had acted in some way in panic as a result of Christopher appearing to be still. Further, for the purposes of passing the overall sentence, the judge, as she was perfectly entitled to do, elected to treat the conviction on the count of conspiracy to pervert the course of justice as an aggravating factor to be reflected in the overall length of the sentence.
16.
At the outset of her remarks, and having accepted that the appellant had been shown to be a devoted and loving father to Christopher and R and indeed their principal carer, the judge said this:
"This is, by any standards, a most unusual case. Tragic though it undoubtedly is, it is far removed from the sadly all too common picture of a helpless child being subjected to sustained abuse over their short lifetime and then eventually killed by an uncaring or sadistic step-parent. On the contrary, the evidence in this case, without exception, portrays you as kind, loving and caring towards the children and treating them both alike..."
The judge then said this:
"Perhaps the most extraordinary feature of the case is the dynamic of your relationship with Laura Ostle."
The judge then went on to spell out that extraordinary feature. That was to the effect that the co-accused Laura Ostle was the wholly dominant figure in the relationship, frequently treating the appellant dismissively. In the words of the judge, "she made use of you". The appellant seems prepared to have tolerated this and the overall upshot was that he effectively had been left as the carer both of R and of Christopher whilst the co-accused pursued a lifestyle which suited her. The judge then went on to say this at a later stage of her sentencing remarks:
"Leaving aside the events of the 16th September 2014, there was no evidence of your ever taking out your anger or frustration on either of the children, or even so much as raising your voice towards them when you had had a falling out with Laura. By all accounts R was a very happy, well-adjusted child who was always clean and well cared for, and Christopher was equally well looked after by you."
One feature of the case related to the health of Christopher. He had indeed suffered from apnoea involving on occasion breathing fits. Concern had also been expressed by the co-accused's parents and their partners about his general development. As we have said, it was subsequently ascertained as a consequence of the postmortem that Christopher at some stage had previously suffered some form of brain injury, albeit not likely to have been occasioned at birth. As to that the judge expressly found that there was no evidence to indicate that the appellant himself had been responsible for that. But the point remained, as the judge observed, that by 16 September 2014 the appellant knew that for whatever reason all was not well with Christopher and that he was vulnerable therefore, over and above the fact that he was only an eleven-and-a-half-week-old baby at the time.
17.
As to the circumstances involving Christopher's actual death, the judge found on the evidence that the force needed to cause the injury sustained by Christopher would be "outside the range of normal handling or rough play". She rejected, as we have said, the suggestion that this might have been a shake in panic.
18.
It transpired that the appellant had, after the events in question, himself given a demonstration of what he said had happened to a particular individual called Mrs Thacker who was to give evidence at the trial. The judge summarised Mrs Thacker's evidence of the demonstration given to her by the appellant in these terms, stating that her evidence accorded with the expert evidence:
"Those of us who saw her repeat that demonstration when she gave her evidence in court and she was struggling to find the words to describe and convey the strength of the physical action for the benefit of the tape, will find it very difficult to erase that graphic image from our memories. She was clearly shocked and appalled. It was quite obvious to her and to us from her evidence, that what you were demonstrating was not the action of a man gripped by panic endeavouring to save a life, but the action of a man who had been driven by anger, frustration, exasperation, or a combination of all three to completely lose his self-control."
It is the recollection of Mr Enoch QC, who appears and appeared for the prosecution, that the demonstration given by Mrs Thacker ran to about 10 seconds in terms of length of time; and, as she was to say, the appellant in giving that demonstration to her only stopped when she (Mrs Thacker) asked him to.
19.
The judge did not in fact make a finding as to the length of the actual shaking that had occurred. The expert evidence in fact was that a shaking of two or three seconds would have been capable of causing the injury that Christopher suffered: although of course it was entirely possible that that shaking was longer than that, especially, it appears, in the light of Mrs Thacker's evidence.
20.
The judge also did not make a specific finding in her sentencing remarks as to just what level of intent she assessed the appellant as having at the critical time. But it is plain enough, we consider, from her overall remarks that there was no intent on the part of the appellant to cause harm falling just short of grievous bodily harm. It was simply not such a case. Rather, this appears to have been a case more akin to a situation where the appellant violently shook Christopher when he had lost control, as the judge found, through frustration or exasperation or anger, heedless that harm might be caused.
21.
As to the conspiracy matter, the judge found in her sentencing remarks that the moving spirit behind all that was the co-accused Laura; the appellant in effect doing what she told him to do and to say. This in particular had involved the false statement that the Moses basket had been in their bedroom and his then moving it there for that purpose. Moreover, the appellant had also kept quiet about the co-accused's second phone, even though he knew that the police were looking for it.
22.
Overall, as part of the features of the case, the position was that the appellant and the co-accused had given an untruthful account to police and there had been various false explanations given from time to time.
Discussion and disposal
23.
In such circumstances, the principal aggravating features were that this was a very young child (indeed a baby) and further this was a baby with known health issues. Moreover, lies were told and there was the conspiracy to pervert the course of justice. Aside from the relatively short-lived nature of the shaking, the mitigation essentially that this was a man of good character and that what had happened here was out of character, in that otherwise he had been a very good and caring father both to R and to Christopher.
24.
Sentencing in manslaughter cases of this kind has always been difficult: although it may be hoped that at least some of those difficulties will be removed when the new sentencing guideline comes into operation. However, we consider that the two authorities referred (as we were told) to the judge and referred to us are of considerable assistance in this regard. They are the cases of
Burridge
[2011] 2 Cr.App.R (S) 27,
[2010] EWCA Crim 2847
and
Attorney General's Reference No 125 of 2010 (Draper
) [2011] 2 Cr.App.R (S) 97.
25.
In the former case, that is to say that of
Burridge
, it was made clear that following the enactment of Schedule 21 to the
Criminal Justice Act 2003
crimes which resulted in death should be treated more seriously than heretofore had been the case, and that was equally so in cases of manslaughter involving babies or young children. The resulting sentence therefore had to reflect the gravity of the fact of there being a death by reason of an unlawful act. In
Burridge
, this was also said at paragraph 133:
"We say immediately that the range of sentences imposed for manslaughter of a small child is wide. This is because there are very real variations in the gravity of the conduct that leads to death and, furthermore, the intent leading to a conviction for manslaughter also covers a broad range, from the intent to commit a minor assault up to an intent falling just short of that necessary for murder. The assessment of these features is obviously highly relevant when considering culpability in a given case..."
A like approach was also adopted and confirmed in the
Draper
case.
26.
Mr Waterman QC who appeared at trial on behalf of the appellant and appears before us on his behalf today, placed particular emphasis on those two cases. He acknowledges, rightly, that each case is of course fact and circumstance specific. Nevertheless, he draws attention to the facts and circumstances of
Burridge
. In that case, a constitution of this court had substituted a conviction of manslaughter for a conviction of murder at trial. Having so substituted a conviction for manslaughter, this court imposed a sentence of 10 years' imprisonment. That was a case where the baby had been eight weeks old at the time of death. Further, wholly unlike the present case, it was found that the intent had been an intent just short of that necessary for murder. Further, it was a feature of that case that the defendant had been involved in at least one, if not two, previous occasions where the defendant had fractured the ribs of the baby victim. Moreover, the defendant in the case of
Burridge
had acted as he did in temper in circumstances where he had previously been warned by his family about this and advised to seek help. None of these features, stresses Mr Waterman, were present in the instant case. Yet, the appellant here, he said, has received a sentence two years longer than the sentence imposed in the case of
Burridge
: when on any view the circumstances of
Burridge
were significantly worse than the circumstances of the present case.
27.
So far as the
Draper
case is concerned, the facts are a little closer to the present case. That involved the fatal shaking of a four-month-old baby when the defendant was in a bad mood. It was not an "end of the tether" case. In the case of
Draper
there had in fact been one previous incident of violence involving the defendant, albeit it had caused no damage on that occasion. In
Draper
lies had also been told. In that case, on a plea of guilty, a constitution of this court increased the sentence imposed by the trial judge to one of five years' imprisonment against the background of a plea at the first opportunity. The court in
Draper
stressed that
Burridge
itself was not to be regarded as a guideline case for sentencing purposes. Mr Waterman submits that the sentencing outcome in
Draper
also is entirely out of kilter with the sentencing outcome in the present case.
28.
We accept these submissions. There can be no understating the tragic consequences of the appellant's actions. He will have to live with them. But he did what he did in a temporary fit of frustration, exasperation or anger or a combination of all three. It is the case, as we have said, that Christopher was just eleven-and-a-half weeks old and moreover had the further vulnerabilities arising from his ailments. Lies were told and there was also the conspiracy to pervert the course of justice. On the other hand, there was no intent to cause injury falling just short of grievous bodily harm and no previous history of violence. To the contrary, he had been an excellent and caring father and the incident itself seems to have taken place over a relatively few seconds, although as we have said no express finding was made in that regard. Further, there were the mitigating factors to which we have made reference.
29.
It is to be noted that in a number of significant respects the judge had made findings which were positively sympathetic to and favourable to this appellant. Having done that, the judge gave no reason for reaching a conclusion as she did with regard to sentence and gave no reasons for explaining why this case merited a significantly more serious sentence than had been imposed either in the case of
Burridge
or in the case of
Draper
.
Conclusion
30.
We do appreciate that this judge had had the benefit of seeing and hearing the evidence unfold at trial. Nevertheless, we conclude that a total sentence of 12 years' imprisonment was significantly too long. Such a sentence would reflect a degree of culpability on the part of the appellant which simply was not there on the facts of the present case. We consider that the sentence imposed was excessive. Accordingly, we quash the sentence of 12 years' imprisonment on count 1 relating to manslaughter and substitute for it a sentence of eight years' imprisonment which we consider appropriate to the facts and circumstances of this particular case and which, we emphasise, also takes into account the criminality arising under count 2 on the indictment. The concurrent sentence on count 2 will stand. The total sentence therefore is now one of eight years' imprisonment. The appeal is allowed accordingly.
Epiq Europe Ltd
hereby certify that the above is an accurate and complete record of the proceedings or part thereof. | ```yaml
citation: '[2018] EWCA Crim 2165'
date: '2018-09-21'
judges:
- LORD JUSTICE DAVIS
- MRS JUSTICE SIMLER DBE
- MR JUSTICE DOVE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200602726/B5
Neutral Citation Number:
[2006] EWCA Crim 1975
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Date:
Friday, 7th July 2006
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE CRANE
MRS JUSTICE DOBBS DBE
- - - - - - -
R E G I N A
-v-
H
INTERLOCUTORY APPLICATION UNDER SECTION 9(11) OF THE CRIMINAL JUSTICE ACT 1987
- - - - - - -
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 REES QC
appeared on behalf of the APPLICANT
MISS J KORNER QC & MR F FERGUSON
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE MAURICE KAY: The applicant, to whom we shall refer as H, is charged with offences of fraud and corruption, the trial of which is due to begin on 25th September.
2.
The prosecution is being undertaken by the Serious Fraud Office and the provisions of
Part 1
of the
Criminal Justice Act 1987
apply.
3.
The preparatory hearing began on 23rd May 2006. At that time there was before the court an application by the defence for disclosure, pursuant to the Criminal Proceedings and Investigations Act 1996. It came about in this way. The prosecution case is there had been a series of invoice frauds whereby H and another defendant (her husband), through five companies controlled by them, had been paid for supplying far more goods to the victim company than had in fact been delivered. The prosecution also alleged that corrupt payments had been made by H and her husband, to three employees of the victim company in order to facilitate the fraud. Initially, it was asserted by the prosecution that the sums fraudulently obtained totalled some £15 million or thereabouts. Later, the accountant witness relied upon by the Serious Fraud Office concluded that that was an excessive figure and the true figure was more in the region of £8 million, mainly because of deficiencies in the victim company's book keeping and accounting systems.
4.
The requested disclosure relates to dealings between other suppliers and the victim company. What H seeks to establish is the possibility that the shortcomings of the system in the victim company may show that in relation to the other suppliers, in respect of whom no fraud is alleged, there may be comparable discrepancies.
5.
The decision of the judge is to be found in this short paragraph from his written reasons for refusing to order disclosure:
"I do not consider that the defence can show that they have reasonable cause to believe that the material requested might reasonably be expected to assist the defence and for that reason, I agree that this is a trawl by the defence to see if anything might come from the enquiry."
6.
H now seeks to appeal that decision. The judge refused leave to appeal and the Registrar referred the matter to this Court, as presently constituted, to consider leave to appeal and to determine the appeal, if leave be granted.
7.
The written submissions of the parties in advance of the hearing were limited to the merits of such an appeal. However, at the commencement of the hearing we raised with counsel the question as to whether we had jurisdiction to hear such an appeal. At this stage it is necessary to have regard to the statutory provisions.
Section 7(1) of the Criminal Justice Act 1987
provides:
"Where it appears to a judge...that the evidence on an indictment reveals a case of fraud of such seriousness or complexity that substantial benefits are likely to accrue from...a preparatory hearing... for the purpose of-
(a) identifying issues which are likely to be material to the
verdicts of the jury
...;
(b) assisting their comprehension of
any such
issues;
(c)
expediting the proceedings before the jury
;
(d) assisting the judge's management of the trial, or
(e) considering questions as to the severance or joinder of charges, he may order that such a hearing shall be held."
8.
Section 9(1)
provides that at the preparatory hearing the judge may exercise any of the powers specified in
section 9
.
Section 9(3)
provides:
"He may determine ...
(b) any question as to the admissibility of evidence;
(c) any other question of law relating to the case; (d) any question as to the severance or joinder of charges."
9.
Appeals from interlocutory rulings made pursuant to those powers are governed by
section 9(11)
, which provides:
"An appeal shall lie to the Court of Appeal from any order or ruling of a judge under subsection (3)(b) or (c) above, but only with the leave of the judge or the Court of Appeal."
10.
The authorities on the interplay between those provisions demonstrate that a strict approach has been taken to the question of what does and does not fall within a preparatory hearing and what can and cannot therefore be said to give rise to an interlocutory appeal. The same is true of the corresponding provisions in the Criminal Proceedings and Investigations Act 1996. It is necessary to refer to some of the authorities.
11.
The tone was set in the case of
R v Gunarwardena
[1990] 91 Cr App R 55
. That concerned an attempt to appeal a refusal to stay a prosecution as an abuse of process. It was held by this Court that such a refusal had not occurred within the preparatory hearing and was therefore not within
section 7(1)
, which was a necessary precondition to the jurisdiction of this Court under
section 9
. Watkins LJ said this at page 60:
"In our judgment the words of
section 7
, 8 and
9
themselves plainly demonstrate the object of Parliament in creating the preparatory hearing. It must have been, according to the language used, we think, the intention of Parliament, in introducing this novel procedure- novel in that it has not been introduced in respect of any other kind of criminal trial- to ensure that it be used for a specific purpose or purposes. It deliberately so enacted, in our view, the provisions of subsection (1) of
section 7
in order to make it clear that it was creating this new and very valuable procedure for the specified purposes and no other.
We cannot bring ourselves to believe that Parliament can possibly, by using the clear words which they have used in
section 7
and
9
, to allow a preparatory hearing to commence for a certain specified purpose have intended to permit, once a preparatory hearing for that purpose is in being, arguments to range around all manner of issues which cannot be said to relate to any specified purposes."
That approach was to inform the judgment of a differently constituted Court in the case of
R v Moore
(unreported, 5th February 1991). That concerned pre-trial rulings which had included a refusal to quash a count in the indictment and a refusal to put the prosecution to its election as between two counts. Lord Lane CJ, said this (page 60):
"Can it be said that the matters sought to be raised by the defendants in the present case fall within the ambit of
section 7(1)
? ... It seems to us that the fact that a possible incidental effect of the purposes of the application does find itself within those subdivisions (a) to (d) is not one of the purposes of those provisions. It is the word 'purpose' by which the situation is governed. In our judgment, it is improper and a misconstruction to redraft the wording so as to substitute some words such 'consequences' for the word 'purpose'. So far as the motion to quash is concerned, it does not, in our judgment, come within those four subdivisions. Basing ourselves on
Gunarwardena
, by which we are bound and with which we respectfully agree, in our judgment the prosecution's argument succeeds. There is no jurisdictional basis upon which this Court consider can entertain the appeal."
12.
Thus far the authorities had not addressed the jurisdictional problem in the context of a case where the decision sought to be appealed was a decision concerning disclosure. That appears to have arisen for the first time in the case of
R v Maxwell
(unreported, 9th February 1995). In that well-known trial, the trial judge had declined to order disclosure of documents which were in the possession, not of the Serious Fraud Office but of the firm of accountants who were the administrators of a number of companies in the Maxwell Group.
13.
On appeal to this Court, the jurisdictional point was taken. Swinton Thomas LJ said at pages 7 to 8 of the transcript:
"... as Lord Lane pointed out in
Moore
, the court is not looking to possible consequences but to the purpose of the order. In our judgment it is quite impossible to conclude that an application by a defendant for discovery of documents or an order of the court on such an application has one of those purposes. An application for disclosure of documents is a matter which is incidental to very many criminal trials. We do not speculate as to the purpose of the defence in applying for disclosure of such documents as have not already been disclosed to them. However, at its best, it must be in the hope that they might show something which is favourable to the defence... it is not the purpose of the defence which governs the operation of s 7. The relevant purpose is that of the court or the judge. The court's purpose in adjudicating on an application for disclosure of documents cannot, certainly in the circumstances of this case, fall within any of the provisions set out in
section 7(1)
. The Court's purpose was to determine whether the Serious Fraud Office should be compelled to disclose to the defence documents in the possession of the [accountants]."
14.
What these authorities illustrate, among other things, is the fact that whilst there was a preparatory hearing in being, not every ruling that is sought to be made at that time technically forms part of the preparatory hearing. Further authority for that proposition and a further example of the strict approach can be seen in
R v Hedworth
[1997] 1 Cr App R 421.
15.
The most recent consideration of the jurisdictional problem is to be found in
R v Crown Prosecution Service
[2005] EWCA Crim 2342
. That was a disclosure case, in the sense that the order sought to be appealed was in the form of a refusal to require the transcription of a huge amount of material that was in the possession of the prosecution. Giving the judgment of this Court, Rose LJ said at paragraphs 15 to 16:
"In our judgment the clear purpose of the ruling in July 2004, as expressed by the judge at the beginning of the ruling and later in its course, was to procure a fair trial by prescribing the manner in which disclosure should be made by the prosecution. This was an approach to which the judge in his May 2005 ruling expressly adhered, when rejecting the prosecution contention that there had been a material change of circumstances within section 40(5).
Such a purpose may have one or more of the consequences referred to in section 29(2). But it does not, in our judgment, give rise to any right of appeal under section 35. Rulings to procure a fair trial come in many guises and may be made under the court's inherent jurisdiction before or during a trial of any case, whether complex or not. But they do not give rise to a right of appeal before the end of the trial. If it had been Parliament's intention that they should, it could and no doubt would have said so; there would have been no need to specify the four particular purposes in section 29(2) to which reference has already been made; and it would not have been necessary to add to section 29(2), by subsequent amendment by the
Criminal Justice Act 2003 section 310(4)
, the fifth purpose to which we have not previously referred in relation to questions of severance or joinder, because a ruling for such a purpose would clearly be within the ambit of a general purpose to achieve a fair trial. We conclude that we have no jurisdiction to entertain this appeal.In our judgment, the clear purpose of the ruling in July 2004, as expressed by the judge at the beginning of the ruling and later in its course was to procure a fair trial by prescribing the manner in which disclosure should be made by the prosecution. This was an approach to which the judge in his May 2005 ruling expressly adhered when rejecting the prosecution contention that there had been a material change of circumstances under section 45. Such a purpose may have one or more of the consequences referred to in section 29(2). But it is does not in our judgment give any rise to any right of appeal under section 35 ruling to procure a fair trial, come in many guises and may be made under the court's inherent jurisdiction before or during a trial of any case, whether complex or not. But they do not give rise to a right of appeal before the end of the trial. If it had been Parliament's intention that they should, it could and no doubt would have said so. There would have been no need to specify the four particulars purposes in section 29(2) to which reference has already been made, and it would not have been necessary to add section 29(2) by subsequent amendment by the
Criminal Justice Act 2003, section 310(4)
, the fifth purpose to which we have not previously referred in relation to the questions of joinder a ruling for such a purpose clearly been the ambit of general purpose to achieve a fair trial. We conclude that we have no jurisdiction to entertain this appeal."
(This was a case under the provisions of the Criminal Procedure and Investigation Act 1996).
16.
On behalf of H, Mr Rees QC recognises that these authorities present him with a difficult task. He seeks to distinguish
Maxwell
by emphasising the words in the passage which we have set out - "certainly not in the circumstances of this case". He submits that the case is not authority for the more broadly stated proposition at the beginning of the passage. We do not consider that the judgment read as a whole is susceptible to that interpretation. Moreover, that conclusion is fortified by the decision in the
Crown Prosecution Service
case. Mr Rees endeavours to find a way through his difficulties by formulating the purpose of the hearing and the ruling with which it concluded on the issue of disclosure as being one for the purpose of "assisting the judge's management of the trial." He also seeks to rely on subparagraphs (a) and (b) of
section 7(1)
.
17.
Towards the end of his submissions he focused increasingly on the relationship between disclosure and case management and invited us to consider the present matter in the context of a change of culture evidenced by, among other things,
The Control and Management of Heavy Fraud and Other Complex Cases Protocol, issued on 22nd March 2005 and The Disclosure Protocol for the Control and Management of Unused Material in the Crown Court
, issued on 20th February 2006. He also referred to the
Criminal Procedure Rules 2005
. We entirely accept that there has been a cultural change. However, what it has not brought about is any relabelling of what is and is not part of a preparatory hearing.
18.
We have come to the conclusion that the approach in the authorities to which we have referred, especially
Maxwell
and
Crown Prosecution Service
, together with a very brief comment of Rose LJ in the case of
R v G and B
[2004] 2 Cr App R 37
at paragraph 3, establish, beyond doubt, that we do not have jurisdiction to hear the proposed appeal. Quite simply the decision sought to be appealed did not form part of the preparatory hearing, as that has been construed in the authorities to which we have referred. Accordingly, given the interplay of
section 7
and
section 9
, we are without jurisdiction. In those circumstances we were first minded to refuse leave to appeal. However, upon reconsideration and for reasons that will become obvious, we shall grant leave but dismiss the appeal.
19.
We are concerned at the relative elusiveness of this jurisprudence. As we have indicated, it was only when we raised the subject at the outset this morning that experienced counsel on both sides, with the assistance of their supporting casts, familiarised themselves with
Maxwell
and the difficulties that have arisen. One of the reasons for this may be that the passages in
Archbold
dealing with the matter are, to some extent, understated. In particular, they do not specifically address the issue of disclosure when they are addressing other subjects where jurisdiction will be absent. We draw this to the attention of the editors.
20.
MR REES: My Lord, I do have instructions to apply to this Court to certify a point of law of general public importance in this matter and ask the Court for leave to appeal to the House of Lords. The question is a simple question and can be framed in various ways; we framed it in this way:
"Can an order made pursuant to an application under
section 8 of the Criminal Procedure and Investigations Act 1996
be subject to appeal under
section 9 of the Criminal Justice Act 1987
?"
Easily stated but not easily, in our submission, answered. As your Lordship said earlier in today's argument, disclosure is such an important matter when considering the question as to whether if it intended to be incorporated the House of Lords -- Parliament would have changed
section 7
to incorporate. Those are my instructions, I make that application.
21.
LORD JUSTICE MAURICE KAY: Have you anything to say, Miss Korner?
22.
MISS KORNER: No, my Lord.
(The Bench Conferred)
23.
LORD JUSTICE MAURICE KAY: I do not think we question the House of Lords has jurisdiction in a suitable case.
24.
MR REES: One of the reasons I make the application at this stage, my Lord, and we seek from your Lordship is that we have to petition the House of Lords and that clearly would cause a problem with the trial date.
25.
LORD JUSTICE MAURICE KAY: Indeed the argument against you is there is now stacked up a fairly consistent line of authority in this Court. In those circumstances, can it properly be said to raise a point of general public importance?
26.
MR REES: All I would say is that disclosure is becoming increasingly important and a wrong decision by a trial judge prior to trial in front of the jury can have serious repercussions, very serious repercussions. It could result in the whole of the proceedings in long complex cases being rendered in effect invalid and therefore there is a matter of general public importance specifically in relation to matters of disclosure. I cannot take it any further than that. Your Lordship referred to the jurisprudence and the general nature of the importance of the matter.
27.
LORD JUSTICE MAURICE KAY: Miss Korner, do you want to say anything?
28.
MISS KORNER: My Lord, I think I ought to say something now. It is, in our submission, clear that the question of whether disclosure does come within the provisions, each of the appeal sections has been considered, as your Lordship pointed out on at least two if not three occasions by differently constituted courts. Each time the answer has been Parliament had intended for disclosure to come within the section they would have said so. In those circumstances we would submit, particularly in respect of the fact that this trial is now due to start after 4 years on September 23 that this is not a case where leave -- not a matter of public importance.
29.
MR JUSTICE CRANE: Those are perhaps reasons against leave to appeal, but do they make it a less important issue?
30.
MISS KORNER: My Lord, I can only say this. In one sense disclosure is being thrown back as it was originally under the new protocol to the prosecution, as opposed to the judge. It is the prosecution who make the decision and the judge is only brought into it now if there is a real argument about it. How important it is, my Lord we say it is really a matter should be dealt with on the normal appeal process. If the learned judge at trial makes an error, then one form or other, that will be subject of an appeal at the end of trial. That is we would submit probably where it belongs. It is not an easy decision I can say that. My sympathies are somewhat to an extent that it should be or could be part of the appeal process from preparatory hearing but it is clear, had Parliament intended it should happen, it would have said so.
31.
MRS JUSTICE DOBBS: In effect this decision has not shut them out in any event.
32.
MISS KORNER: No, exactly.
33.
LORD JUSTICE MAURICE KAY: We will just retire.
(Short Adjournment)
34.
LORD JUSTICE MAURICE KAY: Mr Rees, we feel that we would be wrong to refuse you a certificate. We are not happy with the question that you have phrased. It seems to us that the question rather than being exclusively disclosure phrased, ought to address the conceptual approach in
Moore
and the later cases. What we would like is if you and Miss Korner consider the question and come up with another draft, with a view to submitting it on paper within the next seven days and then we would reconvene early one morning the following week to give you our decision. It will not come to you as any surprise that we certainly will not be giving you leave to appeal. We do not feel able to deny you a certificate as whilst the line of authority is consistent, there may be another way of looking at it, and it has not been considered in the House of Lords before. Although, in
H
a disclosure issue was considered on the interlocutory appeal in the House of Lords, no point was taken as to jurisdiction in that case, either in this Court, or there.
35.
MR REES: We may argue it is because the wording is plain and it does cover such matters.
36.
LORD JUSTICE MAURICE KAY: Somebody else may argue that sometimes counsel do not read all the authorities.
37.
MR REES: We will seek to agree a question with the prosecution, perhaps we can make a start on the first draft.
38.
LORD JUSTICE MAURICE KAY: If you will do that and we give you until next Friday to submit the question or two if you are disagreeing and there will be a morning the following week where we do not anticipate receiving any further submissions, but the matter has to be pronounced in open court, so we shall convene one morning when personal attendance will not be necessary. If you are elsewhere, no doubt somebody will be here. Thank you very much. | ```yaml
citation: '[2006] EWCA Crim 1975'
date: '2006-07-07'
judges:
- INTERLOCUTORY APPLICATION UNDER SECTION 9(11) OF THE CRIMINAL JUSTICE ACT 1987
- LORD JUSTICE MAURICE KAY
- MR JUSTICE CRANE
- MRS JUSTICE DOBBS DBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
201803082/A4
Neutral Citation Number:
[2018] EWCA Crim 2194
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 21 August 2018
B e f o r e
:
LORD JUSTICE SIMON
MR JUSTICE FOSKETT
MR JUSTICE WARBY
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
- - - - - - - - - - - - - - - - - - - - -
R E G I N A
v
CHARLIE SARGENT
- - - - - - - - - - - - - - - - - - - - -
Mr T Scohofield
appeared on behalf of the
Attorney General
Mr J Oliveira-Agnew
appeared on behalf of the
Offender
- - - - - - - - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: [email protected] (Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
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.
LORD JUSTICE SIMON:
THIS PAGE IS NOT INTENTIONALLY LEFT BLANK
1.
The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. The prohibition applies unless waived or lifted in accordance with
section 3
of
the Act
.
2.
This is an application, brought by the Solicitor General, under
section 36
of the
Criminal Justice Act 1988
, for leave to refer a sentence which he considers to be unduly lenient. The sentence was passed on the offender on 29 June 2018 in the Crown Court sitting at Guildford. On 29 May the offender had pleaded guilty to five offences, counts 2, 6, 7, 8 and 9 of sexual activity with a child under the age of 16, contrary to
section 9
of the
Sexual Offences Act 2003
. The offences involved digital penetration of the victim's vagina, penile penetration of the vaginal and penile penetration of the mouth. In addition, he pleaded guilty to a single offence (count 5) of causing or inciting a child to engage in sexual activity involving digital penetration of the vagina, contrary to
section 10
of
the 2003 Act
.
3.
On 29 June he was sentenced by Mr Recorder Hardy QC to concurrent terms of 2 years' imprisonment, suspended for 2 years with three requirements. First, to perform 150 hours of unpaid work. Second, to complete a rehabilitation activity requirement for a maximum of 35 days and third, to participant in an accredited programme for a maximum of 100 days. The Recorder also made a sexual harm prevention order for a period of 10 years in terms that do not call for further comment.
4.
The offender is now aged 23. The offences took place from about January 2015 until June 2016. He was 19 when the offending began, and his victim (who we will refer to as "S") was aged 14. S was the cousin of the offender's then girlfriend, A. Although the victim was a willing participant in the sexual relationship, the offender was in control of the trajectory of what developed into a secret and unlawful relationship.
5.
It began with kissing, but soon progressed to the offender penetrating the victim's vagina with his fingers, the exchange of sexually explicit text messages in which the offender encouraged S to masturbate and the offender soliciting explicit images of her. Thereafter, they solicited sexual images of each other with the offender introducing her to pornography. When S was 15 and the offender was 20 they engaged in unprotected vaginal intercourse on three occasions. The victim also performed oral sex on the offender on numerous occasions and occasionally performed oral sex on S. All the sexual activity took place in the home of the offender's girlfriend.
6.
He had first met S in 2012 when she was 11 and he was 16 or 17. When the offences came to light in June 2016, the offender had been in a relationship with his girlfriend, A, for approximately four-and-a-half years. Owing to his relationship with A he was a frequent visitor at her family home and was treated as part of the family. The victim was A's cousin and she too was a frequent and welcome visitor to A's home. Between 2012 and the end of 2014, the offender and the victim had an apparently normal relationship. However from at least January 2015, the nature of the relationship changed. This coincided with the victim forming a teenage crush on the offender and the offender's relationship with A beginning to fail.
7.
In November 2014 the offender and the victim held hands when in the back of a car. From the end of November 2014 the offender and S (now aged 14) began to exchange messages via WhatsApp and other social media. They said how much they enjoyed seeing each other and expressed their love for each other, questioning what kind of love it was.
8.
They kissed for the first time in January 2015. S was sleeping on a mattress in the sitting room and the offender slept next to her. A was also in the room at the time. The kiss was surreptitious and he felt her breasts under her top and penetrated her vagina with one or two fingers. That gave rise to the charge under count 2.
9.
Afterwards they discussed via WhatsApp how "amazing" the kiss had been. The offender expressed regret that they had kissed but if the regret was genuine, it was short lived because they kissed again on another occasion. Again, when A was asleep. Thereafter they would kiss whenever they could.
10.
In March and April 2015 they exchanged messages in which they expressed their fear of being discovered, and S discussed how she felt when the offender had penetrated her vagina with his fingers. He then began to encourage her to masturbate. By mid-April the content of the messages showed that the relationship had progressed to her touching his erect penis.
11.
Each of them engaged in sexual text messaging and they began exchanging sexually explicit images of themselves via Snapchat which allows for images to be sent to a recipient for a few seconds before automatically deleting. S willingly sent a topless image of herself and then images of her vagina at the offender's request. He in turn sent her images of his erect penis.
12.
By May 2015 the offender began to encourage her to watch pornography and sent her messages containing hyperlinks to websites on the Internet. He then asked her to send him a link to "something you think I'd like" and to send him an image, still or moving, of her masturbating. She complied with this request.
13.
On 21 May 2015 the victim sent messages that revealed that she had touched the offender's erect penis (count 7). On 22 July the offender sent a message saying: "Can I see your fingers inside of you" (count 5) and she sent him an image. This pattern of conduct and messaging each other, while masturbating, telling each other what they were doing and how much they wanted each other to be doing it, as well as watching pornography and requesting indecent images, became routine.
14.
On 29 August 2015, S sent a message to the offender that she wanted to suck his penis. Two days later they mentioned, for the first time, the possibility of having vaginal intercourse, and the offender told her in graphic terms that he wanted this too and to have his penis sucked by her. She then sent him an indecent image of herself by Snapchat before commencing a FaceTime session.
15.
They occasionally sent messages saying they wanted to stop. By the end of September 2015 S believed that she was in love with the offender and seeing him with his girlfriend A made her jealous. Ten days later they began messaging again in the same vein as before.
16.
In December 2015 the offender told S how much he liked her touching his penis and how next time "it" (his penis) would be in her mouth.
17.
In the New Year (2016) the victim messaged the offender indicating that she wanted to see him the following weekend and stay with him. His reply indicated, in explicit terms, his wish for vaginal intercourse which she replied "amazing plan".
18.
In early February 2016 they had vaginal sexual intercourse for the first time (count 8). The victim was now 15 years and 3 months old and the offender was 20 years and 6 months old. He was sleeping in A's bedroom, while A and her brother were downstairs.
19.
S went to A's bedroom in the night and they had oral sex each on the other. They then had sexual intercourse without using contraception. The victim then performed oral sex on the offender until he ejaculated on her face (count 9).
20.
In messages exchanged afterwards each expressed regret at what they had done and they decided to stop. However, on 21 February 2016, the victim suggested anal sex and the offender commented that he had taken her virginity. At the end of March 2016 they had vaginal sexual intercourse again in the early hours of the morning. The offender was in bed with A in her bedroom and the victim was sleeping downstairs in the living room. A's younger brother was also asleep in the living room. The offender went downstairs and initiated intercourse with S. He did not use contraception and ejaculated when she performed oral sex on him. Afterwards he went back upstairs to join A in her bed leaving the victim feeling used.
21.
There was one further incident of the victim performing oral sex on the offender which happened in A's bedroom before the offender's criminal conduct was discovered. On that occasion the offender ejaculated into his own hand. The offender penetrated the victim's vagina with his fingers on multiple occasions from February 2016 (count 6).
22.
The relationship was discovered on 9 June 2016. One of A's brothers walked into his sister's bedroom without knocking and discovered the offender with his penis semi-erect and S on her hands and knees. They had just finished having vaginal sexual intercourse. The offender told A's brother that it was "not what it looked like". Unsurprisingly he was unceremoniously ejected from the house pleading with A's brother not to tell his mother.
23.
During the afternoon of 9 June and on the following day, the offender telephoned his girlfriend A in tears and confessed that he had been having sex with S behind her back. He apologised profusely. However, he also texted S and told her to deny everything and to delete all of the messages they had sent to each other, although as we have noted the Snapchat images had automatically deleted.
24.
Over several weeks the families of A and S met to decide what to do about the discovery. Initially they decided not to report the offending but changed their mind. On 6 September they reported what had occurred to the police and an investigation began.
25.
The offender was arrested on 18 October 2016 and interviewed. He remained silent throughout.
26.
On 20 January 2017 he was interviewed again. He confirmed that he knew the victim and that he had met her through his relationship with A. He said he had formed a friendship with her when she was 14 and he was the only friend she had. He said that she used to confide in him. When asked whether the relationship had changed into a sexual relationship, he stopped answering questions. He claimed not to remember the messages he had exchanged with the victim even when they were read out to him, and said he could not bear to hear them. He admitted kissing the victim in January 2015 but as the interview went on and the messages were read out he became distressed.
27.
The victim provided a victim impact statement in which she said, among other things:
I wish it had never happened ... My heart aches because this is my first everything and it has been taken away.
28.
She also described how it affected her relationship with her family and its effect on her own life:
When I think about the future I think I will get better but there are times at school, especially during sex education lessons and being told saying 'No' is OK. In the lessons I feel like I am alone because no one has experienced what I have and no one knows what happened.
I have not had a proper boyfriend but I do know they are not all like Charlie. I will steer well clear of boys like him but I believe that I will find a boy who is not like him.
29.
The offender had no previous convictions, reprimands, warnings or cautions recorded against him. He was a man of good character. The Recorder had a pre-sentence report in which the maker of the report made the following observations about the offender:
There is a clear sexual interest in pubescent females... placing his own needs and desires above those of [S]... There is a clear disregard for the harm caused to [S]... [S] is likely to suffer harm on a long-term basis in relation to forming appropriate adult relationships and being able to trust males ...
30.
The report concluded that the offender presented a high risk of serious harm to children by the commission of sexual offences, but that the risk might be lowered by a treatment programme for which he was assessed as suitable. The writer of the report had some concerns because although he had presented well to her in interview, he presented earlier to a colleague who attended his home as arrogant and lacking in remorse.
31.
At the sentencing hearing it was submitted on the offender's behalf that the hostility to this colleague had been initiated by the offender's mother. However, the incident caused the writer of the report to question the offender's "level of respect for the conditions and restrictions imposed on him and whether he would be likely to engage effectively". She felt that the offender might have been seeking to manipulate her by falsely representing himself in a way that was inaccurate.
32.
When it came to the sentence the Recorder referred to the victim impact statement and observed:
... fortunately your offending behaviour has not had too great a deleterious effect upon her...
33.
To the extent that there was no serious psychological harm, as described in the guideline, and that S had shown a remarkable degree of resilience and maturity, we would agree with this observation. However, these offences are designed to protect children and they are damaging to the welfare of children in ways that cannot always be immediately recognised.
34.
The offender did not plead guilty at the first opportunity. On 3 November 2017 a defence statement was served in which he denied each of the offences and claimed that the victim had invented the allegations of sexual activity owing to a teenage crush. He claimed that the WhatsApp messages represented imagined fantasies as opposed to the reality of what happened and denied that A's brother had discovered him "in the act".
35.
On 29 May 2018 the case was listed for trial before HHJ Black, and the offender pleaded guilty to counts 2, 5, 6, 7, 8 and 9 on a full-facts basis. There had been no earlier indication that he had intended to plead guilty.
36.
On 29 June 2018 the Recorder passed the sentence that we have described. In addition, an adverse costs order made in the sum of £1500 with a victim surcharge.
37.
In passing sentence, the Recorder observed that although this was neither a defence nor mitigation, the victim had been responsive to the offender's sexual approaches and consequently, to the extent that there had been grooming, it had been "minimal". We do not consider that this necessarily followed. There was a 5-year difference in their ages and this was likely to be reflected in their emotional maturity. We will return later in this judgment to the question of grooming.
38.
For the Solicitor General, Mr Schofield submits that the Recorder erred in not sentencing on the basis that it was a category 1A offence as set out at page 45 of the Definitive Guidelines for offences under
section 9
and 10 of
the 2003 Act
. It was plainly category 1 harm, since there had been penetration of the victim's vagina and penile penetration of her mouth. It was category A culpability, he submitted, because of the offender grooming the victim and soliciting sexual images from her. In any event, even if the culpability factors were of an insufficient degree to place the offending clearly within category A, there were sufficient significant aggravating factors to justify moving outside category B, as indicated on page 48 of the guidelines. There was the period over which the offending took place and the fact that the offender had ejaculated twice. One of the offences had taken place in a room where A's brother was sleeping. The offender had instructed S to delete messages they had exchanged and had told her not to tell anyone.
39.
Mr Schofield further submits that although the Recorder was right to pass concurrent sentences for each offence, the overall sentence should have reflected the number of counts and the fact that counts 5, 6, 7, 8 and 9 were "multiple offending counts". Finally, he draws attention to the lateness of the plea and to the consequent limited credit to which the offender was entitled to that plea, not more than 10%.
40.
For the offender Mr Oliveira-Agnew makes the broad submission that the Recorder had considered all the matters that were relevant to the sentence. He had formed a view of those matters to which he was entitled and passed a proportionate sentence.
41.
To the extent that there were two factors in dispute (the grooming and whether the victim felt used), he submitted as to grooming, that was this was a matter that was considered in some detail by the Recorder, and he drew attention to the fact that there had in fact been a 2 years' platonic relationship between them in a familial relationship which had developed. He submitted this was not a case of grooming. To the extent that the victim felt used, although there were images exchanged they had been sent by Snapchat which had been deleted automatically. None was ever found by the police.
42.
Mr Oliveira-Agnew submitted that the Recorder had concluded that the correct characterisation of the offence was category 1 harm and category B culpability. On that basis the starting point was a term of 12 months.
43.
He also pointed to this passage in the sentencing remarks, at page 53 of the transcript:
... I am unpersuaded that this case does in fact and law fall into what is called category 1A for sentencing purposes. If I am wrong in that, I regard this as a case where the interests of justice in the broadest sense permit me to step outside the guideline and to impose upon you a lower sentence than would otherwise be the case. I do so for the reasons I have already set out, and because I do not believe it is in the public interest for you to serve a sentence of imprisonment when you are of hitherto good character, are employed in a professional capacity, have recently been promoted in your employment, and can be required by order of this court to attend rigorous programmes designed to ensure your better behaviour and to ensure that there is no repetition of this conduct.
44.
The Recorder noted that there were sometimes cases before the court that are borderline cases so far as sentencing categories are concerned and, after referring to the offending not having too great a deleterious effect on the victims said this:
... so I repeat, should these sentencing remarks be read elsewhere ... either this case just does not get into category 1A, or if it does I regard the rigour of the sentencing range unjust...
45.
Mr Oliveira-Agnew also submits that the pre-sentence report indicated that there was a low risk of re-offending and that there was nothing in any of the reports that indicated that the offender had a particular interest in young girls rather than specifically S. This was, he submitted, a one-off offence. Finally, he submitted that if the sentences were unduly lenient there should be no alteration to the sentence.
46.
We have considered these submissions. By reference to the guidelines for
section 9
and
section 10
offences, this was plainly harm category 1: there was penetration of the vagina and penetration of the mouth. There is however an issue as to whether it was an offence of greater culpability A or lesser culpability B. So far as the factors which would apply here, culpability A may be characterised by "a significant degree of planning, grooming behaviour used against the victim" and "sexual images of the victim recorded, retained, solicited or shared". The question whether the culpability falls within category A or B makes a considerable difference. If the offending is properly categorised as category 1A offending the starting point is 5 years, with a range of 4 to 10 years. If it is categorised as category 1B offending, then the starting point is 1 year with a range between a high level community order and a term of 2 years' custody. There is no overlap in the range. As we have noted, the Recorder concluded that the offending did not fall within category 1A but that if it did the interests of justice permitted him to pass a sentence outside the range.
47.
In our view, the offending was somewhere between category A and B in terms of culpability. The offender encouraged his victim to engage in the sexual activity and at least to that extent there was an element of grooming, albeit this was after a 2-year period of non-sexual friendship. The relationship was also marked by the taking of indecent images. The Recorder observed that the exchange of "photographs of an intimate nature ... is a common phenomenon nowadays among young people." However, that observation has to be seen in the light of the disparity in the ages of the offender and his victim.
48.
To the extent to which these matters bore on his culpability must also be assessed by reference to other higher culpability factors set out in the guidelines, for example: a defendant acting together with others to commit the offence and the use of threats including blackmail. There was nothing of comparable seriousness here. However, there were, as the Solicitor General submits, a number of aggravating circumstances, most materially ejaculation and the risk of pregnancy such that S was required to go with her mother to seek assistance on the afternoon of 9 June 2016 from a chemist. There was also the extended period over which the offending took place between 21 May 2015 and 9 June 2016, and the number of offences which took place during that period. There was against that the mitigation he was a man of previous good character and his expressions of remorse were regarded by the Recorder as being genuine. Importantly there was also belatedly his plea of guilty, albeit on the day of trial which entitled the offender to at least some credit.
49.
The first question then is whether the Recorder was right to impose a custodial sentence of a length which allowed him to suspend its operation. In our view, he was not. If he gave maximum credit for the plea of 10%, he must have adopted the sentence of 27 months (2 years and 3 months) before credit for the plea. In our view, such a sentence was too short.
50.
The appropriate starting point should, in our judgment, have been a sentence of more than 3 years, and credit for the personal mitigation would have reduced the sentence but not to 27 months. It follows that the sentence passed, although it provided for compliance, with onerous conditions, was, in our view, an unduly lenient sentence. We have nevertheless concluded that we should not increase the sentence in the circumstances of the case. The Recorder went carefully through the sentencing exercise. He recognised that he might be thought to be sentencing outside the guidelines as we have so found. But his carefully articulated reasons for passing what was a merciful sentence, to which have referred in part, are entitled to a measure of respect. Accordingly, although we grant leave to refer this matter to this court we do not vary or increase the severity of the sentence. | ```yaml
citation: '[2018] EWCA Crim 2194'
date: '2018-08-21'
judges:
- LORD JUSTICE SIMON
- MR JUSTICE FOSKETT
- MR JUSTICE WARBY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No: 200400286 A7/AG REF 004/2004
Neutral Citation Number:- [2004] EWCA Crim 1197
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 4 May 2004
B E F O R E:
LORD JUSTICE LATHAM
MRS JUSTICE COX
COMMON SERJEANT
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 4 OF 2004
JOSEPH GREEN
- - - - - - -
Computer Aided Transcript of the Palantype 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 PEARCE
appeared on behalf of the APPELLANT
MISS Z JOHNSON
appeared on behalf of the CROWN
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE LATHAM: This is an applications by HM Attorney General for leave to refer to this court the sentence imposed on the offender on 12 December 2003 of 4 years' imprisonment for offences of aggravated burglary and two counts of robbery of which he was convicted at the Kingston Crown Court. We give leave to the Attorney General to refer this sentence.
2.
The offender is 32 years of age. He has not served a previous custodial sentence. On 29 January 2003, together with two others, the offender went to a block of flats in Sutton. They rang the door bell. One of the men inside the flat went to answer. When he opened the door he was confronted by the three men, two of whom were armed with knives; one of those was the offender. They demanded money. The person who opened the door was pushed against the wall. When he denied having any money, he was pushed to one side as the intruders entered the flat and went upstairs.
3.
The offender then confronted the other occupant of the flat, grabbed him by the throat, pushed him down onto the bed, threatened him with a knife and ordered him to remove his watch. He demanded money and when the man denied that he had any, the offender attempted to slash at his face, threatening to stab his eye out. He terrified him. One of the other intruders ripped a gold chain from the man's neck. There were further threats, in particular in relation to the cannabis which it was apparent the two occupants of the flat were smoking. When it had been identified one of the three intruders took it. There were persistent demands for money.
4.
The offender then turned his attention to the other occupant of the flat whom he pushed against the wall and pressed a knife to the side of his face towards his mouth. The intruders then picked up a set of keys, took a portable television set, an electronic game machine, mobile telephones, jewellery and the cannabis. They then left. They had clearly terrified both occupants of that flat.
5.
Fortunately the offender and those with him were seen escaping from the flat and getting into a car. The registration number was taken by a local shopkeeper which enabled the police to go to the offender's home address where he was arrested. He was identified later by both occupants at an identification parade.
6.
At the trial he sought to blame those in the flat for burglary, saying that all he had intended to do was to obtain items which had been stolen from him. The offender had 13 previous convictions, but had never received a custodial sentence. In a pre-sentence report he denied having carried a knife. The probation officer assessed him as posing a risk of harm to known adults but not to the public at large.
7.
This was clearly a planned offence by three men who went armed to the premises in question. The use of the knife did cause injury although it was a relatively superficial injury. The offence took place during the hours of darkness.
8.
Miss Johnson, on behalf of the Attorney General, has referred us to three authorities, which it is submitted provide guidance to this court as to the appropriate level of sentencing for offences such as these. The first is the case of
Attorney General's Ref No 35 of 2001
[2002] 1 Cr App R (S) 44
. In that case the court was confronted with an offender who had burgled the home of a man aged 72 with a knife. He had been sentenced to three and a half years' imprisonment after a plea of guilty. In giving judgment the court said:
"What would a proper sentence have been? In our view, no less than six years on a plea of guilty, that is to say, giving credit (and substantial credit) for the plea of guilty."
9.
In
R v Harrison
[2002] 1 Cr App R (S) 107
this court upheld a sentence of 5 years' imprisonment imposed following a plea of guilty for an offence of aggravated burglary (where the offender was carrying a knife). In
R v Brady
[2000] 1 Cr App R (S) 410
this court upheld a sentence of 7 years' imprisonment for aggravated burglary on premises occupied by a 70-year old. From those authorities counsel for the Attorney General derives the submission that the appropriate sentence in this case, where there was no credit to be given for a plea of guilty, must have been in the region of 8 years. With that submission we agree. The question therefore is, what should this court do?
10.
There is no doubt that the sentence of 4 years' imprisonment was unduly lenient, but we have to take into account the matter of double jeopardy. In the present circumstances we also take into account, as Mr Pearce on behalf of the offender has submitted we should, the material set out in a letter from the offender which we have had an opportunity to read.
11.
It is plain that the result of this offence has destroyed the offender's life. He has lost his wife and children in that his marriage has now come to an end and he has not been given an opportunity to see his children whilst he has been in prison. It is clear from what he says that, whilst in prison, he has impressed. He is now an enhanced prisoner; and there was an incident in which he behaved with conspicuous bravery. That enables us to say that we can properly discount from the sentence of 8 years' imprisonment, which would otherwise be appropriate, to a sentence of 6 years' imprisonment. We consider that that is the most that we can do by way of mitigating the appropriate sentence in this case.
12.
Accordingly the sentence we impose is one of 6 years' imprisonment. | ```yaml
citation: '[2004] EWCA Crim 1197'
date: '2004-05-04'
judges:
- LORD JUSTICE LATHAM
- MRS JUSTICE COX
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200506340/A8
Neutral Citation Number:
[2006] EWCA Crim 728
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Wednesday, 15th March 2006
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE MCKINNON
MR JUSTICE LANGSTAFF
- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 116 OF 2005
- - - - - - -
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MISS S WHITEHOUSE
appeared on behalf of the ATTORNEY GENERAL
MR N R STELLING
appeared on behalf of the OFFENDER
- - - - - - -
J U D G M E N T
1.
LORD JUSTICE MAURICE KAY: We grant leave to the Attorney General who brings this matter before the court pursuant to
section 36 of the Criminal Justice Act 1988
. The offender is now 44 years of age. On 11th November 2005 in the Crown Court at Warwick he was convicted by a jury of two offences: count 1, supplying a controlled drug of class A, and, count 2, possession of a controlled drug of class A with intent to supply. The drug in question was ecstasy.
2.
The background facts were as follows. On 31st July 2004 the offender attended an all night rave, convened under the title "Global Gathering", which was held at Upper Marston Airfield near Stratford upon Avon. He was due to work behind the bar in a tent with some others, including a man called Twentyman. The offender took 530 ecstasy tablets into the bar area with him. The street value of those tablets was in the region of £2,500. Once in that area, he passed a bag containing 261 of the tablets to Twentyman. It was that act which provided the factual basis for count 1.
3.
The suspicions of security guards were aroused. The offender and Twentyman were taken away from the bar area and searched. A bag containing 269 ecstasy tablets was found in a bag belonging to the offender. That provided the factual basis for count 2. In addition, he had on his possession £100 in cash in £10 notes.
4.
In police interview the offender denied that he had passed any drugs to Twentyman. He said that he had no knowledge of the tablets that had been found in his own bag.
5.
Twentyman never faced trial. Sadly, he died in November 2004.
6.
At the trial of the offender his defence was that Twentyman alone had been responsible for the presence of the drugs. That defence was rejected by the jury.
7.
Upon the delivery of the verdicts Mr Stelling, on behalf of the offender, invited the judge to adjourn for the preparation of a pre-sentence report. However, the judge seized the initiative and started to refer to the possibility of a suspended sentence. It seems that what drove him to that consideration was the fact that the offender is the father of a daughter aged 17 and a son aged 14, both of whom are at an important stage of their education. The offender is the sole carer of the children, their mother and he having parted company some ten years or so ago. He has brought the two children up alone since that time.
8.
After a brief adjournment and some submissions the judge proceeded to pass suspended sentences of two years' imprisonment in relation to each offence. In so doing he said this:
"I have absolutely no doubt in my mind that you took those drugs with Twentyman into that all-night festival to sell. ... There was the best part of £1,300 profit in that for you that night. Twentyman may well have been the instigator but you, I am satisfied, fell in with that scheme pretty promptly.
What has to be spelt out is who the likely customers were going to be. The likely customers ... were young people. Those tablets not only can be a stimulant but they can also kill. ... You, the father of a 14 and 17 year old, in my judgment, were, with Twentyman, prepared to supply and sell those drugs to people as young as your own children. Absolutely reprehensible.
... You are 43 years old. You have no convictions for drugs. I treat you as a man of good character. You have an excellent work record and people have come here to speak highly of you. You are in employment and that employment is guaranteed until April of next year ... But on 31st August you jeopardised all that.
These offences were committed whilst the old law was in place and there is a power for me to suspend such sentences if I find that there are exceptional circumstances."
9.
The judge went on to find exceptional circumstances related to the domestic factors and particularly the interests of the two children. The 14 year old son has had learning difficulties, but under the care of the offender has improved significantly and is now in mainstream education, and, as we speak, about to commence his GCSEs. The 17 year old daughter is due to sit her A levels this year and hopes to proceed to university. The judge attached the utmost significance to all of that. Nevertheless, he described the offender as a "greedy fool" and passed the suspended sentences to which we have referred.
10.
On behalf of the Attorney General Miss Whitehouse submits that there is an aggravating factor in this case, namely the sheer volume of ecstasy tablets that were in the possession of the offender on the night of his arrest. She refers to the two mitigating factors as a lack of previous convictions relating to drugs and the fact that the offender is the sole carer of his two teenage children.
11.
We observe that the judge was disposed to treat the offender as a man of good character. In fact, he has a history of minor offences, in modern times almost entirely related to driving, but we observe that on 4th January last year he was sentenced to three months' imprisonment for driving whilst disqualified and must have been separated from his children for some weeks as a result of that sentence.
12.
Miss Whitehouse draws our attention to a number of authorities which have been concerned with cases similar in one way or another to the present case so far as the actual offences were concerned. She refers to the cases of
Jones
(1994) 15 Cr App R(S) 856,
Antonio Paparella
[1996] 2 Cr App R(S) 165,
Hendry
[2002] 1 Cr App R(S) 126
and
Attorney
General's Reference No 136 of 2002 (Anthony John Richardson)
[2003] 2 Cr App R(S) 92. In
Jones
a sentence of four years for the supply of 27 ecstasy tablets was considered appropriate. That was after a trial. In
Paparella
the sentence was one of three and a half years. That involved a supply of ecstasy at a nightclub. The amount of tablets numbered 20 and there had been a plea of guilty. In
Hendry
the appellant was a doorman at a public house. He pleaded guilty to three supplies to undercover police officers. His sentence was reduced from five years to four years. In the reference of
Richardson
a non-custodial sentence involving the supply of ecstasy to friends and associates was considered to merit a sentence of three and a half years following a plea of guilty, but that was reduced to one of two years on the double jeopardy principle that applies in references such as this.
13.
It seems to us, having perused the observations of the judge, first, when he raised the question of a suspended sentence with counsel and, secondly, when he was passing sentence, that he succumbed to the error of starting with a desire to suspend the sentence before considering what the appropriate length of sentence was. Of course, under the regime that existed at the time no sentence in excess of two years could be lawfully suspended.
14.
In our judgment, following a trial and having regard to the quantity of tablets, the circumstances and venue of the offences and the motive of greed, the appropriate sentence in a case such as this was one of five years' imprisonment. That, we apprehend, is entirely consistent with the range of sentences considered in the authorities to which we have referred. If we were passing sentence at the conclusion of the trial that took place that is the sentence which we would have imposed. We have no doubt that the sentence of two years' imprisonment, whether suspended or not, was unduly lenient and to a very substantial extent. Having regard to the principle of double jeopardy, we shall reduce the sentence from one of five years in the case of this offender to one of three years and nine months. Accordingly, the Attorney's reference and application are granted.
15.
LORD JUSTICE MAURICE KAY: Miss Whitehouse, do we have to make any order whereby the new sentence is brought to the attention of the offender?
16.
MISS WHITEHOUSE: My Lord, yes. The normal order is that the offender should surrender to a police station within 24 hours because the sentence only takes effect from that time. If your Lordships would order that. Otherwise it takes effect from the time he was sentenced.
17.
LORD JUSTICE MAURICE KAY: Having regard to his domestic circumstances, would there be any problem if we said he must surrender within seven days?
18.
MISS WHITEHOUSE: Not at all. No, my Lord. The sentence to take effect from the time he surrenders.
19.
LORD JUSTICE MAURICE KAY: That would allow him a little time to make arrangements. We will say seven days. Thank you both very much. | ```yaml
citation: '[2006] EWCA Crim 728'
date: '2006-03-15'
judges:
- LORD JUSTICE MAURICE KAY
- MR JUSTICE MCKINNON
- MR JUSTICE LANGSTAFF
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Neutral Citation Number:
[2023] EWCA Crim 1205
CASE NO 202301143/A1
Royal Courts of Justice
Strand
London
WC2A 2LL
Tuesday, 10 October 2023
Before:
LORD JUSTICE STUART-SMITH
MR JUSTICE CHOUDHURY
THE RECORDER OF NOTTINGHAM
HER HONOUR JUDGE SHANT KC
(Sitting as a Judge of the CACD)
REX
V
ANDREW MELLIS
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
MR R ELLIOTT
appeared on behalf of the Applicant
_________
J U D G M E N T
MR JUSTICE CHOUDHURY:
The provisions of the
Sexual Offences (Amendment) Act 1992
apply to this offence. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with
section 3
of
the Act
.
1.
On 8 August 2022 in the Crown Court at Lewes, Her Honour Judge Christine Laing presiding, the applicant, then aged 57, was convicted of the following offences: three counts of rape (counts 1 to 3) against the first victim, to whom we shall refer as V1, and one count of rape (count 4) against the second victim, to whom we shall refer as V2.
2.
On 6 March 2023 the applicant was sentenced to 10 years' imprisonment on counts 1 and 2; an extended sentence of 18 years on count 3, comprising a custodial element of 14 years and an extended licence period of four years; and a sentence of four years on count 4, all to run concurrently.
3.
The applicant was in a relationship with V1 from 2013 to 2014. On 8 February 2014, V1 informed the police that the applicant had physically assaulted her and had anally raped her during the course of their relationship. The applicant was arrested by the police but denied any offending. V1 subsequently withdrew her complaint, and the matter went no further at that stage.
4.
On 24 April 2017, V2, who had no connection with V1, attended a police station and stated that she had been anally raped by the applicant in June 2016. V2 had met the applicant on a dating site and when the applicant said he wanted to have anal sex, V2 made it clear that she did not want to do that. On an occasion when the applicant and V2 had been engaging in consensual vaginal intercourse, the applicant suddenly turned the complainant over and penetrated her anus with his penis. V2 screamed and cried but the applicant told her to "stay down". Once the applicant had ejaculated, he began cuddling V2 who could not stop crying. V2 never saw the applicant again.
5.
The applicant was interviewed by the police and maintained that any sexual contact would have been entirely consensual.
6.
Police officers subsequently went back to V1 regarding her initial complaint and asked whether she was willing to be interviewed. She was, and this led to the charges under counts 1 to 3. Count 1 related to an occasion when the applicant had walked out of a social event and so V1 had to stay at the home of his brother and sister-in-law. The following day the applicant was angry and accused V1 of sleeping with his brother. The applicant pushed V1 onto a sofa at home and removed the clothing on the lower part of her body. He penetrated her vagina with his penis. The applicant thereafter pushed V1 to one side and went to bed. V1 also complained that the applicant had anally raped her a number of times, this being reflected in counts 2 and 3 - the latter being a multiple incident count. The applicant would force himself upon V1 and hold her down. Initially she would scream, and she resisted being penetrated anally, but each time the applicant carried on. As the abuse continued V1 would not scream and protest as she formed the opinion that the applicant enjoyed her resistance.
7.
The applicant was interviewed by the police again on 17 April 2019 in relation to the offending against V1. The applicant maintained that all sexual intercourse with V1 had been consensual.
8.
The applicant continued to maintain his innocence after conviction, asserting that the two victims must have "got together" to concoct their story.
9.
By the time of sentencing, the Judge had a psychiatric report from a Dr Ley, a pre-sentence report and an addendum to the pre-sentence report produced in light of Dr Ley's report. Having referred to the definition of ‘dangerousness’ in section 229 of the Criminal Justice Act 2003, Dr Ley concluded that:
"Considering the above, Mr Mellis does not appear to have an extensive past offending history and no previous sexual offences. However, he has been convicted of very serious sexual offences against 2 different women whose accounts share similarities suggesting a pattern of behaviour. I note, however, he is in a current relationship and his partner supported him during the trial. However, Mr Mellis reports they did not have sex since allegations were made against him. Nevertheless, given the convictions, I would be concerned about the risk of further sexual offences if Mr Mellis were in an intimate relationship with a woman."
10.
The addendum to the pre-sentence report stated as follows:
"1.10.
In my opinion as long as Mr Mellis remains fully compliant with treatment, continues to maintain abstinence from both alcohol and illicit drugs and that he engages meaningfully with the talking therapy or other psychological treatment whilst serving his sentence
, in my view he is unlikely to commit a further schedule 15 offence in the future
. However, should he return to substance misuse on release and/or become uncompliant with treatment, the risk of him committing a further schedule 15 offence in the future is
considerably raised
." (Emphasis in original)
11.
Although neither of these reports conclusively stated that the applicant was dangerous, the Judge concluded that he was and passed an extended sentence on count 3 in the terms described.
12.
It should be noted that the sentence was initially structured as follows: 10 years for each of counts 1 to 3 to run concurrently and four years for count 4 to run consecutively, making a total of 14 years. However, the Judge adjusted the structure during a post-sentence discussion to make all sentences run concurrently with an uplift on count 3 from 10 to 14 years to reflect the overall criminality involved. That sentence on count 3 was then subject to a four-year extended licence period.
13.
The applicant, represented by Mr Elliott of counsel, as he was below, appeals on three grounds. First, it is contended that the Judge should not have found that he was a dangerous offender. He should have given detailed reasons for not following the reports that were available. Second, the sentence was manifestly excessive in that there was a failure properly to consider the principle of totality and the starting point was too high in relation to V1. Thirdly, the Judge did not sufficiently consider the applicant's mitigation, including the delay in the case, and the effect of the delay on the applicant's mental health and physical health.
14.
In refusing to grant leave, the single Judge said this:
i.
"It was undisputed that the overall sentencing category these offences was 2B: (8 years starting point and a range of 7 to 9 years). There were three counts which concerned the applicant's partner: count 1 was a single count of vaginal rape and counts 2 and 3 involved at least four incidents of anal rape. Count 4 was a further count of anal rape, perpetrated on an unconnected victim who the defendant had met via a dating website. These were brutal, frightening, and painful offences committed regardless of the degree of opposition and upset/fear shown by the victims.
ii.
The proposed grounds of appeal are that i) the Judge's decision as to dangerousness was unsustainable and it was vitiated by a lack of reasoning, and ii) the overall sentence was manifestly excessive.
iii.
As the applicant's counsel accepts, the Judge was entitled to disagree with the authors of the reports, provided a sufficient and credible explanation was provided. In my judgment that occurred in this case, given the Judge set out:
iv.
"I'm afraid I disagree with the probation writer in her assessment of risk and, to some extent, Dr Ley as well; although he did seem to accept there was risk. The underlying issue of your personality disorder, in my judgment, is the principal factor for risk. [...] it is, no doubt, exacerbated by your use of alcohol and drugs in the past and I am mindful that if successfully addressed the overall risk reduces. I am mindful of your pledge, effectively to never have sex again [...] and I am also mindful of the amount of time that has passed since these offences occurred but at this point I am concerned with future risk and I am satisfied that you do present such a risk, given the continued lack of insight into your own behaviour or your complete lack of understanding of the impact that your offending has had."
v.
The Judge had presided over the trial, and these were conclusions, appropriately expressed, that she was entitled to reach, particularly given Dr Ley expressed his concerns over the risk of further sexual offences in the context of an intimate relationship with a woman. Furthermore, the probation officer's assessment of low risk was based on full compliance with treatment, complete abstinence from drugs and alcohol and meaningful engagement with therapy/psychological treatment. Otherwise, the risk would be "considerably raised".
vi.
As to the overall length of sentence, these counts involved at least six separate offences of rape, perpetrated on two victims. Notwithstanding the applicant's mitigation (the character references in particular) an overall custodial term of 14 years, reached by concurrent sentences with the lead offence reflecting the overall criminality, was not manifestly excessive or wrong in principle.
vii.
Notwithstanding counsel's helpful submissions, these proposed grounds are unarguable."
15.
Having reviewed the matter afresh, we are entirely in agreement with the views of the single Judge. The reports were not conclusive about dangerousness and the Judge was entitled, based on the matters she identified, in particular the applicant's lack of insight or understanding of his own offending, to conclude that the applicant was indeed dangerous.
16.
In the course of submissions, Mr Elliott referred us to the decision in
JW
[2009] EWCA Crim 390. At paragraph 28 the court in that case said as follows:
"Whilst the court is not bound by the assessments made in the reports (and the psychologist's report acknowledges as much), yet if the court asks for the assistance of experts, and, having read their assessments, is minded to reject their conclusions, the court should set out in some detail the reasons for so doing. This was not done in this case."
17.
We would note that what amounts to an inadequate explanation will depend on the circumstances of each case and whether sufficient reasons have been provided to enable the defendant in that case to understand the reasons for departing from the reports. Whilst HHJ Laing's reasoning here was brief, we are satisfied that it was adequate in the circumstances for the reasons we have already set out.
18.
As to totality, the Judge expressly referred to this principle at 3F of the sentencing remarks. The eventual sentence structure adopted, whereby the sentence for count 3 was increased to reflect the overall criminality involved in the four concurrent sentences, demonstrated a clear and fair application of that principle. There can be no real argument about the categorisation of the offence and indeed Mr Elliott conceded as much in the course of his submissions. The applicant's repeated brutal conduct has resulted in both victims suffering serious and prolonged psychological harm. It is no exaggeration to state that sadly the effects of the applicant's callous abuse are likely to remain with the victims for the rest of their lives.
19.
Finally, the Judge also made clear reference to the applicant's personal mitigation, including the fact that he was well thought of by many. Ultimately, what Mr Elliott asks us to do is to step back and to conclude that. viewed overall. the sentence was manifestly excessive. In our view given the number of serious offences committed by the applicant, the brutality of his conduct and the devastating impact that his behaviour has had on both his victims, the custodial element of 14 years, the finding of dangerousness and the extended licence period of four years were all fully justified.
20.
For these reasons, and notwithstanding Mr Elliott's helpful submissions, leave to appeal is refused.
21.
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: [email protected] | ```yaml
citation: '[2023] EWCA Crim 1205'
date: '2023-10-10'
judges:
- LORD JUSTICE STUART-SMITH
- MR JUSTICE CHOUDHURY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2021] EWCA Crim 1879
Case Nos: 202001870 B1, 202002164 B1 and 20210745 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HHJ BEDDOE
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
10/12/2021
Before:
LORD JUSTICE HOLROYDE
MR JUSTICE JEREMY BAKER
and
MR JUSTICE JAY
- - - - - - - - - - - - - - - - - - - - -
Between :
ZIAD AKLE and PAUL BOND
Appellants
- and –
THE CROWN
Respondent
-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Adrian Darbishire QC, Mark Aldred and Duncan Jones
(instructed by
Paul Hastings
) for
Ziad
Akle
Howard Godfrey QC
(acting
pro bono
) and
Robert
Fitt
(assigned by
Registrar of Criminal Appeals
) for
Paul Bond
Michael Brompton QC, Gillian Jones QC and Faras Baloch
(instructed by
the SFO
) for
the
Crown
Hearing dates: 1
st
July, 20
th
and 21
st
October 2021
-
- - - - - - - - - - - - - - - - - - - -
Approved Judgment
Covid-19 Protocol
: This judgment was handed down remotely by
circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10 December 2021 at
11.00 a.m.
LORD JUSTICE HOLROYDE:
1.
Ziad Akle and Paul Bond stood trial, together with Stephen Whiteley, on an indictment containing four counts alleging conspiracy to give corrupt payments, contrary to s. 1 of the Prevention of Corruption Act 1906. Count 1 (against Akle alone), count 2 (against all three accused) and count 3 (against Akle and Whiteley) alleged conspiracies to give corrupt payments to Oday Al Quoraishi (“Oday”), an agent of the South Oil Company (“SOC”). Count 4 (against Bond alone) alleged conspiracy to give corrupt payments to public officials. In each of the counts, the persons named as co-conspirators included Ata Ahsani, Cyrus Ahsani, Saman Ahsani (collectively, “the Ahsanis”) and Basil Al Jarah (“BAJ”). The charges were brought against the accused by the Serious Fraud Office (“SFO”).
2.
On 19
th
June 2020, after a trial lasting sixty-six days in the Crown Court at Southwark, Akle was convicted of the offences charged in counts 1 and 2. The jury could not agree on count 3, which was left to lie on the file against him. On 23
rd
July 2020 he was sentenced to concurrent terms of five years’ imprisonment.
3.
Whiteley was convicted of the offence charged in count 2 and was subsequently sentenced to 3 years’ imprisonment.
4.
The jury could not agree on any verdicts in relation to Bond, and were discharged. On 24
th
February 2021, following a retrial, Bond was convicted of the offences charged in counts 2 and 4. On 1
st
March 2021 he was sentenced to concurrent terms of three years six months’ imprisonment.
5.
Akle applied for leave to appeal against conviction on a number of grounds. The single judge referred two of those grounds to the full court, but refused leave on the other grounds. The application in relation to one of the refused grounds has been renewed before us. Akle also appeals, with the leave of the single judge, against his total sentence.
6.
Bond applied for leave to appeal against his total sentence. His application was referred to the full court by the Registrar.
7.
We express at the outset our gratitude to all counsel for their detailed written and oral submissions. We will do no more than give brief summaries of their arguments, but we have considered all the many points made.
8.
We shall first summarise the relevant facts and the proceedings at trial, and then address Akle’s application for leave to appeal against conviction and appeal against sentence. Thereafter we shall address Bond’s appeal against sentence. For convenience only, and intending no disrespect, we shall for the most part refer to persons by their surnames only, or by the initials and abbreviations which have been used during these proceedings.
Summary of the key facts:
9.
In the years following the fall of Saddam Hussein in 2003, the Government of Iraq sought to rebuild the country’s infrastructure. Increasing Iraq’s crude oil exports was a
key objective and included the Iraq Crude Oil Export Expansion Project (“ICOEEP”). Nine potential projects were conceived, with a value of $1.9 billion.
10.
The first project (“the SPM project”) involved the installation in the Persian Gulf of Single Point Moorings. These are floating buoys which allow tankers to load oil offshore. The second project (“the pipeline project”) involved the installation and commissioning of two on-shore and off-shore pipelines. In respect of both projects, a competitive tendering process was used to select the companies to which contracts were to be awarded.
11.
The South Oil Company (“SOC”), an Iraqi state-run company which was responsible for oil in the south of Iraq, engaged Foster Wheeler (“FW”), a UK-based global engineering company, to compile a detailed specification for the tenders, evaluate the bids from interested companies on technical and commercial aspects, and then recommend the most technically and commercially compliant bid to SOC. That recommendation would then be passed to Iraq’s Ministry of Oil for final approval. The prosecution case against all the accused was that they had been involved in bribing decision-makers in order to win ICOEEP contracts.
12.
Ata Ahsani and his sons Cyrus and Saman Ahsani owned and controlled the Unaoil group of companies. They held the offices of Chairman, Chief Executive Officer and Chief Operating Officer respectively. Both Akle and Whiteley were employed by
Unaoil. BAJ, a friend of the Ahsanis, was Unaoil’s Iraqi partner based in Iraq. It was alleged that Unaoil paid Oday a total of $608,000 for his personal benefit, in order to influence the terms and allocation of contracts to the advantage of Unaoil and its clients.
13.
Count 1 alleged that Akle, between June 2005 and May 2009, conspired with the Ahsanis, BAJ and others, to give corrupt payments to Oday as inducements or rewards in relation to the affairs of the business of Oday’s principal, the SOC, namely in obtaining confidential information regarding oil projects to be undertaken for the SOC. From April 2009 Oday was put on a monthly retainer – said to be a bribe – so that he could provide sensitive information about projects to the benefit of Unaoil.
14.
Count 2 concerned the manipulation of the tender process for the SPM project. It was alleged that between March 2009 and February 2010 Akle, Bond and Whiteley conspired with the Ahsanis, BAJ and others to give corrupt payments to Oday in relation to the recommendation and award of the contract for the SPM project to a company called Single Buoy Moorings Inc (“SBM”). Bond was an employee of SBM. BAJ was working to cement relationships and position Unaoil. By April 2009 SBM were expressing an interest in working with Unaoil and thereafter it was agreed that
Unaoil would work on SBM’s behalf to secure the project in return for a commission. Oday was deployed to obtain confidential information about FW’s draft specification. Unaoil then used Oday to influence the specification in favour of their client, SBM. In January 2010 SBM were informed that FW would recommend them to SOC as the only technically and commercially compliant bidder.
15.
Count 4 concerned corruption at the Ministry of Oil in relation to the SPM project between March 2010 and August 2011. It was alleged that, having corruptly secured SOC’s recommendation, SBM – through Bond – sought information from Unaoil as to the progress of the bid at the Ministry. Bribes were paid by Unaoil executives to senior officials in the Ministry of Oil in efforts to ensure that the Ministry approved the bid and that the contract was awarded to Unaoil’s client SBM.
Arrests and investigations:
16.
On 22 March 2016 BAJ was arrested in Manchester. When interviewed under caution, he denied any involvement in bribery or corruption. His home was subsequently searched and documents and digital devices seized.
17.
On 29 March 2016 the three Ahsanis were arrested in Monaco by the Monegasque police. Their respective homes, and the office of Unaoil in Monaco, were searched and documents and electronic devices were seized.
18.
On 5
October 2016 Akle was arrested at Heathrow airport. Digital devices were taken from him, and further devices were seized when his home was searched. When interviewed under caution he put forward a prepared statement explaining his role at Unaoil and thereafter made no comment. He was interviewed again in July 2017. He put forward a prepared statement denying any part in any agreement to make corrupt payments, and thereafter made no comment.
19.
On 30 August 2017 Bond was arrested at Heathrow airport. Digital devices were seized from him. When interviewed under caution, he made no comment.
20.
The three Ahsanis were the subject of an SFO investigation. The SFO obtained first instance warrants against all three, and sought to extradite Saman Ahsani from Monaco by means of a European Arrest Warrant. That investigation was however abandoned when the case against the Ahsanis was taken over by the US Department of Justice (“DOJ”) following the extradition of Saman Ahsani from Italy by the US authorities. In due course, a deal was done between the Ahsanis and the DOJ. Ata Ahsani paid a penalty of $2.25 million and faced no further action. His sons Cyrus and Saman Ahsani negotiated plea agreements with the DOJ, under which it is expected they will serve no more than five years’ imprisonment. By letter dated 26 April 2019, the SFO informed the lawyer acting for Cyrus and Saman Ahsani that the SFO would discontinue its investigation in respect of matters covered by the US plea agreements they had entered into on 25 March 2019. By letter dated 12 September 2019, the SFO informed the lawyer acting for Ata Ahsani that it was no longer in the public interest for the SFO to proceed with a prosecution of him in light of his agreement with the DOJ.
21.
On 15 July 2019 BAJ pleaded guilty to five counts of conspiracy to give corrupt payments. Other offences, involving bribery in relation to other contracts, were taken into consideration. He subsequently entered into an agreement with the SFO pursuant to the Serious Organised Crime and Police Act 2005 (“SOCPA”), and on 8 October
2020 was sentenced to a total term of imprisonment of three years’ six months, reduced from ten years by reason of his guilty pleas and co-operation. He has not applied for leave to appeal against sentence.
Disclosure:
22.
The SFO carried out a substantial disclosure exercise, to which the provisions of the
Criminal Procedure and Investigations Act 1996 (“CPIA”) applied. A number of Disclosure Management Documents were served. Disclosure of unused material was made in tranches, in the form of schedules summarising the nature and content of the items listed. Despite requests from Akle’s legal representatives, the SFO declined to provide copies of any of the documents summarised in the schedules.
23.
Some of the entries in the schedules referred to contacts between the SFO and David Tinsley. Tinsley, a US citizen, runs 5 Stones Intelligence, which is based in Florida and is described in its published material as “a leading intelligence and investigative company”. He is not a lawyer, but he was actively involved in assisting the Ahsanis and their US attorney Rachel Talay.
24.
The SFO indicated at an early stage that they would seek, at trial, to adduce evidence of BAJ’s convictions. They relied in this regard on section 74 of the Police and Criminal Evidence Act 1984 (“PACE”) which, so far as material for present purposes, provides:
“
Conviction as evidence of commission of offence
(1)
In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom …shall be admissible in evidence for the purpose of proving that that person committed that offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.
(2)
In any proceedings in which by virtue of this section a person other than the accused is proved to have been convicted of an offence by or before any court in the United Kingdom …, he shall be taken to have committed that offence unless the contrary is proved.”
25.
Akle indicated that he would oppose the introduction of such evidence. In this regard, he served, pursuant to section 8 of CPIA (“section 8”), a request for specific disclosure dated 24 September 2019. The request referred to the SFO’s wish to adduce evidence of BAJ’s guilty pleas. It said that the conduct of Tinsley had been such as to render BAJ’s guilty pleas unreliable evidence of the existence of a conspiracy, and its admission unfair. It went on to say:
“The defence will argue that the plea should not be admitted under section 74 of PACE because the plea was brought about through improper means and its admission will result in unfairness. Any material going to support this argument falls to be disclosed.”
It was submitted that BAJ’s plea, and possibly the decision by the SFO not to pursue any charges against the Ahsanis, appeared to have been improperly influenced and facilitated by Tinsley. Tinsley was described as “a ‘fixer’ seeking to negotiate between the Ahsanis, the US authorities and the UK authorities” and it was said that BAJ had entered his pleas as a result of being placed under improper pressure, and misled, by Tinsley.
26.
In its response to that request, served on 31 October 2019, the SFO said that they were aware that Tinsley had acted, and continued to act, as an adviser to the Ahsanis; that he wished to encourage other defendants to plead guilty and to cooperate with the authorities; and that he had been in contact with BAJ. The SFO, however, “was not a party to any such discussions Mr Tinsley has had with Mr Al Jarah”. The SFO said that they held no material capable of supporting the proposition that BAJ’s pleas of guilty did not amount to a true acknowledgement of his guilt freely made with full understanding of the ingredients of the charges preferred against him or that, in relation to those pleas, he was misled by Tinsley or that his pleas were in any way unreliable as evidence of his guilt.
27.
Also on 31 October 2019, the SFO served their Tranche 5 schedule of unused material. Most of the items listed referred to the activities of Tinsley. Some items were mistakenly omitted, an error which was corrected in an addendum schedule served on 7 November 2019. The entries in that addendum schedule again related principally to Tinsley.
28.
On 5 November 2019 Akle served a further section 8 request for disclosure, and a skeleton argument relating to Tinsley and the admissibility of BAJ’s pleas. The SFO responded with a skeleton argument two days later
29.
On 8 November 2019 the judge heard oral argument on the section 8 application, which he refused.
30.
On 3 December 2019 Akle served an “addendum defence statement” dated 29 November. In its reply dated 12 December 2019 the SFO said that this document merely repeated earlier requests and that there was nothing further to be disclosed.
31.
The trial was listed to begin on 20 January 2020. As that date approached, Akle served a skeleton argument on 14 January indicating that he would apply to stay the prosecution on both the grounds under the familiar test for abuse of the process, namely that Akle could not have a fair trial (“limb 1”) and that it was unfair to try him (“limb 2”). He contended that the SFO had acted with Tinsley in a way which flouted legal and regulatory safeguards and breached Akle’s right to a fair trial. He again sought disclosure of all material that might reasonably be considered capable of assisting his argument.
32.
On 17 January the SFO served their Tranche 6 schedule, which included expanded summaries of some of the items listed in the Tranche 5 schedule.
33.
Also on 17 January, those representing Akle served a statement by a solicitor exhibiting transcripts of recordings of conversations on the following dates:
i)
7 December 2018: Akle, Tinsley and Saman Ahsani; ii)
16 January 2019: Akle, Tinsley, Rachel Talay and her colleague Brown; iii)
1 February 2019: Akle and BAJ; iv)
6 March 2019: Akle and BAJ;
v)
31 May 2019: Akle and BAJ.
34.
On 20 January 2020, the first day of the trial, the SFO served its response to the abuse of process application. Oral argument on that application was heard on the following day, 21 January.
The trial:
35.
We summarise first the broad nature of the cases for the prosecution and for Akle, and the issues which the jury had to decide in his trial. We then refer to applications which were made on Akle’s behalf to the trial judge. It is unnecessary to refer to the case against Bond, who does not challenge his conviction.
36.
The prosecution case against Akle was based primarily on documentary evidence. Over a period of nine days, the case officer read out a schedule of events, of which the jury had copies. The schedule listed approximately 1,600 emails and other documents, most of which came from Unaoil’s servers.
37.
In addition, a financial investigator read out various financial documents. An expert witness was called to explain the structure and mechanics of an oil industry tender process.
38.
The prosecution adduced evidence of BAJ’s guilty pleas to prove the existence of the conspiracies.
39.
Akle’s defence was that he did not admit that there were conspiracies as alleged, but if there were, he was not party to any of them. His evidence was that as far as he had been made aware by BAJ, any payments to Oday – and he was only aware of the first few – were made pursuant to an agreement with SOC. He understood them to be for personal protection for Oday, bearing in mind that Iraq was a very dangerous place. In support of this aspect of his case, and in relation to his state of mind at that time, he called an expert witness who gave evidence as to the political and economic situation in Iraq.
40.
In addition, Akle asserted that payment had been made to Oday as compensation for his remaining in his job at SOC; to encourage Oday to go the extra mile; and because it was necessary to conceal Unaoil’s role from FW in order to prevent it from becoming known to Deputy Minister Al-Shamma at the Ministry of Oil, which would have caused Oday to be removed from his position to the detriment of the ICOEEP. His case was that Al-Shamma had his own corrupt agenda which SOC sought to guard against; the relationship with Oday was authorised by the Director General of SOC, who had sought to work with Unaoil in SOC's interests; and SOC was suspicious of FW because FW was imposed on them to administer the tender.
41.
The issues for the jury on each count against Akle were as follows:
(1)
had the prosecution made them sure that there was a conspiracy, as set out in the count in question in the indictment? If so,
(2)
had the prosecution made them sure that at some stage during the life of that conspiracy, Akle was a part of that conspiracy in the sense that (i) he knew of its existence, (ii) he played a deliberate and knowing part in it, and (iii) he intended thereby to promote some or all of its objectives? If the answer to all those questions was yes, Akle would be guilty of the count in question. If the answer to any of them was no, he would be not guilty.
42.
The jury were directed that they could consider whether to draw an adverse inference from Akle’s failure to mention facts in interview which he relied on in evidence, and from alleged deficiencies in his defence statement.
Rulings relevant to Akle’s grounds of appeal: (1) abuse of process:
43.
The judge, as we have indicated, heard the application to stay the proceedings as an abuse of the process on 21 January 2020. He refused it. In order not to delay the trial, he gave his reasons in a written ruling at a later date.
44.
The judge noted that most of Akle’s complaints, about the way in which the SFO had dealt with the case, had focused on the activities of Tinsley. He referred to the fact that Tinsley, who had no official title or status but had acted as an agent or broker on the instructions of and in the interests of the Ahsanis, had had contact with Ms Osofsky, the Director of the SFO (“the DSFO”), though it was not clear how Tinsley had established that contact. He said that Tinsley had represented himself to be committed to “mending the relationship between the SFO and the FBI and build something great”. He had exchanged messages with the DSFO which indicated that Tinsley “was much more schooled in the art of the deal rather than in a legal process that should concern itself not only with justice being done but being seen to be done”. The judge added, in parenthesis:
“[It is important that I acknowledge, however, that I do not [have] the whole picture, have not examined every communique or note and I am only dealing as best I can with the material I have. Nonetheless it seems to me that when this case is finally concluded a review of the contact with DT should be comprehensively reviewed to see what lessons can be learned from it.]”
45.
The judge said that Tinsley had suggested to the DSFO and to others in the SFO that he would be able not only to secure the fullest cooperation of the Ahsanis but also to deliver pleas of guilty from BAJ and Akle, which he suggested would lead to consequential convictions of others. He said that the DSFO and others “took the bait”. He continued:
“They should have had nothing to do with someone who had no official status, who was not employed by any US government agency, who was not the Ahsanis’ lawyer (not a lawyer, at all), but a freelance agent who was patently acting only in the interests of the Ahsanis (whose interests could obviously potentially conflict with those of BAJ and ZA); and they should not have countenanced, let alone encouraged (if only tacitly) his contact with either BAR or ZA, who were throughout under investigation by the SFO, represented by UK lawyers, and formal proceedings for the offences set out in this indictment had begun with requisitions issued on the 15
th
November 2017 which were followed by their first court appearance on the 7
th
December 2017.”
46.
The judge noted that prosecution counsel Mr Brompton QC had not sought to defend this contact, which had properly been called into question by others at the SFO when they became aware of it, though their advice was ignored. Tinsley indicated to the SFO that he had contacted BAJ and Akle and was “confident he could get them to plead”, then later reported that BAJ was now minded to plead. The SFO knew of the contact and of the fruits of Tinsley’s efforts. The SFO should have been engaging only with the legal representatives of BAJ and Akle and should have had nothing to do with DT.
47.
The judge found, however, that there was no evidence that the SFO gave Tinsley any sensitive information and no evidence that Akle acted against his own interests as a result of his contact with Tinsley or acted to his own prejudice as a result of anything Tinsley said to him.
48.
The defence had submitted that the SFO’s involvement with Tinsley involved the flouting of all legal and regulatory safeguards; that Tinsley was perverting or attempting to pervert the course of justice and encouraged to do so by the SFO; that the SFO were using him as a covert human intelligence source (“CHIS”) within the meaning of section 26 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) and related Codes; and that what was being undertaken and encouraged by the SFO was a plea negotiation in the absence of and behind the backs of BAJ’s and Akle’s lawyers, in breach of the relevant guidelines. These complaints were said to amount to egregious conduct circumventing the rules to secure an advantage over Akle (and BAJ) such that it was unconscionable to proceed.
49.
The judge found that the “ill advised” contact did not engage the Attorney General’s Guidance on “Plea Discussions in Cases of Serious or Complex Fraud” and he could find no sufficient support for the submission that Tinsley’s actions had a tendency to, or that he intended to, pervert the course of justice. He was also unpersuaded by the submission that Tinsley could be described as a CHIS within the meaning of RIPA.
50.
The judge concluded that, even if he had accepted all of the complaints advanced, he would not on the evidence have found that “limb 2” abuse of process was made out. Insofar as “limb 1” abuse of process had been put forward as a separate issue, he saw nothing to support the contention that Akle could not have a fair trial.
Rulings relevant to Akle’s grounds of appeal: (2) admissibility of BAJ’s guilty pleas:
51.
Also on 21 January, the judge granted the SFO’s application pursuant to section 74 of PACE to put BAJ’s guilty pleas before the jury. He ruled that Akle had not satisfied the test under section 74(2), even on the balance of probabilities.
52.
As to the alternative submission, that the evidence should be excluded on grounds of fairness pursuant to section 78 of PACE, the judge was satisfied that BAJ’s guilty pleas were freely and properly entered into and were a true reflection of his guilt. BAJ had been represented by experienced counsel and his pleas were consistent with the evidence against him. There was no other basis for suggesting that BAJ was not guilty of the offences to which he had pleaded.
Rulings relevant to Akle’s grounds of appeal: (3) evidence relating to Tinsley:
53.
Later in the trial, counsel then representing Akle sought leave to introduce, by crossexamination of the officer in charge of the case, evidence of the involvement of Tinsley with the Ahsanis, the SFO, BAJ and Akle. The basis upon which he sought to do so was that the material was relevant to Akle’s belief that BAJ’s pleas to the conspiracy counts were not genuine pleas of guilty and had been secured by improper means. The evidence of the activities of Tinsley, and what he and others had recorded of what BAJ had variously said before entering his pleas of guilty, was said to be capable of supporting Akle’s case concerning the unreliability of the evidence of BAJ’s pleas.
54.
The application was rejected by the judge on the following grounds. First, such evidence would not demonstrate or bolster Akle’s claim to innocence; it was an entirely collateral matter which would give the jury no assistance as to whether he was involved in the corruption of which he was accused or not. Secondly, none of the material went anywhere near calling into question the validity of BAJ’s pleas. Thirdly, the starting point for establishing the unreliability of a conviction of a person other than a defendant was evidence from the person concerned or at least some direct evidence demonstrating that he could not have committed the offence in question; it was impermissible to introduce hearsay evidence of conversations which demonstrated some (predictable) reluctance by someone to plead guilty before actually doing so, and to ask the jury to speculate as to whether BAJ really meant to admit what he had done. Fourthly, Akle’s defence was a denial of his own complicity but did not seem to be a denial that there was or may have been corruption of Oday and others: his case was that he was aware that payments were being made to Oday but only for the purpose of ensuring his personal security. Attempting to raise an issue by the means identified had no real bearing or materiality on the issues as between the prosecution and defence.
55.
For those reasons the judge refused to permit the proposed cross-examination, and insisted that any hearsay to be relied on by Akle in his case should be the subject of proper application under the hearsay provisions.
56.
Those three rulings, and the associated issues of disclosure, are the subject of the three grounds of appeal against conviction which Mr Darbishire QC argued before us.
Akle’s grounds of appeal against conviction:
57.
Ground 1 is that the judge misdirected himself in law in rejecting the application to stay proceedings as an abuse of process. The basis of the application, which relied on the material which had been disclosed at that stage, was that the SFO were party to an improper and unlawful attempt by an unregulated operative, Tinsley, to approach defendants including Akle before trial in the absence of their lawyers and attempt to persuade them to change their pleas to guilty. His approaches were sanctioned and encouraged at the highest level of the SFO, against the advice of its own lawyers. The conduct of the SFO, as both investigator and prosecutor, amounted to “malpractice” so bad as to “undermine public confidence in the criminal justice system and bring it into disrepute” (see
R v Latif
[1996] UKHL 16
;
[1996] 2 Cr App R 92
). This ground of appeal alleged that there had been improper communications between Tinsley and senior officials within the SFO, including the DSFO and the Chief Investigator Mr Kevin Davis, during the period September 2018 to July 2019. It was submitted that the SFO well knew that Tinsley was working in the interests of the Ahsanis and was seeking
to put improper pressure on Akle and BAJ to change their pleas. Tinsley had made numerous approaches to BAJ and to Akle, and ultimately BAJ did change his plea, succumbing (on Akle’s case) to this improper pressure. It was submitted that the SFO had been guilty of conduct which threatened the integrity of the criminal justice process, and that the judge should have recognised it as such by holding that the prosecution was, therefore, an abuse of process: see
R v Latif; R v Horseferry Road Magistrates’ Court, ex parte Bennett
[1994] 1 AC 42
;
R v Paul Maxwell
[2011] 1 WLR 1837
and
Warren v AG for Jersey
[2012] 1 AC 22
.
58.
It may be noted that some elements of this proposition were not seriously disputed by the SFO, though the alleged impropriety was said to have been overstated, and it was not accepted that the SFO was aware that Tinsley would be putting
improper
pressure on his targets.
59.
In the alternative, Ground 2 is that the prosecution failed fundamentally to comply with its disclosure obligations in relation to material capable of supporting the abuse of process application which is the subject of Ground 1. The judge erred in refusing to order further disclosure relating to the SFO’s conduct and its dealings with Tinsley and in refusing to hold a
voir dire
on this issue. Compliant disclosure would have provided the court with evidence which should have led to a stay of proceedings.
60.
Ground 3, in respect of which the application for leave to appeal is renewed, is that the judge admitted BAJ’s guilty pleas to prove the existence of the conspiracies but erred in law by refusing to permit the defence to adduce evidence “
to prove the contrary
”, i.e. evidence which might have proved that BAJ was not guilty. The judge, as we have said, had noted that the picture before him was incomplete. It was submitted that the SFO had failed to complete the picture, because they had merely summarised relevant material in a schedule of unused material and had not disclosed the underlying documentation. Akle had made detailed applications for further disclosure and further and better particulars, but the judge had accepted the SFO’s assurance that there was nothing further to disclose. It was submitted that the judge should not have accepted that assurance when it was apparent from the schedules that there must be further unused material which should have been disclosed.
Akle’s grounds of appeal against sentence:
61.
Having heard the evidence at the trial, the judge in clear and detailed sentencing remarks stated that he had no doubt that the way Unaoil sought to position itself, which was by corruption, was something that Akle was aware of at an early stage. Counts 1 and 2 related to the joint efforts of Akle, BAJ and others to foster a relationship with Oday and to secure for Unaoil a dishonest advantage in respect of any contracts with which SOC might be concerned. It was clear from the emails that at an early stage Akle knew what was going on with Oday and was happily prepared to play his part in that. The judge had no doubt that Akle was as much a part of the inner circle at Unaoil as BAJ: in terms of culpability, they acted as partners and there was little to distinguish between them.
62.
The Sentencing Council has published a definitive guideline relating to offences under the Bribery Act 2010 where the maximum penalty was 10 years’ imprisonment. By contrast, the offences covered by counts 1 and 2 under predecessor legislation attracted a maximum penalty of seven years. However, it was agreed that the guideline was a
useful guide to the proper approach to sentencing in cases such as this. Applying the guideline, appropriately tailored, the judge found that the offending fell within category A for culpability and category 1 for harm on both counts. Akle had played a leading role in relation to the two conspiracies. Both conspiracies were sophisticated in nature, and both involved the direct and sustained corruption of a senior official performing a public function. The corruption seriously undermined the proper function of national business and public services.
63.
The aggravating factors were that the offences were committed across borders, over a long period, and were utterly exploitative at a time when the political and economic situation in Iraq was fragile. They undermined the integrity of the tendering process for high value national infrastructure projects. The mitigating factors were Akle’s previous good character and his health conditions.
64.
The judge stated that his sentences would have been six years’ imprisonment on each count concurrent but, because of issues relating to Akle’s health and to the anxieties over Covid-19, he reduced them to five years concurrent.
65.
The grounds of appeal against sentence are that the judge erred in applying too high a starting point, and in applying the Bribery Act guideline which was not appropriate for this offence; erred in his approach to assessing the seriousness of count 1; erred in his assessment of Akle’s role, which was contrary to the evidence; gave insufficient reduction for Akle’s positive good character and “exemplary conduct”; made insufficient reduction for Akle’s poor health and vulnerability when being sentenced during the Covid-19 pandemic (see
R v Manning
[2020] EWCA Crim 592
); and failed to reflect the conduct of the SFO or the sentences imposed on the Ahsanis, who were the principal beneficiaries of the offending.
The initial appeal hearing:
66.
The appeal was listed to be heard on 1 July 2021. It did not, however, proceed on that date, because the court (differently constituted), having heard detailed argument on both sides, accepted the submission of Mr Darbishire that there had been inadequate disclosure of the underlying material relating to contact between Tinsley and the SFO.
67.
The court gave directions requiring the SFO to disclose the underlying material which was the source of the Tinsley entries in the Tranche 5, 5A and 6 schedules, to make appropriate enquiries in relation to any contact between Tinsley and the SFO in respect of which there was an absence of documentary material, and to provide a chronological schedule of contact with Tinsley. As a result of those directions, copies of about 650 pages of documentation were for the first time provided by the SFO to Akle’s representatives.
The documents provided pursuant to the court’s direction:
68.
At the hearing of the appeal on 20 and 21 October 2021, Mr Darbishire referred us in detail to much of this newly-provided material. It is unnecessary to refer to every feature to which he invited our attention, or to every detail of the SFO’s response to the points made, but we mention the following.
69.
On 21 September 2018 Tinsley sent a text message to the DSFO in which he introduced himself as a friend of one of her former colleagues in her previous employment and asked to meet her “privately first to provide some background and follow on with official meeting”. His request was granted: the DSFO replied that she was “super honoured that you’re coming my way” and arrangements were made for them to have “a solid hour together just us”. No note was made of that meeting, which it seems was joined after a time by Ms Talay. Tinsley and Ms Talay thereafter met Davis. The DSFO, in response to a request made after directions were given on 1 July 2021, has explained that she knew Tinsley was a former agent of the US DEA and had lectured at the FBI training academy, and she was prepared to meet him because she understood he had evidence of crime in the UK of which the SFO may be unaware. She took no notes of their meeting because it was only a preliminary meeting, and she expected notes to be made when Tinsley subsequently met Davis and Thompson.
70.
The DSFO has also stated that apart from one brief telephone call, in which she told Tinsley that he should deal with Davis rather than her, and one “courtesy meeting” with Tinsley on 17 January 2019, she had no further telephone contact or meeting with Tinsley. As will be seen, that is not what Tinsley told others.
71.
Tinsley subsequently had a number of contacts with SFO officials, including Davis.
Initially, the case team declined to have any contact with him, but that was to change.
72.
From the start, Tinsley was asserting that the Ahsanis could do “proactive things” to help the SFO and that he believed they could “bring in” BAJ and Akle.
73.
The SFO initially intended that the Ahsanis would if possible be prosecuted both in the UK and the US. However, a file note of a telephone conversation on 12 December 2018 records Tinsley saying that, as a result of his conversations with Davis, Marc Thompson (another SFO official) and the DSFO, he understood that the SFO were prepared to allow the DoJ to deal with the Ahsanis’ conduct entirely, in return for assistance from Saman Ahsani and probably also Cyrus Ahsani.
74.
On 7 December 2018 Tinsley had spoken on the phone to Akle and Saman Ahsani. He told them that he thought “we are in very good shape” and he thought they would “like the results” of his recent meetings with the DSFO. He enthused about how fair the
DSFO was, and claimed
“I have probably had nine conversations with her and four meetings, one of which went three hours, and I am dealing now with her number 2 and 3 on some things. Collectively, I think it’s going to benefit everyone …”
75.
On 16 January 2019, Akle had dinner with Tinsley, Ms Talay and her colleague Brown. Akle recorded the conversation. A redacted transcript of the recording was one of the documents served on the SFO on 17 January 2020. Tinsley and Ms Talay were clearly conscious that they did not act for Akle, and Tinsley more than once emphasised that they were only talking “theoretically”. Tinsley spoke about the great success he and Ms Talay were having in dealing with the Ahsanis’ cases. He said that he and Ms Talay were meeting the DSFO the next day, that they had constant conversations with her and a great relationship, and that she and the head investigator were “giving us everything
we’ve asked for”. He said that BAJ wanted to arrange to take his case to the US and to get the UK to drop it, but this was “super confidential” because –
“… officially we can’t talk to him because he’s represented by another attorney, you understand? And so I’m officially not talking to you about this, I’m telling you theoretically what we’re looking at for Sami which I would like to try to get for you.”
Akle pointed out that there was already a trial in the UK, to which Tinsley replied that there were ways to get round that: “we’ve done it before”. He suggested he could meet the DSFO alone and ask hypothetically “if these guys came to the table in the US, can we get their cases dismissed here?”
76.
On 6 February 2019 Tinsley emailed Thompson to say that the FBI had drafted a plea which required Cyrus and Saman Ahsani to cooperate and assist the SFO. In a further email to Thompson on 15 February, Tinsley said that the DSFO, Davis and Thompson had agreed to transfer the Ahsanis cases to the US with the understanding that they were available for case assistance and as prosecution witnesses in furtherance of SFO cases. He also said they had discussed BAJ and Akle “within the same package”, which would “require more work to move [them]” but made sense and “in the long term benefits SFO”. He said that the upside was that they could secure the movement of BAJ and Akle to the US and secure a US plea and cooperation with both the US and the UK. The downside was that if BAJ and Akle were tried in the UK, his intelligence was that they would raise the issue of Martin (formerly the SFO’s case officer in the Unaoil investigation, who was pursuing a claim against the SFO in the Employment Tribunal) and would make an abuse of process claim in relation to Martin’s behaviour which “could prove very embarrassing reputationally to SFO”.
77.
In order to see matters in their correct sequence, it should be noted that on 1 February and 6 March 2019 Akle spoke to BAJ by telephone. In the first of those conversations, BAJ reported that he had been told by Tinsley that the CPS had thrown a spanner in the works by saying that the trial (of Akle and BAJ) should be held in this country, not handed over to the DoJ. Tinsley was however taking steps to appoint “a lawyer for us” and was going to approach the DoJ “and ask for us to go over”. Akle expressed concern and said he did not understand what was being proposed. In the second conversation, there was further discussion of BAJ’s belief that he would be able to go to the US, speak to the authorities there, and then be free of any charges.
78.
Tinsley made a further reference to Martin when he spoke on the phone to an SFO official Brown on 27 March 2019. Tinsley wanted to speak directly to the case team, but was told that they were content to deal directly with the DoJ. Brown rightly advised Tinsley that BAJ and Akle were represented in the UK and it was proper that dealings with other charged suspects should go through their legal representatives. Tinsley again professed concern that a trial in the UK may drag up issues relating to Martin, and he wanted the DSFO to know that he was “trying to mitigate any risks as well as build up cooperating suspects as promised”.
79.
On 9 May 2019 Tinsley and Ms Talay had a one-hour telephone conversation with Ms Isaac and two other SFO officials. Ms Isaac explained that because the Ahsani brothers had been charged in the US, the law relating to double jeopardy meant that the SFO could not prosecute them “even if we wanted to”. Ata Ahsani, however, was in a different position: he was not going to be prosecuted in the US, and double jeopardy was therefore not a bar to the SFO prosecuting him in the UK. Warrants had previously been authorised by the Attorney General on the basis that the SFO had decided there was sufficient evidence to charge Ata Ahsani. It would require the further consent of the Attorney General if the SFO were now to change their decision and say that prosecution of Ata Ahsani would no longer be in the public interest having regard to his age and poor health and to the fact that “there is an NPA and financial penalty, we are not able to prosecute his sons”. Tinsley replied that “in the early days” he had spoken to the DSFO about Ata Ahsani and “she was very like ‘why are we messing with him?’ and ‘we can make this work’”. We observe that either that assertion was incorrect, or it was a reference to a relevant discussion in respect of which there has been no disclosure.
80.
On 21 May 2019 Davis and Ms Isaac exchanged emails referring to the need to exercise caution that they acted properly with BAJ and Akle and did nothing that could look like an inducement to plead guilty.
81.
On the very next day, however, Ms Isaac appeared to take a different approach. In a telephone conversation also involving Ms Talay and others, Tinsley said that the Ahsani brothers were “trying to get people to come” and had even sent a message to Akle. He said he was “trying to make it better for all of us” and he thought it was “a real possibility”. Ms Issac’s response was that she looked forward to “hearing if progress can be made”. That response was not recorded in the summary at item J7188 in the Tranche 5 schedule. Nor was it recorded in the additional summary at item J7292 in the Tranche 6 schedule.
82.
In a telephone call on 28 May 2019 Tinsley informed Ms Isaac and others that he was “interested in leveraging information with people especially [BAJ]”. He said he had talked to BAJ and there was a 95% chance he could “get this done”. He said that BAJ “hasn’t had anyone talk to him in the spirit of cooperation properly”: BAJ had a typical attorney who told him not to speak to anyone. He spoke of cutting a hypothetical deal with the SFO, to which Ms Isaac replied that any guilty plea would have to come from BAJ himself and the SFO could not jeopardise the trial. Tinsley observed that if BAJ were to plead, Akle would not have many options: Ms Collery (one of the case controllers) agreed that a guilty plea “would have an impact on us evidentially”. A note of this conversation records that Tinsley also said that he would be with BAJ all week, and added “I’m controlling who he speaks to”. There is nothing in the notes to suggest that any SFO official discouraged Tinsley from that course. It may be noted that the entry in the Tranche 5 schedule relating to this telephone call, J7191, was very short and did not indicate the date of the conversation. It was expanded in entry J7293 in the Tranche 6 schedule served on 17 January 2020, but still did not contain all that we have noted in this paragraph.
83.
On 30 May 2019 Tinsley told Ms Isaac that there was a 90% chance he could “get [BAJ] in”. Ms Issac made a note that she replied that “the deal with [BAJ] could potentially be about plea to indictment but then we may be able to take a view regarding other matters which we are investigating”.
84.
On the following day, 31 May, Tinsley rang to say that he had just spoken to BAJ, who wanted to plead and would help. The only note of this conversation ends with the words “won’t charge with other matters”. The relevant entry in the Tranche 5 schedule, however, item J7196, ends with the words “DT says he doesn’t want BAJ to be charged with other matters”.
85.
Also on 31 May, BAJ spoke to Akle on the phone. He reported that the Ahsani brothers were “out” and “free” and said he himself “might take that route with guarantees that they’re not going to bother with me”. Akle said that he could not admit something he had not done. BAJ said that Tinsley had “managed to get those brothers off”, and that from what Tinsley said “they got more indictments coming. I don’t know if its against me or who but they’ve got more coming”. Akle warned BAJ that Tinsley was not BAJ’s lawyer.
86.
Davis has produced few notes of his contacts with Tinsley. He has explained that Tinsley was prone to exaggeration and vague about what he could do to help, and there was therefore little substance worth recording. In November 2018 a file note had been sent to Davis and the case team emphasising that full records of all contacts with 5 Stones Intelligence would need to be made. In May 2019 Ms Isaac had asked Davis and others for material relating to contacts with Tinsley and 5 Stones Intelligence. On 11 July 2019 Davis was specifically asked for any relevant material which would be needed for disclosure in these proceedings. On 16 July, however, Davis brought about the wiping of data from his SFO-issued mobile phone, as a result of which the SFO have said that the phone had to be rebuilt and they have been unable to recover any of the text messages it is accepted Davis exchanged with Tinsley. The explanation which has been put forward is that Davis repeatedly entered an incorrect code, which caused data to be wiped from his phone. If that explanation is correct, it appears to have been the second time in less than a year that Davis had caused a mobile phone to be wiped and in need of rebuilding. Moreover, it would have involved his not only entering the wrong password five times, but doing so despite a specific warning on the phone to contact the service desk. The relevant entry in the Tranche 5 schedule, J7228, refers to an email which Davis sent to the case team –
“… listing meeting dates for contact with DT and explaining unsuccessful efforts to recover his texts with DT prior to 29/07/2019. Further email in respect of same 21/10/2019. Phone rebuilt and data unobtainable from service provider.”
That entry was not added to or expanded upon in the Tranche 6 schedule, and so Akle’s representatives were not informed of the circumstances in which the phone was rebuilt.
The submissions on appeal:
87.
Mr Darbishire submits that the documents now available allow an understanding of what had previously been obscure. The SFO agreed to Tinsley’s trade: intelligence from Saman Ahsani and pleas from BAJ and Akle, in return for the abandoning of any proceedings in the UK against the Ahsanis or their companies. Tinsley was unhappy when it was explained to him that the SOCPA process could only operate if Saman Ahsani came to the UK and pleaded guilty: he expressed the hope that by “bringing in” BAJ and Akle it would show what Saman Ahsani could do. The SFO’s conduct was consistent with their agreeing to that plan, and in particular accepting that Tinsley would try to persuade defendants whom he did not represent, and with whom his clients were in conflict, to abandon their not guilty pleas. The discussions between SFO officials and Tinsley have not been fully or properly recorded: it is not alleged that was
the result of a deliberate policy, but rather an issue of neglect. Tinsley tried to use the senior management of the SFO to facilitate his having direct access to the case team, who were initially unwilling to meet him but who ultimately engaged with him in relation to the prospect of BAJ and Akle pleading guilty. Ms Isaac’s comment on 22 May 2019
See [81] above
, that she looked forward to hearing if progress can be made, was an explicit tasking of Tinsley to persuade BAJ and Akle to plead guilty: it is significant that that comment was not disclosed at all until the documents were provided in September 2021. Tinsley did secure guilty pleas by BAJ, having been told by the SFO that they would need pleas from BAJ in relation to both contracts: a message which the SFO empowered Tinsley to convey to BAJ behind the backs of BAJ’s lawyers. In that way, the SFO obtained evidence which assisted their case against Akle. The documents underlying the entries in the Tranches 5 and 6 schedules were plainly highly relevant to the abuse argument, but the SFO resisted all requests and applications for disclosure of those documents. Nor did they reveal the circumstances in which data from Davis’ phone, including the text messages he had exchanged with Tinsley, had been rendered irretrievable. The SFO deliberately did not disclose material which was embarrassing to them.
88.
Mr Brompton accepts that some of the disclosure decisions “may not have been welljudged” and that the SFO was in error in not “shutting Tinsley down”, but submits that there was no bad faith, no deliberate failure to make proper disclosure and no conduct which would have justified the judge granting the exceptional remedy of a stay of the criminal proceedings. Whatever Tinsley may have said or done, Akle was not persuaded to change his not guilty pleas. The strength of the evidence against BAJ was such that his change of pleas was in his own interests, and the material inducement for him to plead guilty was the reduction in his total sentence, not anything said by Tinsley. In those circumstances, the judge was correct to find that Akle had suffered no unfair prejudice. In the skeleton argument filed in support of Akle’s application to exclude BAJ’s guilty pleas, it was conceded that it would “realistically be impossible to get to the bottom of the circumstances of [BAJ’s] plea and therefore for the defence to discharge the burden of proving that he was not guilty of the conspiracies alleged”. That concession was “the death knell” of the application to exclude the evidence of BAJ’s pleas and the associated disclosure application. The SFO’s contacts with Tinsley were “little more than listening to him”, and he was not actively encouraged to take any steps in relation to BAJ or Akle. Tinsley was not doing the SFO’s bidding, and the SFO were not doing his. A defendant is entitled to discuss his case, and his intended pleas, with whomsoever he chooses, and Akle chose to discuss his case with Tinsley, knowing full well that Tinsley acted for the Ahsanis.
Akle’s appeal against conviction – discussion:
89.
We can deal briefly with the first ground of appeal. A stay of proceedings is always an exceptional remedy. On the evidence and information available to the judge at the time of the trial, we find it impossible to say that he erred in law in rejecting the application for a stay. For the reasons which he gave in his ruling, he was entitled to refuse the application.
90.
We see much greater force, however, in the second and third grounds of appeal. They are closely interlinked, and we consider them together.
91.
As to disclosure, the relevant law is not in dispute between the parties. The SFO is bound by the provisions of the CPIA and the Code of Practice made under that Act. Investigators are required to pursue all reasonable lines of inquiry, whether they point towards or away from a suspect (see the Code, paragraph 3.5). They are required to retain and record all material (which includes not only documents but also information) which may be relevant to an investigation (see the Code, paragraphs 2.1 and 4-5). All non-sensitive relevant material retained by the prosecution must be described in a schedule of unused material (see the Code, paragraph 6.2) and must be reviewed for disclosure. 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. For the purposes of disclosure, “the parties’ respective cases should not be restrictively analysed” (see
R v H and C
[2004] 2 AC 134
at paragraph 35
per
Lord Bingham); and prosecutors should resolve any doubts in favour of disclosure.
92.
Mr Brompton rightly accepts that the purpose of disclosure is to enable an accused person to present a tenable case in its best light. In
Gohil
[2018] 1 WLR 3967
this court, at paragraph 134, stated that disclosure should not be approached solely from the vantage point of the prosecutor: the fact that the prosecutor does not accept the defence case, or believes that it can rebut any inferences which might otherwise be drawn from material capable of undermining the prosecution case or assisting the defence case, does not mean that the test for disclosure has not been passed. That principle is particularly important in relation to Mr Brompton’s submission that the disclosure was appropriate in response to the precise terms of the section 8 requests.
93.
The SFO’s Operational Handbook explains that
“Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of meeting the test for disclosure.”
94.
The Operational Handbook goes on to quote the following from the Attorney General’s Guidelines on disclosure:
“6. In deciding whether material satisfies the disclosure test, consideration should be given amongst other things to: (a) the use that might be made of it in cross-examination; (b) its capacity to support submissions that could lead to:
(i)
the exclusion of evidence;
(ii)
a stay of proceedings, where the material is required to allow a proper application to be made;
(iii)
a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR.
…
7. It should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.”
95.
It is important to note that there is in this case no issue as to whether any of the documents belatedly provided to the defence fell to be withheld from disclosure on public interest immunity grounds or on grounds of legal professional privilege. Nor does any issue arise from the fact that a number of the documents have been redacted by the SFO. Nor was there any substantial logistical or practical obstacle to making available to the defence copies of, or access to, the documents (redacted where necessary). In short, nothing has been put forward by the SFO to justify their refusal to provide the defence with copies of, or access to, the underlying documents.
96.
Those documents are now accepted to have been relevant to the issue of abuse of process. In our view, they were also relevant to the issues relating to the admission or exclusion of evidence of BAJ’s guilty pleas. 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. It cannot be justified by reference to the precise terms of the section 8 request when that request specifically raised Tinsley’s conduct as the basis on which the admission of the evidence would be challenged.
See [25] above.
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. We accept Mr Darbishire’s submission that a reading of the underlying documents provides a clearer picture of what happened than can be gleaned from a perusal of the comparatively brief entries in the schedules.
98.
We also accept that if the documents now available had been provided to the defence before or at the start of the trial, counsel then appearing for Akle would have had significantly stronger arguments available to him on the issues relating to BAJ’s guilty pleas. In reaching that conclusion, we regard the following factors as important.
99.
First, the underlying documents illustrate very clearly why it was wholly inappropriate for the SFO to have any dealings with Tinsley in relation to the pleas of BAJ and Akle, and why Mr Brompton’s concession that the SFO should at a later stage have “shut Tinsley down” is insufficient. We can understand why the DSFO, acting upon the recommendation of a mutual friend, may have been willing to have an initial meeting with Tinsley; and Tinsley was at least entitled to speak to the SFO about the Ahsanis, though we would have expected the SFO to prefer to deal with the Ahsanis’ lawyers rather than their “fixer”. But Tinsley did not act for either BAJ or Akle, each of whom was legally represented in this country; and there was a clear conflict between their respective interests and the interests of the Ahsanis. The case team quite rightly declined, for a considerable time, to have any dealings with Tinsley in relation to the
cases against BAJ and Akle. We simply do not understand how any of their SFO colleagues could have thought it appropriate to take any other approach, or why the stance taken by the case team later changed. It is significant that, throughout the trial and appeal proceedings, Mr Brompton has rightly not sought to defend the SFO’s conduct in dealing with Tinsley as they did. Why, then, did the SFO engage with Tinsley at all? For all his talk of wanting to achieve an outcome which would be beneficial to everyone, Tinsley was obviously focused on pursuing a course which was in the best interests of the Ahsanis, including by delivering a package of pleas from others which would encourage the SFO to abandon any thought of prosecuting any of the Ahsanis in this country. It was plainly never part of his plan that any of the Ahsanis would be prosecuted in the UK. Mr Brompton’s submission, that the SFO had no choice but to concede jurisdiction to the US once the Ahsanis were in the US, might provide an explanation in the cases of the two brothers, but it cannot explain the decision not to prosecute Ata Ahsani, alleged to be not only the head of the family but also the head of the conspiracies.
100.
We would add, in this regard, that the provision of copies of the underlying documents has also strengthened the defence case by revealing discrepancies which may well be innocent errors, but which are nonetheless capable of being significant. The most striking example is the contrast between the disclosed note, and the schedule entry, in relation to what was said on 31 May 2019 as to whether BAJ would be charged with other offences.
See [84] above.
Mr Brompton’s submission, that the note records what Tinsley said rather than what any SFO officer said, may or may not be correct. Even if it is correct, it raises the question of why the SFO would be countenancing Tinsley expressing a view as to whether or not BAJ should be charged. But be that as it may, the important point for present purposes is that there was an evident discrepancy between the original note and the summary in the schedule, and the defence were entitled to see it and to explore it as they thought appropriate
101.
Secondly, the documents are clearly capable of lending significant force to the defence argument that the SFO went beyond the “tacit encouragement” to which the judge referred,
See [45] above.
and far beyond the “little more than listening” to which Mr Brompton referred in his submissions to us. In this regard, the notes of the telephone conversations with Tinsley in late May 2019
See [81]-[85] above.
are important. They are capable of being viewed as showing an abrupt change from the previous recognition of the need for caution to a recognition that Tinsley would be actively trying to persuade BAJ and Akle to plead guilty, and an acceptance of the advantage that guilty pleas by BAJ would give to the SFO’s prosecution of Akle. The reasons for that change have not been recorded in any document disclosed by the SFO, and were not explained in the submissions to us. The disclosed notes contain nothing to suggest any attempt to discourage Tinsley from interfering in the cases of accused persons for whom he did not act: on the contrary, Tinsley was certainly enabled, and arguably encouraged, to convey to BAJ – behind the backs of his legal representatives - an indication that if he pleaded guilty to the charges on the indictment the SFO might “take a view” about other potential charges.
102.
Armed with those documents, rather than the summaries contained in the schedules, the defence would have been able to present their case in its best light. We do not accept
that the rules of hearsay would have prevented them from making any meaningful use of the documents. The defence would at the very least have been entitled to request the attendance of the SFO officials concerned, so that they could be cross-examined about their conversations with Tinsley: not with a view to proving the truth of anything Tinsley said, but rather to seek a detailed account of the SFO’s role in the events which led to BAJ pleading guilty to the indictment (and being allowed to have more serious charges taken into consideration), and the SFO thereby being enabled to rely on his convictions to prove a substantial part of their case against Akle. The defence would also have had a stronger basis on which to seek to adduce hearsay evidence of things said by BAJ.
103.
Thirdly, Davis’ recent explanation for not making notes of many of his conversations with Tinsley is that Tinsley was obviously prone to exaggeration and vague assertions as to what he could achieve. In the light of all that we have now read, that is not a surprising proposition. But it is capable of supporting the argument that Tinsley was the last person whom the SFO should have allowed, or caused, to undertake the role of trying to persuade BAJ and Akle to plead guilty (and thereby to benefit the Ahsanis in their dealings with the SFO). The same is true of the striking contrast between the DSFO’s account of her limited contact with Tinsley and Tinsley’s assertions to Akle about the extent and success of his dealings with her.
See [74], [75] above.
That contrast was evident to the SFO at latest when the transcripts were disclosed by the defence on 17 January 2020.
See [33] above.
We think it strongly arguable that at that stage, if not before, the SFO’s continuing duty of disclosure required them to disclose full details of the DSFO’s contact with Tinsley.
104.
Fourthly, we accept Mr Darbishire’s submission that there was inadequate disclosure of the circumstances in which Davis’ text message exchanges with Tinsley are said to have been lost. We have no doubt that entry J7228 in the Tranche 5 schedule
See [86] above.
9
See [88] above.
was insufficient to discharge the SFO’s duty of disclosure in relation to an issue which was obviously highly relevant to the contacts between Tinsley and the SFO. It served to conceal the position now asserted by the SFO. If proper disclosure had been made, the defence would have had a basis for requesting that Davis be available for crossexamination so that Akle’s case could be presented in its best light.
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
9
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
See [44] above.
, 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.
See [45] above.
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.
See [82] above.
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 crossexamination 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.
108.
For those reasons, we are satisfied that the convictions of Akle are not safe. He was prevented from presenting his case in its best light. We grant leave to appeal on grounds 2 and 3, and allow the appeal on those grounds. His convictions must therefore be quashed.
Retrial?
109.
A draft of this judgment was provided to counsel so that they could assist the court by making written submissions on any consequential matters. We are grateful for the submissions which were made, which related to two issues: the SFO’s application for an order that Akle be retried; and Akle’s application for an order for costs. We are satisfied that the first of those issues can properly be determined on the basis of the
written submissions. In relation to the latter, we will hear oral submissions at a later date.
110.
By section 7(1) of the Criminal Appeal Act 1968:
“Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.”
111.
In
R v Graham and others
[1997] 1 Cr App R 302 Lord Bingham CJ summarised the principles which this court should apply when considering whether to exercise that power:
“It is apparent that the conditions which permit the court to order a retrial are twofold: the court must allow the appeal and consider that the interests of justice require a retrial. The first condition is either satisfied or it is not. The second requires an exercise of judgement, and will involve consideration of the public interest and the legitimate interests of the defendant. The public interest is generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution can be conducted without unfairness to or oppression of the defendant. The legitimate interests of the defendant will often call for consideration of the time which has passed since the alleged offence, and any penalty the defendant may already have paid before the quashing of the conviction.”
112.
A balance must therefore be struck between the public interest in favour of a retrial and Akle’s legitimate interests. The SFO submit that the former should prevail, in particular having regard to the seriousness of the charges; the largely documentary nature of the prosecution’s evidence, which means that the passage of further time will not have any adverse impact on the quality of the evidence; the fact that the strength of that evidence has been “largely unaffected” by this court’s reasons for allowing the appeal; and the fact that part of the sentence (just under half of the expected time in custody) remains to be served. The SFO therefore invite the court to order a retrial and to admit Akle to bail, subject to conditions, pending that retrial.
113.
On behalf of Akle it is submitted that there is a powerful combination of features militating against a retrial, including the fact that the convictions are being quashed because of the misconduct of the SFO, which it is submitted was knowing misconduct; the very long period of time which has already passed since the relevant events, which began in 2005 and ended (at latest) in early 2010; the burden of anxiety borne by Akle and his family in the years since his arrest in October 2016; the further anxieties suffered as a result of the outbreak of the Covid pandemic (to which he is vulnerable) during the proceedings; the ruinous legal costs which he has incurred; the very difficult time he has experienced in serving his sentence at a time when prisons are adversely affected by the pandemic; the serious deterioration in his health whilst in prison; and the prospect that any retrial would be unlikely to start for at least another year.
114.
We have considered the competing arguments. We have well in mind the general public interest in the prosecution of what are undoubtedly serious allegations. We remind ourselves that the discretion to order or refuse to order a retrial is to be exercised in the interests of justice and not to be used as a form of disciplinary sanction for any prosecutorial misconduct. We have nonetheless concluded that in the particular circumstances of this case the general public interest is outweighed by the legitimate interests of Akle. We accept the submission that the interests of justice do not require a retrial, having regard to the combination of features summarised above. The key considerations, in our view, are that the application for a retrial is made in the context of the appeal against conviction being allowed on grounds relating to fault on the part of the prosecutor, and that a retrial would inevitably involve substantial further delay for a man in poor health who has already spent a significant time in prison in unusually difficult circumstances. We think that the significance of the context of prosecutorial fault extends to the likely period of delay: it would be difficult, in the circumstances of this case, for the SFO to argue in favour of an expedited trial date, to the prejudice of other cases waiting to be heard. We therefore decline to order a retrial.
Akle’s appeal against sentence:
115.
In those circumstances the appeal against sentence falls away. We think it right, however, to record that we did not find the grounds of appeal against sentence persuasive. The judge was entitled to make the findings he did as to the seriousness of the offending. We do not accept that he adopted a wrong approach or fell into any error of principle. The total sentence was stiff, but it was not manifestly excessive. We would therefore have dismissed the appeal.
116.
We turn finally to the application by Bond.
Bond’s Appeal against Sentence
117.
The prosecution case against Bond was that he was the Sales Manager for the Middle East for SBM. He had worked for the company in various roles between 1982 and 2015 whilst based at its Monaco office. SBM was one of three companies which were invited to tender for the SPM contract. SBM entered into an agency agreement with Unaoil under which Unaoil would seek to obtain the SPM contract for SBM.
118.
On count 2, it was alleged that Bond was aware that the agency agreement between Unaoil and SBM was a front for a conspiracy to bribe an official at SOC to manipulate the tendering process to the advantage of SBM. Bond’s role in the conspiracy was to provide technical data that promoted SBM’s products and denigrated the buoys manufactured by the two rival companies. In particular, Oday provided internal SOC documents to Unaoil including the technical specification and basis of design documents for the buoys. These were sent to Bond who revised them so as to favour SBM’s products and returned them, via Unaoil, to Oday. He was also involved in the preparation of a weighting table to be supplied to FW via the bribed SOC official to be used as the marking criteria for the bids from the three competitors. The table was drawn up in such a way as to give SBM a clear advantage in the tendering process.
119.
On count 4, it was alleged that Bond was knowingly involved in negotiating an amendment to the agency agreement between Unaoil and SBM to provide a fund of $275,000 to be used to bribe officials at the Ministry of Oil to approve SOC’s recommendation that the contract for the SPMs be awarded to SBM.
120.
In his sentencing remarks, the judge said that Bond’s offences would fall into category A culpability, and category I harm, of the guideline for offences under the Bribery Act 2010. Bond had played a leading role in the count 2 conspiracy: he had willingly fronted the corruption for SBM and was the almost exclusive contact for Unaoil. This count concerned the direct and sustained corruption of a senior official in the SOC which was to all intents and purposes a public institution. The offending was sophisticated in nature, involving coordination and planning and the coaching of Oday so that he knew what to say to FW. What was important was not the personal financial gain for Bond but the damage done to the people of Iraq by the offending.
121.
Count 4 aggravated the picture because it involved the carefully thought out corruption of politicians or senior civil servants, although the role Bond played was much smaller.
122.
The aggravating factors were that the offences were committed across borders and were utterly exploitative, at a time when the situation in Iraq was fragile.
123.
Having heard him give evidence, the judge found that Bond tried his dishonest best to create a false narrative to answer the evidence against him. In terms of mitigation he had no previous convictions. Delay was not a mitigating factor as he could have admitted his wrongdoing back in August 2017 but chose not to. His age and health were also not mitigating factors. The best that could be said in his favour was that these offences were not of his making and he was not as culpable as Akle or BAJ. The judge approached sentencing on the basis that the two counts reflected a continuous course of offending. He would have imposed a total sentence of 4 years, 6 months’ imprisonment; but taking into account the hardship caused by the Covid-19 pandemic and by the fact that the applicant’s family lived in France, the sentences would be 3 years, 6 months’ imprisonment on each count, concurrent.
Bond’s grounds of appeal against sentence:
124.
Bond’s grounds of appeal against sentence are that the overall sentence was manifestly excessive, in particular because the judge: (1) sentenced by reference to the guidelines for offences under the Bribery Act 2010 (with its higher maximum sentence) and wrongly categorised both culpability and harm; (2) failed to sentence Bond for his own role in the conspiracies and to distinguish his input from the more serious involvement of his co-defendants; (3) failed properly to take into account Bond’s personal mitigation – in particular his age, health and positive good character; (4) failed to take into consideration the toll that the delay and very lengthy proceedings had taken on him; (5) wrongly increased Paul Bond’s sentence because of the manner in which he had contested the trial.
125.
In support of those grounds of appeal, Mr Godfrey QC places emphasis on the submission that Bond made no personal profit from the bribery: he was selling a proper product at a proper price, and at worst used unlawful means to sell that product, whereas Unaoil was engaged in the business of corruption. Moreover, Bond acted on instructions from his superiors, some of whom were not charged with any offence. He had been with his employers since 1982, had previously been engaged in the writing of safety manuals, and was now engaged in his first sale to a new customer since being promoted to the sales department. Realistically, he had no choice but to obey the orders of others. It was wrong of the judge to sentence him on the basis that the monies paid out in bribes could instead have been used to assist an impoverished country.
126.
Mr Godfrey further submits that the sentence on Bond was excessive when compared with that imposed on Whiteley, and that the judge wrongly increased the sentence because Bond had contested the trial.
127.
No pre-sentence report was considered necessary before Bond was sentenced, and none is necessary now.
128.
We have reflected on Mr Godfrey’s submissions, but are unable to accept them. We are not persuaded that the judge fell into any error of principle. In particular, the judge was entitled to have regard to the guideline for sentencing offences under the Bribery Act 2010, and he rightly took into account the differing maximum sentences for those offences. As to the suggested failings, the insuperable obstacle which Mr Godfrey faces is that the judge had presided over a lengthy trial and was in the best position to assess the seriousness of the offending by Bond and others. Mr Godfrey’s submissions amount in reality to a challenge to the judge’s findings, but we can see no basis on which this court could go behind those findings. Nor is there any basis on which we could go behind his assessment of the weight to be given to the aggravating and mitigating factors. It was in the context of the weight (if any) to be given to the long period of time between arrest and conviction that the judge made the comments which are relied on as indicating that the sentence was increased because Bond had contested the trial. We do not accept that that is what the judge said or did: the relevant passage could, with respect, have been rather more clearly expressed, but the judge was in our view doing no more than making the point that the passage of time had to be seen in the context of the continuing denial of guilt and the consequent need for a trial.
129.
We conclude that the sentence can fairly be regarded as stiff, but that there is no ground on which it could be said to be manifestly excessive. Grateful though we are to Mr Godfrey, the application for leave to appeal against sentence accordingly fails and is refused.
Conclusion:
130.
For those reasons -
i)
We grant Akle’s application for leave to appeal against conviction on grounds 2 and 3. We allow the appeal on those grounds and quash the convictions.
ii)
We decline to order a retrial.
iii)
We adjourn Akle’s application for costs. We direct that Akle must by 4pm on 7 January 2022 file further written submissions in the light of this judgment; the SFO must by 4pm on 21 January 2022 file further written submissions in response; and the parties must by 4pm on 28 January 2022 file an agreed bundle of any relevant documents and an agreed time estimate. Oral submissions on the issue of costs will be heard at the earliest convenient date after 28 January 2022.
iv)
We refuse Bond’s renewed application for leave to appeal against sentence. | ```yaml
citation: '[2021] EWCA Crim 1879'
date: '2021-12-10'
judges:
- HHJ BEDDOE
- LORD JUSTICE HOLROYDE
- MR JUSTICE JEREMY BAKER
- MR JUSTICE JAY
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
Neutral Citation No
[2024] EWCA Crim 167
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
His Honour Judge Kay KC
Case No 202302466/A1
Royal Courts of Justice, Strand
London WC2A 2LL
Wednesday 7 February 2024
Before:
LADY JUSTICE ANDREWS
MRS JUSTICE CHEEMA-GRUBB
-and-
HER HONOUR JUDGE ROSA DEAN
(THE RECORDER OF REDBRIDGE)
REX
V
ADEBAYO KEKERE-EKUN
__________
Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
_________
Ms S Nwosu
appeared on behalf of the Applicant.
Ms Squire
appeared on behalf of the Respondent
_________
J U D G M E N T
Lady Justice Andrews:
1.
The single issue in this appeal against the appellant’s sentence for murder is whether all or any part of the 39 days that he spent abroad awaiting extradition from Nigeria should have been credited towards the minimum term of his life sentence. Unfortunately, this matter appears to have been overlooked in the court below and therefore it was not drawn to the sentencing judge’s attention. This oversight by all parties is accepted by the Crown. We are very grateful to Ms Squire for attending this morning to confirm the position.
2.
A similar issue arose in
R v Noye
[2013] EWCA Crim 510, although in that case the appellant had been detained in custody in Spain awaiting extradition for a much longer period (9 months). In
Noye
, the Court of Appeal considered the differences between the sentencing regime which applied in that case, and the current regime following the coming into force of the Criminal Justice Act 2003. Prior to the coming into force of the 2003 Act, the relevant statutory provisions were in sections 47(1) to (3) of the Criminal Justice Act 1991. Under those provisions, the court had a discretion to direct that some or all of the period spent in custody abroad awaiting extradition should count towards sentence. The court had the power to specify such period “as in the opinion of the court is just in all the circumstances” provided it did not exceed the period spent in custody abroad. Each case turned on its specific facts and all relevant factors had to be considered, including why the person went and stayed abroad, and whether there was any resistance to the extradition proceedings.
3.
It was recognised to be an important point for consideration that it should not be thought by those who flee this country in the hope of evading justice that, if they are caught and remain in custody in a foreign country for a period of time, the period of time will necessarily be considered as though it had been spent in this country serving the sentence imposed by its courts (see the observations of Lord Judge LCJ in
Noye
, at paragraph 16). Lord Judge underlined this message at paragraph 19, which explains why the appeal in
Noye
was dismissed:
“As it seems to us, if this discretion may be exercised in such a way as to refuse to make any allowance for the time spent in custody abroad pending extradition — and plainly the statutory language underlines that it can — it would fall to be exercised where a defendant deliberately fled this country in a well-organised, sophisticated plan to evade justice here; successfully evaded justice for some time by staying abroad; when eventually brought before the courts abroad with a view to extradition, contested the extradition proceedings every inch of the way, and, what is more, put up a totally false story in order to evade extradition followed by...an unsuccessful appeal against the order.”
4.
The relevant provision for crediting time served by fixed-term prisoners are now sections 240 and 243 of the 2003 Act. These allow for credit to be given to an extradited prisoner for time served abroad awaiting extradition, provided by section 240(4), that any period will
not
apply to the extent that “it is in the opinion of the court just in all the circumstances
not
to give the appropriate direction”. [Emphasis added].
5.
The effect of the change is that rather than justifying the exercise of the discretion to direct that some or all of the period should count, the sentencing court is required to justify making a decision that it
should not
count. However, whether the offence was committed before or after the 2003 Act came into force, the main consideration is what is just.
6.
Whilst the Court of Appeal in
Noye
acknowledged that these provisions do not apply expressly to mandatory life sentences, section 269(3) of the 2003 Act, provides that the minimum term in such a case should take into account the effect of any direction that would have been made under section 240 had the sentence been a fixed term sentence. The same position arises by virtue of the application of section 269(3)(b) to the Transitional Provisions, which govern the present case - section 240ZA and section 243(2A) of the 2003 Act.
7.
The deceased, a young man named Marcus Hall, was among a group of friends who became involved in a violent altercation with another group of young men outside a nightclub in Luton, in the early hours of the morning of 21 March 2001. At some point Mr Hall became separated from his group and was stabbed, kicked and stamped on by several members of the other group. He later died from his injuries.
8.
Following the circulation by police of images of various people they wished to speak to, a police officer identified the appellant and the police made it known that he was wanted for questioning in connection with the murder. In August 2001, the appellant’s brother provided a statement to the police identifying him from footage shown on the BBC’s Crime Watch programme. However, the appellant left this country for Nigeria (his country of birth) on an unknown date, and the police were therefore unable to apprehend him. It was accepted at the time of his sentence that he knew he was wanted by the police at the time when he left the country.
9.
In 2002, a number of men were tried at the Central Criminal Court and convicted of Mr Hall’s murder. A further man was tracked to the USA and extradited. He too was convicted of the murder following a trial in 2004.
10.
On 12 February 2015, the appellant was arrested in Lagos for unrelated matters. He was then using a different name but after his fingerprints were taken, his identity was confirmed. Once it became known that he was wanted in the UK for the offence of murder, he was arrested for that offence. He was detained in custody in Lagos and then transferred to Abuja, where an Extradition Notice was served on him. He did not contest his extradition and was returned to the UK on 24 March 2015, where he was immediately handed over to and arrested by the UK authorities. The day after his arrest in Nigeria, he provided information to an Inspector Ebelo (a Nigerian police officer) and provided a voluntary signed statement in which he accepted presence at the scene of the incident in Luton in 2001, and that he had kicked the deceased once or twice.
11.
On 27th March 2015, at a preliminary hearing in the Crown Court at Luton, the appellant indicated an intention to plead guilty to murder and a basis of plea was submitted. In due course, he appeared before HHJ Kay KC on 4 September 2015 and pleaded guilty to the charge of murder. Since the date of the murder predated the coming into force of Schedule 21 of the Criminal Justice Act 2003, the sentence imposed by the sentencing judge was arrived at by the application of transitional arrangements for mandatory life sentences for offences committed before December 2003, as provided by section 276 and Schedule 22 of the Criminal Justice Act 2003.
12.
The judge explained that he was passing sentence after the commencement of section 269 of the 2003 Act in respect of an offence committed before that date, and he was therefore constrained in his approach by paragraphs 9 and 10 of Schedule 22. That meant he was required to have regard to what the Secretary of State would have been likely to notify as the minimum term to be served under the regime as it existed in 2001 and earlier.
13.
The judge had regard to the sentences passed on the others who were convicted of the same murder, and who had been engaged in similar activity to the appellant. He set a minimum term of 10 years’ imprisonment, about which no complaint can be or is made. He directed that the time that the appellant had spent in custody in the UK was to be counted against his sentence, resulting in a period of 9 years and 202 days to serve before he would be eligible for release.
14.
In the present case, it is true that the appellant deliberately fled the country to avoid being arrested for the murder and that he managed to evade detection for 14 years. However, those matters have already been taken into consideration as part of his sentence. Although he pleaded guilty at the earliest opportunity, and indeed made admissions the day after his arrest, in deciding on the minimum term the judge set against the credit to which the appellant would otherwise have been entitled for his guilty plea (which under the relevant regime was 20 months) the period during which he had evaded justice.
15.
It was not until June 2023 that the appellant contacted the solicitor who had represented him at trial, and raised the query about whether the time he spent in custody in Nigeria should also have been counted against his sentence. This was a matter that he had only recently found out about whilst he was in custody. The necessary extension of time for seeking leave to appeal was properly granted by the single judge in those circumstances.
16.
Given that the appellant did all the right things once he was apprehended in Nigeria - he co-operated in his extradition, and he made admissions as to his role in the murder at an early stage - we consider that it is in the interests of justice to direct that the full period of 39 days he spent in custody in Nigeria awaiting extradition should count towards the minimum term of his sentence.
17.
We therefore allow this appeal and vary the sentence to one of life imprisonment with a minimum term of 10 years, with a direction that the time that the appellant spent in custody in Nigeria awaiting extradition and the time that he spent in custody in the UK shall both be counted towards his sentence, resulting in a term of 9 years and 163 days to serve before he is eligible for release.
18.
The Court is very grateful indeed to Ms Nwosu for her very helpful skeleton argument in this case, which has illuminated the matter for us and made it very easy to decide how we should determine the appeal.
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400
Email: [email protected] | ```yaml
citation: '[2024] EWCA Crim 167'
date: '2024-02-07'
judges:
- LADY JUSTICE ANDREWS
- MRS JUSTICE CHEEMA-GRUBB
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2013] EWCA Crim 2667
No: 2013/2500/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Tuesday, 17 September 2013
B e f o r e
:
LORD JUSTICE FULFORD
MRS JUSTICE COX DBE
MRS JUSTICE SLADE DBE
R E G I N A
v
TERRY WARD
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Miss P Ellis
appeared on behalf of the
Appellant
J U D G M E N T
(Approved)
Crown copyright©
1.
2.
MRS JUSTICE SLADE: On 29th April 2013 at the Crown Court at Northampton, the appellant pleaded guilty to an offence of dangerous driving. On the same day the judge sat as a District Judge under
section 66
of the
Courts Act 2003
and dealt with two summary offences, threatening behaviour and criminal damage. The appellant also admitted a failure to surrender to custody. He was sentenced as follows. For dangerous driving, 21 months' imprisonment; for threatening behaviour, four months consecutive; for criminal damage, two months consecutive and for failure to surrender to custody, no separate penalty. With leave of the single judge the appellant appeals from the sentence of 21 months' imprisonment for the offence of dangerous driving.
3.
The facts giving rise to the offence of dangerous driving are as follows. On the night of Saturday 10th September 2011 the appellant had been drinking. In the morning of Sunday 11th September 2011 he drove to a shop to get some cigarettes and crisps. A 15-year-old girl and another young woman (his partner and the schoolgirl's cousin) were passengers in the Volkswagen Polo motorcar which he was driving.
4.
At about 9.20 am the appellant was in the shop staggering and obviously drunk. On the way back the appellant drove very fast. His two women passengers told him to slow down or the car would crash. The car did crash soon afterwards. A bus driver driving in the opposite direction saw the appellant's car shortly before the crash. She said that the appellant was driving very fast, at least 60 mph. He was driving fast over speed humps. The appellant passed the bus without incident but lost control of the vehicle at a right-hand bend, mounting the kerb and went onto the pavement. He then went out of the bus driver's view. The police found the Volkswagen just after that point. They found it at 9.23 am. From the damage to the car it was clear that it had rolled over onto a grass verge. The young girl suffered a broken collarbone. The appellant's partner was unconscious at the time she went to hospital, but made a full recovery. The appellant was also unconscious when the ambulance arrived. He suffered a punctured lung and damage to his arm. At hospital, a blood sample was taken from the appellant at 6.05 pm. That showed that he had not less than 38 milligrammes of alcohol in 100 milligrammes of blood. A forensic scientist did a back calculation. She was of the opinion that at the time of the accident 9 hours earlier, his expected blood alcohol level would have been about 206 milligrammes. The legal limit is 80 milligrammes.
5.
When interviewed after discharge from hospital, the appellant said he could not remember anything about the incident. He did not believe that he would be responsible for driving in the manner alleged against him. He was bailed to attend a police station but failed to attend.
6.
In January 2013 the appellant was arrested for other offences: criminal damage and for aggravated threatening behaviour. Checks made by the police revealed that the appellant had failed to surrender to custody for the dangerous driving charge in 2011. The appellant was released on bail. He failed to attend a plea and case management hearing at the Northampton Crown Court on 26th April 2013, but spoke to the court and his solicitors in the morning to say he had insufficient funds to get to court. He was arrested over the weekend and brought to court on Monday 29th April 2013. At that court appearance the appellant pleaded guilty to dangerous driving. The appellant wished all matters to be dealt with on that day. Accordingly the judge exercised the powers referred to under the
Courts Act 2003
to deal with the summary offences at the same time as sentencing the appellant for dangerous driving.
7.
In sentencing for the offence of dangerous driving, the judge gave the appellant some credit for his guilty plea. However, the judge observed that the appellant had failed to surrender to custody twice. First he absconded whilst on bail from the police station in 2011. He was only picked up in January 2013 when he was arrested for other offences for which he now also fell to be sentenced. The appellant then failed to turn up to the court for those matters.
8.
The judge observed that the dangerous driving was a serious offence. The appellant chose to drive when drunk. He was well over the limit. He had two young passengers including a girl aged 15. He drove at serious speed over speed bumps when his passengers were crying out for him to stop. He lost control and the vehicle rolled over. All three occupants were seriously injured. The reading of alcohol in the appellant's blood taken at the hospital showed that he was well over the limit at the time of the accident. For the offence of dangerous driving the appellant was sentenced to 21 months' imprisonment. Consecutive sentences of four months and two months were imposed for the threatening behaviour and criminal damage. No separate penalty was imposed for the failure to surrender to custody.
9.
We have seen the antecedents of the appellant and the pre-appeal report ordered by the single judge. That report was prepared on 6th September 2013. A pre-sentence report was not prepared before the sentence was passed in the Crown Court as the appellant wished to be sentenced on 29th April 2013. The appellant has two previous convictions for five offences, none of which were driving offences.
10.
There is one ground of appeal: the sentence was manifestly excessive. The original grounds of appeal relied upon two matters: first, reliance was placed on
King
[2000] 1 Cr.App.R (S) 105, and secondly on the sentencing guidelines on discounts for guilty pleas. Quite rightly and appropriately, Miss Ellis, who has appeared before us and who was the draughtsman of the notice of appeal, does not pursue reliance on
King
. That was a very different case from that of the appellant. In
King
the sentencing judge made no discount at all for a guilty plea and had sentenced on a misapprehension of the facts. Accordingly before us Miss Ellis relies on the Sentencing Guidelines Council on Reduction for Guilty Plea.
11.
Miss Ellis rightly recognises that in this case, unlike what is contemplated in the Sentencing Guidelines Council guidance on discounts for guilty pleas, the appellant did not comply with the normal timetable for the progress of the criminal justice process. Miss Ellis also rightly recognises that the Sentencing Guidelines Council recommendations for guilty plea discount are predicated on a defendant complying with the normal court processes and the normal timetable. This timetable was not complied with in this case because of the appellant's own actions.
Discussion and conclusion
12.
This was a very serious case of dangerous driving. The appellant drove his car having consumed a considerable amount of alcohol during the night before the offence. The reverse calculations of the content of alcohol in his blood showed that he is likely to have been driving whilst well in excess of the legal limit. He had two passengers in his car, one of whom was a young girl. He drove far too fast and ignored the pleas of his passengers to slow down. His vehicle left the road and turned over. He and his passengers were injured, he and his partner quite seriously. It is fortunate that they did not suffer more serious injury.
13.
In our judgment, the sentencing judge was fully entitled to regard this offence as one meriting a starting point of the maximum sentence of two years. Rightly Miss Ellis does not submit that the starting point taken by the learned judge was wrong. The Sentencing Guidelines Council recommends a reduction of 25 per cent in sentence for a guilty plea after a trial date is set. In our judgment, the sentencing judge was entitled to take into account the failures of the appellant to comply with the criminal justice processes in giving a lesser reduction. Miss Ellis submits that this appellant effectively pleaded guilty at what would have been a hearing to fix a trial date. By his own plea he curtailed the need for that to take place because he pleaded guilty on that occasion.
14.
However, there is no doubt in our mind that the guidelines are based on the usual procedural timetable and that this appellant effectively torpedoed that timetable by his own actions in failing to answer to bail and to surrender to custody when required to do so. Why should he benefit from the recommended reduction when by his actions he had delayed the criminal justice process for over a year?
15.
In our judgment, there is nothing at all wrong with the discount that the sentencing judge made for the guilty plea. He effectively gave a discount of one-half of the ordinarily recommended discount of 25 per cent. In our judgment the discount of twelve-and-a-half per cent applied by the sentencing judge did not result in a manifestly excessive sentence. The appeal is dismissed. | ```yaml
citation: '[2013] EWCA Crim 2667'
date: '2013-09-17'
judges:
- LORD JUSTICE FULFORD
- MRS JUSTICE COX DBE
- MRS JUSTICE SLADE DBE
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No:
200806065 A8
Neutral Citation Number:
[2010] EWCA Crim 246
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Wednesday, 27 January 2010
B e f o r e
:
LORD JUSTICE MAURICE KAY
MRS JUSTICE SHARP DBE
SIR CHRISTOPHER HOLLAND
- - - - - - - - - - - - - - -
R E G I N A
v
NICHOLAS SMITH
- - - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - -
MR J ROUSE
appeared on behalf of the
Appellant
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J U D G M E N T
1.
LORD JUSTICE MAURICE KAY:
On 2 September 2008, in the Crown Court at Harrow, this appellant pleaded guilty on re-arraignment to a number of offences, for which he was sentenced on 10 October 2008. The offences were eight offences of robbery and eight offences of possession of a firearm when committing a schedule 1 offence. He was sentenced to imprisonment for public protection with a minimum period of 6 years for each offence, those sentences to be served concurrently. He now appeals against sentence by leave of the single judge.
2.
It is not necessary for us to say much about the offences themselves. There had been a large number of armed robberies of bookmakers premises between 4 March 2006 and 28 May 2007. The appellant was linked to the offences by images captured on CCTV in some of the premises and also by descriptions given by staff. The robberies were all carried out in a similar manner; the appellant would go into the premises, produce an imitation handgun and demand money. He would then place the money in a plastic carrier bag and leave the shop, having told the staff to go into a back room. The robberies all occurred at the beginning or end of a working day when the staff were either opening or closing the premises and few, if any, customers were around. The appellant attempted to conceal his identity by wearing a disguise comprising of a hat, sunglasses and a scarf. In the eight armed robberies, he stole a total of £13,000.
3.
He was arrested on 10 January 2008. He denied involvement and said that he did not wish to be interviewed.
4.
So far as the robberies were concerned, when sentencing him the judge said:
"What you did was to select premises where you expected large sums of money to be kept. You were armed with an imitation firearm and disguise, and you threatened members of staff with that imitation firearm. I have no doubt at all that on each occasion those threatened were terrified, and it was for this reason that you managed to rob the victims of a total of £13,000, none of which has been recovered.
There are a number of aggravating features; there was pre-planning, the disguise, the targeting of large sums, and of course the fact that the victims are vulnerable for that very reason.
You have a dreadful record ... I agree with the conclusion expressed in the pre-sentence report that you are a career criminal. You present, without any doubt, a significant risk to the public of serious personal injury caused by your committing further specified offences".
5.
It is necessary to say little bit more about the "dreadful record". The appellant is now 59. His offending began in 1963 and rapidly graduated to matters of house-breaking and burglary. However, the real concern relates to his history since 1975. On 21 November 1975, for offences of robbery, conspiracy to rob and wounding with intent, he was sentenced to 10 years' imprisonment; on 29 September 1982, for offences of conspiracy to rob and having an imitation firearm with intent to commit an indictable offence, he was sentenced to 12 years' imprisonment; on 28 October 1994, for offences of robbery and carrying a firearm with intent to commit an indictable offence (there were three robberies in all) he was sentenced to a total of 9 years' imprisonment; on 24 January 2000, for an offence of attempted robbery and having a firearm with intent to commit an indictable offence, he was sentenced to imprisonment for life. That was a mandatory sentence in view of his history. We are told that the minimum term was set at 4 years. He was released from that sentence on 25 September 2004.
6.
On behalf of the appellant, Mr Rouse makes two submissions. First, he submits that the sentence of imprisonment for public protection was wrong in principle; secondly, he submits that, in any event, the minimum term of 6 years, extrapolated from a putative sentence of 12 years, was manifestly excessive. We deal first with the submission that the sentence is wrong in principle. Essentially, Mr Rouse's submission is that it was wrong in principle to impose a sentence of imprisonment for public protection because, at the time when the sentence was imposed, the appellant had been recalled to prison under his life sentence. He will now remain in prison pursuant to that sentence until, under section 28(6) of the Crime and Sentences Act 1997, the Parole Board is satisfied that it is no longer necessary for the protection of the public that he be confined. The submission is that, whatever sentence had been imposed on 10 October 2008 in the Crown Court at Harrow, future public protection is already underwritten by the life sentence, in circumstances where the test applied by the Parole Board is more difficult to satisfy than the test of dangerousness under
section 229 of the Criminal Justice Act 2003
. Mr Rouse also refers to what may be described as practical difficulties. He submits that the two sentences have had, and will have, the effect of applications for release being processed and considered by two constitutions of the Parole Board. It is proving to be impossible to plan the appellant's sentence properly. In all these circumstances, he submits that the judge should simply have passed the appropriate determinate sentence in the Harrow Crown Court. There could be no application for release by reference to that until the half way point had been reached, and this would have sufficed and would have had the administrative simplicity of only one indeterminate sentence being in play.
7.
We do not accept those submissions. The sentence for public protection, imposed under the dangerousness provisions of the
Criminal Justice Act 2003
, was imposed by the judge in the exercise of the express discretion conferred upon him by the statute. The statute is expressed in terms of a discretion stating that the court "may" impose a sentence of imprisonment for public protection if the relevant conditions are satisfied. There is, of course, no dispute in the present case that the relevant criteria of dangerousness -- that is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences -- is plainly satisfied.
8.
The discretion conferred by the statute was not expressly constrained in a case such as this where there is an existing indeterminate sentence. It was for the judge to decide upon the punishment for the these robberies and associated firearms offences, having regard to the provisions of
the 2003 Act
. Moreover, there is nothing anomalous or unusual about two indeterminate sentences being imposed on different occasions, or even in different forms. Section 34 of the Crime and Sentences Act 1997 expressly addresses the position of a life prisoner, which expression means, "a person serving one or more life sentences". For this purpose, "life sentence" is defined in section 34(2) as embracing both a sentence of imprisonment for life and a sentence of imprisonment for public protection. Section 34(4) then provides:
"Where a person has been sentenced to one or more life sentences and to one or more terms of imprisonment, nothing in this chapter shall require the Secretary of State to release the person in respect of any of the life sentences, unless and until the Secretary of State is required to release him in respect of each of the terms".
9.
It seems to us that that is a statutory provision designed to ensure that, where more than one indeterminate sentence exists, release is not required until the last of the minimum terms has been completed.
10.
We also consider the implications of section 28(7) of the Crime and Sentences Act 1997. Essentially, a life prisoner may require the Secretary of State to refer his case to the Parole Board at any time, but where there has been previous reference, that is modified by a requirement that there must be a period of two years, beginning with the disposal of the earlier reference, before a later application. That means that, in principle, under the current life sentence, this appellant would be free to make periodic applications every two years. However, the effect of the imprisonment for public protection with the minimum period of six years, is that, for all practical purposes, he will not be able to make that application until six years have elapsed, because any further application by reference to the life sentence would be doomed to fail for the reasons we have given.
11.
Mr Rouse submits that the same could be achieved by passing a determinate sentence and superimposing that on the life sentence without an indeterminate sentence of imprisonment for public protection. Whilst that is true in one sense, it does not address the task of the sentencing judge when devising the appropriate sentence for the offences that were before him. Nor would it contain within its terms the finding of the sentencing judge on the most recent occasion, that the appellant does in fact satisfy the dangerousness provisions of
the 2003 Act
as at 10 October 2008. For all these reasons, we reject the submission that it was wrong in principle for the judge to pass the sentence of imprisonment for public protection.
12.
As to the second submission, that the minimum term of 6 years was manifestly excessive, we find ourselves unable to agree; it relates to a putative sentence of 12 years' imprisonment. The appellant pleaded guilty on re-arraignment, and it is apparent from his sentencing remarks that the judge was not giving him full credit for the plea of guilty because he referred at one point to, "the fact that you pleaded guilty, taking into account the stage at which you did so". Accordingly, it seems to us that the starting point after a trial was not as high as 18 years, the figure originally identified by Mr Rouse. His submissions then rely heavily on the Sentencing Guidelines Counsel's Definitive Guideline on robbery. He emphasises that the weapon on this occasion was an imitation firearm and it was made of plastic. He submits that, applying the SGC's categories, this was a level 2 series of robberies.
13.
The first point to notice about the Sentencing Guidelines Council's Guidelines is that the starting points are based upon a first time offender. This appellant, far from being a first time offender, is a multi-convicted armed robber who has received several very long sentences for his nefarious activities. The judge identified aggravating features; in our judgment they were all correctly identified, and the matter was intensely aggravated by this appellant's "dreadful record". In our judgment, it simply cannot be said that the putative sentence of 12 years, following a late of plea of guilty for eight offences, was manifestly excessive. Indeed, when Mr Rouse responded to our request that he identify the sentence which he says would not be manifestly excessive, he said "10 years".
14.
We are in no doubt that the putative sentence of 12 years was a permissible sentence and cannot in any sense be described as manifestly excessive. Accordingly, this appeal against sentence is dismissed.
15.
Thank you very much, Mr Rouse.
16.
MR ROUSE:
My Lords, I am grateful. I make an oral application, pursuant to section 74(2) of the Criminal Procedure Rules for leave. I respectfully submit that the court should certify a point of general public importance, namely whether or not an imprisonment for public protection sentence should be imposed, or could be imposed on a defendant serving a life sentence.
17.
LORD JUSTICE MAURICE KAY:
Well, you will have to draft a question first.
18.
MR ROUSE:
I will my Lords, and I could of course, as I understand it, do this within 14 days of your Lordships giving a ruling but I think, out of courtesy, I should raise it with your Lordships this morning.
19.
LORD JUSTICE MAURICE KAY:
Yes. Well, Mr Rouse, if you would like to submit a question, we will give consideration to it. Could you do that within the next 7 days.
20.
MR ROUSE:
I will. Thank you.
21.
LORD JUSTICE MAURICE KAY:
Thank you very much. | ```yaml
citation: '[2010] EWCA Crim 246'
date: '2010-01-27'
judges:
- LORD JUSTICE MAURICE KAY
- MRS JUSTICE SHARP DBE
- SIR CHRISTOPHER HOLLAND
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
200704510 B2
Neutral Citation Number:
[2008] EWCA Crim 994
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
25 April 2008
Before
:
LORD JUSTICE HUGHES
MR JUSTICE UNDERHILL
SIR CHRISTOPHER HOLLAND
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Between :
CF
Appellant
- and -
The Queen
Respondent
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(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Jamie Hamilton
(instructed by
Pluck Andrews
) for the
Appellant
Miss Nicola Gatto
(instructed by
Crown Prosecution Service
) for the
Crown
Hearing dates: Thursday 16
th
January 2008
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Judgment
Mr. Justice Underhill:
1.
On 27 July 2007 at the Crown Court at Manchester (Minshull Street) the Appellant, who was born on 18 November 1990 and was thus then aged 16, was convicted on five counts of rape of a male child under 13, contrary to
s.5(1)
of the
Sexual Offences Act 2003
and two counts of inciting a child under 13 to engage in sexual activity contrary to
s.8(1)
of
the Act
. On 26 October 2007 he was sentenced to concurrent terms on each count of 30 months detention pursuant to
s.91
of the
Powers of the Criminal Courts (Sentencing) Act 2000
. His appeals against both conviction and sentence have been referred to us by the Registrar of Criminal Appeals.
2.
We start by considering the appeal against conviction. It is convenient to say at this stage that we give leave to appeal and proceed to consider the substantive issues. It is necessary to start by setting out the procedural history, in particular as it relates to the framing of the indictment.
3.
The Appellant was initially arraigned on 29 November 2006. The indictment as it then stood contained six counts – four of rape (two involving anal, and two oral, penetration) and two of incitement of a child to engage in sexual activity, namely asking the victim to lick his anus. In each of the cases the victim “(R”) was the same boy, the son of a woman with whom the Appellant’s father was in a relationship, and thus – loosely speaking – his step-brother. R was about six years younger than the Appellant. All six offences charged were under
the 2003 Act
. They were advanced as sample offences: the Crown’s case was that each form of the abuse (that is to say, anal rape, oral rape and making R lick his anus) had occurred on more numerous occasions than were specifically charged, beginning some time after the time when the Appellant’s father and R’s mother began their relationship, which was in August 2003, and ending when the relationship broke up at the end of 2005. In the case of each count, the particulars did not identify a date for the offence but merely specified a period. In the case of two of the offences the start-date pleaded for the period in question was 5 August 2004, and for the remaining four it was 5 August 2005. Why those precise dates were chosen is unclear but is immaterial for present purposes.
4.
On 3 July 2007 the indictment was amended, on the application of the Crown (unopposed by the Appellant), (a) to add a further count of oral rape, occurring in a period with a start-date of 5 August 2003, and (b) - more materially for the purpose of this appeal - to change the start-date of the period identified in the particulars for each of the existing counts to correspond with that in the new count, i.e. to 5 August 2003. As amended, counts 1 and 2 alleged anal rape, counts 3-5 oral rape and counts 6-7 the offence under
s.8(1)
.
5.
The trial commenced on 23 July 2007 before His Honour Judge Lakin. The case was opened to the jury, and in due course summed up by the Judge, on the basis that if they found that anal rape occurred once, they should convict on count 1 and if more than once on count 2; and likewise for the counts of oral rape and under
s.8(1)
(save that in the case of oral rape count 5 was appropriate if they found that it occurred more than twice). The Appellant was in due course convicted on all counts. He was remanded on bail for reports prior to sentence.
6.
At some stage during the interval between conviction and sentence it was appreciated for the first time that the start-date of the period specified in the particulars under each of the counts on which the Appellant had been convicted preceded the coming into force of
the 2003 Act
, which occurred on 1
May 2004. The indictment as originally drafted was unobjectionable: the problem was caused by the amendments introduced on 3
July. On 25
October 2007 the Crown invited the Judge to amend the indictment so that the particulars referred to no date earlier than 1 May 2004. He refused that application on the basis that he had no power to permit amendment of the indictment following the verdict of the jury. It has been suggested to us that that was incorrect, in the light of the decision of this Court in
R v JW
(unreported, 21
April 1999); but that is not a submission on which we have found it necessary to reach a concluded view since, as will appear, the substantive issues which we have to consider in this appeal would arise whether or not the Judge had power to amend the indictment.
7.
It is common ground before us that the indictment on which the Appellant was convicted is defective because the particulars as pleaded include a period of several months (specifically 5 August 2003 to 30 April 2004) during which the offence charged did not exist. It is also, however, common ground that it is not a nullity (as to this, see the observations of Lord Bridge in
R v Ayres
[1984] AC 447
, at pp 460 -1). The issue for us is simply whether the defect in question renders the Appellant’s convictions unsafe.
8.
Mr Hamilton, for the Appellant, submits that a conviction is necessarily unsafe when the period specified in the indictment covers a period when the act alleged would not have constituted the offence charged. He relies on the decision of this Court in
R v C
[2005] EWCA Crim 3533
[2006] 1 Cr App Rep 28: although the precise situation falling for consideration in that case was different from that with which we are concerned here, the reasoning of the Court recognises that a defendant cannot be convicted of an offence under
the 2003 Act
unless the prosecution is able to prove that the act alleged occurred after 1 May 2004.
9.
Miss Gatto for the Crown does not seek to challenge that proposition as a matter of principle. It is, however, her submission that it can be demonstrated that, if the jury – as it evidently did – accepted the evidence of the prosecution witnesses, it must necessarily have found that all of the behaviour charged, or in any event some behaviour of each of the kinds represented by the specimen counts, occurred on or after 1 May 2004. If that is right, she submits, the convictions are safe. Even if some acts of the kind charged may have occurred prior to that date, that is immaterial provided that other such acts occurred after it.
10.
In our judgment if Miss Gatto’s premise is correct, her conclusion does indeed follow. But the crucial question is whether she can establish her premise. As to that, it is necessary to look carefully at what evidence was indeed before the jury as to the dates at which the alleged offences occurred. This is not entirely easy because, at the time that the evidence in question was given, those eliciting it (whether counsel or, in the case of the complainant, the officer conducting his initial taped interview) did not believe that the precise dates were of any particular significance, and no systematic attempt was made to establish a clear chronology. Likewise, the judge in the course of his summing up on more than one occasion told the jury that precise dates did not matter. Nevertheless, Miss Gatto submits that a clear picture does in fact emerge. There are two key markers to which she attaches particular importance. The first is that on 7 January 2005 R and his mother moved from the address at which they were living when her relationship with the Appellant’s father started – referred to in the evidence as “Greenwood Avenue” – to a new flat (“Inverness Road”). Any act which the evidence showed unequivocally had occurred after that move would necessarily have occurred after 1 May 2004. The second fixed point is the break-up of the relationship between the Appellant’s father and R’s mother, after which the Appellant and R ceased (save for a single immaterial occasion) to see one another: there was some uncertainty as to precisely when this occurred, and to what extent it was associated with her learning of the Appellant’s behaviour towards R, but it was common ground at the trial that it occurred around Christmas 2005.
11.
With those fixed points in mind we turn to consider the particular parts of the evidence on which Miss Gatto relied.
12.
The Video Interview.
The taped video interview took place on 12 May 2006. Miss Gatto identified the following passages as being relevant to the question of the dates at which the abuse occurred:
i)
Quite early in the interview R explained that although the Appellant used to live at his “grandma’s” he used to come and sleep at “my house”. He was asked where his house was. He answered:
“… [W]hen he started doing it, it was at Greenwood but then we moved to Inverness. And then before Christmas my Mum left Greg because she ended up finding out what happened to me. ”
That is a reasonably clear statement that the abuse started when R was living at Greenwood Avenue; but it is no help on the question on whether it started before 1 May 2004. It is also a statement that it continued until “before Christmas” (sc. 2005), and there is perhaps an implication that the abuse continued after the move to Inverness Road; but as to this there is more explicit evidence which we consider below.
ii)
A little later R was asked when the Appellant started “to first come to your house”. He answered “it was about two years ago”. Two years back from 12 May 2006 gets us to 12 May 2004. Ms. Gatto invited us to take that as a
terminus post quem
for the start of the abuse. We do not believe that we can safely do so, both because the period specified cannot reasonably be regarded as anything but approximate and because R shortly afterwards gave a rather different date for the start of the abuse (see below).
iii)
The officer conducting the interview then asked R to describe “the very first thing that CF made you do”. She said that she wanted to be told “everything about that ... where you were, when it was and what happened before that … and what happened after it”. R proceeded to give a detailed and circumstantial account of being subjected to an anal rape in the bathroom at the Appellant’s grandmother’s house, where they were both staying the night; and, the following morning, of being forced to fellate the Appellant. He gave no date, but he said:
“After that I went back to my house the day after and, erm, I didn’t tell my Mum anything but when, erm, that was going on for at least two years time and then I ended up telling my Mum … what had happened so that’s when she left my thingy, and he also told me to do summat really disgusting and lick his bum in the middle but I didn’t do that at first, but when he threatened to hit me so I done it. But then, erm, when I felt like not doing it anymore and when I felt, and when I started getting dead sad and all that, my Mum started thinking CF had done summat to me and he said “if you tell your Mum what I’ve done with you then I’ll batter you” so I didn’t tell her at first but then when I started getting sick of it I ended up just, erm, just telling my Mum and he left… so my Mum said “you’re never gonna… have to see him ever again.”
It seems reasonably clear from that passage that what R is saying is that there was a period of “at least” two years from the original incident (that is, the anal and oral rapes at the Appellant’s grandmother’s house) to when he finally told his mother what had been happening, and that it was that which led to the relationship with the Appellant’s father coming to an end. Since (see above) the relationship came to an end around December 2005, that would put the date of the original incident about the end of 2003. He is also clearly saying that abuse of a similar kind continued over the whole two-year period; but he does not in this passage (or – to anticipate – subsequently) give any details. A little later, the officer reverted to the first incident and asked R how long ago it was. He answered “nearly two years ago”. That answer agrees with the passage which we have set out at (2) in putting the incident in, or rather after, May 2004; but the (perfectly natural) imprecision of the answer, coupled with the discrepancy with the earlier answer implying (about) December 2003, means that it cannot be treated as definitive.
iv)
After the details of that incident had been fully explored, there occurred the following exchange:
Q.
So we talked about that one time, has there been any other times that he has done anything?
A.
Well, he has done it loads of times. He’s done it nearly every day.
Q.
Nearly every day?
A.
Nearly, er, every time he’s saw me he’s done it to me.
Q.
And what’s he done? What sort of things has he done to you every time he’s seen you?
A.
Well, well really all the things I’ve said and them are the only things he made me do. Every week he told me, like, to suck his willy, and, erm, bend over and, erm, lick his bum.
Q.
Right. So you know if we, if we, concentrate on him, putting his willy in your bum, how many times has he done that?
A.
About four times.
Q.
About four times. And I know what you’ve told me he done it his Grandma’s, has he done it anywhere else?
A.
At my house, and them are the two places he’s done it at.
Q.
Whereabouts in your house?
A
.
In my room.
There follows an exchange clarifying that, but which does not identify whether the room in question was at Greenwood Avenue or Inverness Road. The officer continued:
Q.
Okay. When you say he’s made you … suck his willy, how many times has he made you do that?
A.
About nearly ten.
Q.
About nearly ten times?
A.
About nine times. He’s done it load of times that.
Q.
Okay and what about him making you lick his bum?
A.
He’s only done that about three times.
Q.
Okay. So about four times he’s put his willy in your bum; about nine or ten times he has made you suck his willy, and about three times he’s made you, erm, lick his bum. Is that right?
A.
Yeah.
Whether or not those precise enumerations of the times that each form of abuse occurred are really reliable, they are the most specific statement by R, and the jury cannot have safely found that the number of occasions was any greater. They are, of course, not even approximately dated.
v)
Finally, R gave an account of how finally he came to tell his mother of what the Appellant had been doing. The exchange went as follows:
“Q.
What prompted you to tell your Mum when you did do?
A.
Well, erm, it, cos it were before Christmas and I wanted a nice Christmas without CF asking me to do anything, I told my Mum cos I were getting tired of it, always doing what he says and that so that’s what made me tell my Mum.
Q.
Right, okay. And when was the last time he did anything to you?
A.
Erm, just before Christmas, since, like, November or summat.
Q.
Of last year? Yeah?
A.
Yeah?
Q.
Okay.
A.
Before that Christmas, before the Christmas that what went.
That is a plain statement that some abuse had occurred shortly before Christmas 2005; but no details are given of what form of abuse.
13.
Cross-examination.
Miss Gatto referred to the following passages from the cross-examination of R:
i)
Early in his cross-examination R was asked how long after his mother and the Appellant’s father started going out together he had moved to Inverness Road. He said that it was about a year. The cross-examination proceeded on the basis that during that year – i.e., broadly, over the course of 2004 - the Appellant had not often stayed with R; but this seems to have been inconclusive.
ii)
R was cross-examined about the first incident which he had described in his video interview. Although he confirmed that the incident itself had happened at the Appellant’s grandmother’s house, he was asked whether it had occurred at a time when he was living in Greenwood Avenue or Inverness Road. He initially answered “Inverness Road”, but at once corrected himself to “Greenwood” and appears to have confirmed this by agreeing that it occurred “in the first part of your Mum’s relationship with his Dad”. That confirms, therefore, that the abuse started before January 2005, but it gives no assistance as to how long before.
iii)
R was asked about the enumeration of the various incidents which he had given in his video interview (see para. 12 (iv) above). Not surprisingly, he retreated somewhat from the precision of those answers, saying “I couldn’t remember really”. Counsel went on to ask him about where the abuse occurred. The Appellant said:
“He didn’t do it in my room at my house as much as in his room really. In his house (in his grandma’s house) nobody hardly comes in his room or anything, so he felt he could do it in his room; but he did it, I think it was about four times that he did do it actually at my house. ”
This appears to be a statement that most of the abuse occurred at the Appellant’s grandmother’s house. The significance of that is that there are no relevant date-markers: so far as the evidence goes, the grandmother lived at that house, and the boys went there, throughout the period of the relationship between their parents.
iv)
After some discussion of the incident in the bathroom at the Appellant’s grandmother’s house R was asked “so what happened in your bedroom?” He answered:
“He told me to suck his willy in my room and that all he’s ever told me to do in my room.”
He then confirmed, in answer to a question from counsel, that “my room” as there referred to meant his room in Inverness Road. This, therefore, is an explicit statement – for the first time in the evidence – that at least one form of abuse, i.e. oral rape, took place at Inverness Road and, therefore, necessarily after January 2005. In further answers he repeated that it was only occasionally that the Appellant stayed at “my house” – once said to be “a couple of times”, elsewhere “four times”.
14.
Re-examination
. In re-examination Miss Gatto attempted to clarify where the abuse occurred, but she did not seek to be specific about what abuse or about precise dates. R told her that “it went on” at Greenwood Avenue, once or twice … well, probably, actually about three or four times, I’m not sure”. He said that the Appellant only slept on one occasion at Inverness Road. There was then this exchange:
“Q.
When he did these things at Inverness, you talked about it being in your room. Was he sleeping or visiting?
A.
Sometimes it was sleeping, and sometimes it were visiting.”
This is confirmation that abuse occurred more than once at Inverness Road: the character of the abuse is unspecified, but given R’s answer in cross-examination (see para. 13 (iv) above) it must have been oral rape.
15.
Our attention was drawn to no other evidence before the jury bearing directly on the dates at which the acts of which are complained occurred.
16.
Where does that evidence leave us? The starting point is that it is not possible to say with any confidence that the jury must – if, as it did, it accepted the truthfulness of R’s account – have found that the initial incident, in which he was subjected to both anal and oral rape at the Appellant’s grandmother’s house, took place or on after 1 May 2004: the evidence in our view clearly admits of the possibility that it took place at some point in the period between December 2003 and the end of April 2004. It follows that we cannot say that any conviction based on the acts alleged in that incident constituting offences under
the 2003 Act
was safe. However, that incident was, on R’s evidence, only the start of a long course of sexual abuse continuing until shortly before Christmas 2005. The jury must, given that it convicted the appellant on all counts, unquestionably have accepted that evidence; and it necessarily follows that, even if the initial acts occurred prior to 1 May 2004, several acts of abuse (indeed almost certainly the majority) occurred in the period of eighteen months or so between that date and the end of 2005. The problem is that the counts on which the Appellant was convicted specify particular acts of abuse, and it is not open to us to hold that any particular conviction is safe unless conduct of that particular kind can be unequivocally attributed to the period after 1 May 2004. On that basis we do not see how either the convictions for anal rape or for the offence under
s.8(1)
can be sustained. Although R says that he was anally raped on four occasions, it is impossible safely to exclude the possibility that all of those occasions may have occurred in the first few months of the abuse and before 1 May 2004: no doubt that is not very probable, but probability is not enough. Likewise with the three occasions on which R was compelled to lick the Appellant’s anus. However, the position as to the counts of oral rape seems to us to be different. R did give unequivocal evidence that he was orally raped at Inverness Road, and on more than one occasion: see paras. 13 (iv) and 14 above. That must, necessarily, have occurred after 1 May 2004. We can see no rational basis on which the jury, having accepted R’s evidence generally, could have been less than sure on this aspect. It follows that the Appellant’s conviction on counts 4 and 5 is in our view safe.
17.
Accordingly we allow the appeal to the extent of quashing the Appellant’s conviction on all counts save counts 3 and 4. On the occasion of the hand-down of this judgment we will hear submissions on all consequential matters. | ```yaml
citation: '[2008] EWCA Crim 994'
date: '2008-04-25'
judges:
- LORD JUSTICE HUGHES
- MR JUSTICE UNDERHILL
- SIR CHRISTOPHER HOLLAND
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| No: 201001974 C4; 201002103 C4; 201005547 A8
Neutral Citation Number:
[2011] EWCA Crim 146
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Thursday 27th January 2011
B e f o r e
:
LORD JUSTICE ELIAS
MR JUSTICE KENNETH PARKER
RECORDER OF LONDON
HIS HONOUR JUDGE BEAUMONT QC
(Sitting as a judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - -
R E G I N A
v
ABIDA SHAHEEN AMIR
URFAN AKHTAR
- - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - -
Mr S Farrell QC
appeared on behalf of
Akhtar
Mr M Morse
appeared on behalf of the
Crown
J U D G M E N T
1.
LORD JUSTICE ELIAS: These are two applications for permission to appeal lodged by the Registrar. The appeal raises a point of some interest, namely the construction of
section 328 of the Proceeds of Crime Act 2002
("
the 2002 Act
").
2.
The background is as follows. The appellant Akhtar owned a mortgage business called the Mortgage Shop in Staffordshire. He introduced clients to mortgage brokers, who paid a fee for the introduction. He was prosecuted for knowingly submitting false mortgage applications on behalf of third parties as co-defendants. They were charged under
section 329
of
the 2002 Act
. Akhtar would give false information to the brokers. In the case of the co-appellant, Amir, for example, he contended that she had a particular income which was untrue and he supported the application with a false employer's reference. Similar deception was practised with respect to other parties.
3.
Akhtar was tried at the Crown Court at Stoke-on-Trent before His Honour Judge Eades. He pleaded guilty on re-arraignment to five separate counts of money laundering contrary to
section 328(1)
of
the 2002 Act
. Each count reflected a different transaction. On 22nd April 2008 he was sentenced to 22 months' imprisonment on each count and was also subject to a confiscation order, which is the subject of challenge in this appeal. We return to that later.
4.
There were five co-accused. The case against them was, in essence, that they knew or suspected that false information had been given. Two were acquitted, but Amir, Kausar and Noreen were convicted of acquiring criminal property contrary to
section 329
and Nawaz pleaded guilty to attempting to do so. They each received a 26 week sentence suspended for 18 months, and in some cases there were additional elements of the sentence such as a supervision element.
5.
Subsequently, on 30th July 2009 Kausar successfully challenged his conviction on the grounds that the judge had not left the jury a potential defence which was open to him under
section 329(3)
, namely that he may have given good consideration for the benefit he received. An argument was also advanced that
section 329
requires that there should be an acquisition of criminal property but that the benefit received was not criminal property at the time he acquired it. The court concluded that the consideration point was correct and in the circumstances it declined to consider the argument based on the definition of criminal property. Accordingly, it quashed the conviction (see
[2009] EWCA Crim 2242
).
6.
On 19th March 2010 Nawaz and Noreen had their convictions overturned by this court, the court relying on the
Kausar
decision. Again, the wider argument was canvassed but did not have to be determined by the court (see
[2010] EWCA Crim 819
).
7.
Amir seeks permission to appeal almost two years out of time, and of course the sentence has now been completed. The Crown properly does not oppose the appeal, which it accepts is determined by the earlier decisions in relation to the co-accused. Accordingly, with respect to Amir we extend time, grant permission to appeal and quash the conviction.
8.
Akhtar similarly now challenges his conviction, notwithstanding that he pleaded guilty at the time. The Crown does not, however, accede to that application because it is submitted that the defence available to the co-defendants under
section 329
is not available under
section 328
, and it considers that the arguments advanced by Akhtar's counsel are wrong.
9.
In order to understand the submissions on this point we first need to spell out the relevant legislation.
10.
Section 328
is part of a series of money laundering provisions which criminalise those who deal in various ways with criminal property, knowing or suspecting that it is property which has been acquired by criminal activity.
Section 327
is concerned with concealing, disguising, converting or transferring criminal property.
Section 329
is concerned with acquiring, using or possessing it. In each case there are a number of specific defences.
11.
Section 328(1)
is as follows:
"A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person."
There are then a number of specific defences set out in the following subsections but they are not material to this application.
12.
It is pertinent to note that these three offences were all concerned in one way or another with dealing with criminal property, so the definition of criminal property is important. That is found in section 340 of the Act. That section is as follows:
"(1) This section applies for the purposes of this Part.
(2 )Criminal conduct is conduct which -
(a) constitutes an offence in any part of the United Kingdom, or
(b) would constitute an offence in any part of the United Kingdom if it occurred there.
(3) Property is criminal property if -
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.
(4) It is immaterial -
(a) who carried out the conduct;
(b) who benefited from it;
(c) whether the conduct occurred before or after the passing of this Act.
(5) A person benefits from conduct if he obtains property as a result of or in connection with the conduct ...
(9) Property is all property wherever situated and includes -
(a) money;
(b) all forms of property, real or personal, heritable or moveable;
(c) things in action and other intangible or incorporeal property."
13.
The short point in this appeal is this: is property criminal property for the purposes of
section 328
only after some other offence has been committed, or is it to be characterised as criminal property because of the criminal objective which the arrangements were designed to achieve?
14.
Mr Farrell QC, counsel for the applicant, submits that when the appellant entered into the arrangements with the mortgage broker, and indeed even when they were carried into effect, he was not thereby facilitating the acquisition of criminal property because at that time the property was not criminal in the hands of the mortgage company. It only became criminal property when it came into Akhtar's hands or those for whom he was securing the mortgage. Mr Farrell says the whole premise of these money laundering sections is that there has been an earlier criminal offence committed. The purpose of the wrongdoers is to conceal or disguise the criminal origin of the proceeds and thereby obscure their criminal origins. It is an artificial and false reading of the statute to say that property in a case such as this has already become before the crime of deception is complete.
15.
Mr Farrell relies on a number of decisions of this court in support of these submissions. The first is the decision in
Loizou
[2004] EWCA Crim 1579
,
[2005] 2 Cr App R 37
. It is not necessary to go into the facts in any detail. Suffice it to say that the defendants were involved in the transfer of some £87,000 in highly suspicious circumstances. They were charged under
section 327(1)(d)
of
the 2002 Act
for transferring criminal property. An issue in the trial was whether the property was criminal. The prosecution wished to put its case in two ways: the first was that they could produce evidence from which the jury could infer that the money was the proceeds of a crime; the second was that it would be criminal property if it was transferred for a criminal purpose. The judge gave a ruling, which he treated as a preliminary ruling under
section 29 of the Criminal Procedure and Investigations Act 1996
, as to whether the second analysis was correct in law. He held that it was and the defence lodged an interlocutory appeal under section 35 of that Act. This court (Clarke LJ, Hughes J and Dobbs J) held that the criteria for a preliminary ruling had not been satisfied and therefore they had no jurisdiction to hear the appeal. However, they went on to express their views on the merits of the argument. They indicated that they agreed with the proposed appellants that the judge had erred in his approach. Judgment was given by Clarke LJ, who held that there was no offence under
section 327
if the property was not criminal at the time of transfer. He said this:
"31. A simple reading of the indictment reinforces the point. As already indicated the indictment alleged transferring criminal property, the particulars being transferring cash, which was criminal property, knowing or suspecting that the cash constituted a personal benefit from criminal conduct. That naturally means earlier criminal conduct and not the conduct which is the subject of the indictment.
32. Take this example. Suppose I receive pay as a judge in cash, that cash is not criminal property. Suppose I use that money to pay Hughes J for a car which I know he has stolen. In that event I, of course, commit the offence of receiving goods knowing them to be stolen. I do not, however, commit the offence of transferring criminal property because the property I am transferring, namely the money which I earned as a judge, is not criminal property. Of course, in the hands of Hughes J as the seller of the stolen car, the cash is criminal property because it constitutes "a person's benefit from criminal conduct" within section 340(3)(a) which he knows suspects constitutes such a benefit within section 340(3)(b). Does Hughes J commit an offence under
section 327(1)
? The answer is plainly no, because he has not concealed, disguised, converted or transferred criminal property. He has simply received what is now criminal property and retained it.
Section 327(1)
does not create an offence of receiving criminal property.
33. There was some discussion during the course of the argument as to whether in this example he might have committed an offence under
section 329(1)(a)
on the footing that he was in possession of criminal property. However, the point was not fully argued and we express no opinion upon it. After all, no charge under
section 329
has been brought in this case."
Then later he considered whether property could become criminal property merely because it was the defendant's intention that it should be so used. His Lordship held that it could not:
"35. Mr Fender submits in his skeleton argument that property acquired legitimately becomes criminal property within section 340, if a person forms a purpose or intention to use it for criminal purposes. We are not sure that he went so far in oral argument. It would certainly be a very surprising result and it is not in our view justified by the statutory language. Such cases are dealt with by the civil forfeiture provisions in
the 2002 Act
. They are set out in section 294, which provides for seizure of cash if it is intended by any person for use in unlawful conduct and is section 298, which provides for forfeiture of cash if it is intended by any person for use in unlawful conduct. As Mr Levett puts it in his skeleton argument, both sections are triggered as a pre-emptive measure before any crime has been committed.
36. More significantly, Mr Fender relies upon section 340(4) and (5). As to section 340(4), he submits that it shows that it is immaterial when the conduct was carried out. We accept, of course, that by section 340(4)(a) and (b), it is immaterial who carried out the criminal conduct, but, except for paragraph (c), section 340 does not address the question when the criminal conduct must be carried out. Moreover, we do not think that the criminal conduct referred in section 340(2) and (3) can be the criminal conduct referred to in
section 327(1)
. Such an argument would be circular."
16.
Mr Farrell submits that the logic of this argument applies to
section 328
also; there is no proper basis for distinguishing the instant case from the approach adopted there.
17.
Perhaps more significantly, he also relies on the decision of this court which deals with
section 328
itself. This is the case of
R v Geary
[2010] EWCA Crim 1925
. It is not necessary to spell out the facts of the case. One of the issues before the court was identified by Moore-Bick LJ, who gave the judgment of the court (Moore-Bick LJ, Rafferty J, HHJ Gilbart QC) in the following way:
"... whether it is necessary for the property which is the subject of the arrangement to be criminal property at the time when the arrangement attaches to it."
The court summarised its answer to that question at paragraph 19 in the following way:
"In our view the natural and ordinary meaning of
section 328(1)
is that the arrangement to which it refers must be one which relates to property which is criminal property at the time when the arrangement begins to operate on it. To say that it extends to property which was originally legitimate but became criminal only as a result of carrying out the arrangement is to stretch the language of the section beyond its proper limits. An arrangement relating to property which has an independent criminal object may, when carried out, render the subject matter criminal property, but it cannot properly be said that the arrangement applied to property that was already criminal property at the time it began to operate on it."
18.
The court also referred to another decision,
Kensington International Ltd v Republic of Congo
[2008] 1 WLR 1144
, which concerned the question whether a payment of a bribe would constitute an offence under
section 328(1)
on the part of the person who paid it. Moore-Bick LJ held that it would not. He summarised his conclusion as follows:
"A person who gives a bribe may know that it will constitute criminal property in the hands of the recipient, but that does not make him guilty of entering into an arrangement which facilitates the acquisition of what is already criminal property".
He also observed that property cannot be criminal property until it has been acquired by means of criminal conduct. Mr Farrell contends that these authorities too compel the conclusion that the appellant ought not to have been convicted in this case.
19.
Mr Morse, for the prosecution, submits that
section 328
is framed differently from
sections 327
and
329
. He accepts that under those two sections the property must be criminal at the time it is transferred, or used or possessed as the case may be, but he says that under
section 328
the crime may be committed where the property is not criminal property at the time of the arrangement, but where it is intended that it should be. He says that the appellant entered into an arrangement which he knew would facilitate the acquisition of criminal party for the third parties and that in those circumstances the property was acquired pursuant to the arrangement, and it should be treated as criminal property. As an alternative submission, he referred to the observation of Moore-Bick LJ in the
Geary
case where he said that the property would be criminal "at the time when the arrangement begins to operate on it" and he submitted that that would be at the point where the mortgage company had sent out the funds to the third parties.
20.
We reject these submissions. We see no warrant for his construction on the language of
section 328
, nor do we see any justification for adopting a different principle to the construction of
section 328
than has been adopted with respect to
sections 327
or
329
. They are all concerned in one way or another with dealing with criminal property. By section 340(3) that is property which in fact constitutes a person's benefit from criminal conduct or represents such a benefit and the offender knows or suspects that that is so. The definition does not embrace property which the accused intends to acquire by criminal conduct and the language of the statute is not capable of construing the definition in that way. Property is not criminal property because the wrongdoing intends that it should be so.
21.
Mr Morse's argument, in our submission, involves a re-writing of the statutory provision. On his analysis an offence is committed where a defendant becomes concerned in an arrangement which facilitates the criminal acquisition of property. The statute requires an arrangement facilitating the acquisition of criminal property. There is a material distinction. Nor do we accept his submission that the property is criminal because that is its character when it leaves the mortgage company. Even if that were so, and there are difficulties with that analysis posed by section 340(5), as Mr Farrell points out, we do not accept that it is therefore criminal property at the time when the arrangement begins to operate. The money, by definition, has already been sent once it leaves the hands of the mortgage company.
22.
We were also referred by the appellant to certain directives which the UK money laundering offences are designed to implement. These are EC Directives 91/308/EC, 2001/97/EC and 2005/60/EC. It is not necessary to lengthen this judgment by analysing those provisions. Suffice it to say that to take as an example the third EC Money Laundering Directive, the property which is the object of the legislation is defined as "property ... derived from criminal activity or from an act of participation in such activity". The construction we have given to the statute is entirely in accordance with the language of those directives. Certainly there is nothing in the directives, in our view, which would require the domestic legislation to be construed in the manner suggested by the prosecution.
23.
It follows that in our view this appeal must succeed and the conviction is quashed. It follows that the confiscation order falls and the appeal with respect to it is no longer relevant. In fact, it concerned the question whether a certain sum attributed to the appellant was rightly attributed to him, and the Crown conceded that it had not been, but it is not necessary to dwell further on that aspect of the appeal.
24.
We should add, of course, that our judgment does not mean that the appellant could with impunity act in the way he did. It is common ground that he could have been tried under the Theft Act. The relevant section at the time was section 15A, which concerns obtaining a money transfer by deception and the relevant offence now would be one under the Fraud Act, but the prosecution chose to use
section 327
, it seems, because it thought that it would be easier to prove. The fact that the appellant is very likely to have been convicted under the alternative section is not of course a reason for not quashing this conviction. Accordingly, we quash the conviction and the confiscation order falls with it.
25.
MR FARRELL: My Lord, there were some costs incurred prior to the granting of a representation order. Could I please ask for a defendant's costs order to be assessed.
26.
LORD JUSTICE ELIAS: What were the costs?
27.
MR FARRELL: I cannot remember the exact sum. I was instructed privately to write an advice and draft the original application. Can I just ask my solicitor what the sum was. My costs were £3,000 plus VAT and the solicitors costs, I am afraid, are currently unknown. In my submission, he should be entitled to his costs as he has succeeded.
28.
LORD JUSTICE ELIAS: We do not normally award costs in these circumstances. If you wish to pursue it you can make an application on paper and we will consider it.
29.
MR FARRELL: I will submit one, thank you very much. | ```yaml
citation: '[2011] EWCA Crim 146'
date: '2011-01-27'
judges:
- LORD JUSTICE ELIAS
- MR JUSTICE KENNETH PARKER
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Case No:
A4/2014/05509
Neutral Citation Number:
[2015] EWCA Crim 44
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Portsmouth Crown Court and Winchester Crown Court
Mr Recorder Towler
T20137171
U20141320
Reference under Section 36 of the Criminal Justice Act 1988
Attorney General’s Reference No 117 of 2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
04/02/2015
Before :
LORD JUSTICE PITCHFORD
MRS JUSTICE SWIFT
and
THE RECORDER OF CARLISLE
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Appellant
- and -
Miles Gregory Balogh
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Jocelyn Ledward
for the
Crown
Stephen Smyth
for the
Respondent
Hearing date: 16 January 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Pitchford :
The Reference
1.
This is an application made on behalf of HM Attorney General for leave to refer to the Court as unduly lenient a suspended sentence order imposed at Portsmouth Crown Court on 31 October 2014 for an offence of rape. The provisions of the
Sexual Offences (Amendment) Act 1992
apply to these proceedings and to preserve the anonymity of the complainant we shall refer to the complainant either as “the complainant” or as “GP”.
2.
On 18 March 2014 the offender pleaded guilty to a single count of rape, contrary to
section 1
of the
Sexual Offences Act 2003
. He put forward a basis of plea that, after consideration, was not acceptable to the prosecution. On 7 April 2014 the Crown Court ordered that a Newton hearing should take place to resolve issues of fact. That hearing was held before Mr Recorder Towler on 20 June 2014. Having made findings, the Recorder adjourned the sentence hearing for the completion of reports.
3.
On 31 October 2014 the recorder imposed a suspended sentence order comprising 2 years imprisonment with a supervision requirement for the same period. In addition he made a restraining order under the
Protection from Harassment Act 1997
requiring the offender for an indefinite period not to make contact with the complainant.
The facts
4.
The offender was born on 14 May 1986. He is now aged 28 years. The complainant, GP, is a year older. The offender suffers a mental disorder comprising Tourette’s syndrome, obsessive compulsive disorder (“OCD”), attention deficit hyperactivity disorder (“ADHD”), anxiety and depression. He was prescribed medication to alleviate depression and anxiety and anti-psychotic medication to suppress his significant Tourette’s tics. The complainant has a borderline personality disorder whose principal manifestations are anxiety and susceptibility to panic attacks. Both were living independently in 2011. The complainant was in employment; the offender was in receipt of disability living allowance and employment support.
5.
In 2007 or 2008 the complainant was in a relationship with her female partner, Zoe. The offender and Zoe were known to one another; they had attended the same school. The offender and GP were introduced. The three young people socialized together from time to time until, in 2011, the relationship between GP and Zoe ceased. The offender and the complainant became emotionally close but the relationship was entirely platonic, the offender understanding that the complainant had no sexual interest in men. However, as the Recorder found, for some time before October 2011 the offender had, without GP’s knowledge, harboured some hope that in time GP would consent to become his girlfriend in the conventional sense.
6.
The offender organized a Halloween party at his flat on or about 29 October 2011. Only the complainant and two of the offender’s male friends turned up. All three males consumed a considerable quantity of alcohol; the complainant had work the following day, so she consumed less. The party moved on to the complainant’s house at her invitation. The time came when one of the offender’s male friends went to sleep on a sofa in the living room; the other was offered the second sofa.
7.
The following account of events incorporates the findings of fact made by the recorder at the Newton hearing. The complainant invited the offender to share her bed. The offender knew this was not an invitation for sexual activity. They had shared a bed before, purely to sleep. Neither party anticipated or intended sexual activity between them. The complainant went to bed first. She was sleepy. She was wearing pyjama trousers and a T shirt top. There was brief and desultory conversation between them before the complainant turned away from the offender and went to sleep. The second of the male friends had by this stage left the house. The complainant awoke to find the offender touching and kissing her. She said, ‘No’, but this had no effect. The offender proceeded to kiss the complainant about the face and on her thighs. Despite her protests he removed her pyjama bottoms and climbed on top of her. As the recorder found “the obsessive part” of the offender’s personality took over. The complainant struggled and cried out, but the offender placed his hand over her mouth and commenced sexual intercourse with her. During the course of sexual intercourse the offender came to his senses and desisted. He spent 5 – 10 minutes apologizing profusely to the complainant and punched himself while doing so. The complainant made it clear that their friendship was ruined. The offender took his clothes from the bedroom, dressed, woke his friend and left. He told his friend that he had “tried it on” with the complainant.
8.
GP telephoned her mother and told her what had occurred. Some while later Mrs P visited her daughter’s home and saw blood on the bed sheet. The complainant decided that she did not wish to report the matter to the police because she felt ashamed, wanted to put the incident behind her and did not want to get the offender into trouble. The following day she went to a clinic for advice and a prophylactic; however, she was not physically examined. Two weeks later she went to hospital for an examination. She said she had been raped by someone known to her but she would not name him. She told treating staff that “a few hours” after intercourse she had started bleeding. The complainant said that her normal period started shortly after that. She was, she said, sore inside and out but that had settled by 9 November 2011.
9.
The offender’s behaviour caused him distress and an enduring sense of guilt. Two years later he tried unsuccessfully to make contact with the complainant. After making several telephone calls to the police, he attended a police station on 23 September 2013, taking with him some of his medical records. He was in a state of considerable anxiety. He told the police that he wanted to confess to sexual assault; he thought he needed help. He was arrested at 8 pm. He was booked into the police station and prescribed tranquillisers. The complainant was approached by the police and she made a statement. She confirmed that she had been raped. She said nothing about her invitation to the offender to share his bed. The following day the offender was assessed under the Mental Health Act and judged fit to be interviewed. He was arrested and interviewed in the presence of the duty solicitor and an appropriate adult. He claimed that the complainant had invited him into his bed, had gone to bed topless and had encouraged sexual activity by engaging in consensual foreplay that included the complainant fondling his penis. He claimed that the complainant changed her mind only at the last moment. He realised the complainant was not consenting only after penetration had occurred.
10.
It is accepted by HM Attorney General that were it not for the offender’s self report this matter would not have come to light.
The proceedings in the Crown Court
11.
The offender pleaded guilty on 18 March 2014 but put forward a written basis of plea that adopted the account he had given in interview under caution. The prosecution indicated that the basis of plea was not accepted. On 7 April 2014 the resident judge at the Crown Court, HH Judge Hetherington, directed that a Newton hearing should take place. The hearing was listed before Mr Recorder Towler on 19 June and the evidence was completed the following day. The recorder heard evidence from both parties and other witnesses. He was also provided with reports upon the offender by consultant psychiatrists, Dr Alexis Bowers and Professor Neil Greenberg. He reserved his ruling and on 14 July delivered judgment. The recorder made detailed findings of fact. Although, in the main, he accepted the account of the complainant and rejected that of the offender, he was sure that the offender’s medical condition “impacted on the way in which he behaved that night” (Transcript proceedings 4 July 2014, page 17G-18A). He concluded that the complainant had indeed invited the offender to share her bed for the night; that neither had any intention that sexual activity should take place; that the complainant made it clear at an early stage that she did not consent to sexual activity; but that the offender continued until he came to his senses and withdrew.
The medical evidence
12.
Professor Greenberg interviewed the offender on 17 October 2013. His report is dated 24 October 2013. Dr Bowers interviewed the offender on 4 March 2014 and her report is dated 5 March 2014. Dr Bowers did, but Professor Greenberg did not, have access the offender’s medical records, although Professor Greenberg was handed copies of information provided in support of the offender’s claims for disability allowance. At interview Professor Greenberg found the offender to be within the normal range of intelligence. He appeared to be distracted at times. He suffered ‘obvious’ tics, both motor and verbal. His vocabulary was good but he had a stutter at times. He was angered and frustrated by his disorder. He had mood changes. He believed himself to be evil and horrible. He admitted to regarding women as sexual objects. He had himself been abused by a 15 year old male when he was aged 6 or 7 years. He had no intention to harm anyone but worried that he might. In Professor Greenberg’s view the offender’s thoughts about women were egodystonic; in other words, he was aware of his thoughts and did not want them. This is characteristic of those who suffer OCD. The offender was a compulsive list-maker and cleaner. His failure to complete his self-allotted tasks caused high levels of anxiety that significantly impaired his quality of life. The offender suffered Tourette’s syndrome, OCD and depression. One of the accompanying symptoms for some sufferers, including the offender, was poor impulse control.
13.
Professor Greenberg described the likely presentation of the offender under the stress of giving evidence at court. He would have jerking movements in his limbs, neck and body. [This Court observed these movements during the offender’s attendance at the hearing.] He was liable to blurt out words impulsively and without thought. He could give the impression of rudeness and use bad language.
12.
In Professor Greenberg’s view, the Crown Court’s judgment upon the conflicting accounts of the complainant and the offender might have a material bearing upon an assessment of the contribution made by the offender’s disorder to the commission of the offence. If the offender’s account (that sexual activity was consensual until a few moments after penetration had occurred) was preferred the offender’s mental health problems would have made a significant contribution to the offender’s failure to cease intercourse when the complainant told him to stop. On the other hand, if the complainant’s evidence was preferred, the nature and duration of the incident seemed to preclude lack of impulse control as the cause of the offence, although the offender’s poor mental health might be viewed as mitigation.
13.
It seemed to Professor Greenberg that the offender’s disorder had not, so far, responded well to conventional mental health intervention. The offender had described a ‘terrible’ quality of life. He thought that the offender should be assessed by a neurologist or psychiatrist expert in Tourette’s syndrome and should receive psychological counselling to help the offender ‘come to terms’ with the long term nature of his problems. The offender had a history of self harm. A custodial sentence would cause a deterioration of his mental health at least in the early stages of the sentence. Professor Greenberg was unable to recommend an order under the Mental Health Act. The offender did not suffer from a mental disorder of such a nature or degree that his detention in hospital for treatment was warranted.
14.
Dr Bowers agreed with Professor Greenberg’s diagnosis of the offender’s disorder and also that residential treatment was not warranted. She had access to his medical records. He had received attention from the mental health services from a young age. The history fully supported the diagnosis. At one stage the offender had been prescribed an antipsychotic medication for his tics but had suffered an adverse reaction. The offender had been bullied at school because of his odd body jerks. Once, he had been chased into a field and had responded by removing his shorts to expose himself. He had got into trouble for sexual touching of other pupils at school. On one occasion he had squeezed a girl’s nipples. Before the present offence he had become ‘scared’ of women and of sex. He was prescribed Sertraline for his depression and Quetiapine for anxiety. He had no previous convictions, warnings or cautions. He had after leaving school with three or four GCSEs attended a drama course and an art course. He had obtained work as a shelf-stacker but had not been in employment for 3-4 years. Following his self-report to the police the offender’s mental health deteriorated and he needed a week as a voluntary inpatient at Orchard Adult Mental Health Hospital in Portsmouth.
15.
The offender told Dr Bowers that the week before the Halloween party he had watched the film ‘A Clockwork Orange’ that in one scene depicted a male preparing for a sexual assault on a female. The offender had been ‘obsessing’ about the costume he would wear to the party. In Dr Bowers’ opinion, a number of factors may have contributed to the offence. First was his obsessive objectification of women. Secondly, he was disinhibited by alcohol. Thirdly, he had poor impulse control. Dr Bowers also explored the victim’s behaviour as recalled by the offender but her discussion is no longer relevant following the recorder’s findings of fact.
16.
Dr Bowers warned that a custodial sentence would result in a worsening of the offender’s mental state. It was likely that the offender would self-harm or worse. A tranquilliser would be needed and his mental disorder would need to be managed. Dr Bowers agreed with Professor Greenberg that a multi-disciplinary approach was required: the offender’s medication should be reviewed to reduce the offender’s motor tics and specialist psychological counselling was required to focus on both obsessive behaviour and impulse control. In Dr Bowers’ view the principal risk was for further sexual touching rather than rape. There had been no previous charge and no repetition of sexual offending. With appropriate treatment and abstinence from alcohol the chances of re-offending would be reduced although not altogether eliminated. It was a good sign that the offender wanted to engage in treatment.
Further reports at the sentence hearing
17.
At the sentence hearing Mr Recorder Towler was provided with a report dated 19 October 2014 from Dr Julia McLeod, a registered clinical and forensic psychologist, in which she performed a risk assessment. She concluded that there was a moderate risk of further sexual offending. Although theoretically eligible for a sex offender treatment programme it was thought the offender would not be able to cope in view of the extent of his vulnerability. Dr McCleod agreed with Dr Bowers and Dr Greenberg that a custodial sentence would exacerbate the offender’s condition.
18.
In a letter of 10 September 2014 to the offender’s general practitioner, Dr Jeremy Stern, a consultant neurologist at St George’s Hospital, London with a special interest in Tourette’s syndrome, also recommended a review of the offender’s medication and referral for cognitive behavioural therapy. Dr Stern was prepared to see the offender as a NHS patient but was unaware of the forensic background. Dr Stroma Macfarlane became (recently following a period of leave) the offender’s Community Consultant Psychiatrist employed by Solent NHS Trust. In a letter of 30 October 2014 she informed the Crown Court that Dr Stern had since confirmed that he could not be of further assistance. Dr Macfarlane could not identify a course of treatment in the community that would at the same time address the question of risk because the offender was unsuitable for a group work sex offender treatment programme. She did, however, express similar fears as to the ability of the offender to cope with a custodial sentence.
19.
The recorder was provided with pre-sentence reports from Rebecca Yates dated 4 April 2014 and 28 October 2014. The first was overtaken by events. In her supplemental report Ms Yates confirmed her view that the offender presented a moderate risk for future sexual offending. The risk factors were poor impulse control, alcohol misuse, isolation, lack of support and, thus, emotional decline. Ms Yates recognised that it was highly unusual to be contemplating a non-custodial sentence in a case of rape especially when the victim had been required to re-live the offence at the Newton hearing. However, Ms Yates was aware of the unanimous view of the experts that the offender would struggle to cope in prison in which it was likely that his condition would be made worse rather than better. For this reason she had considered an alternative. The manager of the sex offender group work programme had confirmed that the offender was unsuitable for group work. There was no one-to-one programme available. However Ms Yates pointed out that, should the court be willing to impose a suspended sentence order with a supervision requirement, the offender manager would be in a position to prepare a sentence plan that co-ordinated mental health services, addressed the offender’s risk factors and, in particular, tackled the offender’s underlying attitudes as, in other circumstances, would have been the case in a sex offender’s group work programme. The team was willing to provide the offender manager with support for this purpose.
20.
In a victim impact statement GP said that she had been affected by the offence itself but had managed to put it behind her until required to make a statement to the police. The process brought the memory flooding back. She was now prone to panic attacks, particularly at night. She had difficulty making new friends and had a problem with trust. She had commenced a new relationship after the rape but in her opinion its breakdown was in part caused by the investigation. Her depression and anxiety had increased and she was receiving treatment. She had to give evidence in the Newton hearing and that experience had made matters worse.
Sentence
21.
The recorder accepted that the offence should be placed in category 3B of the sexual offences guideline for rape offences. The starting point was 5 years and the range 4 to 7 years custody. The recorder referred to the impact of the offence on the complainant. He identified no specific aggravating factors as such but listed factors in mitigation as: the contribution made by the offender’s mental disorder to the offence, his lack of maturity, and his self-report to the police. In his view the resulting sentence after a trial would have been in the order of 3 – 3 ½ years imprisonment. He would not be minded to afford any credit for the offender’s plea of guilty since he had maintained an account that had not been accepted at the Newton hearing. However, the recorder accepted the submission of Mr Smyth, for the offender, that
section 125(7)
of the
Coroners and Justice Act 2009
permitted him to depart from the sentencing guideline in order to deal with a mentally disordered offender in the manner that he thought fit in the circumstances.
22.
The recorder recognized the risk, particularly of sexual touching, posed by the offender and identified the expert evidence that called for a multi-disciplinary approach to treatment of the offender’s condition. He noted the absence of a suitable sex offender programme either in custody or in the community. However, the pre-sentence report had drawn attention to a package of sessions and treatment that could form part of a supervision requirement attached to a suspended sentence order. The recorder expressed the unanimity of view that custody would have a detrimental effect upon the offender’s disorder. The recorder concluded (Transcript 31 October 2014, page 29E-G):
“I am left with the relatively stark choice of imposing a prison sentence of three to three and a half years, in accordance with the guideline, or of taking the view that this is not a guideline case and imposing a suspended sentence of imprisonment with a requirement of supervision. I recognize that it is almost inevitable in cases of rape that an immediate sentence of imprisonment will follow. I recognize the trauma that [GP] has undergone as a result of this offence, though, as I have noted, she is now keen to put the matter behind her and get on with her life. After anxious consideration I have come to the conclusion that this is one of those extremely exceptional cases in which I can disregard the guideline, and that is what I am going to do.”
The arguments
23.
Ms Ledward, on behalf of HM Attorney General, argues that the recorder was wrong in law to conclude that
section 125(7)
permitted him, by reason of the offender’s mental disorder, to disregard the sentencing guideline.
Section 125(1)
permitted him to disapply the guideline only if it was in the interests of justice to do so. The recorder was correct to place the offence in category 3B and the Attorney General would not seek to criticize a sentence of 3 – 3 ½ years imprisonment even though it was lower than the offence range (see below, paragraph 27). There were aggravating features of the offence:
(i) the vulnerability of the victim, namely her health problems known to the offender;
(ii) the significant impact on the victim;
(iii) injury suffered (bleeding) in the course of the rape;
(iv) the location of the offence in the victim’s own home;
(v) commission of the offence while under the influence of alcohol.
Mitigating factors comprised:
(i)
lack of convictions;
(ii)
self-report of the offence;
(iii)
a guilty plea (subject to the Newton hearing);
(iv)
The offender’s mental disorder, though not linked to the offence itself.
24.
Ms Ledward argued that the facts of the present case were not so wholly exceptional that it could be said that the interests of justice required a non-custodial sentence. To the extent that the offender would benefit from the package of measures proposed by Ms Yates, that package could be put in place after the offender had served the custodial part of his sentence and while he was on licence.
25.
Mr Smyth, for the offender, maintained that this was the paradigm case for which the saving in
section 125(7)
was intended. If he was wrong about that, he submitted, the interests of justice test was met. The present circumstances were truly exceptional. The disabilities under which the offender laboured, the exceptional nature of the offender’s feelings of remorse and guilt and his behaviour immediately after the offence demonstrated that the sentence was humane but not unduly lenient.
Section 125
of the
Coroners and Justice Act 2009
26.
Section 125
of
the 2009 Act
provides:
“
Duties of the court
125 Sentencing guidelines: duty of court
(1) Every court—
(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so.
(2) Subsections (3) and (4) apply where—
(a) a court is deciding what sentence to impose on a person (“P”) who is guilty of an offence, and
(b) sentencing guidelines have been issued in relation to that offence which are structured in the way described in section 121(2) to (5) (“the offence specific guidelines”).
(3) The duty imposed on a court by sub
section (1
)(a) to follow any sentencing guidelines which are relevant to the offender’s case includes—
(a) in all cases, a duty to impose on P, in accordance with the offence specific guidelines, a sentence which is within the offence range, and
(b) where the offence-specific guidelines describe categories of case in accordance with section 121(2), a duty to decide which of the categories most resembles P’s case in order to identify the sentencing starting point in the offence range;
but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a sentence which is within the category range.
(4) Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P’s case.
(5) Subsection (3)(a) is subject to—
(a)
section 144
of the
Criminal Justice Act 2003
(c. 44) (reduction in sentences for guilty pleas),
(b)
sections 73
and 74 of the
Serious Organised Crime and Police Act 2005
(c. 15) (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence, and
(c) any rule of law as to the totality of sentences.
(6) The duty imposed by sub
section (1
) is subject to the following provisions—
(a)
section 148(1)
and (2) of the
Criminal Justice Act 2003
(restrictions on imposing community sentences);
(b)
section 152
of
that Act
(restrictions on imposing discretionary custodial sentences);
(c)
section 153
of
that Act
(custodial sentence must be for shortest term commensurate with seriousness of offence);
(d)
section 164(2)
of
that Act
(fine must reflect seriousness of offence);
(e)
section 269
of and Schedule 21 to
that Act
(determination of minimum term in relation to mandatory life sentence);
(f)
section 51
A of the
Firearms Act 1968
(c. 27) (minimum sentence for certain offences under section 5 etc);
(g)
sections 110(2)
and 111(2) of the
Powers of Criminal Courts (Sentencing) Act 2000
(c. 6) (minimum sentences for certain drug trafficking and burglary offences);
(h)
section 29(4)
and (6) of the
Violent Crime Reduction Act 2006
(c. 38) (minimum sentences for certain offences involving firearms).
(7) Nothing in this section or section 126 is to be taken as restricting any power (whether under the
Mental Health Act 1983
(c. 20) or otherwise) which enables a court to deal with a mentally disordered offender in the manner it considers to be most appropriate in all the circumstances.
(8) In this section—
“mentally disordered”, in relation to a person, means suffering from a mental disorder within the meaning of the
Mental Health Act 1983
;
“sentencing guidelines” means definitive sentencing guidelines.”
27.
Sub
section (1
) requires the court to
follow
the relevant sentencing guideline. It introduced a mandatory requirement and compares with the former obligation of the court to
have regard to
a relevant guideline under
section 172
of the
Criminal Justice Act 2003
. The statutory exceptions are provided by the interests of justice test in sub
section (1
) and the savings made by subsection (6) (including that a custodial sentence must pass the threshold test provided by
section 152
of the
Criminal Justice Act 2003
and must be for the shortest period commensurate with the seriousness of the offence as required by
section 153
). Subsections (2), (3) and (4) apply to offence specific and category specific guidelines made in accordance with section 121. The sexual offences guideline is one such guideline.
Section 125(3)
requires the court to pass a sentence that is within the “offence range”. The offence range for rape is 4 – 19 years (see page 9 of the guideline).
Section 125(7)
provides that nothing in
section 125
shall restrict the “power” of the court under any enactment “to deal with a mentally disordered offender in the manner it considers to be most appropriate in all the circumstances”.
28.
It is argued on behalf of the Attorney General that the statutory purpose of subsection (7) was, notwithstanding the guideline, to preserve the court’s power to sentence in a way that ensured the offender was provided with treatment for his mental disorder. Ms Ledward conceded that the subsection was not limited to powers to make orders under the
Mental Health Act 1983
. If it was so limited the words “whether” and “or otherwise” would not be present in the bracketed part of the subsection. She agreed that the addition of a requirement for outpatient treatment attached to a community order or suspended sentence order would constitute the exercise of a “power” contemplated by the subsection. She could not accept that the subsection was drawn in terms sufficiently wide to embrace a decision not to impose a custodial sentence upon a mentally disordered offender unless the court’s order made provision for treatment in respect of that disorder. The subsection makes no reference to the general sentencing judgment or discretion of the court.
29.
Mr Smyth argued that subsection (7) was limited neither expressly nor impliedly to an
order
for treatment. The words used were “to deal with” a mentally disordered offender in the “most appropriate” manner. Had the draftsman intended that the saving should apply only to orders for treatment one would expect to find express words to that effect (see, for example, subsections (5) and (6) that are explicit in their terms).
30.
We recognise the force of Mr Smyth’s submissions but we conclude that the purpose of subsection (7) is to deal with a particular statutory lacuna. There are no guidelines for dealing with mentally disordered offenders, although several of the guidelines (of which the rape guideline is one) refer to mental disorder as a mitigating factor, particularly when linked to the commission of the offence. The guidelines provide levels of sentencing both custodial and non-custodial (fine, community order, custody). They do not in their terms contemplate an order specifically designed to deal with a mentally disordered offender who requires treatment. In our view,
section 125(7)
simply expresses what would, arguably, be implicit, namely that the new requirement to follow a guideline is not intended to interfere with the court’s continuing power to pass sentences designed to provide treatment for a mentally disordered offender. It was not, in our view, the intention of Parliament simply to abandon the guidelines in the cases of mentally disordered offenders. There are many mentally disordered offenders who have committed very serious offences and who are not susceptible to treatment. The guidelines apply to such offenders unless the court is contemplating, in an appropriate case, making an order designed to secure treatment for the offender, usually but not always in a residential setting and sometimes subject to a restriction under
section 41
of the
Mental Health Act 1983
. There was no recommendation in the present case either for a MHA order or for a non-custodial sentence to which a requirement for medical treatment was attached and, in our view,
section 125(1)
applied.
31.
We accept the submission made on behalf of the Attorney General that the rape guideline applied to this offender unless, in the interests of justice, it should have been disapplied.
Discussion
32.
We have misgivings about the aggravating factors identified by Ms Ledward and the weight to be afforded to them. Both of these young people were vulnerable in different ways. The recorder found that neither of them had sexual activity in mind when they entered the bedroom. Such foresight that the offender had of the consequences of his actions was momentary. In our view, this observation applies equally to qualify the aggravating factors that the offence occurred in the victim’s own home and under the influence of alcohol. In our view, it is not established to a satisfactory standard that the complainant suffered
injury
in the course of the rape, although we accept that the bleed into the bed sheet, whatever its cause, must have been alarming to the complainant. The recorder accepted that the complainant had suffered distress and a worsening of the symptoms of her anxiety and panic and so does this court.
33.
In our judgment, contrary to the assertion made on behalf of the Attorney General, the offender’s mental disorder did have a bearing upon the commission of the offence. The recorder made an express finding to that effect both in his ruling at the Newton hearing and in his sentencing remarks, and we conclude that he was entitled to make it. There were several contributory factors including the offender’s thoughts about women, his regard for and physical proximity to the complainant, his consumption of alcohol and his poor impulse control. In part, these were common environmental factors; in part, they were a product of his disordered mental functioning. We accept, however, that the offender retained primary mental responsibility for his conduct.
34.
The most significant of the factors that mitigated the offence was the offender’s immediate and distraught reaction to his behaviour. No doubt this contributed to the complainant’s decision to end the relationship of friendship but not to report the offence to the police. There is little doubt that the investigation would never have taken place but for the offender’s inability to live with his guilt. It was his report to the police that brought the incident to the forefront of the complainant’s mind and caused a renewal of her distress. The Newton hearing was required because the offender gave an account that conflicted with that of the complainant. However, the recorder accepted that the complainant had invited the offender to share her bed with him and concluded that his account of a consensual prelude may have been the result of alcohol consumption on the night of the rape, the lapse of time and the capacity of the mind to believe what it wanted to believe rather than an attempt by the offender to deceive the court. The recorder concluded that the offender should receive no credit at all for his plea of guilty. In our view that was a harsh conclusion in a case in which the act of non-consensual intercourse had been admitted from the outset. A discount of about 20% would, we consider, have been appropriate in the circumstances of this exceptional case.
35.
What sets this case apart is the distress the offender himself suffers from unwelcome thoughts, his feelings of guilt and fear of catastrophe, and his almost inevitable mental deterioration if required to serve a sentence of imprisonment. In our view, as we understood Ms Ledward to concede, the recorder would have been justified in concluding that the interests of justice demanded a sentence outside the offence range. While a sentence of 2 years imprisonment (after 20% credit for his guilty plea) might be regarded as somewhat lenient we do not conclude that it is unduly lenient. Indeed, Ms Ledward conceded that it was the decision to suspend the sentence that was of prime concern to the Attorney General.
36.
We acknowledge that the recorder was faced with an exceptionally sensitive and difficult sentencing decision. There is no statutory standard of exceptionality that must be reached before a court suspends a sentence of imprisonment. It is a matter for the court’s judgment, usually determined by weighing up the seriousness of the offence, the offender’s antecedents and his personal circumstances. However, for an offence as serious as rape, a suspended sentence order is, as the recorder acknowledged, almost unheard of. Here, the mentally disordered offender overbore the will of his victim and stopped only when the enormity of what he was doing came to him. He was immediately remorseful. Those factors that mitigated the offence and properly reflected personal mitigation were fully factored into the judgment of the appropriate length of the sentence. However, it would appear that the recorder adjusted the length of sentence from 3 years to 2 years solely to enable him to suspend the sentence. That was not the right approach. Only because, in our view, a sentence of 2 years imprisonment could be justified on the facts of the case do we consider that it is appropriate to examine the factors relevant to suspension.
37.
Ms Yates was able to present to the recorder a means by which the risk presented by the offender could be challenged and managed in the community. The offender was living with his mother. He had family support. His offender manager could put together a package of requirements, including one-to-one sessions to address his distorted thinking about women, that would reduce his risk to the community. As Ms Ledward pointed out, this did nothing to address the public interest in punishment for the offence. While there might be a temporary deterioration in the offender’s mental condition, the same package could be made available to the offender once he had served the custodial part of his sentence. On the contrary, Mr Smyth submitted that, having seen and heard the offender and the complainant, the recorder was entitled to take the course he did. It had the effect of reducing risk and preventing an inevitable collapse in the offender’s condition.
38.
In our judgment, there were grounds for suspending this sentence of imprisonment but it is doubtful whether they were adequate to justify suspension. This was, notwithstanding the mitigating factors, a serious sexual offence for which a custodial sentence was required. It seems to us that the offender himself was aware of the grave wrong he had done and was prepared for the consequences. However, events have moved on and we must consider whether it would be right now to require the offender to serve an immediate custodial sentence.
Post sentence events
39.
The offender manager is Jennifer Humphray. She has prepared a report for this court dated 9 January 2015. We also have information from the offender’s mother, with whom he has been living since his report to the police. Ms Humphray has read the reports and spoken to Dr Macfarlane. Ms Humphray has spent several hours with the offender since his sentence was passed. They meet weekly. He has kept every appointment except one when he was in a state of heightened anxiety following the decision of HM Attorney General to seek a review of his sentence. On that occasion they spoke by telephone. The offender has engaged fully with Ms Humphray in the development of a sentence plan. Ms Humphray has commenced intensive one-to-one sessions confronting the offending behaviour, for which she has the support of the sex offender programme team. In Ms Humphray’s view, the offender remains sincerely remorseful. He is motivated and wishes to explore his behaviour. He expresses appropriate empathy for his victim and continues to experience feelings of guilt. Ms Humphray is aware of the imperfectly understood connection between the offender’s mental disorder and the offence. She is co-ordinating mental health services. The offender’s mental health treatment plan is being reviewed and Mrs Balogh has been informed that the mental health team will adopt a multi-faceted approach to the offender’s disability. He will be seen at outpatients at intervals of 2 – 3 months and his care co-ordinator and support worker will see him monthly.
40.
In her conversations with the offender he has acknowledged feelings of sexual arousal and does not wish to experience simultaneous feelings of power or control. In Ms Humphray’s view the fact that the offence of rape was isolated provides an indication of an ability to ‘self-manage’ such feelings. There has been no repetition of lack of impulse control. The MAPP team met in November. Ms Humphray is ensuring a joined up approach to the offender’s management, including the involvement of the offender’s consultant psychiatrist. Ms Humphray would deal in sessions with each of the factors implicated in the offence. The offender has already taken steps to avoid environments in which risk may arise.
41.
In Ms Humphray’s view a custodial sentence imposed now would undoubtedly increase anxiety, leading to thoughts of self harm and suicide. If he were to be admitted to prison Ms Humphray would strongly recommend that the offender be held in a health care wing. She confirms that if the court were to order the offender to serve a custodial sentence she would remain the offender manager and their sessions would recommence on his release. If the Court wished to impose further restrictions on the offender it could achieve that by imposing a curfew requirement although the evidence is that the offender seldom leaves the house.
Conclusion
41.
It is some 12 weeks since sentence was passed. The offender has made a fully committed start to the suspended sentence order. It seems to this court that a rupture of current arrangements could only make more certain serious deterioration in the offender’s condition and put at risk a successful outcome on his release from custody. We accept the opinion of Ms Humphray that the offender has proved himself to be highly and genuinely motivated to make progress. This is, we conclude, the best possible means of reducing risk further.
42.
We conclude that the sentence imposed, at the time it was passed, was unduly lenient; accordingly, we grant HM Attorney General leave. However, we do not consider it is in the public interest that the sentence should now be disturbed and we shall take no action. | ```yaml
citation: '[2015] EWCA Crim 44'
date: '2015-02-04'
judges:
- LORD JUSTICE PITCHFORD
- MRS JUSTICE SWIFT
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2009] EWCA Crim 2111
Case No:
200806146 A4
COURT OF APPEAL (CRIMINAL DIVISION)
On Appeal from Sheffield Crown Court
His Honour Judge Keen QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
27/10/2009
Before:
Lord Justice Hughes
(Vice President of the Court of Appeal, Criminal Division)
Mr Justice Simon
and
His Honour Judge Morris QC
(sitting as a Judge of the Court of Appeal, Criminal Division)
- - - - - - - - - - - - - -
Regina
v
D’Roy Charles Williams
- - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Mr A Longworth
appeared on behalf of
the
Appellant
Mr J Gould
appeared on behalf of the
Prosecution
- - - - - - - - - - - - - -
Judgment
Mr Justice Simon:
1.
On 16 October 2008 at Sheffield Crown Court, this Appellant pleaded guilty to possession of cocaine (as an alternative to an offence charged under count 1, possession with intent), and to a charge of acquiring criminal property (count 2).
2.
On 27 October he was sentenced to a term of 6 months imprisonment on count 1 and a consecutive term of 3 years imprisonment on count 2. The sentence on count 2 was later varied to a term of 2 years and 9 months, in the light of further information made available to the Court about the value of the criminal property. It follows that the overall term to be served was a term of 3 years and 3 months.
3.
He had committed these offences before the expiry of the full term of an earlier sentence of imprisonment; and in these circumstances, he was also ordered to be returned to custody to serve 455 days of the remaining period, pursuant to
s.116 of the Powers of Criminal Courts (Sentencing) Act 2000
(‘the PCC(S)A 2000’)
4.
He appeals against sentence with the leave of the Full Court.
5.
In order to understand the first ground of appeal it is necessary to consider the circumstances in which the Appellant was ordered to be returned to custody and to serve 455 days of the earlier sentence.
6.
On 17 December 2003 at Sheffield Crown Court the Appellant had been sentenced to a term of 7 years imprisonment for possession of heroin with intent to supply. We will refer to this offence as ‘the earlier offence’.
7.
He was released on licence from this sentence on 22 June 2007, with a sentence expiry date of 22 June 2010. He committed the two index offences on 25 January 2008. Since the earlier offence was committed before the coming into force of the
Criminal Justice Act 2003
(‘CJA 2003), his release was subject to the early release provision of the
Criminal Justice Act 1991
and to the supplementary provisions of the PCC(S)A 2000.
8.
Section 116(1)
of the PCC(S)A 2000 provided (in short summary) that, (a) where a sentence was passed on an offender on or after 1 October 1992, (b) he was released under the early release provisions in Part II of the CJA 1991, (c) he committed an offence before the date by which he would have served his sentence but for his early release, and (d) was convicted of the new offence, a Court could (under ss.(2)) order his return to prison to complete the sentence; and could direct (under ss.(6)) that the period be served before the sentence for the new offence. In effect, the Court could pass a sentence for the new offence which took effect consecutively to any period of recall ordered.
9.
With effect from 4 April 2005, s.116 of the PCC(S)A 2000 was repealed by
s.332 of the CJA
2003 Act and Part 7 of Schedule 37. However, the effect of paragraph 29 of schedule 2 to the Commencement No.8 and Transitional and Savings Provisions Order 2005 was that s.116 continued to apply where the earlier sentence was imposed for an offence committed before 4 April 2005, even where the new offence was committed after that date. Paragraph 29 is conveniently set out in 2009 Edition of Archbold at 5-364n, and expressly states that the repeal of s.116 of
the 2000 Act
,
… is of no effect in relation to a person in a case in which the sentence of imprisonment referred to in s.116(1)(a) of the
Powers of Criminal Court (Sentencing) Act 2000
- (a) is imposed in respect of an offence committed before 4 April 2005
10.
Mr Longworth (on the Appellant’s behalf) accepted this analysis but draws attention to
s.265 of the CJA
2003 and to the amendments made to it by
s.20(4) of the Criminal Justice and Immigration Act 2008
(‘the CJIA 2008’), which came into force on 14 July 2008 by virtue of paragraph 10 of
Schedule 1 of the Criminal Justice and Immigration Act 2008
(Commencement No.2 and Transitional and Saving Provision). He submitted that s.20(4) of the CJIA 2008 effectively repealed s.116 PCC(S)A 2000.
11.
Section 265(1) of the CJA
2003 provides:
A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment for which he has been released under this Chapter.
These provisions reproduce s.84 of the PCC(S)A 2000. It follows that just as s.84 was, they are entirely consistent with the continued operation of s.116 of the PCC(S)A 2000.
Section 116(7)
explicitly says so.
As a consequence of subsection (6)(a) above, the court shall not be prevented by
section 265 of the Criminal Justice Act 2003
(restriction on consecutive sentences for released prisoners) from making any direction authorised by subsection 6(b) above
12.
Section 20
of the CJIA 2008 introduced changes to
s.265 of the CJA
2003; and s.20(4) of the 2008 Act provided for a new subsection to s.265 of
the 2003 Act
. The new subsection 265(1A)is in these terms:
Subsection (1) applies to a court sentencing a person to
(a) a term of imprisonment for an offence committed before 4 April 2005
... as it applies to the imposition of any other term of imprisonment
13.
Mr Longworth argued that this had the effect of bringing to an end the power under the transitional provisions to order a defendant to return to prison to serve out the remainder of an earlier sentence before serving the sentence for the index offence, which had been reserved in cases where the earlier offence had been committed before 4 April 2005. He relied on paragraph 11 of the Explanatory Notes to the CJIA 2008 which are in the following terms.
... This section also amends
the 2003 Act
to clarify the position on imposing consecutive sentences on different occasions. If an offender has been released on licence after serving all the required custodial periods then a subsequent sentence may not be ordered to be served consecutively to the sentence from which he has been released.
14.
He submitted that the phrase ‘a term of imprisonment’ in the new s.265(1A) of the CJA 2003 has the same meaning as it does in 116(6)(a) of the PCC(S)A 2000, so that the Judge when he made the recall order was thus imposing a sentence of imprisonment in respect of an offence. Section 265(1A) of the CJA 2003 Act (as amended by CJIA 2008) should be construed as repealing s.116 of the PCC(S)A 2000, so that it has no effect whether the old offence was committed before or after 4 April 2005; or at least, if the power to order recall remained, the power in s.116(6) to make a new sentence consecutive to it was repealed. He further submitted that it would be arbitrary and unfair to interpret s.265(1A) of CJA 2003 as allowing a court to order a defendant to return to prison to serve out the remainder of the sentence only for offences for which the old sentence was passed before 4 April 2005.
15.
Attractively as the points were argued we are not persuaded that the intent of the CJIA 2008 was to repeal the transitional provisions which had previously applied or to deprive them of effect in a case such as this.
16.
Section 265(1A) of the amended CJA 2003 does not deal with the Court’s powers under s.116 of the PCC(S)A 2000. For the reasons explained in [11] above, it is perfectly compatible with the powers given by s.116 both to order recall and to make the new sentence start after the recall period. Section 265 prevents a new sentence from starting after another sentence from which there has been release
except
where there is an order for recall under
section 116
.
17.
The Explanatory Note to s.20 of the CJIA 2008 needs to be read in the context of its stated intent:
1 ... These explanatory notes ... have been prepared by the Ministry of Justice in order to assist the reader of the Act and to help inform debate on it. They do not form part of the Act and have not been endorsed by Parliament.
2 The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section does not seem to require any explanation or comment, none is given.
18.
If the statutory intent was to prevent a term of recall to prison having to be served before a subsequent sentence was imposed in every case, then it would have been easy enough explicitly to express such intent. However it is clear from Schedule 26 of the CJIA 2008 that there was no statutory intent to repeal s.116 so far as it still had transitional effect. Paragraph 40 of Schedule 26 (which deals with minor and consequential amendments) reads,
The
Powers of Criminal Courts (Sentencing) Act 2000
has effect subject to the following amendments.
Paragraph 45 reads,
In
section 116
(the power to order a return to prison where offence committed during original sentence) –
a)
In subsection (1)(b) for ‘under Part II of the
Criminal Justice Act 1991
(early release prisoners)’ substitute ‘under an provision of
Part 2
of the
Criminal Justice Act 1991
(early release of prisoners) other than s.33(1A)’
b)
In subsection (7) for ‘s.84 above’ substitute ‘
s.265 of the Criminal Justice Act 2003)
restriction on consecutive sentences for released prisoners’.
19.
As we have already noted above, subparagraph (b) means that
section 116(7)
of the PCC(S)A now reads:
As a consequence of subsection 6(a) above, the court shall not be prevented by
section 265 of the Criminal Justice Act 2003
from making any direction authorised by subsection 6(b) above
That expressly preserves the power in s 116(6)(b) to order the new sentence to begin after a period of recall which is ordered.
20.
However, the effect of subparagraph (a), taken with other provisions of the CJIA 2008, especially s.26, is that s.116 does not now apply to long term (4 years or more) 1991 Act prisoners who are released under the new
section 33
(1A) at the half-way point in their sentence (bringing them into line with CJA 2003 prisoners). But
section 116
does still apply to two types of 1991 Act prisoners, who are outside the new
section 33
(1A):
i)
if one or more of the offences were a specified violent or sexual offence within the meaning of
Schedule 15 of the CJA
2003, or
ii)
if the offender were released on licence under the provisions of the CJA 1991 (in other words before 9 June 2008 when Schedule 26
Part 2
paragraph 45 of the 2008 Act came into force) (see the Criminal Justice and Immigration Act 2008 (Commencement No.1 and Transitional Provisions Order)
[SI 1466 of 2008]
21.
It appears that the purpose of s.20 of the CJIA 2008 is at least related to s.26 which effected a change in the early release provisions in relation to those serving long-term sentences to which the CJA 1991 applied. We should add that in our view Archbold 2009 Ed. 3
rd
Supplement 5-364r correctly sets out the present ambit of s.116 of the PCC(S)A 2000.
22.
So far as the present case is concerned, the Appellant was released from his sentence for an earlier offence on 22 June 2007 under the provisions of the CJA 1991; and in these circumstances it was open to the Court to return the Appellant to prison under s.116 under the amended transitional provisions.
23.
We would also add that we do not see any arbitrariness or unfairness in the continued application of s.116 in the confined circumstances in which it may still apply. As Mr Longworth recognised, it may well be that underlying the repeal of s.116 is an assumption that recall from licence will be dealt with by administrative powers. It is to be observed that in this case, where the repeal of s.116 did not apply, the Appellant was not recalled administratively.
24.
In considering the other grounds of appeal it is necessary to consider the facts of the two offences for which the Appellant was sentenced on 27 October 2008.
25.
On 25 January 2008 the police conducted a search at the Appellant’s home and found £12,000 in cash. It was accepted that £2,000 of this sum was the legitimate property of the Appellant’s partner and this was returned to her. The police also recovered 56 grams of cocaine which was later found to be of 6% purity. According to the Defence Expert’s evidence it had a wholesale value of £800 and a street value of £1,680. In interview the Appellant said that the cocaine was for his own use and that he had purchased it for £1,000. The Prosecution accepted the Defence contention that the cocaine was not crack-cocaine and that its value was consistent with what the Appellant had said (in interview) that he had paid for it. The sum of money which was attributable to the Appellant as criminal property was accepted as £8,000. There was no evidence or admission as to the ultimate source of this sum.
26.
The Appellant, who is now aged 32, had 13 previous convictions for 20 offences; the most recent of which was the conviction for possession of heroin with intent (to which we have already referred).
27.
A number of points are raised in relation to the sentence, but it is convenient to focus on two: (1) the order that the Appellant serve 455 days of the unexpired sentence imposed for the earlier offence was unexplained and failed to take into account the time he had spent in custody; and (2) the overall sentence was too long in the light of his pleas of guilty, and, looking at the sentence of 2 years and 9 months for money laundering in isolation, the sentence was significantly too long in the light of his plea.
28.
So far as the first point is concerned, the expiry date for the earlier offence was 5 September 2010 and the offences for which he was sentenced were committed on 25 January 2008. It follows that the period he was ‘at risk’ of being returned to prison ran from 25 January 2008 until 5 September 2010 (954 days). In fact, as we have recorded, the period ordered to be served was 455 days. It is unclear why this period was chosen. The Appellant had been on remand from 26 January until 27 October 2008 (a period of 275 days); and the Judge should therefore have made a direction under s.240 of
the 2003 Act
. He did not do so; and in those circumstances we proceed on the basis that the Appellant was entitled to be credited with 275 days against the sentence imposed.
29.
In these circumstances we direct that the Appellant be returned to prison under s.116 of the PCC(S)A 2000 Act for a period 455 days.
30.
So far as the second point is concerned, we are not persuaded that there was anything wrong with the sentence of 6 months on count 1 in the light of the Appellant’s antecedent history. Nor do we accept that the sentences should be ordered to be served concurrently, since there was nothing from the Appellant (who would have been in the best position to know) to suggest that the money laundering offence was linked to the drugs offence. However we accept that as a matter of totality the overall sentence of 3 years and 3 months, giving full credit for the plea as the Judge said he had done, was too long as a matter of totality. In these circumstances we quash the sentence of 2 years 9 months and substitute a sentence of 2 years on count 2. The overall sentence will therefore be a term of 2 years and 6 months, and we direct that the 275 days spent on remand should count against that sentence.
31.
To this extent only, the appeal is allowed. | ```yaml
citation: '[2009] EWCA Crim 2111'
date: '2009-10-27'
judges:
- His Honour Judge Keen QC
- Lord Justice Hughes
- Mr Justice Simon
- His Honour Judge Morris QC
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2008] EWCA Crim 2955
Case No:
200705899/D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
His Honour Judge Ibbotson
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
11/12/2008
Before :
LORD JUSTICE STANLEY BURNTON
MR JUSTICE BENNETT
and
HIS HONOUR JUDGE STEPHENS QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
Respondent
- and -
BARRY WARD
Appellant
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ivan Krolick
for the
Appellant
Andrew Stubbs QC
(instructed by
the CPS
) for the
Respondent
Hearing date : 1 December 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Stanley Burnton:
1.
This is an appeal, brought with leave of the full court, from a confiscation order made by His Honour Judge Ibbotson in Leeds Crown Court on 16 October 2007. The Appellant had previously pleaded guilty to offences of possessing criminal property, concealing criminal property and converting criminal property. He had also pleaded guilty to obtaining a passport by a false statement, and it was evident that, following his arrest on the other offences, he had applied for that passport with a view to absconding to Spain where he had purchased a property. He had been sentenced to a total of 3 years imprisonment. The amount of the confiscation order was £287,398.42, and a period of 3 years’ imprisonment was fixed to be served in default of payment within 6 months.
2.
The detailed facts of the offences which led to the confiscation order that is the subject of this appeal are largely irrelevant to the issues before us. They included the obtaining by the Appellant of the sum of some £94,000 in cash, retrieved by the police from the boot of his car, and some £47,640 retrieved from bags under the bed of a co-defendant. All the money had higher than average traces of drugs, and the obvious inference was that they were the proceeds of dealing in illegal drugs.
3.
It was common ground on the hearing of the application for a confiscation order that for the purposes of the
Proceeds of Crime Act 2002
the Appellant had a criminal lifestyle. In consequence, the presumptions in section 10 applied. It is as follows:
“10
Assumptions to be made in case of criminal lifestyle
(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of–
(a) deciding whether he has benefited from his general criminal conduct, and
(b) deciding his benefit from the conduct.
(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him–
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him–
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.
(6) But the court must not make a required assumption in relation to particular property or expenditure if–
(a) the assumption is shown to be incorrect, or
(b) there would be a serious risk of injustice if the assumption were made.
(7) If the court does not make one or more of the required assumptions it must state its reasons.
(8) The relevant day is the first day of the period of six years ending with–
(a) the day when proceedings for the offence concerned were started against the defendant, or
(b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days.
(9) But if a confiscation order mentioned in section 8(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)–
(a) the relevant day is the day when the defendant´s benefit was calculated for the purposes of the last such confiscation order;
(b) the second assumption does not apply to any property which was held by him on or before the relevant day.
(10) The date of conviction is–
(a) the date on which the defendant was convicted of the offence concerned, or
(b) if there are two or more offences and the convictions were on different dates, the date of the latest.”
4.
In 1999 the appellant had been convicted of importation of Class A drugs; he had been sentenced to 7 years’ imprisonment and a confiscation order made on 3 May 2000. In consequence, the relevant day, for the purposes of section 10, was 3 May 2000, the date of that first confiscation order.
5.
In his judgment, His Honour Judge Ibbotson comprehensively rejected the credibility of the appellant. He gave cogent, indeed unanswerable, reasons for doing so. That part of his judgment is not challenged. His finding on credibility is an important factor in considering the issues in this appeal.
6.
There are three grounds of appeal for which leave has been given: grounds 1, 2 and 4.
Ground 1: Tamworth Road
7.
This ground relates to the appellant’s remortgage in 2002 of a property at 31 Tamworth Road, York. The mortgagee was Manchester Building Society, and the amount of the loan was £57,000. The property itself had been purchased by the appellant before the relevant date, and so did not fall to be taken into account under section 10. The moneys obtained on remortgage, however, were eligible. There was no oral or written witness evidence from the Building Society, but on its file was a set of accounts purporting to show that the Appellant had a net income of £31,000 in the year ended 28 February 2002 when in fact he was in prison. In other words, the accounts were false. There was no specific evidence that the false accounts had been produced by or at the instigation of the Appellant or that he had submitted them to the Building Society. The judge held that the remortgage amount of £57,000, subject to a deduction of £22,000 paid by the Appellant as a deposit on his purchase of another property, 40 Pullman Court, was to be included in the amount of his benefit from his criminal conduct.
8.
The Appellant’s case was that the mortgage moneys were not obtained by any criminal conduct, but from a legitimate and lawful source, namely the Building Society, and their obtaining was supported by the mortgage and the rent paid by a tenant or tenants in relation to that property. The judge said:
“The starting point is that the transfer of that £57,000 is assumed to be a benefit from the Defendant's general criminal conduct. The Defendant says that the loan was supported by an asset, that is the house itself, brought before the relevant date and by rental income from the property.
In closing, Mr Krolick boldly asserted that once it was established that the moneys came from a legitimate source, in this case the Manchester Building Society, that was conclusive evidence of the legitimacy of the benefit. Leaving aside the matters which in all probability induced the Manchester Building Society to lend £57,000 to this Defendant, the entire background is consistent with the Defendant, a convicted drugs importer and money launderer, supporting this transaction by means of a criminal lifestyle. Mr Krolick’s submission does not, with respect, bear scrutiny. There is no evidence on which I can find that the assumption in respect of this £57,000, which is a transfer for the purpose of the first assumption, is incorrect or that it would be unjust to make it.
The Prosecution gives credit for £22,000 to be claimed in respect of 40 Pullman Court. I therefore assess the benefit in respect of 31 Tamworth Road at £35,000.”
9.
As we read the judge’s reasons, he was saying that, by reason of the assumption in section 10(2), it was to be assumed that the Appellant obtained the mortgage moneys as a result of his general criminal conduct, and that the evidence of the mortgage was insufficient to rebut the assumption.
10.
Mr Krolick’s skeleton argument reiterates the contention that the remortgage moneys should not have been included in the benefit from the Appellant's general criminal conduct because they came from a legitimate source. However, the legitimacy of the source of moneys is not sufficient to displace the assumption. What must be shown in addition is that the property in question, here the remortgage money, was obtained lawfully, and that the Appellant's criminal lifestyle was irrelevant to its obtaining. Because of his general lack of credibility, the Appellant failed to show that the moneys had been obtained lawfully. We see no fault in the judge’s reasoning.
11.
Moreover, the false accounts made it virtually impossible for the Appellant to displace the statutory assumption. The judge was entitled to infer in the circumstances that the accounts had been submitted by the Appellant or on his behalf. The suggestion that they were made up and submitted to the Building Society without his participation, at a time when, because of his detention in prison, he had no earnings, is simply incredible. In these circumstances, it is clear that these moneys were obtained by his criminal conduct. We do not think this conclusion is affected by the absence of evidence that the Building Society relied on these accounts: it is evident that they would have done so. They were submitted to the Building Society for a reason, namely to induce it to make the remortgage advance. On an application for a confiscation order under the
Proceeds of Crime Act 2002
, the court is not required to set aside its common sense or to assume that financial bodies act uncommercially. The judge took this into account in deciding that the Appellant had failed to show that the proceeds of the remortgage were not a benefit from his general criminal conduct. He was entitled to do so.
12.
Mr Krolick submitted that the judge had wrongly reversed the onus of proof, placing a burden on the Appellant to establish that he had lawfully obtained the mortgage moneys, instead of requiring the prosecution to establish that the moneys were unlawfully obtained. However, the clear effect of the assumptions under section 10 is to place the onus of proof on the defendant. In effect, the assumptions are presumptions which may be displaced if the defendant satisfies the requirements of subsection (6)(a) or if subsection (6)(b) applies.
13.
Mr Krolick also submitted that the Appellant did not in fact obtain any of the remortgage moneys. Out of the remortgage advance of £57,000, £35,000 was used to redeem an existing mortgage and £22,000 used as part payment for the acquisition of a second property, Pullman Court. In accordance with normal conveyancing practice, the moneys would have been paid to the Building Society’s solicitors who would have paid it on to the mortgagee whose mortgage was redeemed and to the vendor of Pullman Court. Accordingly, none of the remortgage moneys came into the hands of the Appellant. Secondly, he submitted that, on the basis that the remortgage was obtained by fraud, the remortgage moneys had been obtained as a result of a specific criminal offence and not from the Appellant’s general criminal conduct.
14.
The first of these issues was not raised in the confiscation hearing, and was therefore not the subject of evidence or a relevant finding by the judge. We do not consider it right to permit it to be raised now. In any event, it is bad in law. The remortgage moneys were used, at the direction of the Appellant, to discharge his indebtedness under the original mortgage of Tamworth Road. The fact that the Building Society’s solicitors were under an obligation to their principal so to pay the moneys is irrelevant: they were obtained by the Appellant to satisfy his existing debt, and he thereby received a benefit.
15.
The second point is equally bad. “General criminal conduct of a defendant" is defined by section 76 as "all his criminal conduct". It therefore includes any specific offence committed by him.
16.
The judge reduced the benefit figure under this head by the sum that was used to acquire Pullman Court in order to avoid double counting. It is immaterial to the determination of benefit whether this deduction was appropriately made under this head or made when considering the benefit from the Appellant’s acquisition of Pullman Court, and we do not comment on that. Clearly, the deduction had to be made at some stage, and was justified by section 10(6).
17.
It follows that this ground of appeal fails.
Pullman Court
18.
This property was purchased by the Appellant using the sum of £22,000 derived from the remortgage of Tamworth Road. In addition, the Appellant obtained a mortgage advance of £85,000, also from Manchester Building Society, secured on Pullman Court, which went in part payment of the purchase price.
19.
It is accepted that the property was rightly taken into account. The issue on this appeal is as to the value of the benefit. The market value of the property at the date of the hearing before the judge was £125,000. There remained the mortgage securing the debt of £85,000. The Appellant submits that the value of the benefit should have been assessed as £40,000, that is, the value of the equity of redemption. The judge valued the benefit obtained at the market value of the property without any deduction on account of the mortgage.
20.
Both the remortgage of the Tamworth Road property and the mortgage on Pullman Court had been obtained after the submission to the Building Society of the false accounts to which we have already referred. It is clear from the judge's judgement that he rejected the Appellant's case that he was not party to any deception in relation to the submission of those accounts. It follows that the Appellant failed to displace the assumption required by section 10 in relation to the mortgage moneys as a whole. It similarly follows that the entirety of the value of Tamworth Road was rightly treated as benefit. Thus this case differs from cases, such as
Walls
[2002] EWCA Crim 2456
, [2003] Cr App R (S) 31, in which it is shown that a property has been obtained using mortgage moneys that have been lawfully secured.
21.
As he did in relation to Tamworth Road, Mr Krolick submitted that the Appellant had not benefited from the mortgage moneys, which had been paid direct to the vendor. That ignores the fact that the mortgage moneys were used, at his direction, to satisfy his indebtedness to the vendor. They were obtained by him and were a benefit received by him.
22.
Our conclusion that the judge correctly assessed the benefit arising from the Appellant's purchase of Pullman Court is consistent with the statement by this Court in
Nadarajah
[
[2007] EWCA Crim 2688
:
“21. We reject the submission that mortgage money, if on investigation there was a mortgage, was not obtained by the appellant because, at his request and following usual practice, it was probably paid by the mortgage company direct to the vendor. Moreover, on the statutory procedure, there is no need to prove a mortgage fraud. The appellant obtained, on his own evidence, a substantial sum of £540,000 and, unless shown to be incorrect, the assumption that it was obtained as a result of his general criminal conduct applied.”
Ground 4: inadequate reasons for assessing the available amount as exceeding the value of the Appellant’s identified assets
23.
Under this ground of appeal, the Appellant submits that the reasons given by the judge for finding that the available amount was no less than the benefit were inadequate. The total benefit was assessed at £287,398.42. The value of the property of the Appellant identified by the prosecution was only £165,165.90. The calculation of the latter amount took into account the outstanding mortgages on 31 Tamworth Road and Pullman Court. Hence it is argued that the amount of the confiscation order should have been only 165,165.90.
24.
Section 7 of the Act, so far as is relevant, is as follows:
“(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned.
(2) But if the defendant shows that the available amount is nil than that benefit the recoverable amount is --
(a) the available amount, or
(b) a nominal amount, if the available amount is nil.”
Thus it is for the defendant to show that the available amount is less than his benefit.
25.
Undoubtedly, it was for the judge to give adequate reasons for his conclusion. The reasons he gave were brief in the extreme. He said:
“The evidence produced by the defendant does not satisfy me that the available amount is less than the certified benefit and it seems to me therefore that there must be a confiscation order in the amount of the benefit as already certified by me.”
26.
Looked at alone, these reasons would be inadequate. However, looking at the judgement as a whole, it is clear, as we have said, that the appellant's credibility was comprehensively rejected, with the result that he failed to displace the assumption required by the Act. The judge gave adequate, indeed cogent, reasons for rejecting the Appellant's entire credibility. His criminality was found to be pervasive. On a fair reading of the judgement, the reasons for the judge's finding are adequate and clear.
27.
In those cases in which the defendant satisfies the onus under section 7(2) by showing that the available amount is less than his benefit, the inclusion of the proceeds of a mortgage in his benefit will cause no injustice, since the concomitant debt to the mortgagee will be taken into account in assessing the available amount. This is either because it is the equity of redemption that is considered to be the free property of the defendant (see section 9(1)(a)) or, if the unencumbered interest of the defendant is regarded as his free property, because the market value of the mortgagee’s interest (see section 79(3)) will normally be the amount due on the mortgage. In the present case, the Appellant did not satisfy that onus. There is no injustice in this: essentially, the judge was not satisfied that the assets of the Appellant that he had disclosed or the prosecution had identified were in fact the entirety of his available assets.
Conclusion
28.
None of the grounds of appeal for which leaves has been given has been established. For the reasons given above, the appeal is dismissed. | ```yaml
citation: '[2008] EWCA Crim 2955'
date: '2008-12-11'
judges:
- LORD JUSTICE STANLEY BURNTON
- MR JUSTICE BENNETT
``` |
You are extracting information from the court judgments.
Extract specified values strictly from the provided judgement. If information is not provided in the judgement, leave the field with null value.
Please return the response in the identical YAML format:
```yaml
citation: <string containing the neutral citation number>
date: <date in format YYYY-MM-DD>
judges: <list of judge full names>
```
=====
{context}
======
| Neutral Citation Number:
[2008] EWCA Crim 1060
No.
2008/01239/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Tuesday 22 April 2008
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(
Lord Phillips of Worth Matravers
)
MR JUSTICE PITCHFORD
and
MRS JUSTICE DOBBS
- - - - - - - - - - - - - - - - - - - -
ATTORNEY GENERAL'S REFERENCE Nos. 12 of 2008
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
ROBERT COLE
- - - - - - - - - - - - - - - - - - - -
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)
- - - - - - - - - - - - - - - - - - - -
Mr E Brown QC
appeared on behalf of the Attorney General
Mr S J Kileen
appeared on behalf of the Offender
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
Tuesday 22 April 2008
THE LORD CHIEF JUSTICE:
Introduction
1. On 8 February two 2008, in the Crown Court at Manchester, before His Honour Judge Gee QC and a jury, the offender Robert Cole was convicted of the murder or Arthur Gregg. He was sentenced to life imprisonment with a minimum term specified by the judge of 18 years (less time spent remanded in custody).
2. The Attorney General applies under
section 36
of the
Criminal Justice Act 1988
for leave to refer to this court for review the sentence on the ground that the minimum term was unduly lenient. We granted leave at the outset of this hearing.
The Facts
3. Arthur Gregg, who was aged 76, lived on his own at 50 Urwick Road, Romiley, Stockport. He was a retired accountant who had become rather frail and confused in the twelve to eighteen months leading up to his murder, which occurred on 31 October 2006.
4. The offender was born on 30 July 1975. He was aged 31 at the time of the offence. He was a heroin addict who funded his addiction by criminal activity.
5. In the six months leading to Mr Gregg's death, the offender and others had defrauded him of substantial sums of money amounting to nearly £27,000, in respect of building work which they told him needed to be done to his house. Very little work was in fact done, and such work as was carried out was of poor quality.
6. Mr Gregg's son became concerned about his father's mental health and his payments for building works which did not appear to have been carried out. In October 2006 he set up new financial arrangements for his father, whereby he could draw money for his day-to-day expenses but could not readily withdraw large sums from his building society.
7. On 31 October 2006 Mr Gregg went to his building society to try to withdraw £350 in cash for repairs to the house. He was told that he could only withdraw a sum of £10 as a result of the arrangements made by his son, and accordingly he left without the £350. He had required £350 in order to hand it over to the offender who was waiting outside for him.
8. Forensic evidence established that the offender returned to Mr Gregg's house with him and there launched a savage attack upon him which led to his death. Mr Gregg was found alone in his house on 3 November 2006 by his daughter. He had 24 injuries to his head and neck, including fractures of facial bones, and 17 injuries to other parts of his body, arising from punches and possibly from kicks. The focus of the attack was however on his head. It is likely that some of the blows were received by him while he was on the floor. The most likely cause of death was severe blood loss as a result of multiple external head injuries. There was evidence that he had survived for some time after the assault for there was blood in a number of rooms in the house.
9. The offender had disconnected the telephone before leaving the house with Mr Gregg's car keys. He took Mr Gregg's car, drove it to a scrap yard and sold it for something just over £100, from which a deduction was made, leaving him with £75. There was evidence given that at that stage he had with him a wad of cash which, at the sentencing hearing, the prosecution submitted he must have taken from Mr Gregg's home.
10. The offender was convicted by the jury of the murder on 8 February 2008 after a trial that had lasted three weeks. The offender put forward a fabricated account to the effect that he had gone to Mr Gregg's house to try to find money, had searched for it without success; but that he had not gone alone, he had been accompanied by two other men and they it was, according to him, who were responsible for the violence inflicted on Mr Gregg and for his death. There is no evidence that suggests that there was anybody else present at the time of the murder.
11. Murder is an offence that attracts an automatic sentence of life imprisonment. In these circumstances
section 269
of the
Criminal Justice Act 2003
required the judge, if he did not consider that the facts of the offence required the offender to spend the rest of his life in prison, to fix the minimum term that he would have to serve before being considered for release on licence. This depended upon the judge's view of the seriousness of the offence. In considering that question
section 269
required the judge to have regard to the general principles set out at Schedule 21 to
the Act
.
12. Paragraph 5 of Schedule 21 provides, in cases where a full life term is not appropriate, that if the court considers that the seriousness of the offence is particularly high and the offender was aged 18 or over when he committed the offence, the appropriate starting point for determining the minimum term is 30 years. Paragraph 5(2) states that cases that would normally fall within that category include:
"(c)
a murder done for gain, such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death."
13. At the sentencing hearing counsel for the offender submitted that there was a clear distinction between a murder done for gain and the facts of this case, where the murder appeared to have been carried out in frustration because the offender had failed to achieve the gain that he had anticipated. Counsel submitted that in these circumstances the appropriate starting point was not 30 years, but 15 years. He conceded that there were aggravating factors in accordance with those set out in Schedule 21. The victim was vulnerable and underwent severe pain and suffering in the course of the sustained attack that caused his death. Counsel submitted, however, that there were also mitigating factors -- again factors set out in Schedule 21 -- namely, that there was no intent to kill the victim and indeed the attack had not been premeditated.
14. The relevant part of the judge's sentencing remarks is as follows:
"You delivered many heavy blows to his face and head in particular. You are a young, fit, strong man. You inflicted fractures to his facial bones and his skull by punching, stamping on him or using some blunt instrument. At least 40 separate blows must have been delivered, according to the evidence from the Home Office pathologist, and then you left him bleeding badly, unconscious or semi-conscious.
You unplugged his telephone so that if he should regain his senses he would be unable to call for help and then you stole his car, which you then scrapped as soon as you could afterwards to obtain a miserably small amount to spend on yourself on drugs, to which you were addicted.
This was a merciless, pitiless attack by you on a frail elderly man, in his own home where he should have been safe. He survived for several hours after the attack. It is obvious he must have been bleeding badly; there is an enormous amount of blood around his bungalow. And thereafter, hours afterwards, he died alone from the injuries that you inflicted upon him.
In the course of this trial, you have shown not the slightest trace of upset or remorse for what you did. You sought to lay the blame, during the course of this trial, on others hoping to hoodwink the jury.
You are a man with many convictions for offences of dishonesty and violence, including one offence of robbery and you have served sentences of imprisonment in the past. The longest sentence you have served was one of three years' detention in respect of an offence of robbery and you were last sentenced to custody, prior to these matters, in January 2006 ...."
The judge went on to consider the appropriate starting point under Schedule 21. He said:
"I consider the appropriate starting point here is a minimum term of 15 years. I am not convinced the 30 year starting point should apply, despite helpful submissions from Mr Carus. It is not clear to me that this was a murder done for gain. It may well have been done in consequence of a failure to gain.
But, although this is a case with a 15 year starting point, there are, it seems to me, serious aggravating factors. Firstly, under paragraph 10(b), the victim, Mr Gregg, was particularly vulnerable because of his age and state of health. Secondly, under paragraph 10(c), you inflicted physical suffering on the victim before death and you left him effectively bleeding to death.
It is said that I should reduce the starting point to reflect the mitigating feature because I should not be certain that you had an intention to kill rather than to do grievous bodily harm. I agree with that submission, I cannot be sure that you intended to kill rather than to cause really serious bodily harm.
But I balance against that the fact that you delivered many, many blows to this poor man. I regard the aggravating features as being far more potent, as well as in number, double in number, to the mitigating features.
In my judgment, taking into account those two aggravating features and the one less potent mitigating feature, I consider that the appropriate minimum term you must serve before you can be considered for release by the Parole Board is 18 years, less the 445 days you have been in custody on remand before today."
15. For the Attorney General Mr Brown QC has submitted that the judge was wrong not to find that this was a murder done for gain; the judge should have so found and accordingly adopted a starting point of 30 years. Mr Brown referred us to the evidence of the wad of cash seen when the offender went to sell the victim's car after the murder. However, we consider that it would not be appropriate for us to have regard to that evidence as it was contested at the trial and the judge made no mention of it. Mr Brown accepted that. Nonetheless, he submitted that when the picture was viewed broadly this was an attack that was carried out for gain. Quite apart from the fact that the victim's car was taken after the attack, the whole object of the offender's enterprise had been to obtain money from the victim. Mr Brown submitted that, if we did not accept this submission, we should nonetheless proceed upon the basis that this was a very serious murder, notwithstanding that it does not fall within any of the specified examples in Schedule 21, and that we should adopt as a starting point a 30 year minimum term.
16. Mr Brown emphasised the aggravating features in this case: the vulnerability of the victim; the suffering he was caused; the ferocity of the attack; the fact that the attack took place in the victim's home; and the background of attempting to gain, even if this was not directly connected with the attack. Mr Brown referred us to the decision of this court in
R v Peters
[2005] 2 Cr App R(S) 101, and submitted that Schedule 21 should not be approached too rigidly; the reality of the offence should be looked at, having regard to the particular facts.
17. For the offender Mr Kileen submitted that the judge had been correct to conclude that this was not a murder committed for gain and to take a 15 year starting point. Having done so, Mr Kileen submitted that the judge was best placed to decide upon the gravity of the offence. At the hearing before him, leading counsel for the prosecution had relied solely on the submission that this was an attack that was carried out for gain. He had not suggested that, even if that were not the case, nonetheless this was a particularly serious offence. Mr Kileen submitted, it seems to us with justification, that when the sentencing remarks are considered the trial judge had in mind all the relevant aggravation and mitigation.
18. We are concerned that at the sentencing hearing there appears to have been a somewhat mechanistic or arithmetical approach in this case, an approach perhaps encouraged by the terms of Schedule 21. Schedule 21 is intended to provide general guidance to the assessment of the seriousness of an offence. The factors set out in paragraph 5(2) are factors which will normally lead the court to conclude that the offence was one of particularly high seriousness. If it does, then the section lays down a starting point for arriving at the minimum term of 30 years. But whether the court starts at 15 or 30 years, the sentencing exercise requires an assessment of the seriousness, having regard to the facts of the particular case; and that can result, quite properly, in a sentence that is some distance from the starting point that has been taken.
19. On the facts of this case it does not seem to us that the seriousness of this offence is greatly affected by the question of whether the violence was inflicted in the course of trying to obtain money from the victim or after such an attempt had failed. The aggravating features in this case are much more significant than that question.
20. This elderly, inoffensive and confused victim, who had already been pillaged of large sums of money, was brutally battered to death in a hideous and protracted assault in his own home. The seriousness of this offence was high, whether or not it should be categorised as "particularly high". There is mitigation, and it is mitigation that carries some weight: the lack of premeditation and the lack of intent to kill. The disconnection of the telephone lends support to the thesis that the offender did not set out deliberately to kill the victim of his brutality. However, having disconnected the telephone, as Mr Brown observed, the only possible chance that the victim might survive was removed.
21. For these reasons we have reached the conclusion that the sentence imposed by the judge was unduly lenient in that it did not properly reflect the seriousness of this offence. We have concluded that the appropriate minimum term that should be imposed is one of 22 years. We quash the minimum term of 18 years reached by the judge and substitute the minimum term of 22 years. Credit will be given, as by the judge, for the time spent on remand. | ```yaml
citation: '[2008] EWCA Crim 1060'
date: '2008-04-22'
judges:
- MR JUSTICE PITCHFORD
- MRS JUSTICE DOBBS
- THE CRIMINAL JUSTICE ACT 1988
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